Is Thomas leading a constitutional counterrevolution?

(Note, 10 p.m.: comments have been posted in this entry.)

Alan Roebuck writes:

Writing at The American Interest, Walter Russell Mead quotes and extrapolates from a New Yorker article that portrays Clarence Thomas as the most influential member of the Supreme Court and the intellectual leader of a movement that could “overthrow the entire edifice of the modern progressive state.” Is this wishful thinking or is there hope?

Here are some excerpts from Mead’s article:

… Clarence Thomas may be the Frodo Baggins of the right; his lonely and obscure struggle has led him to the point from which he may be able to overthrow the entire edifice of the modern progressive state.

… 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 New Deal constitution was not as permanent or unalterable as it looked. Intellectually its foundations were shaky, and after two decades of a Clarence Thomas-led assault, the constitutional doctrines that permitted the rise of the powerful federal government could be close to collapse.

In the case of the Second Amendment, the collapse has already come. Back in my Pundit High days, anyone who dared to suggest that the Bill of Rights gave individuals the right to bear arms would have been laughed out of the class as an ignorant yahoo. These days, that is the accepted view of the US Supreme Court and most of the legal profession.

The real problem [for liberals] 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.

Thomas is not a fundamentalist reading the Constitution au pied de la lettre; the original intent of the founders can be established only after research and reflection. The Eighth Amendment ban on “cruel and unusual punishment” can only be understood if one understands the thought of the period, the types of punishment then widely used, and the political and cultural traditions that shaped the thinking of the founders on questions of justice and punishment. One then takes that understanding, however tentative, and applies it to the circumstances of a given case today.

It is not the only possible way to read the Constitution, but it is a very interesting one and it may be the only politically sustainable way for the Court to read it in a contentious and divided country.

… the revival of the Second Amendment was the first great triumph of the new approach. Thomas and others assembled a mountain of evidence that convinced increasing numbers of legal scholars that the Second Amendment must be read as conferring an individual right to bear arms—not merely a generic endorsement of the right of each state to maintain a militia. More, this right was intended as political: to check the power of the state to overawe and crush the people. As a result, the once seemingly unstoppable movement toward gun control has gone into reverse gear.

The startling possibility now beginning to dawn on some observers is that these same methods applied to the Tenth Amendment would lead to a much more far reaching revision to constitutional doctrine.

The prospect of a serious judicial rehabilitation of the Tenth Amendment is real, though perhaps not immediate. And change this sweeping is unlikely to come simply because a relative handful of judges and lawyers change their minds on an issue of constitutional interpretation. A broader change would need to take place in society …Arguably, we are nearing a zone where something like that could happen.

LA replies:

If Justice Thomas is set on leading a constitutional counterrevolution, which would be great news if it’s true, I would hope that he would focus most of all on undoing the outrageous distortions of the Fourteenth Amendment (namely “substantive due process” and the Incorporation Doctrine) that have given the federal courts sweeping power over states and localities that they were never meant to have.

As for the Tenth Amendment, to my knowledge it has never been used in any major federal court decision. It’s basically been fodder for conservative rhetoric, most recently the rhetoric of Rick Perry. It seems to me that if the Tenth Amendment were actually authoritatively invoked by the Supreme Court, it would mean the dismantling of significant parts of the modern state.

But then we get to the practical question. People on the right believe in the Constitution. But do they really want to dismantle, e.g., Social Security and the National Parks system, along with many other familiar features of our society which may well not survive a serious application of the Tenth Amendment?

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James R. writes:

You wrote: “But then we get to the practical question. People on the right believe in the Constitution. But do they really want to dismantle, e.g., Social Security and the National Parks system, along with many other familiar features of our society which may well not survive a serious application of the Tenth Amendment?”

Setting aside Moldbuggian alternatives, this is one area where there is no middle ground—one’s answer here must be binary. Either one believes in the written Constitution, that it means what it says, or one believes in the New Deal constitutional coup, the post-constitutional government. Accepting the New Deal means accepting Footnote 4 (U.S. v. Caroline Products), West Cost Hotel, v Parish, and Wickard v Filburn. This is why liberals and progressives defend the later so rabidly.

Accepting the written Constitution means accepting that there will be wrenching changes as we return to something resembling a legal federal government with limited, enumerated powers. Accepting the New Deal settlement, Social Security et al., means accepting that liberals are right in an “expansive” interpretation of the Constitution. Again, it means accepting such interpretations as Wickard v. Filburn and Footnote 4. Which leaves you with absolutely no constitutional objection to the Federal government mandating that you buy health care.

It also leaves you with no principled way to object to expansive interpretations of the Fourteenth Amendment (substantive due process et al.). Which, again, is why liberals are rabid in defending New Deal (and earlier Progressive-era) jurisprudence/constitutional interpretations. The right would have to follow along in adopting unprincipled exceptions (nothing new I suppose), which reeks of corruption. Progressives will always beat conservatives when it comes to unprincipled reinterpretations. So the right should not play that game: accept only legal, constitutional government, regardless of the consequences. Either that or submit to what we have now, the progressive post-constitutional state.

Now, there is one way of squaring the circle, if the right concludes that they want both the constitution and certain popular programs: amend the Constitution. Let’s say the right decides it wants the Federal Government both to live within a limited Constitution and to continue Social Security. Just pass an amendment authorizing the federal government to run ponzi schemes. Now, usually the amendment process is long and arduous, but I suspect that in cases dealing with popular programs, that the amendment(s) would be passed rather quickly indeed. For better or worse.

D. Edwards writes:

You write: “But do they really want to dismantle, e.g., Social Security and the National Parks system,”

I’ll pass on Social Security discussion, but the National Parks system would benefit being returned to the states. [LA replies: it’s not correct to speak of them being “returned” to the states. In many cases, e.g., Yellowstone, the parks were created by the federal government.] The money produced from these parks would be controlled locally (states) rather than being an afterthought in a mega spending bill. I think it would be easy to sell the public on the need to return this function to the states. [LA replies: I’ve said before: when the country decided in the late 19th century that it wanted national parks, which were a reasonable and good thing to want, it should have done it the right way, and passed a constitutional amendment to give Congress the power to create national parks.]

Robert B. writes:

There is nothing revolutionary about the way Thomas interprets the Constitution. That was exactly the way I was taught in my constitutional law classes in college. As I have said before, the framers and those who came later left a clearly written record of their original intent. It was always and only, the leftists who wanted it to be seen as “a living document”—or worse still, cry that “the Founders could not have foreseen … ”

Roland D. writes:

I certainly want to dismantle Social Security, et. al.

September 1

Leonard D. writes:

Let me second James R. I also believe it is all or nothing, common-sense Constitution or the kaleidoscopic Living Constitution we have. And yes, that means a hard fight politically, exactly because Social Security, Education, Housing and Urban Development, etc—the organs of the New Deal state—are popular. Indeed, I don’t foresee any good way out of our democratic morass. It seems the only way is bankruptcy, in part because only defunding will make the extra-Constitutional functions of government less attractive to the demos.

That said, I’ve long felt that if there is a way out other than bankruptcy, the Supreme Court is it. Only in the Supreme Court is there sufficient insulation from the demos that a restoration would be possible. This is among the reasons that the only political charity I contribute to is the Institute for Justice. It takes more than a Supreme Court justice, or even five, to make a restoration. The Supreme Court, by its nature, only judges cases that come before it. It cannot lead. So you need an outside group to arrange to present the most favorable cases to the Supreme Court in the most favorable order and way.

Posted by Lawrence Auster at August 31, 2011 05:48 PM | Send