Clarence Thomas' Constitution
About ten years ago I told some friends and colleagues that the judicial opinions of Supreme Court Justice Clarence Thomas, often written in dissent of majority opinions eviscerating freedoms, would be widely cited 40 years hence. And, if establishment Republicans were in power, I predicted that the Thomas opinions would be cited even by liberals in the political minority.
Justice Thomas writes with remarkable clarity, consistency, and elegance. His concurring opinion in a 1995 case called McIntyre v. Ohio Elections Commission is a history lesson in the First Amendment protection of anonymous speech. His dissenting opinion in the Kelo property takings case is a stark reminder that even the Bill of Rights runs the risk of becoming dead letter in the face of the insatiable, tyrannical appetite of big government mixed with cronyism.
Conservatives have always had high regard for Justice Thomas, but his star power was often eclipsed by the more colorful Justice Antonin Scalia. However, it appeared to some, me included, that Thomas' opinions somehow seemed less debilitated by previous errors of the judiciary. Those errors were compounded over the years by statist judges who favored government power over liberty. First principles of the Constitution took a backseat to judge-made doctrine.
It is often unsafe to use the word "pure" in the context of law, and especially constitutional law. Purity may be seen, depending on ideology, as a subjective standard in the law. Yet I would describe Justice Thomas' judicial writings as having a purity instead of an ideology. In fact, his writings transcend ideology, which cannot be said of all justices identified as either on the left or the right.
Most frustrating are the "mideologues" on the court, those who are neither consistently left nor right, and who have neither a judicial loadstar nor anchor. Their scattershot jurisprudence deprives the law of two of its main virtues: clarity and predictability.
Over the years, the virtues of Clarence Thomas' constitutional stability and intellectual strength came to be more widely appreciated by conservatives. Some conservatives with a deep historical perspective consider Thomas unparalleled even in an historic context. Recognition of Justice Thomas' influence on constitutional thinking is coming even from unlikely sources.
A recent profile of Justice Thomas by Nina Totenberg of National Public Radio was obviously intended to stem the tide of growing recognition of, and appreciation for, Justice Thomas' constitutional views. The 20th anniversary of Thomas' serving on the Supreme Court may have seemed like a fine opportunity for the NPR crowd to try to take him down a notch. Like most NPR efforts these days, I expect the reverse effect of what they intended.
Leftwing Georgetown University law professor Peter Edelman, one of Totenberg's interview subjects, said, "I think it's fair to call Thomas a radical conservative. He's the Tea Party of the Supreme Court."
Undoubtedly, Professor Edelman longs for an Occupy Wall Street justice.
Ms. Totenberg's interview shook the ivory towers to interview more than just left-wing law professors. She also interviewed establishment Republican law professor Charles Fried. Harvard law professor Fried, a former Republican solicitor general and of Princeton, Oxford, and Columbia Law School pedigree, told Totenberg this about Thomas' written opinions: "They are high-quality work; there's no question about that. They're just completely out of the mainstream."
Snarky, hyper-partisan and increasingly irrelevant, Totenberg leads into comments by the more freedom-appreciating UCLA law professor and immensely popular blogger Eugene Volokh, and Ed Whelan of The National Review, by saying, "[Thomas'] defenders shy from calling his views radical."
Clarence Thomas needs no defenders. Nor is his treatment of the Constitution as the law that governs government radical. His view of the Constitution is consistent with the notion that in America, the authority of government springs from the people, and that American exceptionalism springs from how the Constitution is designed to secure liberty.
Those who consider Thomas a radical or out of the mainstream are either confused or have an agenda inconsistent with the rule of law. The Constitution as our paramount law has been pummeled by those who have misused the rule of law in favor of authoritarian government and the crony politics of the political establishment and the ruling class.
What is radical and out of the mainstream is the open contempt for the Constitution shown by Ms. Totenberg's political establishment allies on the left. They are society's biggest and most pervasive lawbreakers, whose victims include generations yet to be born.
Justice Thomas' Constitution is a far better one than the political establishment would want for America. As for elitist law professors, their prestige tends to rely on messy complexity of the law that favors government power and helps mask or aid government lawbreaking. The exceptions among law professors are proving to be popular for good reason, and their blogging success proves it.
Justice Thomas' Constitution has clarity, consistency, and elegance. It is the people's Constitution. And, as Thomas Jefferson wrote, it is the chains that bind down government.
Mark J. Fitzgibbons is co-author with Richard Viguerie of the e-pamphlet "The Law That Governs Government: Reclaiming The Constitution From Usurpers And Society's Biggest Lawbreaker."