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.

24 Responses to “Conventional Wisdom.” As unreliable as “Common Sense” is rare.

  1. The Commerce clause of the Constitution was supposed to maintain free trade between the states. The US was new, each state was full of greedy politicians (as now), and this allowed the new Federal government to keep the states from levying destructive tariffs and other rules on each other which would limit trade between them.

    It wasn’t a rule to grant federal power to regulate a business in detail if it sells something across state lines. It was actually the opposite of that.

    Roosevelt and the New Deal forced the current interpretation as a way to impose federal government control. Sell a donut across state lines? The Feds apply donut regulations on you. There are rulings that producing and consuming your own milk affects interstate prices, so the Feds can apply regulations on you. It is completely natural to apply the same reasoning to just sitting there being uninsured. It is entirely consistent with past rulings and the power of the Feds. It is a bit late to wake up, blink, and say “that isn’t reasonable, to regulate us just because someone might see us across a state line”.

    At this point, accept that you are the serf/pawn of the government “for your own good”. You have the choice of electing whomever you wish, but they get dictatorial power over you until the next election.

    Understand your natural rights. Think hard about what you want the country to be like for your children and for you as you get older. Demand that the Constitution be changed to make its limitations binding, and correct the idiotic rulings which prevent a supposedly free people from asking each other questions (employment law) and trading with each other.

    Russians and Nigerians (for example) are not overall less intelligent, less hard working, or less concerned about their lives than we in the US. They lack a tradition of freedom and they have dictatorial government. We in the US can become much more like them. All we need is the right sort of government, the sort we are seeing implemented right now.

  2. Well put.

    Anyone that believes that the commerce clause is anything but a guard to prevent interstate trade wars, is dangerously stupid and should not be allowed to vote.

    There is plenty of direct quotes defining it thus and history also shows, there was plenty of problems with trade wars between the states during the articles of confederation.

  3. I cannot broadly agree with the assertion that Justice Thomas has consistently sought to limit the powers of government. His disinterest or disregard for the fourth, fifth and sixth amendments does not complement his love for the second and tenth.

    It speaks volumes that the man mistakes money for speech, and cannot distinguish between a corporation and a human being. Scalia and Thomas have each written important and useful opinions, but this demonstrates to me that even broken clocks are correct twice a day.

    (Donning asbestos wetsuit…)

  4. Justice Thomas has taken dead aim at the Commerce Clause in several recent concurrences. If anything ever needed changing, SCOTUS’ interpretation of the Commerce Clause is it. As long as the Court holds that the Commerce Clause means that Washington can control everything and anything, the principle of federalism is dead and there are no limits on Federal power. Which is exactly where we are now, with an all-powerful Federal government and 50 vassal states.

  5. I do agree with Thomas’ pruning of the Commerce Clause, however. Thomas Jefferson’s “This is the house that Jack built” tried to put the Commerce Clause in its proper place more than 200 years ago.

  6. “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?)”

    People who do want that are enormously short sighted. They seem to forget that sooner or later someone they really don’t like will be at the levers of power, so it’s best for everyone to keep that power to a minimum.

    As I asked my liberal acquaintences who were in favor of Obamacare, “How are you going to feel if you wake up one day to find that a President Palin has absolute control over your healthcare?”

    • Yea, they always forget that a government powerful enough to give you everything you want is powerful enough to take away everything you have.

  7. 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 by extension, possibly requiring citizens to buy treasury bonds, mandatory investing into a 401k and/or requiring people stay within a specific weight category. If the federal government can dictate everything via the commerce clause the future potentially becomes somewhat gloomy. I think we can only hope that some balance will be reached before we get to that point

  8. Brad

    While I agree with you on the Commerce Clause argument, the area that I think the local and national tea party movement should by pushing for and not be so concerned with taxes. (And yes i have read the New Yorker article). But what gets me is the fact that you and other treat the greatest case of Judicial Activism in history, the giving or free speech rights to corporations as no big deal (Citizen United). In my copy of the US Constitution and Bill of Right I find no mention of corporate rights. In the article Thomas talks about why Tillman introduced the original act and Tillman wanting to regulate corporations. At that time corporations where not seen as a “person” with all the right that entailed. I my own opinion if Thomas was the true originalist that he claims he either should have talked about the founding fathers views on corporations and way they are people too or he should have upheld the McCain-Feingold and published his own opinion. Yet he and the other made this ruling up out of whole cloth that did not existed before (If some one has any preTillman ruling or precedent about the rights of corporation I would love to read them). The legal ruling that corporation are people and have ALL the right of a person. Yet they have none of the liability of a person. I can not imprison a corporation for any crime, a corporation does note have a nature life span, a corporation can raise unlimited amount of money and spent it in any way it want with little or no accountability. Please do not get me wrong, I am for smaller government, but one reason for government to exist, is to prevent corporation from using their money and power to kill and maim the individual. Unless you all want to live in a world where Love Canals, poisoned water and pollution are everywhere the power the corporations must be balance against the need of the citizen. Just my 25cents

    • Corporations are nothing more than groups of citizens. If the NRA is allowed to voice an opinion there’s no idealogically consistent reason to deny corporations from doing the same.

      Though you can’t imprision a corporation you can imprison the people who run them for any criminal wrongdoing.

      “Unless you all want to live in a world where Love Canals, poisoned water and pollution are everywhere the power the corporations must be balance against the need of the citizen. “

      Your view of what corporations are and what they do looks to be a bit simplistic. Again, a corporation is nothing more or less than a group of citizens acting for some common purpose. They are no more evil or good than the people running them.

      And frankly “I’m for limited government” and “should uphold McCain Feingold” are mutually excusive statements.

    • I won’t claim to agree with every ruling by Thomas. Everybody makes mistakes. And no area is as fraught with as many potential opportunities for contradictory decisions as when you try to apply logic and reason to the law. However, you brought up Citizens United and McCain/Feingold. Allow me to offer up my 25¢ on that one…

      James Felix is right – corporations are no more than groups of citizens. A corporation is not a living, breathing entity, acting with one mind. As such, when you deny a group of citizens the right to participate in government, regardless of the group, you are denying them their rights under the Constitution. Having said that, I have a plan that I think would fix campaign finance, on the national, state, and local levels. And a second part of the plan that would restore balance to checks and balances.

      First, we repeal ALL the current campaign finance laws on the books. We replace them with a very simple system – one where ANY U.S. Citizen – or group of U.S. Citizens can contribute as much or as little as they want to any candiate or party. The kicker is that ALL contributions MUST be reported within 24 hours to a website (preferably one run by a non-partisan, non-governmental entity) that posts the contributions, the dollar figures, and the ownership of the contributing organization. Any group that wants to contribute would have to register with this site, revealing their owners, contributors and controlling interests names. Failure to reveal this information would be a criminal offense. Contributors would be prohibited from making contributions after the election, to prevent influencing the process after the fact. Any citizen could go up on the website and see a candidate’s contributors, and know, instantly, how much each contributed.

      Let’s be realistic. There is NO way to stop groups – corporations, unions, special-interest organizations, etc. – from contributing to campaigns. The minute we recognize this fact, the minute we can start dealing with this seriously. Lost in all the wailing and gnashing of teeth over Citizens United was the fact that unions were allowed to contribute to campaigns before McCain/Feingold was gutted. All the Citizens United decision did was to level the playing field. By getting rid of all that crap completely, we could have something missing from the political campaign process: Sunshine, which is oddly enough, the most effective disinfectant.

      The other thing we should do is to repeal the 17th Amendment, establishing the “popular election of Senators.” The Founders created a brilliant system, with built-in checks and balances to prevent a Federal Government run amok, drunk on power. The 17th Amendment screwed up that carefully crafted system. Originally, there was more to balance of powers than just the separation between the separate but equal Executive, Judicial and Legislative branches. Congress was also designed with that in mind. The “People’s House” was to be elected by the populace. There’s more of them, so one Representative simply doesn’t have the power to screw things up too badly. The Senate was designed as the voice of the States in the Federal Government, with Senators selected by each of the State Legislatures. When you serve at the pleasure of your state, a Senator would naturally consider the interests of his or her state first. When the 17th Amendment changed all that, Senators were suddenly 100 ambassadors at large, and their campaigns financed by the highest bidders. Before the 17th, a group Hell-bent on buying a Senator had to buy 51% of a State legislature. Today, Senators like the recently-retiring Chris Dodd received 80% of their contributions from out-of-state interests.

      I’d like to see an amendment that would return this power to the States. But even better, have the Governor nominate a candidate, and the Legislature make an up-or-down vote. The Senators would serve at the pleasure of the State Legislature, who would have the power to recall them, before the expiry of their terms.

      Throw term limits into the mix, and I think we could reform Congress within six years. And political campaigns would become a lot more open.

      Or we could just require those jackwagons to wear jumpsuits with corporate, special-interest groups and union logos on them, so we’d know who’w bought and paid for ’em.

    • As much as I hate illicit drugs and what they do to people, I think the best solution would be to legalize them, but allow the government to tax the Holy Hell out of them. Nothing makes something quite as desirable as when it’s made illegal. And nothing makes it less affordable as a government excise tax. Hell, with the amount of dope grown in California, they could probably solve their budget crisis in one fell swoop. And you could say BUH-bye to those drug cartels. They’d all have to buy suits and get respectable. Capitalism and free market enterprise has a way of doing that to people.

  9. “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.”

    lol…wut? you know Thomas wrote the Martinez vs. Chavez decision, which in part denied “that Chavez’s questioning violated Martinez’s Fifth Amendment right against self-incrimination even though his statements were not used in a criminal proceeding; and that a police officer violates due process when he obtains a confession by coercive conduct, whether or not the confession is later used at trial. ”

    Thomas concluded that “While incriminating statements obtained by unlawful methods of police questioning may not be used against the defendant at trial, no violation of the Fifth Amendment has been committed until such statements are actually used in a criminal trial. In other words, the questioning alone does not violate the defendant’s Fifth Amendment right against self-incrimination.”

    http://www.civilrights.org/monitor/winter_2004/art2p1.html

    This decision opened the door for coercive interogation in our post 9/11 world for [i]any[/i] criminal case.

    Just because he happens to rule in your favor once in awhile on 2A cases doesn’t mean he is smart, knowledgeable or a good person.

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