A little-noted masterpiece of constitutional scholarship by Justice Thomas

americanthinker.com ^ | 3/20/15 | Mark J. Fitzgibbons

[cotton1706]

Everything you really need to know about the Constitution (and that’s barely an exaggeration) -- why it is structured the way it is, what led to it, its purposes -- is found in pages 2 – 12 of the March 9 concurring opinion by Justice Thomas in the Dept of Transportation v Assn of American Railroads case. Although it received little media attention, Justice Thomas has provided us a masterpiece of constitutional thinking, explaining why “administrative law” -- the practice of delegating to bureaucrats the making and enforcement of rules with the force of law – is so profoundly unconstitutional.

You could spend years reading history books, the Federalist Papers, and case law, but you won’t find a better explanation of the essence of our Constitution. If you understand what’s in these few pages, you understand why we have the Constitution, why it is structured the way it is, and why it is essential to the American experiment.

Pay attention to his words and the words of others he cites -- arbitrary, unilateral, etc. Justice Thomas describes the dangers that the Constitution was written to prohibit, and he traces the roots of those dangers to abuses of the English “rule of law” on which the Constitution was based, but perfected in America to address those abuses. The Constitution corrected several flaws of the English system including limiting the authority of the legislative branch by placing the Constitution – this written law of the land – over all three branches of government.

[loveliberty2]

Thank you, Publius, for posting. Excellent!

The Huffington Post reported back on August 16, 2008, following the Saddleback interview with then-presidential-candidate Obama, the following:

"'I would not have nominated Clarence Thomas,' said the presumptive Democratic nominee. 'I don't think that he...'-- the crowd interrupted with applause. 'I don't think that he was a strong enough jurist or legal thinker at the time for that elevation. Setting aside the fact that I profoundly disagree with his interpretations of a lot of the constitution.'"

Then, in the Year 2011, Jeffrey Toobin, certainly not a conservative legal thinker and analyst, stated:

"In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court. Since the arrival of Chief Justice John G. Roberts, Jr., in 2005, and Justice Samuel A. Alito, Jr., in 2006, the Court has moved to the right when it comes to the free-speech rights of corporations, the rights of gun owners, and, potentially, the powers of the federal government; in each of these areas, the majority has followed where Thomas has been leading for a decade or more. Rarely has a Supreme Court Justice enjoyed such broad or significant vindication."

From reading Justice Thomas's excellent analysis in the case cited on this thread, most would agree that Justice Thomas views the Constitution in a manner which would be somewhat consistent with the following declaration by Thomas Jefferson, America's third President:

"On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed." - -Thomas Jefferson, letter to William Johnson, 12 June 1823

Inasmuch as Justice Thomas over a lifetime, most likely, has immersed himself in study of the writings and speeches of America's Founders, the great fountains of wisdom from which (and from whom) they drew their ideas about liberty, the human tendency to abuse delegated power, and the history of civilization's struggle against tyranny, one understands better his tendency to listen more than to speak, as well as his emergence as an "intellectual leader" on the Court.

What value can and should one place on any President's opinions about "interpretations" of the Constitution, or their personal evaluations of "legal thinkers"? Certainly, one might need to examine the depth of study of that President and how he/she views the role, reach, and scope of government structured by the Founders' written Constitution for a free society.

One early President, James Madison, who came to be known as the "father" of the Constitution because of his role in the Convention, believed government's beneficial function to be "benign." He said:

"The enviable condition of the people of the United States is often too much ascribed to the physical advantages of their soil & climate .... But a just estimate of the happiness of our country will never overlook what belongs to the fertile activity of a free people and the benign influence of a responsible government." - James Madison

In the Year 2011, with our understanding of the stark differences between the quality of being "benign" and of being "malignant" as it pertains to our bodies, we are presented with an almost graphic difference between Madison's understanding of a constitutionally-limited government whose "influence" is "benign," and an understanding which favors enormous and invasive government power, redistribution of the earnings of labor, and cancerous growth of federal power.

Is it possible that that President Madison's opinion of Justice Clarence Thomas as "legal thinker" and "jurist" might be vastly different from President Obama's statements, as quoted from the Saddleback interview?

[zeugma]

Was bored.

Here's the Opinion and Alito's concurrance.

I haven't read through them yet. Plan to do that tonight. Enjoy!

[PapaNew]

Thank you. It helps sometimes to read the whole thing to get clarity in the concurrences and dissents.

[GGpaX4DumpedTea]

Eight more just like him on the Court, please!

[hosepipe]

I don’t agree. The feds have abandoned the Constitution, yes. But the Constitution and the freedom it represents actually belongs to the states and the people, not to the feds. WE own it, not them.
-----------------------------------------------------------

AH!.. then UNALIENABLE means something?.....

Question; is unalienable a delusion.?.. it seems that it is..
"The People" CAN indeed alienate their own rights..
-OR- elect others to do it for them.. like they HAVE..

UNLESS they havn't and a cabal of insurgents and traitors have purloined, hornswoggled, and connived ALL POWER AWAY FROM THE STATES.. like; they have..

It seems... the ONLY remedy is REVOLUTION..
but if "the People" generally are cowards not willing to spill their own BLOOD(or their family's)... all is lost..

FREEDOM...... always costs BLOOD... much blood..

[PapaNew]

I see it as a step-by-step process that one hopes will not end in blood but for which we are prepared as the price for freedom and the Constitution that protects.

First, a concerted effort to have at least some states (the ones we’re in or will be in) nullify and reject unconstitutional federal acts through a good-faith process of constitutional review by the state. See where that takes us.

Second, hope the Article V COS succeed, but it is a long shot IMO.

Third, if the feds’ response to valid state nullification of unconstitutional federal acts is adversarial and an imminent threat of hostilities, then state cessation and get ready for a war.

Fourth, if no states are willing to engage in a Constitution-based fight for precious freedom against the feds, we would be without a homeland I guess. If every state gave up their freedom and their Constitution without a state-based judicial fight or a shot being fired, then we have little to back us up. It would be fight and die or leave but I don’t know to where.

[YHAOS]

“Ah yes, the intelligent, well educated, talented black man, too much an exemplar to be acceptable to the black community ...”

Yes, and worse . . . a (in a whisper) Conservative.

[whodathunkit]

We have too long abrogated our duty to enforce the separation of powers required by our Constitution. We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure. The end result may be trains that run on time (although I doubt it), but the cost is to our Constitution and the individual liberty it protects.

Ayn, is that you ???

[Publius]

I suspect Justice Thomas has read and digested Rand but is justifiably reticent about saying so in public.

[bitt]

save

[zeugma]

I suspect Justice Thomas has read and digested Rand but is justifiably reticent about saying so in public.

Justice Thomas is on record as "having strong libertarian leanings".

He's my favorite writer on the court by far. Reading through this opinion of his, it looks like something he's had on his mind to say in an official way for some time, and chose this particular case as an opportunity to educate both his fellow justices and the public in general on an aspect of modern jurisprudence that needs some light shined on it. I wish this had gotten more play. I suppose it's too reasoned a discussion to fit on a bumper sticker, which explains why it hasn't.

Alito's concurrence was pretty interesting as well. He pretty much came out and said in no uncertain terms that the law that set up Amtrack was unconstitutional on its face. Certainly, the fact that the head of the Amtrak board is not a sworn officer seemed to disturb him greatly. The right case on this would be really interesting.

 

[Ditto]

I think Justice Thomas summarizes his opinion very accurately with a just a touch of snark.

The end result may be trains that run on time (although I doubt it), but the cost is to our Constitution and the individual liberty it protects.

[grey_whiskers]

On a similar topic, a vanity of mine : (Vanity) A Republic, If You Can Keep It, or Go Fly A Kite -- eight years ago.

[AllAmericanGirl44]

Bkmk

[stylin_geek]

I have long thought Congress abrogated its duty of writing law by allowing various agencies to write regulations which said agencies then enforce as though they are law.

I believe that even a moderate reading of the Constitution would make it quite obvious that most of the current regulations, no matter how beneficial they are, are unconstitutional and, as such, really have no force of law.

However, the courts have gone along with the charade for decades, giving us the over bearing and abusive regulatory climate we currently enjoy.