Clarence Thomas ‘unorthodox’ approach to constitutional law

June 28, 2005

OK, one more post about the Ten Commandments rulings from yesterday. In a strange dissent in the Van Orden case, Justice Clarence Thomas not only argued that public officials should be able to promote the sacred text in official settings, he also explained his belief that the First Amendment shouldn’t apply to state governments.

This case would be easy if the Court were willing to abandon the inconsistent guideposts it has adopted for addressing Establishment Clause challenges, and return to the original meaning of the Clause. I have previously suggested that the Clause’s text and history “resis[t] incorporation” against the States…. If the Establishment Clause does not restrain the States, then it has no application here, where only state action is at issue.

It’s worth taking a moment to consider the consequences of Thomas’ approach to constitutional law, if implemented. On church-state cases, state and local governments could establish state churches, subsidize ministries, favor some faiths over others, craft official state prayers, and mandate that children recite those prayers. Under Thomas’ view, literally the only government action that would be unconstitutional under the First Amendment is if Congress established a state church. Short of that, Thomas says, anything goes.

This wasn’t an accidental admission. Last year, when the Supreme Court decided to dismiss the case challenging the inclusion of “under God” in the Pledge of Allegiance, Thomas announced the most radical approach to religious liberty of any high court justice in generations.

The views put forth by Rehnquist and O’Connor reflect a line of thinking, not uncommon in the federal courts, that certain types of generic and ceremonial uses of God and religion are permissible in government discourse. Thomas, however, decided to drive the argument over a cliff. He argued that the high court should have used the case to fashion a new understanding of separation of church and state. At the bottom of Thomas’ academic-sounding legal jargon was a truly radical proposal: He recommended obliterating the wall of separation between church and state and allowing state governments to favor certain religions over others, even permitting them to name official religions.

According to Thomas, the First Amendment’s Establishment Clause – the part of the provision that bars any law “respecting an establishment of religion” – was never intended to apply to the states. He argued that since some states had official religions at the time the Bill of Rights was adopted, the intent of the First Amendment must have been to protect those state-sponsored religions.

Flying in the face of long-settled church-state policy, Thomas wrote that while the Establishment Clause “probably prohibits Congress from establishing a national religion,” it does not “purport to protect individual rights.”

It’s amazing the guy even got through law school. The fact that he’s on the Supreme Court — and he’s the youngest justice on the court — is a crime.

The argument that, because something existed at the time it was prohibited, the prohibition must have been about something else, is beyond specious.

Do not doubt, however, the fact that Justice Thomas is a hero/puppet to the very same people who will be trying to force their guy down the throat of the Senate as soon as Rehnquist resigns.

  • It all comes down to the so-called “incorporation
    doctrine,” which says that the Fourteenth Amendment,
    Section 1, extends some or all of the Bill of Rights
    to the states, and in particular, the First Amendment.
    Apparently, Thomas does not concur with the incorporation doctrine. He is not alone among Supreme
    Court justices who have espoused this view, but he is,
    thankfully, in a distinct minority. Furthermore,
    the Court has ruled fairly consistently with respect
    to this doctrine over several decades, and it would
    seem to be almost impossible that any future Court
    would reverse such overwhelming precedent.

    Still, it is troubling indeed to read his opinions.
    Or Scalia’s. I am afraid that religious fervor
    clouds even the objectivity of our esteemed Supreme
    Court.

  • Do not doubt, however, the fact that Justice Thomas is a hero/puppet to the very same people who will be trying to force their guy down the throat of the Senate as soon as Rehnquist resigns.

    Absolutely right. and terrifying.

    Thomas is a lunatic. The only thing more frightening than the thought of Chief Justice Scalia is Chief Justice Thomas.

  • Thomas’s unease with the incorporation doctrine shows one of the possibly unfortunate aspects of a policy to appoint so-called literalist judges. The first amendment says that Congress shall make no law respecting the establishment of religion (or abridging freedom of speech, etc.) Literally speaking nothing in the First Amendment says that states can’t violate these rights. In the early part of the 1900s, in Gitlow v. New York the Supreme Court bound state and local governments to the first amendment relying on the due process clause of the fourteenth amendment — a result clearly not dictated by the fourteenth amendment’s text alone. S

    So when conservatives wail about “interpreting” versus “making” law, the incorporation doctrine could be a target. Florida could then establish the Southern Baptist religion and jail Episcopalians with impunity.

  • It’s amazing the guy even got through law school.

    I think Yale doesn’t do grades.

  • Not being a law student, I remember the first time I had occasion to delve into some Supreme Court opinions in regard to a problem I was having with the IRS. I was flabbergasted at the illogic and capricious nature of the arguments coming from Burger and others on the court. It seemed like, beneath the legalese, their flimsy reasoning is something my kid could have improved upon without breaking a sweat. Thomas seems to be the personification of that sort of “thought” and it’s scary to think that Bush will try to seat even more like him. Having Thomas on the court seems akin to playing baseball with a blind man on your team: you know you’re really only competing with eight and you just try to cover up for the one who’s incapable of playing. But Thomas is worse, because he can really do some damage, especially if Bush manages to stack the court with more feeble-minded people. Or worse yet, fanatics.

  • The problem with legal “reason” is that it often is simply opinion masquerading as logic. What has kept law on a steadily righteous course (and the media, for that matter) was the perception that concepts like honesty, integrity, and credibility matter at all.

    What troubles me the most about BushCo is not their lying, not the death and destruction they deal out so ignorantly, and certainly not the loss of our international empathy. It is the fact that they do all this brazenly, challenging the very need for honesty or credibility on its face.

    Don’t forget, Nixon resigned. He might have been a criminal, but at least he understood that he couldn’t be president if everyone knew he was a criminal. There seems to be no such acceptance of basic decorum from this administration.

  • Well, through the 19th century there were established state churches. They were on the way out, but that was the case when the Bill of Rights was ratified. Sure some people think that the Reconstruction amendments changed that by incorporation, but some people think that the earth is round. Go figure.

  • On the “incorporation doctrine,” the Supreme Court
    has also cited the “privileges or immunities” clause
    of the Fourteenth, which in my opinion is stronger
    than due process.

    But Clif is right. It is something of a stretch, and
    a literal interpretation of the First Amendment could
    come down as simply a Feds-stay-out-of-religion edict,
    but the states can do whatever they damn please.

    But I don’t see how decades of incorporation doctrine
    precedent, as a practical matter, could be reversed
    by one more radical appointment. But then again,
    who needs to reverse precedent? These two cases
    already came down on opposite sides, with only
    5-4 margins. That’s the real threat. One more
    Thomas and out the window goes freedom from (the
    establishment clause comes first) and of religion.

  • Actually, I belive that Thomas is on record as not adhering to the doctrine of stare decisis, which means that he doesn’t think he has to justify a deviation from precedent.

    • Comments are closed.