The
progressive Left’s purveyors of baseless, unprovable allegations are once again
after United States Supreme Court Justice Clarence Thomas. New York Magazine’s February 19, 2018, issue serves old wine in old
bottles by claiming Justice Clarence Thomas has been a sexual harasser. This time
they suggest it’s time to consider the “I” word, impeachment.
The
article is so maliciously biased and shallow that one’s immediate reaction is to
begin a line-by-line refutation and continue to the last sentence. However, two
reasons argue against that. First, is that much of the article is stale and long
ago discredited. The second is that it’s more important to understand why the progressive Left wants Justice Thomas
off the bench. Justice Thomas was, is, and will continue to be the anti-constitutionalists worst nightmare.
Rather
than wasting my time in direct rebuttal to yet another intellectually empty
attack on Justice Thomas personally when the progressive Left’s real aim is at his
jurisprudence, I have chosen to emphasize the positive. Accordingly, the following
is the lengthy Introduction to my book examining that jurisprudence, published
in 2012 by McFarland & Company, Inc. (Notes have been omitted.)
It
should be easy for the reader to understand why the book is dedicated “To Clarence Thomas, the keeper of the flame
ignited on July 4, 1776, September 17, 1787, and December 15, 1791.”
* * *
The Supreme Court
Opinions of Clarence Thomas
1991 –
2011
Introduction
In his twenty terms as an associate justice of the
Supreme Court, Clarence Thomas has written about 450 opinions.
Despite their consistency in showing him to be a formidable intellect and
staunch defender of the Constitution, Justice Thomas’s reputation among
laypersons and members of the bar and judiciary is not nearly commensurate
with his judicial achievements. I
cannot count the times that people who should have known better have, simply
upon hearing Clarence Thomas’s name, immediately responded with ignorant derogatory comments about his
abilities as a justice—even though they have never read a single opinion of the
hundreds Thomas has written in his twenty years as an associate justice of the
Supreme Court of the United States.
In the summer of 2005, when
Associate Justice Sandra Day O’Connor announced her retirement from the Court and
Chief Justice Rehnquist’s illness worsened, those who feared that Clarence Thomas
might be appointed chief justice launched a preemptive attack. Not only did
Thomas’s enemies disinter their ugly rhetoric from the early Nineties’ confirmation hearings, they
also impugned Thomas’s then–fourteen term record on the Court. Their liberal/progressive, ideologically driven
attack covered all areas of Supreme Court adjudication: federalism, separation
of powers, judicial review—and worse, Justice Thomas’s admirable opinions in Bill of Rights and
Fourteenth Amendment cases.
Attacks on Justice Thomas have been
unconscionable distortions of an unambiguous and distinguished record of his
twenty terms on the Court. Simple justice requires they be rebutted because his
opinions, often eloquent, reveal him as a thoughtful conservative who
understands the nature and meaning of the Constitution, the role of a Supreme Court justice, the methodology of proper constitutional
and statutory adjudication, and the appropriate resolution of the many issues
that have come to the Court during his now two-decade tenure.
To provide that rebuttal is the
reason I wrote the first edition of this book, and why I have now updated it to
include the Court’s 2006-2010 terms. As
far as I know, this book is the first to examine Justice Thomas’s entire twenty term body of Supreme Court opinions—majority,
concurring, and dissenting.
I want to emphasize that this book
is not a personal biography of Clarence Thomas, tracking his ascent from humble
beginnings to the highest Court in the land. It does not revisit his bruising Senate confirmation battle, an ordeal that
became an insulting and deplorable
spectacle. It is not a commentary on the typically uninformed, and sometimes
deliberately distorted, hearsay accounts of Justice Thomas’s opinions.
To the contrary, this book is about
the jurisprudence of Associate
Justice of the Supreme Court Clarence Thomas, gleaned extensively from his
own words. Not from what others have reported about what Thomas has
written.
The cases and quotations I have
selected are those most illustrative of Justice Thomas’s jurisprudence. They
have been culled from every opinion Justice Thomas has written during
his twenty term tenure on the Supreme Court of the United States.
Many of Justice Thomas’s words have
been written in dissent.
The Latin word for “dissent” is
“dissentire,” which in turn comes from “dis,” meaning “apart,” and “sentire,”
meaning “to feel, think.” It is Clarence Thomas’s “thinking apart”
that is the subject of this book. Its theme is that Thomas’s
opinions reveal him to be a judicial conservative’s conservative.
His jurisprudence can best be described as “conservative” because of Thomas’s
commitment to the Constitution’s structural pillars of federalism and
separation of powers, and to judicial restraint, and to his understanding that fidelity to those foundational
principles can be achieved only by an “originalist” interpretation of the Constitution
and federal statutes.
Thus, to understand Justice
Thomas’s constitutional jurisprudence it is essential that the reader
understand precisely what is meant by the concept of constitutional “originalism.”
Although the principle of
originalism had been around for quite some time, not until 1985 was it formally
presented to the organized bar. In July of that year, Attorney General of the United States Edwin Meese III delivered an historic speech
to the American Bar Association at its meeting in Washington, D.C.
Meese’s speech caused a constitutional explosion whose reverberations are still
being felt, most notably in President George W. Bush’s appointments of John G.
Roberts, Jr., to be Chief Justice of the Supreme Court of the
United States and Samuel Alito to be an associate justice.
In his address to the ABA, Meese
reminded the assembled lawyers and judges of “the proper role of the Supreme
Court in our constitutional system”:
The
text of the document and the original intention of those who framed it would be
the judicial standard in giving effect to the Constitution.
After surveying the Court’s October
1984 term’s decisions in
three subject areas—federalism, criminal law, and religion—Meese
asked:
A jurisprudence seriously aimed at the explication of
original intention would produce defensible principles of government that would
not be tainted by ideological predilection. This belief in a Jurisprudence of
Original Intention also reflects a deeply rooted commitment to the idea of
democracy. The Constitution represents the consent of the governed to the
structures and powers of the government. The Constitution is the fundamental
will of the people; that is why it is the fundamental law. To allow the courts
to govern simply by what it views at the time as fair and decent, is a scheme
of government no longer popular; the idea of democracy has suffered. The
permanence of the Constitution has been weakened. A constitution that is viewed
as only what the judges say it is, is no longer a constitution in the true
sense.
Disabusing his audience of the
notion that a Jurisprudence of Original Intention was some newfangled fad,
merely an interpretive theory de jure, the Attorney General adverted to
the words of legendary Supreme Court Justice Joseph Story, written in the
nineteenth century, which were applicable not only to the Constitution
generally but also to statutory interpretation in particular:
In construing the
Constitution of the United States, we are in the first instance to consider,
what are its nature and objects, its scope and design, as apparent from the
structure of the instrument, viewed as a whole and also viewed in its component
parts. Where its words are plain, clear and determinate, they require no
interpretation.... Where the words admit of two senses, each of which is
conformable to general usage, that sense is to be adopted, which without departing
from the literal import of the words, best harmonizes with the nature and
objects, the scope and design of the instrument.
A few months later, the Attorney
General elaborated his theme:
In recent decades
many have come to view the Constitution—more accurately, part of the
Constitution, provisions of the Bill of Rights and the Fourteenth Amendment—as
a charter for judicial activism on behalf of various constituencies. Those who
hold this view often have lacked demonstrable textual or historical support for
their conclusions. Instead they have “grounded” their rulings in appeals to
social theories, to moral philosophies or personal notions of human dignity, or
to “penumbras,” somehow emanating ghost-like from various provisions—identified
and not identified—in the Bill of Rights.
Meese was referring to the Supreme
Court’s liberal justices, and their allies in academia and the legal
profession, who worship at the altar of a “Living Constitution.” “One Supreme
Court justice,” Meese noted, “identified the proper judicial standard as asking
‘what’s best for this country.’ Another said it is important to ‘keep the Court
out front’ of the general society. Various academic commentators have poured
rhetorical grease on this judicial fire, suggesting that constitutional
interpretation appropriately be guided by such standards as whether a public
policy ‘personifies justice’ or ‘comports with the notion of moral evolution’
or confers ‘an identity’ upon our society or was consistent with ‘natural
ethical law’ or was consistent with some ‘right of equal citizenship.’”
The Attorney General could have
effectively quoted the “Living Constitution’s” high priest, the late Supreme
Court Associate Justice William J. Brennan, Jr. “[T]he Constitution,” according
to Brennan,
embodies the
aspiration to social justice, brotherhood, and human dignity
that brought this nation into being. * * * Our amended
Constitution is the lodestar for our aspirations. Like every text worth
reading, it is not crystalline. The phrasing is broad and the limitations of
its provisions are not clearly marked. Its majestic generalities and ennobling
pronouncements are both luminous and obscure. * * * When Justices interpret the
Constitution they speak for their community, not for themselves alone. The act
of interpretation must be undertaken with full consciousness that it is ... the
community’s interpretation that is sought. * * * But the ultimate question must
be, what do the words of the text mean in our time. For the genius of the
Constitution rests not in any static meaning it might have had in a world that
is dead and gone, but in the adaptability of its great principles to cope with
current problems and current needs. * * * Our Constitution was not intended to
preserve a preexisting society but to make a new one, to put in place new
principles that the prior political community had not sufficiently recognized.
Not content to loose this blather,
Brennan, in a not-so-veiled reproach to originalists, referred to
those who find
legitimacy in fidelity to what they call “the intentions of the Framers.” In
its most doctrinaire incarnation, this view demands that Justices discern
exactly what the Framers thought about the question under consideration and
simply follow that intention in resolving the case before them. It is a view
that feigns self-effacing deference to the specific judgments of those who
forged our original social compact. But in truth it is little more than arrogance
cloaked as humility.
Twenty years after Meese’s remarks,
in an article for a leading Internet website—www.frontpagemag.com—entitled
“Originalism Above All Else,” Steven Geoffrey Gieseler explained
originalism this way:
Originalism alone
produces a body of law evincing the will of America’s citizenry. America has
assented to the Constitution as the nation’s supreme law, altered only by its
own process of amendment. Every day that it remains unchanged, it is ratified
again as our governing document. Any deviation from the Constitution that
occurs outside of its own terms not only lacks the consent of the governed, but
violates it. This includes deviation by judicial fiat. * * * An originalist
judge’s opinions are moored to the intent of the drafters of the Constitution
and its amendments, not the faddish slogans of the day. His or her own
predilections are subjugated to our nation’s founding papers. This results in a
coherent and consistent interpretation of laws. More importantly, originalism
results in a canon blessed with America’s consent via its adopted Constitution.
In 2005, Robert H. Bork, former law
professor, judge of the United States Court of Appeals for the District of
Columbia Circuit, and cruelly defeated nominee for a seat on the Supreme Court
of the United States, observed that
For the past 20 years
conservatives have been articulating the philosophy of originalism, the only
approach that can make judicial review democratically legitimate. Originalism
simply means that the judge must discern from the relevant materials—debates at
the Constitutional Convention, the Federalist Papers and Anti-Federalist
Papers, newspaper accounts of the time, debates in the state ratifying
conventions, and the like—the principles the ratifiers understood themselves to
be enacting. The remainder of the task is to apply those principles to
unforeseen circumstances, a task that law performs all the time. Any philosophy
that does not confine judges to the original understanding inevitably makes the
Constitution the plaything of willful judges.
In other words, the concept of a
“Living Constitution,” so central to liberal jurisprudence and evident in so
much Supreme Court adjudication, means no Constitution at all.
A “Living Constitution” is
anti-democratic because it removes from the public forum and from those
politically accountable, and thus from the electorate itself, important issues
of social, economic, and other policy, and reposes those issues in nine
unelected philosopher kings and queens appointed for life.
There is no worse example of the
“Living Constitution” in action than the case of Griswold v. Connecticut,
to which Attorney General Meese alluded when he spoke of “penumbras.”
A Connecticut statute provided that
“[a]ny person who uses any drug, medicinal article or instrument for the purpose
of preventing contraception shall be fined not less than fifty dollars or
imprisoned not less than sixty days nor more than one year or be both fined and
imprisoned”—proving, once again, that in a democracy popularly elected
legislators and governors can enact outrageous laws.
Because the federal Constitution
does not prohibit the states from enacting outrageous laws—indeed, the Tenth
Amendment expressly recognizes state power to enact laws, implicitly allowing
them to affect public health, welfare, safety, and morals—the Warren Court had
to find some other way to hold the Connecticut statute unconstitutional. The
chief justice assigned the task to Associate Justice William O. Douglas, a darling
of America’s liberals.
In a barely three-page opinion,
Douglas prospected his way through the Constitution. Although what he found was
fools’ gold, it glittered enough to satisfy six more of his colleagues.
According to Douglas, prior cases
of the Supreme Court “suggested that specific guarantees in the Bill of Rights”—dealing
with speech, press, association, quartering soldiers, search and seizure,
self-incrimination, and the education of one’s children—“have penumbras, formed
by emanations from those guarantees that help give them life and substance.” On
the basis of these “penumbras” and “emanations”—but not a shred of
constitutional precedent or other authority—the Warren Court simply invented a
constitutionally guaranteed “right of privacy.”
For the seven-justice majority,
Douglas wrote:
Despite this pretentious
mumbo-jumbo, or perhaps because of it, neither Douglas nor any of his six
colleagues had an answer to a simple question asked in Justice Stewart’s
dissent (in which Justice Black joined): “What provision of the Constitution
... make[s] this state law invalid? The Court says it is the
right of privacy ‘created by several fundamental constitutional guarantees.’
With all deference, I can find no such general right of privacy in the Bill of
Rights, in any other part of the Constitution, or in any case ever before
decided by this Court.”
Despite the clarity of Stewart’s
persuasive dissent—and because the seven man Warren Court majority wanted to
rid Connecticut of what Stewart rightly characterized as an “uncommonly silly law”—the Griswold majority simply invented
an ersatz “right to privacy.” In a barely three-page opinion, this anti-federalism judicial construct would later be used
in Roe v. Wade as a constitutional rationale for invalidating the
anti-abortion laws of virtually every state.
Thus, the notion of a “Living
Constitution,” the opposite of originalism, is not only an anti-democratic and
intellectually dishonest way to interpret our Constitution and federal
statutes. It is also demonstrably capable of manufacturing dangerous ersatz
“rights” that impose tremendous moral, social, economic, and political costs on
this nation and its citizens.
It is Griswold’s
interpretive methodology—imposed on the basic Constitution, on the Bill of
Rights, on the Fourteenth Amendment, and on federal statutes—and the invention
and institutionalization of ersatz “rights,” that has made possible the
decades-long metastasis of the “Living Constitution’s” malignant doctrines into
most areas of American constitutional and statutory law.
In the name of our Founding
Fathers, Justice Clarence Thomas has consistently fought against this
anti-constitutional disease during his twenty terms as an associate justice of
the Supreme Court. More than any other member of the Court in modern times
Thomas has kept the constitutional faith.
* * *
This fealty--not some cooked-up stories about harassment--is why the progressive Left has the audacity to float the notion of impeaching Justice Thomas.
