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Justice in every sense

November 11, 2014

This month marks Justice Clarence Thomas’ 20th anniversary on the U.S. Supreme Court. Emerging from one of the most tumultuous confirmation battles in history, Justice Thomas has become one of the greatest Supreme Court justices in the Court’s history.

What makes Justice Thomas both unique and inspiring is his approach to constitutional analysis. In every case, he starts literally at the beginning, with the text and intent of the provision at issue. More than any justice, he is willing to do the job he is sworn to do: to enforce and uphold the Constitution, regardless of whatever errors the Court may have made in interpreting it since its ratification.

Whether the issue is Second Amendment rights, racial preferences, property rights, federalism, or religion, Justice Thomas recourses to the Constitution’s original meaning. Though he is often perceived as acting in lockstep with another excellent justice, Antonin Scalia, in fact he is far more likely to follow original intent than tradition or majority will, recognizing that the principal purpose of the Constitution is to limit government power and protect individual rights.

In the 2000 decision in Troxel v. Granville, for instance, Scalia dissented from the decision striking down a Washington law that gave grandparents visitation rights over the parents’ wishes, disparaging the notion of “unenumerated rights.” Thomas, by contrast, found that the parents’ right to control the upbringing of their children is fundamental and can be overcome only by a compelling purpose.

Similarly, while Scalia voted to strike down California’s medical marijuana law in Gonzales v. Raich, Thomas voted to uphold it because it involved purely intrastate commerce. “If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything,” Thomas proclaimed. “Federal power expands, and never contracts, with each locution.” Nowhere was this insight more prescient than with the enactment of the federal health care law, on which freedom advocates must hope that Thomas’ views prevail.

Nowhere was Thomas more eloquent than in his concurring opinion in McDonald v. City of Chicago, in which he not only voted to strike down Chicago’s gun ban, but also to overturn the Slaughter-House Cases, the 1873 ruling that demolished the privileges or immunities clause and judicial protection for economic liberty.

I was very lucky early in my career to have Clarence Thomas as a mentor. We are all lucky to have him serving on the U.S. Supreme Court. May he serve another 20 years, with continued health and unsurpassed integrity and devotion to principle.

Clint Bolick is director of the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.

Learn More:

U.S. Supreme Court: Troxel v. Granville

U.S. Supreme Court: Gonzales v. Raich

U.S. Supreme Court: McDonald v. City of Chicago

Clint Bolick: David’s Hammer

Clint Bolick: Death Grip

 

 

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