Three Cheers for Justice Thomas

When I was in law school, I once asked a professor about the tenth amendment. Why wasn’t that relevant in the case we were discussing?

“Oh, we don’t pay attention to that one anymore.” was the answer.

I was flabbergasted. We don’t pay attention to part of the fundamental, binding law of the nation? How exactly do you ignore parts of the constitution? And who, exactly, decides?

But that’s what we’ve been doing for years now. During the liberal ascension of the last 40 years, people just decided to ignore parts of the constitution that they (liberals) didn’t like.

The same thing happened to the Privileges and Immunities clause of the Fourteenth Amendment.. In The Slaughter House Cases, the court effectively said “Oh, we don’t pay attention to that one”

Now the clause has come roaring back from the grave, all courtesy of the man who may turn out to be one of the great justices – Clarence Thomas:

“Today, the Privileges or Immunities Clause has risen from the grave. Only a plurality was willing to use the Due Process Clause to apply an individual right to the states. The crucial fifth vote was provided by Justice Thomas’ extensive fifty-six-page originalist opinion that rested solely on the Privileges or Immunities Clause. Neither Justice Alito for the plurality, nor Justices Stevens or Breyer in dissent, even attempted to impeach Justice Thomas’ analysis, which now stands uncontradicted in the Supreme Court Reports. Decades of academic research that has lead to a remarkable consensus among constitutional scholars that The Slaughter-House Cases was wrongly decided have now been vindicated. Only a remarkably tepid and barely defended assertion of stare decisis by Justice Alito now stands in the way of a complete restoration of the ‘lost’ Privileges or Immunities Clause at the heart of Section One of the Fourteenth Amendment.”

And Justice Kennedy – with his unforgiveable vote against the first amendment in CLS v Hastings – is going to be considered one of the very worst – the very antithesis of what a Supreme Court judge should be. Sweet mystery of life, indeed. ”

Thomas exposes the nonsense that has been going on for years. The Court has been pretending that the due process clause somehow protected or even created substantive rights that could be “discovered” by the court. This was a results oriented approach. If they wanted the right to exist, it existed. If they didn’t want it to, it didn’t.


All of this is a legal fiction. The notion that a constitutional provision that guarantees only “process” before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words. Moreover, this fiction is a particularly dangerous one. The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish “fundamental” rights that warrant protection from nonfundamental rights that do not. Today’s decision illustrates the point. Replaying a debate that has endured from the inception ofthe Court’s substantive due process jurisprudence, the dissents laud the “flexibility” in this Court’s substantive due process doctrine, post, at 14 (STEVENS, J., dissenting); see post, at 6–8 (BREYER, J., dissenting), while the plurality makes yet another effort to impose principled restraints on its exercise, see ante, at 33–41. But neither side argues that the meaning they attribute to the DueProcess Clause was consistent with public understanding at the time of its ratification.
 But any serious argument over the scope of the Due Process Clausemust acknowledge that neither its text nor its history suggests that it protects the many substantive rights this Court’s cases now claim it does.
I cannot accept a theory of constitutional interpretation that rests on such tenuous footing. This Court’s substantive due process framework fails to account for both the text of the Fourteenth Amendment and the history that led to its adoption, filling that gap with a jurisprudence devoid of a guiding principle. I believe the original meaning of the Fourteenth Amendment offers a superior alternative, and that a return to that meaning would allow thisCourt to enforce the rights the Fourteenth Amendment isdesigned to protect with greater clarity and predictability than the substantive due process framework has so far managed.

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