Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 50 original podcasts with new episodes released every day.
Clarence Thomas and the Rule of Law
There is an article by Dan McLaughlin in the latest issue of The Weekly Standard that you can find online and that you should take the time to read. Entitled “Giving Thomas His Due: The Justice Who Stands Alone,” it is a careful analysis of the jurisprudence of Clarence Thomas — the only Justice on our Supreme Court who takes the Constitution with full seriousness and rejects Woodrow Wilson’s demand that it be treated as a “living political constitution” subject to interpretation in a Darwinian, as opposed to a Newtonian, manner as an organism that evolves in a progressive manner. Here is a snippet:
Thomas’s opinions this term form a coherent whole, one that places no trust in institutions—in the wisdom of judges, the expertise of bureaucrats, or the evenhandedness of either—but depends instead on clear, written rules and structural checks and balances. And his philosophy, while grounded in the same principles as our Constitution itself, should not surprise us. Thomas is not so far removed from his upbringing in segregated Georgia that he cannot remember what it was like to live in a place and time in which the government was staffed and run by people who had no intention of treating you fairly.
Two strategies are available to a citizen confronted by such a government. One is to keep for himself as large a space as possible free of the government, in which to exercise true liberty. The other is to insist on the punctilious observance of the letter of the law. The whims of administrative agencies and the discretion of judges to fashion new rights and rules according to their own policy preferences threaten both of these strategies, to the detriment of whomever the people in power regard as beneath their concern. It is perhaps a supreme irony, but a fitting one, that the man most concerned with keeping alight the flame of these old concepts of liberty and dignity is the justice of the Supreme Court who grew up under a government that wished to accord him neither liberty nor dignity.
The saddest part of this story is that Thomas stands alone. A majority of the current Justices of our Supreme Court were appointed by Republicans, and only one of these insists on the rule of law.
Like!
The “exercise of true liberty” has a very nice ring to it. I’m tempted to dig into some of the founders’ thinking to achieve a deeper understanding of this idea.
I’ve read a few of Thomas’ opinions and he is amazingly coherent — sometimes frustratingly so when the law can’t do what I wish it would, but that is an acceptable price to pay for the exercise of true liberty.
Yes, precisely. Imperfect laws, even bad laws, impartially enforced are better than being subject to the rule of men — even lawyers — and not to law.
I realize this is hardly an improvement, but does not Scalia also occupy the same space? Scalia is a little less willing to upset old, incorrect precedent, but otherwise his view is basically the same (though for different reasons).
It’s those reasons where Thomas really stands out. He’s for both right ends and right means.
I had no idea Thomas had written so much.
I’d love to see Thomas do a Q&A with Randy Barnett or Richard Epstein.
Clarence Thomas was my hero. I used to think that he was a brilliant judicial thinker and clear writer, who got pretty much every decision correct.
But then I heard from Harry Reid that Thomas writes like an 8th grader, and George Takei says that Thomas is a clown in black face. So now I don’t know what to think.
Actually, no. Scalia is an old-fashioned New Deal Justice. He follows the precedents in the jurisprudence — even when, in a self-evident way, they dispense with the Constitution. Thomas looks to the Constitution itself, and when it in a clear and certain fashion contradicts judicial precedent he demands a return to the Constitution.
Or Peter Robinson…
[Actually, that’s from Rahe’s excerpt of McLaughlin’s article.]
Couple things on this. One is that the two strategies are not at all contradictory of each other; rather, each potentiates the other, and neither is particularly effective without the other.
The other thing is that the latter strategy is simply Rule #4, put to effective use by the Left. We need to do the same. In spades.
Thomas could use our help.
Eric Hines
I remember two cases from a while back on which I think Thomas was the only dissenter. One was when the rest of the court struck down a California law preventing the sale of violent video games to children. They did so on the basis that it was a violation of free speech. Thomas dissented, pointing out that the right to free speech had never been understood to include the right to speak to children. This sounds like Scalia, but Scalia voted to overturn the law. The other was a case in which a prisoner had been abused in prison by prison guards. The court ruled that it was a violation of the eighth amendment. Thomas said no, only a sentence actually imposed by a court could be deemed to violate the eighth amendment, and abuse by prison guards was not part of the sentence. Both of these dissents seem to indicate that Thomas is willing to look outside the law itself, even if only to bring common sense to bear, when he decides a case.
EDIT: The video game decision was 7-2, with Thomas joining Breyer in dissent. I can’t find the other case…
From what I’ve read of Thomas’s dissent on the SSM case, I would go further and say he adheres to the Founding documents, including the Declaration, not just the Constitution. And he seems to be, remarkably, mostly alone in this.
I have never understood why Thomas has not been given his due as a great constitutionalist and an admirable jurist. He is eloquent in his simple but forthright opinions, and seemingly fully wedded to the Constitution. I never disagree with his opinions and statements. In person, he is anything but an “uncle tom” and a pawn for Scalia – frequent comments. He is his own man and a true American, an apostle of the Constitution. I am proud to be a fellow countryman of his.
Indeed. Ken Masugi’s piece to which WC links is a must read. Masugi was something of Justice Thomas’s intellectual mentor some decades ago and introduced Thomas to the writings of Harry Jaffa and the idea that our regime principles have much to do with classical natural law.
Right you are. He reads the Constitution in light of the principles it was designed to up hold — as did John Marshall and nearly every Justice prior to the Dred Scot decision.
What is most impressive about Thomas is the care he takes to sort out what the Constitution meant to those who ratified it.
It’s very simple. He’s black and conservative. This is against the received wisdom.
He doesn’t speak during oral arguments and thus gets no press.
I’d have to agree with this.
I once asked Scalia whether he believed that Lochner was wrongly decided. Did citizens have economic rights not at the mercy of the legislature?
Scalia said yes, Lochner was wrongly decided, and no, there are no economic rights not at the mercy of the legislature. Scalia’s reason for believing this is that the Constitution specifies no economic system, neither capitalism nor communism, so must be indifferent between them.
That the existence of a system of property rights not too dissimilar from that which existed under British common law was also the common understanding of our Founders when they talked of “property”, and that property was valuable because it could be (mostly) freely exchanged, which entailed a (mostly) free market, did not seem to matter to Scalia.
At least when I heard Scalia speak, he didn’t seem to believe in unenumerated rights.
This is only true, if it is, because the Court has seen fit to neuter the contracts clause and to refuse to interpret the due process clause (as it pertains to property) to require only a rational interest, which in practice means any reason or no reason at all to deprive us of our property.
A few decisions by 5 Clarence Thomases and we might see the choice between capitalism and communism that the founders made (even though they didn’t have those terms).
Agreed.
I should have given Robert a hat tip on this. He’s the one who pointed me to it. Thanks, Robert.
I just finished the reading the piece a few minutes ago and was planning to write a post on this before I saw this. This is of course better than anything I could write. Thank you for posting this.
I’m glad Mr. McLaughlin published this; I’ve always thought he had been dealt an unfair hand since I saw recordings of his confirmation hearings a year ago. Andrew Breitbart said (on Uncommon Knowledge, I’m in not mistaken) that watching those hearings turned him into a conservative. I already was one, but it was clear to me that Justice Thomas isn’t the simple-minded stooge the Left makes him out to be.
I had no idea he wrote so much, although it seems as though in every case he has a concurrence or separate dissent. God bless him fpr having the bravery to stand up for the Constitution — and himself — when no one else will.
The “different reasons” are the whole story. Scalia is every bit as outcome-driven as the Court’s lefties. Only Thomas, of the sitting Justices, has a coherent judicial philosophy and the intellectual honesty to follow his principles wherever they lead.
Thanks for this helpful reminder Dr. Rahe.
Someone should collect and publish the more interesting opinions of Thomas.
Has anyone published, side by side, all the opinions on which Thomas and Scalia disagree? I suspect that would be interesting.
Especially the philosophical natures of their disagreements. Scalia told me once that he was, essentially, a settled law kind of guy when it comes to precedent and overruling prior decisions.
Eric Hines
Well, at least he’s very consistent in what he tells us :-)
I think he’s every bit as consistent in applying his Constitutional philosophy as is Thomas. I just agree with Thomas more, and more often.
Eric Hines
You make it sound like Scalia is a conservative of the Burkean kind.