This is too much to hope for. Why would a President nominate, and a Senate confirm, a justice who believed in restricting the powers of the Federal government to merely the constitutionally enumerated ones? It runs completely counter to their self interest, unless this becomes a white hot issue with voters – surely a mighty far off day.
Without deciding a question that has quietly kicked around law schools for generations–does the SC follow the polls or not–it might be fair to conclude that it does reflect opinion, with or without ever reading a poll. After all, to borrow a bit of post-modernism, can anyone rise above the “texts” of their times?
What are the texts of our times? Insofar as mainstream thinking fails to grasp the Tea Party (and its fellow travelers, who outnumber it by several orders of magnitude), it also has failed to grasp what else the TP initiated–the return of the constitutional debate to the mainstream discourse.
Call it neo-constitutionalism, if you will. For example, even a casual observer of Glenn Beck is forced to concede that he cheerleads no racist catcalls, but instead, conducts classes on constitutional interpretation (mixed with a heavy dose of conspiracy theorizing to explain why the pre-progressive constitution was subverted.)
This now resonates with increasing numbers of Americans, especially the all-important (and contrary to liberal dogma) well-informed (and getting better informed) voting middle classes.
Historians of eighteenth and nineteenth century America are often struck (at first) by the fact that complex constitutional issues once were the stuff of everyday journalism. Barrels of ink were spilled on reprinting every word of Webster’s reply to Hayne, the Dred Scott Decision, and of course, the columns that became the Federalist Papers.
Your point about Thomas being an outlier who now approaches center mass is important; the question is why now and not then or later, is he able to draw nearer than ever before.
My answer is that Thomas’s voice is no longer alone. I will tell you from having read much Tea Party literature that its core is constitutionalism.
In theory these times ought to be Progressivism’s shining moment–severe unemployment, insidious underemployment, building political consensus around threats to Medicare and Social Security. But that’s not the case. Obama, the avatar of it all, sinks in the polls while his political henchmen have had their license revoked in the House and after 2012, quite likely the Senate.
It is as if the mask has slipped, and the politics of compassion–be it of the liberal or the George Bush variety–is now understood for what it is: will to power.
The public will not (nor should it) give up these benefits–but under the right leadership, who can make something analogous to a wartime case for sacrifice, it just might be willing to curtail the excesses in ways that restore fiscal sanity.
And Thomas will help.
You reap what you sow.
Great blog with insights that could reveal the near future.
“The fantasy is still far fetched, and it is notoriously hard for political movements to get and hold power long enough to shift the balance on the Supreme Court…” (Walter Russell Mead)
It’s perplexing why anyone would write an essay only to admit in the essay’s final paragraph that his main thesis is “fantasy” and “far fetched.”
One thing that is not hard to fathom is what the United States would look like if the commerce clause was eviscerated and the tenth amendment was interpreted in a more robust way. Right now we are witnessing the disintegration of a union of nation states that permits great autonomy to its indivudual components; it’s called the European Union.
It’s no accident that the United States became a superpower in every sense of the word only after the the Supreme Court began interpreting the commerce clause in an expansive way.
I am not sure whether we are talking about Thomas’ fantasy, Toobin’s fantasy or Mead’s fantasy here, but whichever it is, if the fantasy comes true, American economic, political and military power will rapidly decline.
In 1945, Thomas Woodlock wrote an article called “Two Kinds of Liberty” in the Wall Street Journal. In it he referenced a book by Hamilton Vreeland called “The Twilight of Individual Liberty” which catalogued the “evolution” of the commerce clause from what the Founders envisioned through the 1930’s. Both are well worth the read. The article can be found at:
Vreeland’s book can be found on Amazon.
All you needed to do was read his opinion in Raich or Kelo to see the clarity and also the obviousness of his doctrine. A good feature when it comes to law.
What caused the United States to become a superpower after WWII had pretty much nothing to do with progressivism and a federal government growing in strength. Mostly it was the US looking outwards and understand that the world was shrinking and it was necessary to be engaged. Clear reading of the Constitution easily supports a federal government being engaged in ways that defend the entire country without trying to control the internals of the country through fantastically inflated interpretations of the commerce clause. A clause that basically just allows the federal government to ensure the states deal consistently and fairly with each other and not much more.
Of course there should also be the observation that the US became a superpower because pretty much all the other powers had been fractured by the war and anyone paying any attention noticed that WWII smoothly morphed into the Korean war and, ultimately, the Cold War.
This seems to be Mr. Mead’s key point:
“Without some rule of interpretation that the average person can understand and accept as legitimate, the Court gradually loses legitimacy in the public eye.”
The federal judiciary in general, and the Supreme Court in particular, have already lost much of their legitimacy, and are blind to their need for any at all.
The legal profession, by contrast, is acutely aware of these matters, which is why there is a significant and growing discussion among legal academics about an Article V constitutional covention called by the states.
There will be a clear signal when another consitution convention moves from legal theory to practical reality – when that discussion focuses on curtailing unfunded federal mandates that states spend their own tax revenues fulfilling federal requirements.
At that point, if the federal judiciary remains as heedless of its plummeting legitimacy as it does today, a constitutional amendment terminating its defiance of the separation of powers doctrine, and general grabbiness concerning the powers of the executive and legislative branches will come right at ’em by surprise:
“All federal judicial offices are elective on such terms and conditions as Congress may apply. The President may fill vacancies by appointmemt.”
WigWag’s comment on the disintegration of the EU overlooks the details of its (thankfully) imperfect integration. That a common currency was adopted without a central control of that currency was a guarantee of its failure, evidenced in today’s news. Let us watch for a further “dis-integration” as differing cultures and traditions pull this experiment apart. Would the same transpire in North America? Perhaps it is about to happen as a rejetion of Eastern Establishment policies occur in red states.
It’s no accident that the United States became a superpower in every sense of the word only after the the Supreme Court began interpreting the commerce clause in an expansive way.
Picking at a bone here, but the United States became a “superpower” at the end of the 19th century as the manufacturing and business prowess of the robber barons overtook that of the monarchies in Western Europe. The Spanish-American war in 1898 was in no small part a purposeful demonstration of American superiority over a declining Western European superpower. By the beginning of the 20th century, America was recognized as an economic and military peer of Western Europe.
The New Deal expansion of the commerce clause did not come about until the late 1930’s and was not solidified by Wickard until 1942, a period that also saw the nearly complete destruction of most of Western Europe’s economic infrastructure.
The United States was already a superpower prior to the New Deal, and, with the USSR, was the last man standing after World War II. I fail to see how New Deal expansion of the commerce clause has any effect on either of these factors.
Now we know why the liberals recently attacked Mrs. Thomas. And her defenders are not asleep at the switch: remember former Representative Weiner?
Excellent essay. Thank you.
“…if the fantasy comes true, American economic, political and military power will rapidly decline.”
I’ll refrain from pointing out the obvious.
Thomas has been open about his “radical” views for a long time. There is a case where he says it is time to–though not in the case at bar–to revisit and, perhaps, reverse the Slaughterhouse Cases. That was 10-15 years ago.The Obamacare suits may be the perfect vehicle to over-turn those cases.
That is the true death blow to leftists, that economic liberty and freedom is as sacred and should be protected as much as, if not more than, personal liberty.
All of the New Deal–all of the leftist social programs–hold upon the lynchpin fiction that the Constitution does not protect the economic liberty and freedom of the individual.
“It’s perplexing why anyone would write an essay only to admit in the essay’s final paragraph that his main thesis is “fantasy” and “far fetched.””
I believe the main thesis had to do with Justice Thomas.
Your proffered parallel between the United States of America and the European Union is inapt. The EU is a creature of fairly recent origin, and was devised in an attempt to re-empower the dwindling centrality of the noble houses of Europe by creating a new Untied States of Europe for them to run.
However, they’ve since learned (or maybe are only now learning) that copying form while ignoring substance doesn’t work in this instance. When you attempt to duplicate a nation premised upon limited federal government existing to service a citizenry which is explicitly acknowledged to be the actual source of all power, you ought not begin by placing all power in your federal body. Your statement about “great autonomy” being granted to the individual states of the EU is contrary to reality, as is your entire premise that reining in our federal behemoth will cause us to diminish and sail off to the Undying Lands.
Two things jump out:
1. From the New Yorker article: liberals see the black SCJ as dumb and ruled by sexual impulse, but they are not the racists?
2. Even liberals agree that a strict originalist reading of the constitution (in my opinion the only logically defensible approach) undermines all their “progress.”
Will any liberal justices fall on their swords before BHO leaves office in 2013 to ensure a few more locked in young libs?
The people who make America function have now grasped a keen understanding of the necessity to limit the federal govenment and empower the individual via state and local government. Change IS coming.
the US became a superpower because of the productivity of American workers and businesses. Despite the New Deal, the destruction of farm produce, the high taxes that prevented industrial growth in the 1930s, that industry was still there. All FDR had to do is get rid of his socialists, or promote them to irrelevance, like Wallace, and the industry was there quickly. Just as then, decline is a choice. If we wish to block industrial production because we think the wrong people may benefit, we will decline. If we don’t block industrial production, we will grow and thrive. The argument to block production is losing. The failure of the global warming fairytale is evidence that we can not be held down. We refuse to decline. We will grow. America’s fight against oppression is that of the entire world. All can prosper, if men are free.
The EU is a bad example it was the creation of Brussels bureaucrats only commonality was currency but fiscal policy was joke
US has common currency and culture the 50 different states are perfect way to experiment on ideas without blowing up whole thing
California will be the object lesson, Texas the new model
Antonin, not Antonio, Scalia.
–It’s no accident that the United States became a superpower in every sense of the word only after the the Supreme Court began interpreting the commerce clause in an expansive way.–
Not only is that a stupid comment which disregards certain minor events like WWII, it also makes the odd assumption that being “a superpower in every sense of the word” is something the US should be striving for, which seems at odds with what the founders had in mind and may very well make it impossible to be what they did have in mind; a free and robust, self sufficient society founded foremost on liberty.
So the metaphor I would use is that Clarence Thomas has found the small thermal exhaust port through which he can initiate a chain reaction that will destroy the entire imperial construction.
Right now we are witnessing the disintegration of a union of nation states that permits great autonomy to its indivudual components; it’s called the European Union.
That’s 1 way to look at it. Not the way I look at it, there’s not a lot of autonomy there. Which is why they’re failing.
WigWag, I would dispute that it took an expansive view of the Commerce Clause to allow the U.S. to become a super, or even a world, power. The evidence in this is the prominant position of the U.S. even in the days prior to WW-1, and through the 20’s.
Expanding the Commerce Clause beyond what the Founders would recognize just gave us The Leviathan that has constantly nibbled away at individual Freedom & Liberty for seven decades.
When we again place our faith in the Individual (who, after all, is supposed to be sovereign), and look askance at the intentions and actions of The State, we will be a much better country, one more in line with the views and hopes of the Founders.
Wut? It may be “no accident,” but a World War that gave America a huge military-industrial complex and destroyed much of the rest of the world’s industrial base probably had a bit more to do with our becoming a superpower than an expansive Commerce Clause.
I disagree. If the straw man you are raising is 50 separate nations, then of course, we would have to agree with you.
OTOH, there is nothing wrong with states deciding issues like marriage, education, abortion, or the like.
As for the commerce clause, I would be the first to argue that the early court forcing free trade between the states DID make the nation strong and unified.
However, there is nothing in the 10th Amendment that supersedes the commerce clause, and therefore nothing that that prevents the court from deciding matters of interstate commerce.
The question becomes whether I can be forced to buy or sell goods simply by being an economic purchasing unit living the US. If that is the case, then I can argue that political freedom in the US is mostly a myth, and every one us are mere creatures/property of the state.
Read Wickard v Filburn
The case basically says that if you sell a product (and why not extend to services), it impacts “interstate commerce,” and therefore can be regulated.
OBcare extends this awful rule, and says that because “failure to purchase” something “impacts” commerce, I can be forced to buy it.
Whatever your view of this, it’s hard to argue that we are “free” if government has this power. It could just as easily force us to buy GM, because hey, not buying GM impacts commerce.
Overturning Wickard (which is what I would argue for in Obamacare briefs if I wrote one) WILL gut most of the New Deal. This will hardly make us weak or a failing nation.
It would just re-balance the power of the federal government. There would be more winners than losers in this shift.
Acting as if the US would collapse is just plain hyperbole.
I would be fascinated to read a defense of HCR that does not, by implication, overturn Roe v Wade, or you could go the other way around.
This boils down to the old question of a government of laws vs a government of men. We can easily see that the current occupant of the WH firmly believes in the latter and holds the former in utter contempt.
Correct me if I’m wrong, but if Thomas were to overturn decades of precedent, wouldn’t that be an example of the judicial activism that conservatives so despise?
Another thoughtful discussion which appears to tie directly to current political developments. However, one question sticks out after reading this essay: When did the 10th amendment die?
It is suggested that the 10th amendment was a casulaty of the New Deal, but there is a strong argument to be made that it was a victim of the Civil War. “State’s Rights” was a battle cry of the south, and it is telling that the 13th and 14th amendments were enacted as specific limitations on the 10th, a point noted by Dr. Mead when he advises that civil rights laws would be upheld but much of the New Deal and Great Society would be struck down. (It should be caveated however that the Civil Rights Act of 1964 was premised on the Commerce Clause not the 13th and 14th amendments.)
Arguably, the originalist interpretation would focus on the fact that the 10th amendment was ultimately limited by the 13th and 14th amendments, but there have been no corresponding constitutional amendments to support the New Deal or Great Society. While this argument has a common sense legal approach, one cannot ignore that the payment for the 13th and 14th amendments was made in blood and death. One can certainly contend that the judicial sanction of legislative acts of Congress through expansive interpretation of the language of the Constitution is a less costly approach to our society. Was the memory of the Civil War still strong enough during the New Deal that it affected the manner in which changes were proposed? Perhaps Dr. Mead could comment on whether the scars of the Civil War were a conscious or subconscious influence to promote a different response to the Great Depression.
Well, liberals have really only two ways of characterizing conservatives:
1. Buffoons (G.W. Bush, Palin, Perry, ….)
2. Evil super-genius (Rove, Cheney, Gingrich…)
The weird thing is how they often switch back and forth between the two categories as necessary. When the facts become overwhelming (as they have) that Thomas is NOT a buffoon, then he simply must be an evil super-genius. The possibility that someone is a genius (or at least extremely intelligent) without being evil is simply beyond liberal understanding. If they are that smart, they HAVE to know the truth… that liberals are correct in every way. Therefore, they have to be intentionally misleading the unwashed masses for their own benefit.
Don’t cha know?
“One thing that is not hard to fathom is what the United States would look like if the commerce clause was eviscerated and the tenth amendment was interpreted in a more robust way. Right now we are witnessing the disintegration of a union of nation states that permits great autonomy to its indivudual components; it’s called the European Union.”
What’s going to break apart the EU is that it imposes a one-size-fits-all monetary policy on vastly different national economies and cultures. While EU citizens have, in theory, the right to work in any EU member state, as a practical matter, Greek blue collar workers can’t and won’t migrate en masse to Germany when the Greek economy slumps. Conversely, the U.S., with a single language and much more uniform national culture, can deal with regional slumps and growth much more effectively through internal migration of workers. In short, the E.U. doesn’t work because it’s based on the seriously flawed assumption that newly formed political institutions can rapidly and effectively modify long-established cultures.
“Correct me if I’m wrong, but if Thomas were to overturn decades of precedent, wouldn’t that be an example of the judicial activism that conservatives so despise?”
You are wrong.
A veneration of precedent is a central part of the building of a body of caselaw that can serve to explain the bases and rationales for how the Constitution’s provisions are applied to specific instances and situations. This is what makes the Constitution’s provisions available and understandable to all, and hopefully it allows us to predict how our own situation measures up against those provisions.
But that general rule that we don’t reinvent the wheel whenever a different situation arises cannot supersede the more important principle that the Constitution’s own words must always prevail.
Generally, activism refers to analogizing and inferring new rules and principles not easily or commonly seen by others in the Constitution’s words. Finding penumbras in the spaces represents activism; explaining that the words do not, in any sense, guide us to penumbras might well violate the adherence to precedent, but when precedent cannot be supported within the Constitution, the Constitution must come out ahead.
Wigwag, I’d be interested in the case you make for this assertion: “It’s no accident that the United States became a superpower in every sense of the word only after the the Supreme Court began interpreting the commerce clause in an expansive way.” Care to back it up?
Just my $0.02 here, but another big factor that helped usher in the leviathon state was the constitutional amendment that took the election of senators away from the state legislature’s and turned them over to popular vote. The state legislatures voice was lost at the federal level, clearing the way for the unfunded mandates that came a few laters. It seems likely that those never could have happened at the federal level but for this change.
Don’t forget the “or to the people” phrase of the 10th Amendment! The amendment is not a license to replace federal tyranny with State tyranny. Fundamentally, rights pertain to individuals, not to governments, and the “to the people” bit reminds us of this.
If we’re going by original intent, the Lockean theory of individual rights held by the founders has to factor into the analysis.
While Journolista Toobin does make a compelling case for the public rehabilitation of Justice Thomas as a towering figure of intelligent jurisprudence, I kept hearing the dog whistle. Tea Party, Fox News, etc. This is a wonderfully disguised message to the elite New Yorker audience that Thomas is compromised, and is more of an attempt to discredit him than to show how wrong they’ve been about him all along.
Full credit to Journolista Toobing for the sleight of hand.
WigWag betrays a desperate ignorance of the primary role played by geography in American development. It is why we became — and will remain — a superpower. Our heartland consists of by far the largest contiguous parcel of prime farmland anywhere in the world. I farm some of it.
That incredibly productive heartland is well-served by an immense network of navigable rivers, such that Minneapolis (head of navigation on the Mississippi) is 3,000 km inland. Water transport is vastly cheaper than any alternative, which frees immense reserves of capital for other purposes, generating an economic dynamo capable of supporting world-wide air and sea power.
I think that the problem with the EU is precisely because they do not grant enough autonomy to their member states. If they had built a Swiss style confederation with each country enjoying internal sovereignty with foreign and maybe monetary policy being handled at the continental level, things might have worked out better, but the founders of the EU wanted to create the United States of Europe with one size fits all regulations over different cultures and economies.
I am an actual conservative. Not a corporatist like lush dumbaugh or the SCOTUS. Corporations are NOT people. Know who agrees with me? Read up on a fella named George Washington, who warned of the dangers of allowing monied interests to RUN the govt. He didn’t allow it. He warned against it. We now have it, and you praise it.
You are not Americans in the original sense. You are slaves who love your slavery. It sickens me. You are fake fiscal conservatives (you don’t mind one bit the FACT the Pentagon lost $1 trillion in less than 10 yrs. LOST!) while being social liberals (you tremble with fear and slink away when confronted by homosexual agitators). You cannot be bothered with education or critical thought, choosing instead to parrot whatever nonsense lush dumbaugh and his ilk are shoveling on any given day. You are lazy, immoral, stupid, cowardly, conviction-less consumers and jingoists.
Choose something better. Return to Constitutional govt. Return to classical education. Return to America first, and the hanging of traitors. Return to love thy neighbor as thyself. Return to the REAL God, not your false god who tells you you’re good because you plunk $5 in the collection plate, but won’t tell you lying/cheating/stealing/ignoring your neighbor/etc is wrong.
Let the impotent rage commence! I have no concern for it.
Imagine a world where not only the Emperor had no clothes, but the rest of the population too. Then, one day, a respected citizen promenaded in broadcloth. And the next day and the next.
That’s Justice Thomas. He isn’t a revolutionary. He isn’t a bombthrower. He isn’t even saying that the Emperor has no clothes. But by appearing clothed himself–by simply showing what historical scholarship and legal logic reveal about the Constitution–he reveals the platitudes and legal potpourri of his colleagues for what they are.
Jackson wrote what follows in 1837, the first year of what was unarguably the worst depression in America’s history. Jackson had his flaws, and rather serious ones at that, but he saw clearly.
Unfortunately, he would have absolutely no chance of being nominated today by the Democrats who still claim their political lineage from this man.
It is well known that there have always been those amongst us who wish to enlarge the powers of the General Government, and experience would seem to indicate that there is a tendency on the part of this Government to overstep the boundaries marked out for it by the Constitution. Its legitimate authority is abundantly sufficient for all the purposes for which it was created, and its powers being expressly enumerated, there can be no justification for claiming anything beyond them. Every attempt to exercise power beyond these limits should be promptly and firmly opposed, for one evil example will lead to other measures still more mischievous; and if the principle of constructive powers or supposed advantages or temporary circumstances shall ever be permitted to justify the assumption of a power not given by the Constitution, the General Government will before long absorb all the powers of legislation, and you will have in effect but one consolidated government.[large snip]
The Federal Government can not collect [revenue] for such purposes without violating the principles of the Constitution and assuming powers which have not been granted. It is, moreover, a system of injustice, and if persisted in will inevitably lead to corruption, and must end in ruin. The revenue will be drawn from the pockets of the people–from the farmer, the mechanic, and the laboring classes of society; but who will receive it when distributed among the States, where it is to be disposed of by leading State politicians, who have friends to favor and political partisans to gratify?
Here Jackson is basically describing the Democrats’ “stimulus” bill, no?
It will certainly not be returned to those who paid it and who have most need of it and are honestly entitled to it. There is but one safe rule, and that is to confine the General Government rigidly within the sphere of its appropriate duties. It has no power to raise a revenue or impose taxes except for the purposes enumerated in the Constitution, and if its income is found to exceed these wants it should be forthwith reduced and the burden of the people so far lightened.
And whilst we’re at it … a nod to my second favorite Democrat President — Grover Cleveland — who applied his veto pen hundreds of times to legislation emerging from Congress. It was always the same: “I see no manner by which the Constitution authorized Congress to pass such legislation..”
We have a long way to get back on track. Quite fortunately, however, the Constitution’s great suitability for a nation of yeoman farms is likely to become increasingly important as more and more young people opt for independent entrepreneurship more than passingly similar to the yeoman farmers and craftsmen of two centuries earlier.
Why is there any contradiction between being a dunce/worm and being the leading intellectual light of the Supreme Court?
The ensuing conversation demonstrates the reality that common sense is stirring in the land.
Interesting – and hopeful – column. One wonders, however, also at the juxtaposition of the internet and the re-awareness (if you will) of the Constitution.
“Barrels of ink” most certainly were spilled from the end of the Constitutional Convention until ultimate ratification. The voting citizenry most certainly was very well-informed, both because of the ink spilled and the fact that the voter franchise was quite small – and they all read – and argued – everything because they understood that this new Constitution would have a very direct and material effect on themselves, their posterity and everything in which they believed and had only recently fought for.
With the Industrial Age arriving at the printing press, the diversity of media waned. With the expansion of the franchise, the motivation to pay-attention and understand waned, as well.
Which brings us to today. The largest voting bloc – taxpayers – now has – again (arguably for the first time since the end of the 9th Century) – open, diverse media and access to every argument under the sun for whatever programs. And with an increasing mentality of government takings overriding the individual liberty of each American worker/taxpayer, the voter, once again, has an extraordinary interest in paying-attention, understanding and arguing the issues as, once again, the effect on our pocketbook and future will be immense.
We have not yet really understood the impact on politics of the internet. Certainly DC has not. It is very hard to fathom, however, that the increase in information available, coupled with an increase in the willingness – and combativeness – of an anti-American philosophy (Progressivism; the idea that we are not capable of self-government and must be governed by our self-selected ‘betters’) to take-away the freedom and liberty on which America was founded and prospered, that a return to the Constitution – which is yet again, in the post-Information Age world, proving itself a document of freedom for the Ages.. that We the People will not take-back our Constitution from the Left.
Nope. Overturning SCOTUS decisions that conflict with the Constitution is reversing judicial activism and returning the Constitution to the central law of the land it legally, and traditionally, is.
I remember discussing Thomas’ written opinions & dissents with my liberal lawyer girlfriend back in the 90s. She conceded they were brilliant and very well-reasoned, but promised me that Thomas’ top-notch clerks were the ones doing the writing for him. After 20 years, I think it’s finally safe to credit him with the revolutionary intelligence I saw in his opinions all those years ago.
Good article. I enjoyed reading it.
As a Jacksonian and TEA Partier, I am pleased to see that mankind’s bleeding edge culture, American Culture, is responding to the challenges of our times. The spontaneous growth of the TEA Parties, the drive to reestablish the checks and balances on the Government Monopoly’s power as our founding fathers envisioned it. All speak to the fact that American Culture will continue to be mankind’s bleeding edge culture for a long time to come. For those who doubt this I ask, what other culture has ever had a grass roots movement like the TEA Parties? A movement not of terrorists as the leftists would have you believe, but of the most law abiding personally responsible citizens of the American culture, who actually pick up after themselves at their rallies. The TEA Parties are not revolutionaries; they are the bedrock upon which America has been built.
Let us all fervently hope that this “farfetched” thing actually comes to pass.
We hired the federal government to do particular things, and spelled them out in a sort of employment contract called a “Constitution.” We delegated to the federal government only the powers necessary to do the tasks we wanted done, reserving the rest to ourselves.
Now we turn around to find that the employees we hired are doing things we never authorized, and are so distracted by the additional work they’ve taken on themselves that they aren’t competently doing the things they were hired to do.
The current excesses are a lot like hiring a man to paint your house, allocating him money for buying the paint, and coming back a few hours later to find that he’s painted your house the wrong color, and only half of it, swapped your Queen Anne furniture for Modern, sold your car and replaced it with another, bought a backyard swimming pool with money swiped from your bedside table, and is schtupping your wife.
“Don’t worry,” says this audacious hireling, “it’s all in the contract we agreed to; more or less. All I had to do was interpret the words of the contract to mean something other than what you meant by them at the time you wrote them.”
Hurrah for the 10th Amendment! (May its time, and our greater liberty, come soon.)
I number of years ago, in American Trucking v. EPA, I believe, J. Thomas indicated, in a concurring opinion, his interest in seeing the non-delegation doctrine revisited. Now THAT would undue a lot of New Deal legislation. Essentially, doing so would reverse Schecter Poultry and require Congress, not executive agencies, to make the big decisions in comprehensive pieces of regulation like the Clean Air Act. In the absence of such a doctrine, Congress only needs to give agencies an “intelligible principle.” It just passes a general law, and lets the agencies make the politically tough decisions.
I think there is a case to be made for the Feds agreeing to the Tenth amendment Originalist doctrine. The main reason being that they could rid themselves of entitlement obligations by agreeing with it. In having this argument go up before the court the Federal government could in effect have the power to enact entitlements taken away ergo defaulting the issue to the states to handle. This is not as far fetched as it sounds because I cannot perceive a sitting President (nor Congress) as looking forward to having Medicare and Social Security collapsing on his/her watch. I agree that this may be an extreme case, but Presidents have done far more extreme things for politically expedient reasons (Japanese Internment, Habeas Corpus suspensions). I understand that the Feds would lose quite a bit more in this(Federal Agencies), but the crash of entitlements would bring about the ending of many of these Federal agencies anyway due to lack of funding. This is merely a thought.
Pray for our country that this will happen.
I read recently that in Denmark most public welfare taxing and spending is legislated at the local, not the national, level. Can that possibly be?
Wonderful article and comments. Great points. The trend to re-argue the views which were the basis of the operational ideological homogeneity of the Ratification era will assist a process of reuniting people and government. To again evaluate the results of government in terms of contract and limits to allowable goals will IMHO bring millions to an awareness of, and hopefully more participation in, the responsibilities of all levels of government. The discussions of power and authority will help bring many of the uninvolved back into a full participation in society, especially government. The policies pursued and structures built by the class of 1912 and successors are going to get a wide open debate again. Angelo Codevilla has made what could be called a parallel case that much of the present social and political discontents result from the twisting of valuable institutions and networks. The basic frame of the Constitution and US society may need to have a lot of the pasted on doctrines and practices scrubbed off. Perhaps we owe the President and the last Congress a larger debt than would seem obvious. Would a McCain presidency have brought on the questioning necessary for change? Hope for massive peaceful change in 2012. GBUSA
In general, I agree with the core points of Dave’s and R.C.’s post.
The Constitution was a contract, entered into by the citizens of the 13 states and endorsed by all following, on the limits and duties of the federal government.
That document contained reasonable processes for revision and amendment, all going through the member states, and so accountable to the citizens of the federal government. the Federalist Papers and the Anti-Federalist responses provide clear arguments made at the time during the debate on ratification.
The “Living Constitution” bunch have for years claimed that appointed judges with life tenure have the right and the duty to make substantial changes to our government outside the original, agreed-to premises and avoiding the citizens’ approval.
This is an usurption of raw political power by the “employees” at the expense of the governed, the citizens.
Yes, changes will need to be made from time to time, but the POWER to approve those changes resides with the citizens, not with government officials.
Any other arrangement leads to tyranny.
One of the best things Bush 41 did was appoint this man to the court, and he probably only did so to smite the loudmouth left demanding a black justice to replace Thorgood Marshall. The fact that Justice Thomas now threatens the edifice of all their hallowed delusions is an irony almost too delicious to consider. After all he has endured before and since taking office (thanks to them,) his fidelity to his principles and his intellectual independence may grant him the best revenge and a better country for us. All I can say is “Excellent.”
Justice Thomas is not only at the forefront of Constitutional Originalism but is now gaining a body of work with the help of others that is going towards textual reading and internal logic references within the Constitution itself. The works Nicholas Rosencranz on the Subjects and Objects of the Constitution allow for a the structural system that is contained within the Constitution to come forth and show itself so that proper reading of clauses can be done. This isn’t actual Originalism but a form of Structuralism, that is to say finding the structure, its contents and workings, then applying those to individual cases. This is not just Originalism, but actually reading the words within the Constitution and how they are phrased and then finding similar phrases dealing with the same subject so as to find out what the object of a clause actually is. While a strict Structuralist case presentation hasn’t been made to date, this set of works allows for a major change in how the modern court applies Constitutional language to shift out from 20th century thought to one of application of the structure of the Constitution itself. Those two works by Mr. Rosenkranz may very well be a 10th Amendment game changer for the first lawyer taking an issue with a law and then applying a structural analysis to it.
A minor nit to pick: according to Gallup support for additional gun laws was at a peak in… 1959. The trend since then has been downward slowly but steadily, and even when there are upticks along the trend they are not sustained and the previous trend re-asserts itself. It isn’t that the SCOTUS is changing its view but that the public is changing its view and the SCOTUS has been moving to conform with public opinion as a lagging indicator. At this rate the BATFE will be gone in a decade as no matter who has appointed Justices to the SC, the trend has remained the same. And if you flip this around to see that the right to self-defence is granted by Nature and that we cannot repeal Natural Law, then the SCOTUS is finally coming around to understanding this view and affirming it. Not the other way around.
We’ll See, Won’t We?
It really is ashame how poorly Justice Thomas is treated by the black community.
If only he were a liberal he’d be treated like a king by them but instead you never even hear anything about him.
Madison in the Federalist #45 lays out his vision of the US government quite clearly. It’s clear that the 10th amendment is crucial in his understanding of the workings of the government. The Federal Government is meant to look outward and do little most of the time whereas the States look inward and do most of the governing.
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.”
“The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security.”
“As a result, the once seemingly unstoppable movement toward gun control has gone into reverse gear.”
Would that it were so. The facts don’t support that conclusion. Since the seminal June 2010 McDonald v. Chicago decision which confirmed that the 2nd Amendment was applicable to the states RKBA has lost more than it has won in the federal courts. Witness judicial nullification we haven’t seen since the Slaughter-House cases in the district court losses of pro-2nd Amendment cases in Peterson v. La Cabe, Peruta v. San Diego, Richards v. Prieto, Lane v. Holder and Montana Shooting Sports v. Holder (all of which occur after McDonald). With luck courts of appeals will show the legal errors of the district judges therein. Richards is typical wherein Judge England effectively ignores McDonald’s finding of RKBA as a fundamental right, enabling him to apply (erroneously) the lowest level of constitutional scrutiny to the case – reasonable basis. The one significant win of the post McDonald period is Ezell v. Chicago – protecting the Heller/McDonald consensus on the 2nd Amendment being an enforceable civil right, but that only on appeal.
Again, I fully support Justice Thomas’ conclusions, but it not reasonable to say that anti-2nd Amendment law is in “reverse gear.” It’s not even close at this point. Hopefully Alan Gura and others will manage to turn things around soon. As one specific example of how things really are, Gura has not yet been paid by DC for his win in Heller. This is three plus years after the “win” and the man cannot even collect what he has rightfully won from DC in fees and expenses. Chicago, NYC, SF and DC aren’t afraid of 2nd Amendment litigation, because it hasn’t cost them. Yet.
The Constitution is what five old [gentlepeople] say it is.
It is just as likely that Obama will get another appointment to replace a conservative judge and the commerce clause will be interpreted to be unlimited in the power it gives the Federal government as Obamacare is upheld. Chavez got control of Venezuela when he finally controlled the court. Once the court is a completely liberal bastion, the legislature will be largely irrelvent unless a 2/3rds majority in the senate can be elected to impeach the Justices. Look at New Jersey where the Court now selects its own replacements and thus can institute its own continuity.
The next election will determine the direction of the country. To the left and a ever greater government control over all decisions or to the right and personal freedom.
“Not only does the liberal mind perceive him as a disgusting lump of ungoverned sexual impulse…”
And the liberal mind would be the last to recognize this characterization as racist. “Oversexed” was said to be one of the Negro race’s many failings.
Small problem, Frodo failed.
I know he makes a great hero and all that, but, to be blunt about it, he failed. The ring was destroyed because Smeagol forgot where he was, and in his happy dance at getting the ring back he stumbled and fell into the Crack of Doom.
In short, comparing Thomas to a failure doesn’t work. Thomas is best represented by himself, and his work and philosohy.
@ Alan Kellogg: To put it another way, Providence used Frodo’s own weaknesses and the evil of Gollum to accomplish something beyond either of them. My guess is that the Thomases would both say if asked that without God’s grace and plan, their own efforts would come to naught.
“Wigwag, I’d be interested in the case you make for this assertion: “It’s no accident that the United States became a superpower in every sense of the word only after the Supreme Court began interpreting the commerce clause in an expansive way.” Care to back it up?” (clazy8; August 29, 2011 at 2:18 pm)
The United States became one of the two superpowers in the World after the Second World War, not just because the U.S. economy and infrastructure were intact while the economies of Europe and Asia were ruined. After all, it didn’t take long for the Soviet Union to achieve superpower status after the war ended and few nations were as seriously damaged as Russia.
The United States came to lead the world because of the strong, assertive role played by the federal government; this strong federal role was dramatically assisted by an expansive reading of the commerce clause and by assigning the 10th Amendment to irrelevancy.
Why did the United States grow its economy so quickly? Do you think the construction of the Hoover Dam, the Grand Coulee Dam and the Bonneville Dam might have had anything to do with it? While some of these projects were contemplated or even approved in the late 1920s, they were all completed during the New Deal and in subsequent years when the Blue State model dominated. What about the TVA which brought electrification to millions in the south; do you think this might have done something to spur economic development? Without an expansive reading of the commerce clause, the TVA would have been impossible.
What about the construction of the interstate highway system under Eisenhower; this was the Blue State model on steroids; it too would not have been possible without an expansive reading of the commerce clause. Would the United States have achieved economic greatness without the interstate highway system?
What about the expansion of the national park system that greatly accelerated during Franklin Roosevelt’s term? Do you think that might have helped instill a culture of national pride that inspired Americans to bear the expense and national hardship of leading the world?
During the depression, the agricultural economy in the United States collapsed. Roosevelt rescued that sector of the economy with his agricultural policies; would that have been possible without an expansive reading of the commerce clause?
Prior to the 1933 and 1934 securities acts, most regulation of financial markets was done at the state level; states were notoriously bad at regulating financial institutions which dramatically exacerbated cycles of boom and bust. Corporate fraud was rampant. The 1933 and 1934 acts changed all that; without a broad reading of the commerce clause, corporate corruption would have reached new heights. Without the creation of the Federal Reserve System, the American economy would have languished.
Would America lead the world today if tens of millions of senior citizens were impoverished as they were before the creation of the social security system? Would we lead the world if elderly Americans, unable to obtain health insurance because of their age and disease status died for lack of medical care? Without an expansive reading of the commerce clause, the federal government couldn’t have created Social Security or Medicare. It wouldn’t even be able to regulate private insurers who provide health care coverage. Given the universal competition between spending funds on guns and spending funds on butter, how willing to spend money on the military would Americans be if dad and mom or granddad or grand mom were destitute and unhealthy because they didn’t have health insurance?
Don’t you think America’s military strength has anything to do with the fact that the United States leads the world in science? Don’t you think America leads the world in pharmaceuticals because health care research is so much more generously funded in the United States than elsewhere? Where do funds for NASA or the National Institutes of Health or the National Science Foundation come from? They’re funded by Congress and are part and parcel of the blue state model. Do you really think that American business, technology and health care would be as advanced as they are if medical research, agricultural research and health research were funded at the state as opposed to the federal level?
The main reason that the United States is far and away the strongest military power in the world is not just because of the dramatically superior scientific and technological base that the federal government facilitates, it’s because we spend more on our military than the rest of the world combined. Without the economic security provided to average Americans through the blue state model, would Americans keep voting for politicians who fund the military this generously?
We can already glimpse the answer; as the blue state model deteriorates, support for funding the Pentagon is deteriorating not just amongst democrats but amongst republicans as well.
Professor Mead is absolutely right about one thing; the blue state model depends on an expansive reading of the commerce clause and a circumscribed reading of the Tenth Amendment.
Those who think that it is a mere coincidence that America’s leadership of the world and the adoption of the blue state model coincided have a very naive understanding of history. Without the blue state model and an expansive understanding of the commerce clause which undergirds it, America will experience more economic and social turmoil and the consensus around supporting a strong and well-funded military will falter.
This will make the United States far weaker and the world far more dangerous.
My Grandfather’s Son, Justice Thomas’ autobiography, presents a strong case Anita Hill is a liar. From what I recall, the other witnesses that Toobin says Biden didn’t call to testify wouldn’t confirm the main allegations, just occasional remarks from Thomas they didn’t like.
Thomas is a tough boss, as the article shows.
Moreover, Hill followed (trailed?) Thomas before, during, and after all these allegations are said to have taken place, trying to use him to further her career for many years after he made it clear she wasn’t a hard enough worker by his standards.
He’s got some evidence, believe it or not, and claims no guilt on his part, only his regret at having run into a psycho in Hill.
Notably, neither Dr. Mead nor Jeffrey Toobin describes the school of interpretation which has long held sway over originalism, “The Living Constitution.” Let alone tries to justify it.
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.
I went to several schools during my days – anyone who dared to suggest that the Bill of Rights DIDN’T give individuals the right to bear arms would have been laughed out of the class as an ignorant yahoo.
Lush Dumbaugh? Please…Conservatism owes a debt of gratitude to Rush; a true bulwark of the right already reaching a second generation of listeners.
The tea partiers are INDEED revolutionary. As very soon you will find out when [reference to violent methods deleted].
“The social science logic was straight out of a Berkeley coffee house–Miller.”
It started before that. See Leopold and Lobe at Wikipedia and the excerpts below.
“During the 12-hour hearing on the final day, Darrow gave a speech that has been called the finest of his career. The speech included the following: “This terrible crime was inherent in his organism, and it came from some ancestor… Is any blame attached because somebody took Nietzsche’s philosophy seriously and fashioned his life upon it?… It is hardly fair to hang a 19-year-old boy for the philosophy that was taught him at the university?”[20
The outcome of this trial has had repercussions to this day, as Darrow popularized the notion that a defendant might not be guilty of his crime because of his inherited traits—to use Darrow’s term, Leopold and Loeb were “broken machines.”
Wonderfully crafted piece, Walter. The one bone I’d pick is the conga line you fall into for Perry; the next great neocon hope. It’s interesting that while the Republican intelligentsia clamor for him he trails the Republican National Committee’s own straw poll by 40% to the candidate who goes uncovered and disrespected by the media and GOP elites. This person’s legions started the Tea Party, Ron Paul. Shhh, mums the word! God forbid we’d support the Constitutionalist candidate for President.
@Terry: not an endorsement of Perry or anyone else. I normally try to stay out of that business, though if I do decide to endorse someone VM readers will know.
I agree with Wigwag, it’s because of the hoover dam, TVA, national parks and comfy seniors America became the global superpower.
Also, to summarize another point: military dominance may have also contributed but only because blue state government created the conditions for a population willing to elect pro-military politicians.
I need to be cautious, because Mr. Mead may have been putting words into Liberal’s mouths:
“Liberal America has spent a generation mocking a Black man (Thomas) as an ignorant fool.”
“There are few articles of faith as firmly fixed in the liberal canon as the belief that Clarence Thomas is, to put it as bluntly as many liberals do, a dunce and a worm.”
Assuming for a minute that Liberals actually do think this way, then this says much more about them than it does about Justice Thomas – and it isn’t pretty. They say Justice Thomas is an idiot and a fool…..based on what? Anything at all?
Liberals tend very strongly to live in their own heads. They tend to see and hear only what they want to, and ignore the rest. And they tend to believe what they want, irrespective of experience, common sense, evidence, and reality.
Liberals also tend to constantly lie to themselves, and to each other. This is especially true with Liberal leaders.
I have sometimes listened to Liberals talk amongst themselves when they thought nobody else was listening, and I do not recall a single statement that was true. Everything said was wild, improbable exaggerations that the speaker could not possibly have known. And their response to those statements was not doubt, but rather even wilder and even more improbable exaggerations. They did not seem to care in the least what was true and what was merely assumed BS or flat-out lies.
And nobody asked for any evidence or a logical argument to support even the most outrageous claims. It sounded as if they had at least partially lost their minds.
It is one thing to constantly and viciously attack conservatives, using lies. But to think that many Liberals actually believe those absurd and nasty lies, based on absolutely nothing at all? Well, that really creeps me out.
“Small problem, Frodo failed.”
Yeah, yeah, yeah. Repeat a lie enough times and it becomes a public truth. “Bush lied.” “Obama offered debt ceiling deals.” “Frodo wasn’t going to throw it in.”
The dwarves and the elves have been bad-mouthing Frodo ever since he showed up with the Ring and wouldn’t simply hand it over to them, and the entire stable of elfin-fantasy-genre authors have been in the tank for the elves forever, and then they get that guy who looks faintly like Michael Moore to make the movie – I mean, what did you expect?!
If Justice Thomas is doing as Toobin believes, then he truly is an intellectual giant. At the outset of his tenure, Justice Thomas would have had to possess a deep understanding of every component of constitutional jurisprudence comprising the New Deal framework and how best to weaken them in the context of discrete but very different cases. Then, at every new opportunity, he would have to weaken these components as best he could without raising alarm or doing injustice to the litigants. And over time, he would have to enlist others to assist in the sabotage, either wittingly or unwittingly, while convincing them that their efforts did justice in the context of each discrete case and constitutional jurisprudence, generally. Ultimately, the court would be called to demolish the constitutional jurisprudence they’ve been carefully building for decades in favor of something their lowliest colleague has been designing all along. That’s a tall order.
Picture a lowly welder attempting to sabotage the steel structure of a 90 story high-rise by himself. He’s so lowly that nobody pays attention to him, so he’s free to move about structure with his blueprints, cutting a critically important beam here and a crucial rivet there. The next phases of construction proceed, and no one notices anything. Finally it’s time to attach the facade, and as the last panel is being affixed, the high-rise collapses on itself. Can this really happen?
> Small problem, Frodo failed.
Well, its obvious from the first sentence that Mead never actually read the books.
The idea that Sauron “paid little attention to the danger posed by two hobbits” is rather ridiculous, considering a good portion of all the books involved Sauron trying to track them down.
He grossly misunderstood what they were trying to do, because the selflessness behind the destruction of the Ring was not something he could ever imagine anyone wanting to do.
But there was no lack of attention to the hobbits.
So this was a great commentary on Thomas, but a very bad analogy.
@Jay: “Correct me if I’m wrong, but if Thomas were to overturn decades of precedent, wouldn’t that be an example of the judicial activism that conservatives so despise?”
The Constitution is the governing document of the country, which every judge swears to uphold. Precedent is not law; it is a guide judges can refer to when examining a question. Think of precedent as being like Cliff Notes. If your Cliff Notes contradicts the actual book, then you discard the Cliff Notes, not the book. If precedent contradicts the Constitution, then you discard the precedent, not the Constitution. The provisions of the Constitution can only be legally altered by Amendment, not by precedent.
It is also noteworthy that the “decades of precedent” you cite in fact overturned *centuries* of precedent before them dating back to the founding era. That’s where the activism lies. The overturning of unconstitutional precedent by recent courts is not merely allowed but demanded of men who swear to uphold the Constitution when they take office.
August 29, 2011 at 9:05 am
It’s no accident that the United States became a superpower in every sense of the word only after the the Supreme Court began interpreting the commerce clause in an expansive way.”
The US became a super power after every other super power had immolated themselves in two globe spanning wars. We were the “last man standing”. Had this not happened, there is no reason to believe that a obscure nation, off the beaten track, would have become preeminent (the same applies to the USSR’s rise). We may be in the midst of witnessing a return to a more normal state with numerous centers of power.
Ron Paul 2012!!!
It has been conceded by the author that a narrow reading of the commerce clause does not preclude the Federal Government’s investing in infrastructure projects. The dams and the TVA may have happened during the New Deal years, but you know as well as I do that correlation causation. By your own admission the projects were all approved well before FDR came on the scene; this completely undercuts your point.
Ditto. Note that a narrow reading of the commerce clause does not mean there is NO commerce clause; things that directly affect or are affected by actual commerce between actual states could certainly fall under the Federal Government’s purview, even according to Ron Paul.
I think you’ve hit on the real source of our national pride and the engine of our economic juggernaut.
Agricultural rescue and regulation of financial markets:
I think both of these would probably survive a narrow reading of the commerce clause, dealing as they do with ACTUAL COMMERCE BETWEEN STATES. NEXT!
Social Security and Medicare:
Now we’re getting to the good stuff.
If people had invested what they paid into Social Security over ANY GIVEN 40-year period into private retirement plans instead, they would 1) have a better-funded retirement, 2) be able to invest more or less in it as they saw fit, 3) be able to make a spouse or a child a beneficiary, IOW, transfer it, 4) not bankrupt subsequent generations to pay for their retirement.
Similarly, if Medicare taxes went to pay for private insurance instead, 1) medical costs across the board would be lower because of competition, 2) private insurance COULD be regulated (the only thing preventing this now is, ironically, regulation prohibiting insurers from operating across state lines), 3) the elderly would be in a risk pool of people of all ages, not all by themselves, thus lowering premiums…
But nice attempt anyway at a strawman emotional appeal OHNOES! THEY’RE KILLING GRANDMA!
Science and the Military:
Now this one’s my favorite!
1. America’s military strength has plenty to do with our world-leading science. But you’ve got it backwards! So much of our world-beating science comes from military projects! The military being one of the Federal Government’s few undisputed Constitutional obligations, and having nothing to do with the Commerce Clause, I fail to see what this has to do with anything.
2. America leads the world in pharmaceuticals because health care research is so much more generously funded in the US than elsewhere. Absolutely. Guess who funds the lion’s share of it? THE BIG BAD PHARMACEUTICAL COMPANIES! AND THEIR FILTHY PROFITS!
As for NASA, I read a paper a month or so ago that argued rather cogently that NASA was a huge drag on the space exploration industry – that’s right, prior to NASA there was a burgeoning private sector doing all kinds of projects with rocketry, plans for space flight, all small privately-funded projects. All dried out and swallowed up by the Big Government Black Hole.
The Blue State Model has brought us identity politics, a dependent class, a system of transfer payments that threatens to bankrupt the entire country, and a complete disconnect of actions from consequences.
Good Freakin’ Riddance.
Judicial Activism? No.
Say Harry Reid painted a mustache on the Mona Lisa because he thought the Da Vinci product insufficient; then if Tom Coburn erased said hairy lip it would not be artistic activism, it would be preservation.
“The federal judiciary in general, and the Supreme Court in particular, have already lost much of their legitimacy, and are blind to their need for any at all.” – #9
And, I might add, the Legislative and Executive branches. I find few American citizens who do not feel that our electoral and voting mechanisms are not corrupted by fraud or made useless by lack of honest representation within the major parties. Or the unholy marriage of politics and special interests. Like they say, if voting could change anything, it would be illegal.
mike #70. Yep, me too. But then, my friends and I were the kids of WWII and Korea vets who worked in coal mines, steel mills, river barges, farms – and they weren’t going to disarm for anyone. It wasn’t unusual for high school kids to have deer rifles in the trunks of their cars parked at the high school so they could go hunting after school let out.
The midwest is a philosophically different world than the elite coasts.
To carry forward the analogy, for those LOTR fans, remember that Frodo and Sam needed a diversion of Sauron’s eye to continue their quest to destroy the ring. Gandalf and Aragorn organized an attack on the Mordor’s gate and diverted Sauron’s gaze from Frodo and Sam. Perhaps in a similar fashion some of us Tea Party fans can organize such a diversion for Big Government gaze (Sauron).
“Where the public goes wrong is in whom it accepts in each jurisdiction as plausible candidates (jurists) – not men of proven knowledge, ability and purpose but men who appeal to various unexamined prejudices: ethnic, religious, national-origin, occupational, aesthetic, regional, personal and the like. As Plato brought out in his dialogue Gorgias the politician uses rhetoric to flatter and seduce his public and to carry the decision even against the man of knowledge and sound judgment.” Thus unwitting beneficiaries of Blue Model governance can support reigning in commerce clause application.
“Aside from party regulars, most voters, in the belief of politicians (jurists), vote punitively. What they are voting against, furthermore, is not ordinarily some disliked policy but, usually, some personal characteristic of the man or woman” (Clarence Thomas, Barack Obama, Hillary Clinton, etc.). What their vote will do for them in terms of long range policy most are unsure. “They prefer Gorgias to Socrates” and attach vast importance in candidates to race or ethnic grouping, sex, religion, national origin, and general conventional outlook and behavior – thus candidacies currently fashionable vis-a-vis 2nd and 10th amendments can be thoughtlessly used to ascribed to Blue Model nightmare/New Deal regulations social conditions justifying judicial rehabilitation.
I get pretty sick of hearing libs and rinos refer to my social security and medicare as “entitlements.” I have had nearly $300,000 withheld from my life’s pay at the point of a gun for these “entitlement.” Our government’s problem is not current payable entititlements it is out of control liberal spending, corruption, and waste. We tae partiers are coming for you elites. Count on it.
A current example of the 10th Amendment in action is the issue of liquor sales/consumption in these here United States.
In Texas, you have to go to a convenience store/grocery store to purchase beer or wine. For hard liquor, you go to a liquor store. The hours you can purchase alcohol at the first are different from the second. Also, you can’t drink the stuff there–just buy it and git, or you’re breaking the law. If you want to have a drink, you go to a restaurant or a bar–and the drinking hours there are different from the convenience stores and liquor stores.
Anyone confused yet? Even Texas residents get crossed up on this stuff. But then you go to another state, and the laws concerning alcohol sale and consumption are completely different.
Democracy in action. Gotta love it.
@Gary: The constitutional amendment repealing Prohibition specifically gives states the right to control the sale of alcohol within their boundaries, so this isn’t a Tenth Amendment issue. But you are right that state government can go wrong as well as the Feds; the fight for good government is never done.
@ Vlad (#40)
Umm . . . Are you by chance related to the other Vlad? Vlad the Impaler?
Sauron was hunting the hobbits in the beginning because they had the ring. He did not pay attention to Frodo and Sam sneaking into Mordor because it didn’t occur to him that the good guys would try to destroy the ring. He thought they would use it against him.
Justice Thomas has his great effect because he thinks clearly; which is to say that he sees the consequences of his opinions.
I take an example of muddled thinking. In the case of Brown v. Board of Education, the justices did not recognise that their efforts to outlaw segregation merely reaffirmed it. They made recognition of race a right.
Now the problem arises – who is to define race? The law is color-blind. How can one recognize the color of skin of a party to a law case?
The nature of Justice Thomas’ jurisprudence is clearly seen in the statement that he looks through the Constitution at the Declaration; the Constitution seen in the light of the Declaration.
Quiet waters run deep. The Left better bring their water wings.
As an aside, a fairly strong argument can be made that Herbert Hoover pursued Keynesian-like policies before FDR did. (I say Keynesian-like because JMK published his General Theory after Hoover left office.) Murray Rothbard makes quite a convincing case that Hoover’s policies laid the foundation for the New Deal in his book “America’s Great Depression”.
enumerated powers. I like the sound of that. and that states rights stuff. I like the sound of that too. Limited federal government. has a certain ring to it. Ole Abe was quite the thinker when he moved the argument for the civil war from states rights to slavery. this ‘color of skin’ stuff can sway a crowd today. Look for it in the next election. Is America ready to move back to ‘states rights’ realizing that the ‘color of skin’ argument does not really mean ‘freedom’ for any group of people? But rather a hidden agenda of growing government for the benefit of the governors and not the governed.
As an aside, there is a strong argument to be made that FDR built the New Deal on top of Hoover’s policies after the Crash of ’29. Murray Rothbard, in his book “America’s Great Depression”, makes quite a convincing case in support of that argument.
Thomas’ view is not prevailing because of its intellectual strength.It is because on most subjects there is a solid five vote conservative political majority on the Court. The “controversial” and vague portions of the Constitution mean what the justices say they mean. It is politics by other means. Bush v. Gore only made sense as a political decision. In the case of Citizens United, Stevens clearly had the better of the “originalist” argument about how the Framers viewed “joint stock companies.” It didn’t matter. The Big Five thought free corporate spending would help the GOP and that is how they voted. And it is fair to say that the liberal jurisprudence on abortion has just as little or as much actual intellectual content. Among other things, its “privacy” rationale has never dealt with whether a fetus is a person. Rather, the cases can be understood as reflecting the liberal political belief that there ought to be a right to abortion. Toobin belongs to the Supreme Court clerisy,which believes as an article of faith that there is real intellectual content at the bottom of all this. There isn’t. Some judges (or their clerks in Thomas’s and many other cases) write better than others but there is no ‘better’ or ‘truer’ understanding of say the First Amendment’s religion clauses which everyone is striving for. In almost all cases dealing with parts of the Constitution which are unclear politics determines how it all comes out.
If Obama wins the election in 2012 and one of the conservatives were to die or resign and a liberal were appointed, the Thomas Revolution would be OVER and no more articles will be written about his hitherto unseen genius. If Rick Perry wins,the opposite will likely be true. It really is that simple.
STOP calling it “Obamacare”.
It’s the Affordable Health Care for Americans Act or “healthcare reform” or the ACA or HR 3962.
“Obamacare” sounds petulant and unprofessional. It’s a distraction from your ideas that matter.
The classic battle of good vs. evil.
Since your early education about American Constitutional history was, as you admit, somewhat limited, I would strongly suggest that you read George Mason University law professor David Bernstein’s new book Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform.
“The real problem 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.”
So in the minds of leftists, Clarence Thomas has now changed from buffoon to evil genius. This is actually fairly typical, since Reagan also started as an amiable buffoon, and turned into an evil genius. The rule is actually fairly simple. Any conservative is an ignorant buffoon, until they actually succeed, then they turn into an evil genius.
August 29, 2011 at 2:58 pm
I am an actual conservative. Not a corporatist like lush dumbaugh or the SCOTUS. Corporations are NOT people. Know who agrees with me? Read up on a fella named George Washington, who warned of the dangers of allowing monied interests to RUN the govt. He didn’t allow it. He warned against it. We now have it, and you praise it.
You just stated one reason why the Federal Government shouldn’t be so powerful. If the Government we have can be bought, as you claim, by corporations, a smaller less powerful government will also rein in the power of those with money.
Is that not so?
If we were to follow Justice Thomas’ practice of diligent research, we would soon dispel the notion that the interstate commerce clause gives the federal government the authority to CONTROL interstate commerce – i.e., restrict, prohibit, rule over, and every other negative, controlling power.
However, the Federal Government does have the mandate to REGULATE interstate commerce. The following discourse is based on something I read or heard some time ago, explaining the difference between REGULATE and CONTROL.
“Regulate” in 18th century understanding, -meant to “keep regular”, i.e., free-flowing, unrestricted, ongoing. It was a word everyone understood. Pardon the crude analogy, but keeping regular was (and is to this day)a reference to regular bowel movements! Applying the word referencing the biological function to form the interstate commerce clause was brilliant in it’s simplicity. It was necessary to ensure that trade between the States was to remain unrestricted, free flowing, open to anyone, which was a concern of the citizens and the founders.
Then the 20th Century progressive liberals managed to completely REVERSE the Constitution’s intent, and snookered the Courts into agreeing that “regulate” meant the power to control, restrict, prohibit, and today that is the commonly accepted meaning.
For example if we applied the original intent of the Founders, the Federal Government has no Constitutional authority to prevent Boeing from operating a manufacturing facility in South Carolina, union demands notwithstanding. There are undoubtedly hundreds or thousands of unconstitutional Federal statutes affecting interstate commerce that could and should be written off the books.
How would the Supremes react if a sharp attorney were to expand and present such an argument?
Liberal progressives and some so-called Conservatives don’t care about the Constitution. Senator Jim Clyburn (D-SC)let the truth slip in his remarks defending Obamacare: “Very little of what we do in Washington is Constitutional”.
The Founders were very wise men, understood human nature – especially politicians and power – and chose their words carefully. LET’S MAKE SURE WE STUDY, UNDERSTAND AND APPLY THEIR WORDS IN CONTEXT OF 18TH CENTURY USAGE, AND NOT IN CONTEXT OF 20TH & 21ST CENTURY UNDERSTANDING AND THE RESULTING CONVOLUTED LOGIC THAT RESULTS IN TOTALLY REVERSING THE INTENT OF THE CONSTITUTION.
Pardon me for yelling. I’m usually quiet and reserved.
This aritcal and the artical it referances is two more examples of the Main Stream Media being [vulgar and poorly spelled comparison deleted] as dictated by Obamacare. Justice Thomas is a man of conviction. Not a Lock Step Liberal like the last two put on the court. For that, he is scorned and chided by the liberal media.
Roe v. Wade is cut from the same cloth as Dred Scott v. Sanford: Certain classes of people are property.
So it was an expansive reading of the Commerce Clause in FDR’s time that transformed the United States into a world power. Hmmm, that explains why England and France needed America’s entry into The Great War to defeat Germany. That explains why European military attachés observing the Civil War wrote home “I hope these guys don’t come over here.”
It’s too bad that Ron Paul is such a naive nitwit on foreign policy. He’d be great as Secretary of the Interior or Secretary of the Treasury or Director of OMB. He’d be a definite disaster as Secretary of Defense or Secretary of State or President. He clearly understands the correct relationship of the Federal Government to the State Governments, but has an utter lack of understanding of the relationship of the United States to the rest of the world, and the threats posed to us by the many parts of the rest of the world.
Why did the Left think that the “1937 Constitution” they enshrined through judicial usurpation would not be subject to THE EXACT SAME ATTACK? So funny and so stupid.
“The public mind is more skeptical about Washington than at any time in living memory, but that is not the same thing as a public demand for less federal spending on middle class entitlements.”
Pretty much says it all.
The US surpassed the UK as the world’s top economic performer in the 1880s. We had the ability to become the primary world power at that time. It was by choice that we allowed the UK to remain the top naval power. From the 1880s onward the top spot was ours to take.
We became a superpower in the 40s because we had to fill the power vacuum and face the Soviets. FDRs domestic policies did not enable it, and in fact the large entitlements–social security and medicare–will eventually make it impossible for us to maintain superpower status. As it stands, we would have trouble doing the heavy lifting we did in WW2 due to our entitlement spending.
And,the Euros are largely bypassed due to their social welfare states.
I’m just a psych major at a [low quality] CA college, but some observations from outside the legal world.
1. The rise in power of the federal govt is a response to the voters demands. The people demand increased entitlements, subsidies, and govt intrusion through the voting process.
2. This rise in federal power suggests the increased efficiency resulting from centralized decision making, even when it comes to tasks that the Founders did not forsee. Collectivist approaches do have their benefits when compared to individualistic/isolationist ones. Would there really be a net reduction in administration costs if the states took back their responsibilities from the fed govt?
3. Through the voting process, the people elect politicians, who appoint judges, who rule in favor of the federal govt intervening in affairs such as healthcare. The basis for HCR is that you are guaranteed some sort of medical treatment, and you are infringing upon liberties by not guaranteeing some sort of payment if such need arises. This infringement is more harmful than the infringement in demanding people take responsibility for their healthcare decisions. I see the logic in Obamacare.
5. The govt has been entrusted, by the voters, to take action when voters refuse to do so themselves, if such inaction is harmful to the voters. The govt is a check on the people, created by the people.
Mouse (#101): “STOP calling it ‘Obamacare’.”
Yes Sir! Your wish is my command, Sir!
By the way, I discovered the following after a 3 second internet search: http://krugman.blogs.nytimes.com/2010/02/22/obamacare/
Herbert “The Forgotten Progressive” Hoover was a “Keynesian” – i.e. he supported keeping up “demand” (both wage rates and govenrment spending) and was totally against the policy (suggesed by his own Tres Sec and others) of allowing markets (including labor markets) to clear (as had been done in response to the 1921 bust). It was the Keynesianism of Hoover that turned the bust of 1929 into the Great Depression – but the left have managed to systematically distort history.
>>>Thomas’ silence during oral argument before the Supreme Court is taken as obvious evidence that he has nothing to say and is perhaps a bit intimidated by the verbal fireworks exchanged by the high profile lawyers and his more, ahem, ‘qualified’ colleagues.<<<
I have never seen a taller straw man in my life. I have been a media HOUND since well before that dark day Thomas was confirmed and I honestly have never, EVER heard it suggested (or even implied) that Thomas was “intimidated by the verbal fireworks” etc. (he went to fucking Yale Law – I think he’s familiar with scary big words). What Thomas’ notorious silence during deliberations has suggested to Thomas’ detractors is that he has already made up his mind (i.e. that he is an ideologue).
So where does this author get the idea that lefties think a black man on the Supreme Court could be intimidated by big words? Hmmm . . . . hmmmm . . . project much, Mr. Mead?
Ignoring the 10th Amendment has got us into this debt hole we are in. By leaving all the big spending and control to the states or the people, like entitlements, we would not be on this path to bankruptcy. States cannot print money, so these programs would have to be administered with minimum fraud, maximum effect and strict eligibility requirements to remain viable. If states such as California, want to give illegals all these benefits then they’re state tax payers would pay for it not the other 49 states. This is truly the only long term workable solution and I predict it will come to pass because it is with mathematical certainty that the status quo will drive us to insolvency.
Just so we’re clear… Frodo and Sam are the GOOD guys (who like the Tea Party just want to live in quiet freedom), and Sauron is the BAD guy (who wants his government power to keep expanding until he runs everything).
So keep playing this allegory… the Democrat expansionist view of government IS evil. Thanks for pointing that out.
commissar1969, I agree with you that leftists’ only problem with Thomas is ideological, and that they have never ever questioned his intelligence. It must be that Dr Mead is projecting his own racism on them.
When asked to comment on Thomas as a possible replacement for Chief Justice William Rehnquist, Reid told NBC’s “Meet the Press”: “I think that he has been an embarrassment to the Supreme Court.”
“I think that his opinions are poorly written. I just don’t think that he’s done a good job as a Supreme Court justice.”
But the Nevada Democrat said that he could support Thomas’ fellow conservative, Justice Antonin Scalia, if he were nominated.
“I cannot dispute the fact, as I have said, that this is one smart guy,” Reid said of Scalia. “And I disagree with many of the results that he arrives at, but his reasons for arriving at those results are very hard to dispute.”
“Ron Paul…clearly understands the correct relationship of the Federal Government to the State Governments, but has an utter lack of understanding of the relationship of the United States to the rest of the world…[and] is such a naive nitwit on foreign policy.” – Van Snyder
Mr. Van Snyder: One fears your mischaracterization of Doc Paul’s consistency is but projection. Running an Empire demands the powerful federal government you naively – or since you seem to like the Empire, then nitwittingly – pretend to deplore.
It is so good to see some long overdue respect paid to Mr. Justice Thomas and his wife.
Justice Thomas could well be a watershed figure in American law.
The Tenth is impotent and tautological, and to suggest that it has any relevance today is kind of funny. There were two periods (short periods) in our long history where the Tenth had any traction, but those were long ago, and not likely to return.
The Court gave the Tenth a bitch slap again last term with Comstock. The majority, joined by the Chief Justice rejected the Tenth argument, and even Alito and Kennedy signed on to that reasoning (which to my count makes it 7-2 against the Tenth with the current Court).
That Justice Thomas feels otherwise is also sort of funny. What major decision has he written during his tenure? He wrote forcefully in many many dissents, but those are not law. If he is such a great jurist, like many posting here seem to believe, why then is he always relegated to dissents and minor cases? The man is not stupid, but his cloistered ideology goes far in the eyes of the public that he is not really qualified to sit on that bench.
Oh, and why does he hate kids so much?
1. Ah, of course. It’s either the Ron Paul way, or an Empire (insert Darth Vader theme music).
2. Have you heard of the British Empire?
In further response to Mouse (#101), who orders us to “STOP calling it ‘Obamacare'”, and instead use the terms “the Affordable Health Care for Americans Act or ‘healthcare reform’ or the ACA or HR 3962.”
1. The proposed act you are refer to is the Affordable Health Care for America Act, and it is not the one that was adopted anyhow.
2. It should not be ACA but rather PPACA.
3. H.R.3962 is actually the Preservation of Access to Care for Medicare Beneficiaries and Pension Relief Act of 2010, which is not the Act we’re dealing with.
If you are going to order us to abandon a term whose meaning everyone knows and which is hardly pejorative, the least you could do is provide us with an accurate replacement.
I eagerly await your further squeaks.
I don’t think of Justice Thomas as Frodo, so much as one “appointed” to oversee a vital period of time… when first he was appointed, he had grey hair… a much younger man, and hence was known as Clarence the Grey, now he’s coming back into the limelight as an older man whose hair has become like snow. Now he is known to us as Clarence the White … can anyone else spell “Gandalf”?
Clarence Thomas CT is a dangerous extremist. His originalism requires results that will not be acceptable today. For example:
1. The Ninth Amendment explicitly authorizes recognition of rights not listed in the Bill of Rights. If CT wants to revive the Tenth Amendment, he must also revive the Ninth.
2. CT rejects “14th Amendment inclusion” and would overrule all decisions enforcing Bill of Rights protections against the states. I doubt that many people would agree to overrule Gideon, Miranda, and the Warren court’s many other inclusion decisions. How many people would overrule Rochin, for example.
3. The First Amendment by its terms forbids Congress to establish a national church. Official State churches continued to exist until around 1860. CT would overrule all cases enforcing the First Amendment against the states. Thus he would permit Utah to establish the Mormon church as the official state church, supported by state taxes, and forbidding marriages to be performed by non-Mormon clergy. I think he would also overrule cases rejecting forced religious services in schools, and even Torcaso v. Watkins, 367 U.S. 488, striking down a Maryland law that prohibited an atheist from being a Notary Public.
I hope the progressive state is dismantled in this country. It’s the only way to save this country.
Robert F. Miller (#2) gave a response equal to the expanse and depth of Toobins’ article as well as the intellectual capacity of Supreme Court Justice Thomas. The article and response should be used to elevate the knowledge of college students. One is forced to completely immerse oneself in the middle to understand them. Kudos to both articles.
As to KRS’s response: you cannot expect any interest in reading your response when you start off using negative connotations. If you are not intellectual enough to be unbiased then maybe you should not respond at all.
WigWag post of
August 29, 2011 at 11:03 pm is a concise itemization of notable examples of American national achievement as only being possible though the offices of centralized federal initiation and control. The genius of capitalizm, free markets and freely chosen associations among our societies’ members ensure our nation will we as great as its citizens want it to be. Our greatness as a nation, no matter how measured, was never intended to be realized by setting aside the principle that individual liberty comes before all else. WigWag you need to disabuse yourself of the axiom that if the federal government doesn’t do it it will never get done. Replace that one with if the freely cooperating citizens of the the several states don’t do it it never should be done.
Rollback, baby! ROOLLL BAAACK!
To KRS: Already figured out. The next phase in the evolution of the legal system after this one is the recognition that the Constitution is the minimum standard, not the perfect standard, and the judiciary will start developing jurisprudence doctrines that enforce provisions recognizing negative individual rights over and against provisions that appear to give the state – federal or otherwise – the authority to violate negative individual rights. After all, the Constitutional intent of the Founders is only legitimate in the eyes of the public and in reason so long as it protects freedom.
All aboard! The freedom train is set to roll from the station. Choo choo!
A really good blog. I enjoyed reading it, learning more about Clarence Thomas and his views and his very important work.
Usurpation of Power?
I never noticed a Prohibition Amendment. Except for Alcohol.
Nice to see something rational from Toobin.
We may be in the midst of witnessing a return to a more normal state with numerous centers of power.
The Blue State Model has brought us identity politics, a dependent class, a system of transfer payments that threatens to bankrupt the entire country, and a complete disconnect of actions from consequences.
And the Red State model has brought us covert Jim Crow in the guise of the Drug War.
How about this for racist corruption?
When I requested equal enforcement of upscale suburban areas, I met internal resistance
The Ds are stupid about their racism charges. Here we have a VERIFIABLE case of real institutional racism and the Ds fail to hammer it home. Must be all those union policemen and prison guards. Prohibition funds Ds and the Rs love it. Stupid much?
Under current “Conservative” Theory the government takes charge of the woman’s body. But thankfully only temporarily.
Frequent inspections will be required.
I agree with justice thomas
I had to wait for days to read this, due to hurricane disruptions, but I’m glad I finally got a chance.
Even the comments are good, or at least amusing if not good.
It is nice to see people engaged. From Frodo to Hoover to Keynes to Obama, message: we care.
And that’s a good thing in our self-governing country.
I will try and go read the Toobin article, because it is true that the “de-clownification” of Justice Thomas is an amazing occurrence.
So, to my friends on the right, let’s give the Libs/Lefties a little credit where it is due. They didn’t just try and destroy Clarence Thomas because he was a heretic, they tried to destroy him because he was honestly dangerous to them.
Newt Gingrich has already been building a grass roots movement for this already. He is rounding up the best ideas for implementation of a “10th Amendment Enforcement Act”. Follow/contribute here:
We are watching the downfall of modern liberalism/progressivism brought on by just 2 years of absolute blue state control. The country is about to reset itself and Thomas is in the right place at the right time in history, thank God. Obama might actually be the best thing that ever happened to our country, in a very painful way, unfotunately.
I wonder if the commerce clause is reason why Obama’s administration sent armed federal officers to the Gibson factory and told them to make products overseas to avoid trouble. I wonder if the DEA invading California marijuana dispensaries is a violation of the 10th amendment. Seems this administration interprets the rules as they see fit. Not how WE THE PEOPLE understand them.
I’m 74, and have lived to see this Nation deteriorate slowly from a country with a strong tradition of ordered liberty, and personal and economic freedom into a semi-socialist state ruled by a caste without half the common sense or moral fiber of my neighbor down the block. I don’t expect to live long enough to see these annointed one brought low, but — God willing — it will happen; and what a delicious irony it would be to have Mr. Justice Thomas as the architect of that fall. Just. Delicious.
One wonders whether Walter’s American history teacher instead thought the Third Amendment the palladium of liberty, if he counted only the Second and Tenth Amendments as the two vestigial ones…
…unless said teacher was a mere rhetorical, as I guess would be the case since the whole school is one. Serves me right for reading overhastily!
Even still, if we’re going to say there are vestigial amendments, the Third surely must be lumped into that category.
Or maybe the school wasn’t, actually, and I was right on first read. I give up. 🙂 Time to stop reading for a bit and come back when I have time to read more carefully.
“On his last day in office, President James Madison vetoed what today we would call an infrastructure bill. He thought the bill was a good idea, that the country needed the infrastructure and that the federal government was the right agency to provide it, but believed that the Constitution he had helped write provided no authority for Congress to act in this way.”
In 1956, Eisenhower signed the National System of Interstate and Defense Highways Bill. Yes, the liberal defense of this bill was based on the liberal interpretations of the Roosevelt Court; Ike bought into it from the Defense angle (to the point that LeMay was closing down sections of the interstates in middle America and having B-52s land, refuel and rearm, and take-off from them). Remember folks, it says to provide for the common defense.
The Interstate System has morphed into another animal all together (we’ll hear tonight how the TheOne™ plans to use it to stimulate, excuse me, create new jobs), but let’s save that for a different posting, shall we?
Excellent essay. One mistake the “so-called” Civil Rights Acts are not predicated on the Civil War Amendments, but on a very poor analysis of the Commerce Clause in “Ollie’s BBQ case.” http://law2.umkc.edu/faculty/projects/ftrials/conlaw/mcclung.html
Mr. Mead’s well-written and carefully thought-out analysis is wasted on this issue. The direction of the Supreme Court right now depends not on history nor Constitutional exegesis.
It depends on math. And the only thing anyone needs to analyze is how often the corporatists on the Court can count to five.