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.