- Oct 6, 2008
- 125,093
- 60,647
"Clarence Thomas has been holding down too long; he hasn't talked for years. The sooner he is replaced with a younger and more able conservative black the better. That was a highly dubious pick from the beginning."
Can't agree with that analysis...
1. Writes Toobin:
"In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court. Since the arrival of Chief Justice John G. Roberts, Jr., in 2005, and Justice Samuel A. Alito, Jr., in 2006, the Court has moved to the right when it comes to the free-speech rights of corporations, the rights of gun owners, and, potentially, the powers of the federal government; in each of these areas, the majority has followed where Thomas has been leading for a decade or more. Rarely has a Supreme Court Justice enjoyed such broad or significant vindication.
This is one of the most startling reappraisals to appear in The New Yorker for many years. It is hard to think of other revisions as radical as the declownification of Clarence Thomas: Herbert Hoover as the First Keynesian? Henry Kissinger as the Great Humanitarian? Richard Nixon, the most liberal president ever (that one might even be true)?
If Toobin’s revionist take is correct, (and I defer to his knowledge of the direction of modern constitutional thought) it means that liberal America has spent a generation mocking a Black man as an ignorant fool, even as constitutional scholars stand in growing amazement at the intellectual audacity, philosophical coherence and historical reflection embedded in his judicial work.
Toobin is less interested in exploring why liberal America has been so blind for so long to the force of Clarence Thomas’ intellect than in understanding just what Thomas has achieved in his lonely trek across the wastes of Mordor. And what he finds is that Thomas has been pioneering the techniques and the ideas that could not only lead to the court rejecting all or part of President Obama’s health legislation; the ideas and strategies Thomas has developed could conceivably topple the constitutionality of the post New Deal state.
The next topic for Constitutional revisionism is the expansive reading of the commerce clause that the New Deal judges used to justify the Roosevelt administration’s ambitious economic programs. The Obamacare health reform depends on that kind of reading of the commerce clause; the penumbras must stretch pretty far for the Constitution to give Congress the right to require all Americans to buy private health insurance. And if the commerce clause can be stretched this far, one must ask whether there is anything that the Constitution blocks Congress from doing.
If gun control and Obamacare were the only issues at stake in the constitutional debate, liberals would find Thomas annoying but not dangerous. Losing on gun control and health care frustrate and annoy the center left, but those are only two items on a long list of liberal concerns.
The real problem will come if Thomas can figure out how to get the Tenth Amendment back into constitutional thought in a serious way. The Second Amendment was a constitutional landmine for the left; the Tenth is a nuclear bomb.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The standard interpretation is that this merely restates an assumption that undergirds the Constitution as a whole and so has no special meaning or significance in law. If reading the rest of the Constitution leads you to uphold some act or law as constitutional, this amendment would not affect that judgment. Therefore it can be and usually is ignored. That is certainly what we were told to do with it in the hallowed halls of Pundit High.
But there is another view of this amendment. The Constitution of the United States confers specific, “enumerated” powers on the Congress, and many of the things that Congress does today are not listed among those enumerated powers. On his last day in office, President James Madison vetoed what today we would call an infrastructure bill. He thought the bill was a good idea, that the country needed the infrastructure and that the federal government was the right agency to provide it, but believed that the Constitution he had helped write provided no authority for Congress to act in this way. If Congress wanted to support infrastructure in the various states, the right way to proceed was to get an infrastructure amendment into the Constitution. Barring that, nothing could be done.
Taken seriously today, that approach to the Constitution would change the way Washington does business. Radically. The list of enumerated powers is short and does not include, for example, health care, education, agricultural subsidies, assistance to the hungry or old age pensions. Most of the New Deal and Great Society (with the interesting exception of civil rights laws which enforce the Civil War era amendments) would be struck down. Whole cabinet departments would close.
The federal government would not wither away completely; even on a narrow reading of the commerce clause (the clause that places the regulation of interstate commerce among Congress’ enumerated powers), Washington would exercise considerable authority over the national economy. But the balance between the states and the feds would change, and among other things, our federal tax burdens would fall, but the costs of state government would rise.
This is pretty much a Tea Party wish list, and it is why the Tea Party movement is so strongly identified with originalist interpretations of the Constitution. Unleashing the Tenth Amendment would move the constitutional status quo back towards the early 1930s when the “Nine Old Men” struck down one New Deal law after another. For Toobin and most New Yorker readers, it is hard to imagine an idea that more radically and totally runs against everything they believe.
That Justice Thomas’ wife Virginia is a prominent speaker and organizer in the Tea Party completes the picture: the Thomas’ are the anti-Clintons, the power couple out to dismantle the progressive American state. The specter Toobin’s piece conjures is of Clarence and Virginia, like Frodo and Sam, quietly toiling towards Mount Doom while liberal attention is fixed elsewhere."
http://blogs.the-american-interest....omas-and-the-amendment-of-doom/#ixzz1WXKBUI2I
http://www.newyorker.com/reporting/2011/08/29/110829fa_fact_toobin
