Supreme Discomfort:
Washington Post reporters Kevin Merida and Michael Fletcher have a new book on Justice Clarence Thomas, Supreme Discomfort: The Divided Soul of Clarence Thomas. Based on some early reviews -- Kenji Yoshino in the Washington Post and my colleague Jonathan Entin in the Cleveland Plain Dealer -- it sounds like an interesting take on the most interesting justice (even if it devotes less space to doctrinal analysis than some of us lawprofs might like). The Post has an excerpt here.
I know that Op-ed/Book Review space is short in the NYT. If the passage reads to tell us that the book should ahve detailed Thomas' answers to this dillema, I agree with it. If Yoshino is trying to take a jab at Thomas' originalism, he should know that Thomas has indeed grappled with this question and resolves the dillema by adopting an originalist approach that entirely distinguishes him from Scalia, Bork and the other hard core originalists. I wonder is anyone doesn't know what I'm talking about.
Four Page Excerpt from the Book
JHA
I was also puzzled by that sentence. What a strange thing to say.
- Josh
So you mean that Thomas is reclusive in the same way that Justice Brennan was reclusive? If I recall hearing correctly, he rarely if ever spoke at argument.
Consistenly wrong.
That said, I think he is a man of uncommon legal intellect, and I agree with him that S. Ct. oral arguments are just dog and pony shows. If it's not in the brief, it's not your argument.
Cases are decided by the Justices' jurisprudence, after reviewing the well-researched briefs. Not, contrary to popular opinion, based on how well counsel holds up to Scalia's wisecracks.
(Very different from the English appeals process, which puts more of a premium on oral arguments. Not better, just different.)
This is a great quote for the masses, but a really stupid thing to say to real lawyers. Setting aside the fact that the Constitution was amended to change this "intent," and the fact that Thomas is a semantic originalist and not an intent originalist, does Yoshino really mean to say that black people can't be originalists?
And/or members of the Air Force. *grin*
You forgot to mention non-Protestants.
My post deals with this matter. No, Justice Thomas wouldn't find your answer satisfactory. The original Constitution/Founding of 1787, according to him, must be defended as anti-slavery.
At a university visit last month Justice Thomas pointed favorably to Harlan's Plessy dissent. All judges have prejudices, but they can follow that example to not read their prejudices into the Constitution.
Sorry, it's a package deal, which is a very good reason to laugh at originalism if three or four of the delusionists were not sitting on the Supreme Court and how many more on Courts of Appeal.
Making this statement reveals a fundamental lack of knowledge of U.S. History in general and the debate among the founders in particular. Slavery and freedmen rights was a bitter debate that raged in the Constitutional Convention and, because the Republic had other serious problems (such as whether there would even be a United States), resulted in the compromise seen in Article 1, among other provisions. It has remained a fundamental problem, but I believe Justice Thomas views the massive progress over two centuries as a product of the genius of those founders.
And yet, I have his opinions to be quite consistent and hardly opportunistic. Recent discussion as regards his recent remark that the partial birth abortion law might not state commerce clause scrutiny bears this point out. I do believe that had such a line of attach been briefed, he would have voted to nullify. I think he has developed one of the most coherent visions on the constitution while on the court.
What's really shocking to me is that number and vehemence of the people who claim that what I see in his opinions is solely the product of very smart, dogmatic Federalist society clerks. This from people who have never meet the man...
Such people are silly, Thomas opinions have been extremely consistent in prose, style of analysis, logic applied, and personal beliefs, let alone similar results in the cases. Thomas has been on the bench for almost 16 years. If he had 3 clerks a year, that means he would 45 different clerks during his tenure on the court. Yet Thomas opinions haven't varied, no his opinions are the arguably the most consistent or near the most consistent of anybody that currently sits on the Court.
Thomas Jefferson:
Letter from Alexander Hamilton to John Jay, 14 March 1779:
Originalism may have its shortcomings, but calling those who adhere to it "delusionists" says more about the author than the "delusionists."
This is one of the reasons why I thought Yoshino's question was a stupid one, and why I don't think it matters one way or another that not all of the Founders bought into racism.
Yes, of course they thought blacks were human. Is this a joke I am not getting?
Sorry, it's a package deal, which is a very good reason to laugh at originalism if three or four of the delusionists were not sitting on the Supreme Court and how many more on Courts of Appeal.
What does this mean? Is it necessary to be racist in order to be an originalist? Or is a black judge precluded from interpreting the 8th Amendment, say, or the Commerce Clause according to its original meeting, because to do so would be to buy into 18th century racial beliefs?
For that matter, look at the language of the 3/5ths clause itself. "...three fifths of all other Persons." Yes, it was a euphemism for "slave" -- but they used "person," not "animals" or "property" or "chattel."
And again, you're making the mistake of confusing "slave" and "black." By the time of the Constitution, all slaves were black, but not all blacks were slaves. Again, contra Taney's Dred Scott opinion, (free) blacks were citizens.
If you want to defend the words of the Constitution without considering the people who wrote it you are assuming some sort of divine guidance inspiring the writers, e.g. you are elevating it to the level of a divinely inspired holy book, for believers that would be a heresy.
If you want to go the Declaration is part of the Constitution route, you are left on the cleft stick of the Declaration excluding Blacks from humanity because it granted all men were created equal with the rights of life and liberty, or it being null and void as a constitutional document, since clearly it did not result in the freeing of slaves.
I said:Does anyone seriously believe that the drafter and the southern (and a lot of the northern) colony signers thought Blacks were humans?
and someone replied:Yes, of course they thought blacks were human. Is this a joke I am not getting?
Substitute Jew for Black and Nazi for southern, then insert same into some of the other threads around here. You could also try Slav.
I know these are hard truths to swallow.
Re: C'mon, 3/5 is not wholly human, moreover the reason for the south insisting on the 3/5 was not to grant any rights to the slaves
Um, the South wanted to count its slaves a whole persons since that would have increased its representation in Congress and the electoral college. It was the North that didn't want to count them at all, just as Native Americans were not counted.
Re; Re: C'mon, 3/5 is not wholly human, moreover the reason for the south insisting on the 3/5 was not to grant any rights to the slaves
Um, the South wanted to count its slaves a whole persons since that would have increased its representation in Congress and the electoral college. It was the North that didn't want to count them at all, just as Native Americans were not counted.
Human, yes, at least in a purely biological sense. I don't think anyone was arguing that Blacks were a separate species, given the blatantly obvious fact that they could mate with their masters.