Clarence Thomas: Constitutional Hero

Clarence Thomas could end up destroying progressive statism

Walter Russell Mead writes that the left has gone from declaring Clarence Thomas a dunce to ringing all-hands-on-deck alarm bells over the horrible realization that this justice has been patiently sapping the very foundations of New Deal statism for over 20 years.  Shock and horror, ladies and gentlemen:  The left has finally realized, hopefully too late, that Justice Clarence Thomas is a brilliant constitutional scholar of formidable intellect.

What we didn’t know, and what the world at large didn’t know until very recently, was that the New Deal constitution was not as permanent or unalterable as it looked.  Intellectually its foundations were shaky, and after two decades of a Clarence Thomas-led assault, the constitutional doctrines that permitted the rise of the powerful federal government could be close to collapse.  (New Blue Nightmare:  Clarence Thomas)

The Sun Also Sets

In the case of the Second Amendment, the collapse has already come.  Back in my Pundit High days, anyone who dared to suggest that the Bill of Rights gave individuals the right to bear arms would have been laughed out of the class as an ignorant yahoo.  These days, that is the accepted view of the US Supreme Court and most of the legal profession.  The resurrection of the Second Amendment proves that the “dead letter” clauses of the Constitution can come back to life — and suggests that Clarence Thomas understands how this can be done.

Justice Thomas is the intellectual firepower that will eventually blow the Obamacare Battlestar Gallactica out of the sky...

...which is why liberals are screaming for him to recuse himself on such a flimsy premise:  His wife, instead of being an angry feminist footsoldier in progressivism's long march, instead has become a tea party activist.  Liberals hate how conservative male chauvenist pigs control their women, but hate it more when they don't.

The next topic for Constitutional revisionism is the expansive reading of the commerce clause that the New Deal judges used to justify the Roosevelt administration’s ambitious economic programs.  The Obamacare health reform depends on that kind of reading of the commerce clause; the penumbras must stretch pretty far for the Constitution to give Congress the right to require all Americans to buy private health insurance.  And if the commerce clause can be stretched this far, one must ask whether there is anything that the Constitution blocks Congress from doing.

The terrified left realizes that this is not the end of Thomas' efforts, but rather just the beginning...

The Second Amendment was a constitutional landmine for the left; the Tenth is a nuclear bomb.

A strict reading of the 10th Amendment would invalidate many expensive and expansive federal programs.  Thomas's cogent arguments in a few key cases could restore personal liberty to its rightful primacy and return us to a serious reading of the enumerated powers, finally arresting the progressives of all parties who have hijacked the ship of state.

Taken seriously today, that approach to the Constitution would change the way Washington does business.  Radically.  The list of enumerated powers is short and does not include, for example, health care, education, agricultural subsidies, assistance to the hungry or old age pensions.  Most of the New Deal and Great Society (with the interesting exception of civil rights laws which enforce the Civil War era amendments) would be struck down.  Whole cabinet departments would close.

Mead tempers expectations, saying none of this will happen tomorrow, if at all.  But it is the single greatest threat the all-encompassing progressive state has ever faced.  Even if nothing dramatic transpires, Justice Thomas has moved the intellectual football and advanced the cause of liberty, actually changing scholarly legal thought, and that will redound to our good for decades to come.

I've only given you a taste of this erudite and entertaining writer's article.  I recommend you go read the whole thing.  It will lift your spirits while enlightening you.  He couches this entire article in a Lord of the Rings theme, making the reading of such weighty matters an absolute delight.  

All quotes from:  New Blue Nightmare:  Clarence Thomas

Please go read the original Jeffrey Toobin article, Partners.  You will gain a great appreciation of just how badly Justice Thomas and his brilliant wife frighten the left.