Thomas' Take on the Law Rooted in 18th Century

Discussion in 'Politics, Religion, Social Issues' started by IJ Reilly, Jun 17, 2004.

  1. IJ Reilly macrumors P6

    IJ Reilly

    Jul 16, 2002
    The justice's historical perspective challenges many widely held beliefs about the Constitution.

    WASHINGTON — Justice Clarence Thomas may be silent in the Supreme Court during public arguments, but he is not shy about making bold pronouncements in written opinions.

    His latest challenge to conventional wisdom came this week in the Pledge of Allegiance case, when he opined that the Constitution protected a state's right to recognize an official church.

    Almost everyone has assumed that the opposite is true.

    It is not the first time Thomas has tried to turn the standard thinking on its head when it comes to understanding key parts of the U.S. Constitution. He has done so by focusing on the words and history of the document as it was written in 1787.

    "He likes to say we should look at this afresh. Our law is muddled, and we should rethink it," Yale Law School professor Akhil Amar said admiringly of Thomas.

    But the consequences of his "rethinking" could be far-reaching.

    For example, Thomas has argued that the word "commerce" in the Constitution should be understood as it was in the 18th century: the movement of goods across state lines. Under this view, the states could not erect tariffs or other barriers to the free flow of goods.

    In the 20th century, however, the Supreme Court adopted a much broader view of commerce, relying on that definition to uphold federal laws that set minimum wages, prohibited discrimination in the workplace, protected the environment or regulated the manufacture of products, including autos and drugs.

    In a separate 1995 opinion, Thomas said that this broad view conflicted with the Constitution and should be reconsidered. If his colleagues ever agree, many of today's workplace laws would be struck down.

    Soon after joining the court in 1991, Thomas wrote that the word "punishment" in the Constitution restricted only "judges, not jailers." The high court had adopted a broader view of the ban on "cruel and unusual punishment" in the 1970s and protected prisoners from being subjected to needlessly cruel treatment.

    When Thomas denounced this view as flatly mistaken, Justice Harry A. Blackmun pointed out that his opinion would permit the torture of inmates by prison guards.

    Two years ago, Thomas condemned the doctrine supporting the separation of church and state, saying it grew out of "anti-Catholic bigotry" during the 19th century. Then, Protestants controlled the public schools, and immigrant Catholics set up their own schools to escape the Protestant influence, he said.

    Beginning in the 1940s, a unanimous Supreme Court said that the 1st Amendment erected a "wall of separation between church and state," quoting Thomas Jefferson. Relying on that view, the court in the early 1960s struck down state-sponsored prayers and Bible readings in the public schools. Later, the justices voided state laws that funneled tax money into religious schools.

    Many conservatives, including Chief Justice William H. Rehnquist, say the court has gone too far. On Monday, he said the court should uphold the words "one nation, under God" in the Pledge of Allegiance because its daily recital in the schools was "a patriotic exercise, not a religious one."

    In his separate opinion, Thomas said he would go much further and sweep aside 60 years of law by ruling that the 1st Amendment did not limit a state's power to "establish" an official religion.

    "Quite simply, the Establishment Clause … protects state establishments from federal interference. [It] does not protect an individual right," he wrote.

    He pointed to its words: "Congress shall make no law respecting an establishment of religion." Until the Civil War, the 1st Amendment and the rest of the Bill of Rights limited only the federal government. After the Civil War, however, the Constitution was amended and states were barred from infringing on "the privileges and immunities" of Americans, including their rights to due process of law and the equal protection of the law.

    By the mid-20th century, the Supreme Court had ruled that the Constitution as a whole prohibited states and local governments from violating basic rights, such as freedom of speech and religion, by denying fair trials or by promoting an official religion.

    The Rev. Barry Lynn, executive director of Americans United for Separation of Church and State, called Thomas' view "breathtakingly radical."

    "Mississippi could be officially Baptist, and Utah could be officially Mormon. If his viewpoint ever became the majority on the high court, it would tear our country apart along religious lines," he said.

  2. Neserk macrumors 6502a


    Jan 1, 2004
  3. IJ Reilly thread starter macrumors P6

    IJ Reilly

    Jul 16, 2002
    This article left me wondering whether Thomas, had he been on the court back then, would have voted with the majority on the Dred Scott decision.
  4. 3rdpath macrumors 68000


    Jan 7, 2002
    2nd star on the right and straight till morning
    we'll never know...

    but if the same case came up now...his views about commerce would basically legalize sweat shops here...that's certainly a form of slavery.

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