Clarence Thomas and Stockholm Syndrome.

Supreme Court

Charles Pierce calls Justice Clarence Thomas “the last Confederate.” I hadn’t realized the Justice has a “thing” about the 14th Amendment and thinks it has been incorrectly applied to deny states the power to trample on the rights of U.S. citizens.

Yes, that 14th Amendment. The one that ensured people of color were citizens and stopped the “Black Codes.” The one that has been the primary foundation of much civil rights case law. I started to call this blog post “Is Clarence Thomas trying to prove Cliven was right?” but decided it was a bit too incendiary. But were the Black Codes okay with you, Justice Thomas?

Now that the Court has said it is perfectly fine to expect citizens to sit through prayers to Jesus at a town council meeting — the Court’s three Jewish members and just one of the Catholics disagreed — it turns out Justice Thomas thinks the establishment clause shouldn’t be binding on the states at all. So let Louisiana make Christianity the state religion and tell the Buddhist public school student to suck it up.

I was not aware, however, that several years ago Justice Thomas wrote a dissenting opinion that said states have the right to determine qualifications of senators and representatives elected to the federal Congress.

Emphasizing that “the Federal Government’s powers are limited and enumerated,” Justice Thomas said that “the ultimate source of the Constitution’s authority is the consent of the people of each individual state, not the consent of the undifferentiated people of the nation as a whole.” Consequently, he said, the states retained the right to define the qualifications for membership in Congress beyond the age and residency requirements specified in the Constitution. Noting that the Constitution was “simply silent” on the question of the states’ power to set eligibility requirements for membership in Congress, Justice Thomas said the power fell to the states by default. The Federal Government and the states “face different default rules,” Justice Thomas said. “Where the Constitution is silent about the exercise of a particular power — that is, where the Constitution does not speak either expressly or by necessary implication — the Federal Government lacks that power and the states enjoy it.”

That has been the basic argument since the Constitutional Convention began, and every time that it has been litigated — in the debates over ratificaton of the Constitution, in the battle over the tariff with South Carolina, when Webster stood up to Hayne, when John C. Calhoun fashioned his doctrine of nullification out of it, when the nation tore out its own guts between 1860 and 1865, and, most recently, when “massive resistance” became the strategy through which white supremacy sought to break the civil rights movement — it has failed. It was the basis for the Reconstruction amendments, especially the 14th, which Thomas curiously elides in both his term-limits dissent and his government-prayer concurrence.

So sad.

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  1. c u n d gulag  •  May 7, 2014 @2:53 pm

    Imo – Thomas is less “sad,” and more “pathetic.”

    He’s not a pimple on the butt-cheek of the great Thurgood Marshall.

    What a horrible example of a male human being, Thomas is – let alone, one who is black.

  2. Ed  •  May 7, 2014 @3:29 pm

    I wonder if Thomas thinks that schoolchildren should be required to recite the Pledge of Allegiance. What if someone wants to say “Fifty states, under God, each sovereign and independent, with liberty and justice for all.”

    Anyone out there with kids in school who want to make this an issue? It would be worth it just to watch today’s conservatives squirm.

  3. Stephen Stralka  •  May 7, 2014 @5:29 pm

    He’s not a pimple on the butt-cheek of the great Thurgood Marshall.

    John Marshall too. You’d think a Supreme Court justice would at least have heard of McCulloch v. Maryland.

  4. Doug  •  May 7, 2014 @7:50 pm

    So much conservatism, including the vision (or nightmare) of Thomas is demonstrated in the childish declaration,

    ‘You’re not the boss of me!’.
    I find it difficult to believe that conservatives are worried about what benefits for the people of the individual states will be denied because of federal overreach. Were any states poised to provide health care for their residents, and plans dashed to pieces by Obamacare? Look at environmental protection – how often has lax federal legislation superseded strict state environmental rules, leading to widespread contamination of the environment. How many states have been prevented from implementing workplace safety rules by OSHA? How many coal mine disasters could have been prevented if the states, or better yet, the mine owners, set safety standards?

    Get my drift? If the states or the affected industries were leading the way to solutions in health care, workers rights, women’s rights, environmental regulation, consumer protection, etc I would probably be a state’s rights/ free market kinda guy. For me it’s results, not ideology, that count. History shows that the individual states and the affected industries have not led the way, with very few exceptions.

    Conservatism is based on preserving the status quo. Don’t allow change. The federal government is in a position to mandate change. This fact has never escaped the notice of conservatives, SCOTUS justices included. Ever since the Constitution was drafted, and before its ratification, conservatives have labored to curtail the power of a central government to control them.

    ‘State’s Rights’ is a phony argument. Conservatives do not want to empower states – they want to disempower (new word) the federal government. Call it what it is.

    “You’re not the boss of me!” has to be settled. I think the majority IS the boss of you and of me, in a democracy. Conservatism is all about preventing a majority from exerting power whenever that power threatens the status quo. Conservatism is by nature – undemocratic.

  5. Swami  •  May 8, 2014 @1:48 am

    I started to call this blog post “Is Clarence Thomas trying to prove Cliven was right?” but decided it was a bit too incendiary.

    It wouldn’t be incendiary to me. There’s an old saying that goes something like this: No man is so blind as he who refuses to see. What that means to me is that Clarence is bought and paid for by the white establishment. He sold his soul to the great white bawana. He got his, so eff the rest of them nigras.
    He’s a fraud who was never up to the game, but who has been so enchanted by being the token negro on the Supreme Court that he thinks it’s his intellectual merit that put him there. He’s the product of affirmative action yet he refuses to acknowledge that fact because it interferes with his myth of being the captain of his own destiny. He was so poor as a child that folks just called him patches!
    During his conformation hearing there where four more women besides Anita Hill who where prepared to give testimony of sexual harassment or sexual impropriety coming from Clarence. He was a serial harasser that would make Herman Cain look like a novice.
    I wouldn’t expect Clarence to have any understanding of the Constitution. After all, any guy who is so socially inept that they think a women is going to warm up to them by making vulgar references to a character by the name of Long Dong Silver would seem to me that they don’t have the mental capacity to understand even the most basic things of human understanding.. Maybe his antics might fly at an adult entertainment convention but not at the Department of Labor.

  6. c u n d gulag  •  May 8, 2014 @8:49 am

    “Conservatism is based on preserving the status quo. Don’t allow change.”

    That used to be true.
    Now, now only are modern Conservatives afraid of progress, what they really want, is to regress – back to the 1950’s, if not the 1850’s.

  7. Doug  •  May 8, 2014 @9:52 pm

    Gulag –

    The puppet masters run the conservative movement. They want to curtail the power of the federal government to set and enforce environmental and financial standards. That’s the status quo, and you are right, they want the rules rolled back.

    The fringe fanatical groups are shock troops – the puppet masters don’t have the numbers to pass their agenda. So the puppet masters have their agenda in an envelope, and they are financing the lunatics who can provide blocks of voters. The agenda(s) of the lunatic groups go in the envelope with the primary objective. In exchange for blocks of crazy voters, the crazy agenda(s) get financial & Fox backing. And the leadership of the fringe groups become opponents of environmental regulation and totally devoted free market purists.

    I don’t think we do a good job of articulating the marriage between the fringe groups and the puppet masters. We wind up giving equal weight to statements from kooks like Pat Robertson as we do to the machinations of the Koch brothers.

    Hitler blew D-day by committing his defense to places there was no real threat. Idiots on the fringe deserve to be ridiculed, but the real threat is undermining free and fair elections and enabling legalized corruption in Congress. They have their eye on the ‘king’ which is limiting the power of the federal government to tax, regulate and fine business in the USA. We mustn’t sacrifice the ‘king’ in exchange for a few pawns.

  8. c u n d gulag  •  May 9, 2014 @8:15 am

    Great points!