Did you ever stop to think about why you think what you think? Seriously. Let’s stop a minute and consider one of those “meta” questions, like “why do we believe what we believe.” I started down this path today, after reading an article about Justice Clarence Thomas, and how he works within the Supreme Court. The conclusions of the article are interesting. What I learned from the article, and how I arrived at my conclusions bear discussion.
The Clarence Thomas hearings were not the first Supreme Court confirmation hearings to become poisonously politicized and militantly partisan. That honor goes to the confirmation hearings for Robert Bork, an attack on a nominee so vitriolic, the man’s last name quickly became a verb, as in “We’re gonna bork him to make sure he doesn’t get confirmed.”
The Thomas hearings by the Senate Judiciary committee were the stuff of low comedy and high drama. Who can forget the accusations by Anita Hill and the controversy over sexual harassment. But unlike Bork, Thomas was eventually confirmed. Along the way though, he acquired a reputation as an intellectual lightweight, and an “Uncle Tom” for some of the Court’s more outspoken Conservative members.
The media’s meme reflects those Democrat talking points. Over the past 20 years, they’ve criticized him for seldom speaking up during oral arguments, seldom writing as the lead author for the majority opinion, and generally being subservient to Justices Scalia and Roberts.
In an in-depth story published in the New Yorker magazine, writer Jeffry Toobin presents a surprisingly balanced and refreshingly (mostly) meme-free look at Justice Thomas and his wife Virginia. I won’t rehash the article here. It’s worth your time to read it. What’s interesting, however, is that it’s the first time that a liberal publication and a left-leaning writer have broken out of the Stepin Fetchit characterizations and taken an honest look at the man.
As a political junkie, I took an avid interest in the confirmation hearings, 20 long years ago. And I know a political lynching when I see it. And make no mistake about it, the Senate Democrats lynched Thomas. But interestingly enough, Thomas simply went on about his business, blissfully unconcerned about the popular conceptions of him in the media. In a weird way, this has worked to his benefit, for Thomas, as it turns out, is no lackey of the The Man, but the possessor of a fine legal mind, and is not a follower, but a leader on the court. And as fans of the 2nd Amendment, we have him to thank in large part, for the recent rulings reaffirming those rights.
It’s been said that underestimating your opponent is one of the worst mistakes you can make in battle. And when the Left failed to derail the Thomas nomination, they sought to destroy his credibility on the court. Funny thing though, unlike virtually any other position inside the Beltway, Supreme Court Justices answer to no one – certainly not the court of public opinion. Which left Thomas free to do what he does best, which is to write opinions and papers that display a deep and profound understanding of American history, and the Court’s most consistent Originalist.
The media loves to talk about Antonin Scalia as someone who cleaves to the concept that the Constitution should be interpreted according to the “original intent” of the Founders. But Scalia also respects the concept of stare decisis, popularly understood as “relying on precedent.” Thomas takes the view that a bad law is a bad law, precedent or no. And over the last twenty years, he’s been operating in a virtual stealth mode, remolding the Court’s right-wing to follow his lead.
Thomas comes by this love of the wisdom of the Founders courtesy of an education at the prestigious Yale School of Law, a choice he now regrets. Why? Because he was the beneficiary of affirmative action. As a result, he learned quickly that a Yale degree meant one thing if you’re white and another if you were a minority. Since then, he’s become one of the most ardent and passionate advocates for and end to affirmative action, as he believes that it demeans minorities and makes it appear that they can succeed only with the assistance of a law that ostensibly “levels the playing field.”
Toobin’s article sounds a clarion call for the Left to wake up and smell the coffee, vis-á-vis, Thomas. Thomas takes the viewpoint that since the 1920s, the Court has interpreted the Constitution in an overly broad fashion, giving the Government more and more power. During that time, Articles in the Bill of Rights (notably the 2nd and the 10th) have been treated by Congress in much the same way that modern medicine looks on the appendix – as cultural anomalies that are quaint and outdated. Thomas disagrees. And what we have brewing this session will surely be the potential to open the floodgates to reverse close to a century of Progressivism in America. Which begs the question, “Why should you care?”
Well, let’s assume you’re a gun owner. (Probably a safe bet round these parts.) You’ve thrilled to the Courts Heller and McDonald decisions, but groan when you see lawmakers in places like New York, Washington D.C., and Chicago write new laws attempting an end-run around those decisions. What you may not realize is that in the original framing of the Constitution, few of those laws would have been deemed Constitutional in the first place. It is by an increasingly broad interpretation of what is known as the “Commerce Clause” that the Feds have done the “camel in the tent” bit, gradually expanding their control and reach to matters that the Founders intended to leave to the States’ purview.
Think about it. How does the Federal Government regulate guns. They do it because virtually all gun purchases require guns to be shipped across state lines. That makes it “interstate commerce” and the Feds like to think that gives them the right to control it with absolute authority. Revise the interpretation of the authority granted the Feds under the Commerce Clause, and suddenly things like ObamaCare, restrictions on gun sales, and the right to BUY a gun become a State issue – not a Federal one. And while several states have filed cases that would trigger a revisiting of the Commerce Clause issue, no case has as much immediate chance for a gutting of the Feds’ cherished powers under the Commerce Clause as does the suits regarding ObamaCare that the court is almost certain to consider in their next session.
We pride ourselves on being “a nation of laws – not a nation of men.” The Constitution was designed in very specific ways to limit the power of the Federal government, and insure that it would be held in check. Since the 1920s, the expansive interpretation of the Commerce Clause has allowed the creeping, inexorable growth of the Federal Government. The court now has an opportunity to reverse that trend, and potentially undo the last 90 years of the Progressive’s agenda.
It comes down to this: do you want the Federal Government to have the power to regulate our lives, with virtually no limits? (If they have the Constitutional power to compel each of us to purchase something like health insurance, where does it stop?) And more to the point, if they can stretch and distort the meaning of the Commerce Clause to justify forced purchase of health insurance, is it really that much of a stretch that they could force us to buy, oh, say an exorbitantly expensive insurance policy in order to qualify to own a gun? What about forcing gun manufacturers to pay for any wrongful death suit? Or how about the rules they tried to change just two years ago, regulating the transportation and sale of ammunition. No ammo, no guns, right?
Regardless of your politics, the current interpretation of the Commerce Clause should give you pause – if not today, then surely tomorrow. Or you can, like me, sit back and watch the Stealth Justice, Clarence Thomas, take advantage of that lapse in Left wing judgement, and strike a blow for States Rights, limiting the power of the Federal Government, and making sure that the rights we recovered in the Heller and McDonald decisions don’t get taken away by some back-door efforts through the Commerce Clause.