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The Textualism of Clarence Thomas: Anchoring the Supreme Court's Property Rights Jurisprudence to the Constitution

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The Textualism of Clarence Thomas: Anchoring the Supreme Court's Property Rights Jurisprudence to the Constitution Journal of Gender, Social Policy & the Law Volume 10 | Issue 2 Article 9 2002 The exT tualism Of Clarence Thomas: Anchoring The uprS eme Court's Property Rights Jurisprudence to the Constitution Nancie G. Marzulla Follow this and additional works at: http://digitalcommons.wcl.american.edu/jgspl Part of the Judges Commons Recommended Citation Marzulla, Nanice. "The exT tualism Of Clarence Thomas: Anchoring The uS preme Court's Property Rights Jurisprudence to the Constitution." American University Journal of Gender Social Policy and Law 10, no. 2 (2002): 351-379. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Journal of Gender, Social Policy & the Law by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Marzulla: The Textualism Of Clarence Thomas: Anchoring The Supreme Court's MARZULLA_INAL 4/11/02 6:25 PM THE TEXTUALISM O CLARENCE THOMAS: ANCHORING THE SUPREME COURTS PROPERTY RIGHTS JURISPRUDENCE TO THE CONSTITUTION NANCIE G. MARZULLA∗ I. Introduction..................................................................................................351 II. The Textualism of Hugo Black and Clarence Thomas.................................353 III. Clarence Thomas: The Emerging Contours of His Philosophy....................360 IV. The Implications of Textualism for Property Rights....................................362 A. Lucas v. South Carolina Coastal Council..............................................363 B. Dolan v. City of Tigard..........................................................................366 C. Parking Association of Georgia v. City of Atlanta ................................368 D. Suitum v. Tahoe Regional Planning Agency..........................................369 E. Eastern Enterprises v. Apfel ..................................................................371 F. Palazzolo v. Rhode Island......................................................................375 V. Conclusion ...................................................................................................379 I. INTRODUCTION Justice Clarence Thomas has played an essential role in the Supreme Courts willingness to enforce the plain text of the Constitution, which has, in turn, directly led to the reinvigoration of property rights protection over the last decade. Since his appointment to the Supreme Court in 1991, Justice Thomas judicial fidelity to textualism has served, like a lighthouse on the shore, as a powerful beacon to the Rehnquist Court, constantly ∗ Nancie G. Marzulla is President and Chief Legal Counsel for Defenders of Property Rights in Washington, D.C., the only national non-profit, public interest legal foundation devoted exclusively to the protection of private property rights. Ms. Marzulla would like to thank John-Paul A. Ghobrial, a Defenders of Property Rights Summer ellow, for his invaluable research assistance on this project. 351 Published by Digital Commons @ American University Washington College of Law, 2002 1 Journal of Gender, Social Policy & the Law, Vol. 10, Iss. 2 [2002], Art. 9 MARZULLA_INAL 4/11/02 6:25 PM 352 JOURNAL O GENDER, SOCIAL POLICY & THE LAW [Vol. 10:2 returning it safely to the original intent of the ramers. Thomas reliance on the text of the Constitution, and when necessary, carefully supplemented by the history and context in which the ramers wrote and ratified the Constitution, has resulted in the resuscitation of the Just Compensation Clause of the ifth Amendment1 and property rights protection, rights which have been neglected for decades despite the plain mandate in the Constitution that they be protected.2 Justice Thomas consistently applied the plain understanding of the text of the Constitution in every case that has come before him involving property rights protection. Moreover, he has voted in favor of property rights protection in every takings case that has come before the Court during his tenure.3 1. U.S. CONST. amend. V. [N]or shall private property be taken for public use, without just compensation. 2. See, e.g., MacDonald, Sommer & rates v. Yolo County, 477 U.S. 340 (1986) (requiring a final agency decision about a developers subdivision plans before determining whether any restrictions on property use violated his rights); United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) (finding constitutional a broad interpretation of wetland regulations to include wetlands adjacent to navigable waters); Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984) (holding constitutional a government effort aimed at redistributing ownership of property from a small group of land owners as a matter of public interest); Goldblatt v. Hempstead, 369 U.S. 590 (1962) (holding that a town ordinance regulating the operations of a sand and gravel pit is constitutional even when denying beneficial use of the propertys previous use). 3.See Suitum v. Tahoe Reg. Planning Agency, 520 U.S. 725 (1997) (finding an agency decision to render land ineligible for development to be a valid takings claim for just compensation by the property owner); see also Babbitt v. Youpee, 519 U.S. 234 (1997) (holding an Indian Land Conservation Act provision unconstitutional because the provision sought to consolidate ownership of Indian lands by taking the property of deceased Indians without properly compensating the heirs of the property owner for loss of fractionalized property interests); Bennis v. Michigan, 516 U.S. 442 (1996) (Thomas, J., concurring) (holding that government does not require just compensation for taking property that was used for illegal purposes because the practice deters unlawful activity and imposes an economic sanction). Justice Thomas warned that forfeiture could become more like a roulette wheel employed to raise revenue from innocent but hapless owners whose property is unforeseeably misused . than a component of a system of justice. ; City of Edmonds v. Oxford House, Inc., 514 U.S. 725 (1995) (Thomas, J., dissenting) (arguing that the plain language of the zoning statute restricts the maximum number of occupants of a designated single family dwelling); Dolan v. City of Tigard, 512 U.S. 374 (1994) (finding unconstitutional a citys conditional approval of a building permit in exchange for the commercial property owner to giving ten percent of the property for city efforts to prevent flooding and reduce traffic congestion); United States v. James Daniel Good Real Property, 510 U.S. 43, 81-83 (1993) (Thomas, J., concurring and dissenting) (agreeing that the defendants due process rights were not violated, but expressing general concern about due process violations resulting from civil forfeiture statutes as applied to a defendants involvement with federal drug offenses); Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (holding that government regulations that require a property owner to leave his property economically idle without just compensation constitutes a taking). The one exception not discussed herein is a case in which Justice Thomas joined a unanimous Court in rejecting a physical occupation takings case. See Yee v. City of Escondido, 503 U.S. 519 (1992). In Yee, mobile home park http://digitalcommons.wcl.american.edu/jgspl/vol10/iss2/9 2 Marzulla: The Textualism Of Clarence Thomas: Anchoring The Supreme Court's MARZULLA_INAL 4/11/02 6:25 PM 2002] THE TEXTUALISM O CLARENCE THOMAS 353 Some commentators have dismissed the role of Justice Thomas on the Court, complaining that he simply votes in tandem with other conservative justices on the bench.4An examination of his written opinions and interpretive reasoning easily rebuts this criticism.5 Indeed, his judicial philosophy surprisingly reveals more parallels between his and former Justice Hugo Blacks jurisprudence than any other member of the Court today. It was Justice Black who, after all, insisted that: The United States is entirely a creature of the Constitution. Its power and authority have no other source. 6 Justice Blacks philosophy resisted the tendency of the Warren Court to create social policy out of whole cloth. 7 Similarly, Thomas philosophy repeatedly steers the Rehnquist Court toward the plain meaning of constitutional protections of individual rights and liberty. II. THE TEXTUALISM O HUGO BLACK AND CLARENCE THOMAS In New York Times Co. v. United States,8 a case that Justice Black heralded as the most important irst Amendment opinion of his career, Justice Blacks plain reading of the irst Amendment is evident. Attempting to suppress the publishing of the notorious Pentagon Papers, the United States sought an injunction against the New York Times Company, which the Supreme Court denied. Justice Black outlined a different rationale from the majoritys in his concurring opinion. The majority denied the injunction because a system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity, with the per owners asserted that a rent control ordinance operated as a forced occupation of their property in violation of the Just Compensation Clause. See id. (explaining that the court disposed of the primary property rights issues on procedural grounds, a closer look at this case is not useful for purposes of this discussion). 4. See generally Scott Douglas Gerber, IRST PRINCIPLES:
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