Terrific essay, and thought-provoking, but just because you don't agree with his opinions doesn't make them "dangerous, extremist, have little to do with the law ... unworkable and frankly nuts." Thomas has a vision of the country closer to the founders' vision, and he bases his opinions on that vision, essentially requiring continued democratic assent to wholesale expanses of government power. He is arguably the most influential member of the court, since his ideas have gradually come to dominate the largest block on the bench, and some of his "crazy," federalist ideas are now the law of the land. A lot of people say he's the most likeable guy on the bench, too. Belittle him at your peril.
I don't think Thomas' views have anything to do with the founders specifically. For instance, a huge reason the Constitution was created was to massively expand federal power. The instruction to the Committee in Detail that Congress was supposed to have power over any issue the states could not competently deal with makes this perfectly clear. And, of course, Marshall, who wrote McCulloch v. Maryland, was a founder.
Thomas disagrees with this. He takes the ANTI-founder position that in fact the goal of the Articles of Confederation-- to keep the federal government tiny and the states in charge-- was in fact the goal of the Commerce Clause. That's why he thinks Hammer v. Dagenhart was rightly decided. He thinks a factory that uses child labor in South Carolina and ships all over the country is a local business exempt from federal regulation. The framers would have aghast at that. He believes that NOT because he is "pursuing the founders' vision", but because he is an extremist who thinks the national government shouldn't have the power to ban child labor.
Similarly, we know what people like Thomas Jefferson and James Madison said the Establishment Clause means. But Thomas rejects that and thinks the government has every right to try and impose Christian rituals on the population; the only limitation is the federal government (and not the states) can't establish a church. That's it. That's not the framers' vision-- that's Thomas' vision, because he belongs to a slowly dying religion in a secular society and wants to use the force of the state to compel obedience to his God.
I could go on and on but you get the idea. He believes this stuff because he is a political extremist-- he then cherry picks originalist sources and pretends the founders believed it too. But that profanes the founders, who had many problems but who would found many of his ideas quite crazy. And of course they are even more crazy now. (For instance, actually reinstating Hammer v. Dagenhart would destroy our economy and turn us into a banana republic with massively negative economic growth as capital flight persisted. He doesn't care about this but I do.)
And no, he's not influential. His colleagues think he is nuts. They don't say it publicly of course, but what they DO do is almost never join his crazy concurrences. He writes one justice concurrences and dissents on tons of issues, every year. Nobody ever feels sorry for Clarence in the corner and bucks him up with some support, because they all know he's just a nutcase. The rest of them need to do law and just ignore him.
But, one thing I concede-- he is likeable. I know people who have met him, and he has a natural sense of humor and a joyous disposition. Nonetheless, he's a crackpot.
I agree with part of what you are saying. Certainly the founders took it upon themselves to expand the power of the federal government compared to the first go-round under the articles of confederation. Still, it is far from that position to one that claims the founders wanted to expand central power, and therefore anyone who wants to curtail that expansion is a fringe extremist. The founders were trying to strike a balance between a feeble central authority on one hand, and one that could dominate the states on the other. I suspect that the founders would have viewed Thomas far more benevolently than they would have viewed the extraordinary expansion suddenly made possible by broad readings of “necessary and proper” and “interstate commerce” that began to develop in the wake of FDR’s New Deal. As for politicization, one would have to travel far to beat Sotomayor, who seems at times to be the Yin to Thomas’ Yang. If Thomas struggles to find archaic language in the Constitution to limit the modern centralized state, Sotomayor struggles to notice that there is much of a constitution at all. Anyway, thanks for the essay. I enjoyed it, and posted a link to it elsewhere.
"Still, it is far from that position to one that claims the founders wanted to expand central power, and therefore anyone who wants to curtail that expansion is a fringe extremist."
That's not how constitutional interpretation works. They wrote words and intended them to apply to any problem of national scope. Over time, more problems are of national scope because we are more interconnected. Thomas, for ideological reasons, doesn't like that. So he ignores the text and says idiocies like "manufacturing isn't commerce".
He isn't standing up for the framers. The framers would have said a factory that sells stuff all over the country is engaged in interstate commerce. He just doesn't like modernity and wants to overrule the rules the framers wrote to impose his dumb theories (which are dumb- no government in THE WORLD accepts his ideology).
TBC I do appreciate you reading and writing. But there's no defense of what Thomas is doing as constitutional theory.
Congress does not exist to persecute and reign in the president. That is a fallacy. Congress has specific tools granted it in the Constitution. It has the right to investigate and oversee the executive branch. It has the power to impeach the president and other elected or appointed officials. The senate has the power to consent or not consent to treaties presidential appointments and Article III Judicial appointments. Congress has the power to override presidential vetoes. That's it. Executive immunity from prosecution for official acts has always been understood to exist. Otherwise every executive at every level would act or not act based on fear of prosecution by political enemies. The hyperbole of the dissent in this case is gross. It could have been written by the Biden administration. It does not grant the president the right to commit any criminal act. If the president acted beyond the bounds of his powers he could be prosecuted. And still can. In their desire to get Trump at all costs, the Democrats and the left apparently are willing to leave no stone unturned and no institution or traditional understanding intact.
Terrific essay, and thought-provoking, but just because you don't agree with his opinions doesn't make them "dangerous, extremist, have little to do with the law ... unworkable and frankly nuts." Thomas has a vision of the country closer to the founders' vision, and he bases his opinions on that vision, essentially requiring continued democratic assent to wholesale expanses of government power. He is arguably the most influential member of the court, since his ideas have gradually come to dominate the largest block on the bench, and some of his "crazy," federalist ideas are now the law of the land. A lot of people say he's the most likeable guy on the bench, too. Belittle him at your peril.
So a couple of points about Thomas:
I don't think Thomas' views have anything to do with the founders specifically. For instance, a huge reason the Constitution was created was to massively expand federal power. The instruction to the Committee in Detail that Congress was supposed to have power over any issue the states could not competently deal with makes this perfectly clear. And, of course, Marshall, who wrote McCulloch v. Maryland, was a founder.
Thomas disagrees with this. He takes the ANTI-founder position that in fact the goal of the Articles of Confederation-- to keep the federal government tiny and the states in charge-- was in fact the goal of the Commerce Clause. That's why he thinks Hammer v. Dagenhart was rightly decided. He thinks a factory that uses child labor in South Carolina and ships all over the country is a local business exempt from federal regulation. The framers would have aghast at that. He believes that NOT because he is "pursuing the founders' vision", but because he is an extremist who thinks the national government shouldn't have the power to ban child labor.
Similarly, we know what people like Thomas Jefferson and James Madison said the Establishment Clause means. But Thomas rejects that and thinks the government has every right to try and impose Christian rituals on the population; the only limitation is the federal government (and not the states) can't establish a church. That's it. That's not the framers' vision-- that's Thomas' vision, because he belongs to a slowly dying religion in a secular society and wants to use the force of the state to compel obedience to his God.
I could go on and on but you get the idea. He believes this stuff because he is a political extremist-- he then cherry picks originalist sources and pretends the founders believed it too. But that profanes the founders, who had many problems but who would found many of his ideas quite crazy. And of course they are even more crazy now. (For instance, actually reinstating Hammer v. Dagenhart would destroy our economy and turn us into a banana republic with massively negative economic growth as capital flight persisted. He doesn't care about this but I do.)
And no, he's not influential. His colleagues think he is nuts. They don't say it publicly of course, but what they DO do is almost never join his crazy concurrences. He writes one justice concurrences and dissents on tons of issues, every year. Nobody ever feels sorry for Clarence in the corner and bucks him up with some support, because they all know he's just a nutcase. The rest of them need to do law and just ignore him.
But, one thing I concede-- he is likeable. I know people who have met him, and he has a natural sense of humor and a joyous disposition. Nonetheless, he's a crackpot.
I agree with part of what you are saying. Certainly the founders took it upon themselves to expand the power of the federal government compared to the first go-round under the articles of confederation. Still, it is far from that position to one that claims the founders wanted to expand central power, and therefore anyone who wants to curtail that expansion is a fringe extremist. The founders were trying to strike a balance between a feeble central authority on one hand, and one that could dominate the states on the other. I suspect that the founders would have viewed Thomas far more benevolently than they would have viewed the extraordinary expansion suddenly made possible by broad readings of “necessary and proper” and “interstate commerce” that began to develop in the wake of FDR’s New Deal. As for politicization, one would have to travel far to beat Sotomayor, who seems at times to be the Yin to Thomas’ Yang. If Thomas struggles to find archaic language in the Constitution to limit the modern centralized state, Sotomayor struggles to notice that there is much of a constitution at all. Anyway, thanks for the essay. I enjoyed it, and posted a link to it elsewhere.
"Still, it is far from that position to one that claims the founders wanted to expand central power, and therefore anyone who wants to curtail that expansion is a fringe extremist."
That's not how constitutional interpretation works. They wrote words and intended them to apply to any problem of national scope. Over time, more problems are of national scope because we are more interconnected. Thomas, for ideological reasons, doesn't like that. So he ignores the text and says idiocies like "manufacturing isn't commerce".
He isn't standing up for the framers. The framers would have said a factory that sells stuff all over the country is engaged in interstate commerce. He just doesn't like modernity and wants to overrule the rules the framers wrote to impose his dumb theories (which are dumb- no government in THE WORLD accepts his ideology).
TBC I do appreciate you reading and writing. But there's no defense of what Thomas is doing as constitutional theory.
Two pages might take longer to write than ten!
Not the way they write. Each page is filled with citations to sources, sometimes obscure, that their clerks have to track down.
Congress does not exist to persecute and reign in the president. That is a fallacy. Congress has specific tools granted it in the Constitution. It has the right to investigate and oversee the executive branch. It has the power to impeach the president and other elected or appointed officials. The senate has the power to consent or not consent to treaties presidential appointments and Article III Judicial appointments. Congress has the power to override presidential vetoes. That's it. Executive immunity from prosecution for official acts has always been understood to exist. Otherwise every executive at every level would act or not act based on fear of prosecution by political enemies. The hyperbole of the dissent in this case is gross. It could have been written by the Biden administration. It does not grant the president the right to commit any criminal act. If the president acted beyond the bounds of his powers he could be prosecuted. And still can. In their desire to get Trump at all costs, the Democrats and the left apparently are willing to leave no stone unturned and no institution or traditional understanding intact.
I'm not really sure what any of that has to do with this piece!
Because he started from that point as a truism. That the decision was wrong.