[Vision2020] 06-17-04 LA Times: Thomas' Take on the Law Rooted in 18th Century

Thu, 17 Jun 2004 07:51:41 -0700

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http://www.latimes.com/news/nationworld/nation/la-na-thomas17jun17.story
Thomas' Take on the Law Rooted in 18th Century
The justice's historical perspective challenges many widely held beliefs about
the Constitution.
By David G. Savage
Times Staff Writer

June 17, 2004

WASHINGTON - Justice Clarence Thomas may be silent in the Supreme Court during
public arguments, but he is not shy about making bold pronouncements in written
opinions.

His latest challenge to conventional wisdom came this week in the Pledge of
Allegiance case, when he opined that the Constitution protected a state's right
to recognize an official church.

Almost everyone has assumed that the opposite is true.

It is not the first time Thomas has tried to turn the standard thinking on its
head when it comes to understanding key parts of the U.S. Constitution. He has
done so by focusing on the words and history of the document as it was written
in 1787.

"He likes to say we should look at this afresh. Our law is muddled, and we
should rethink it," Yale Law School professor Akhil Amar said admiringly of
Thomas.

But the consequences of his "rethinking" could be far-reaching.

For example, Thomas has argued that the word "commerce" in the Constitution
should be understood as it was in the 18th century: the movement of goods across
state lines. Under this view, the states could not erect tariffs or other
barriers to the free flow of goods.

In the 20th century, however, the Supreme Court adopted a much broader view of
commerce, relying on that definition to uphold federal laws that set minimum
wages, prohibited discrimination in the workplace, protected the environment or
regulated the manufacture of products, including autos and drugs.

In a separate 1995 opinion, Thomas said that this broad view conflicted with the
Constitution and should be reconsidered. If his colleagues ever agree, many of
today's workplace laws would be struck down.

Soon after joining the court in 1991, Thomas wrote that the word "punishment" in
the Constitution restricted only "judges, not jailers." The high court had
adopted a broader view of the ban on "cruel and unusual punishment" in the 1970s
and protected prisoners from being subjected to needlessly cruel treatment.

When Thomas denounced this view as flatly mistaken, Justice Harry A. Blackmun
pointed out that his opinion would permit the torture of inmates by prison
guards.

Two years ago, Thomas condemned the doctrine supporting the separation of church
and state, saying it grew out of "anti-Catholic bigotry" during the 19th
century. Then, Protestants controlled the public schools, and immigrant
Catholics set up their own schools to escape the Protestant influence, he said.

Beginning in the 1940s, a unanimous Supreme Court said that the 1st Amendment
erected a "wall of separation between church and state," quoting Thomas
Jefferson. Relying on that view, the court in the early 1960s struck down
state-sponsored prayers and Bible readings in the public schools. Later, the
justices voided state laws that funneled tax money into religious schools.

Many conservatives, including Chief Justice William H. Rehnquist, say the court
has gone too far. On Monday, he said the court should uphold the words "one
nation, under God" in the Pledge of Allegiance because its daily recital in the
schools was "a patriotic exercise, not a religious one."

In his separate opinion, Thomas said he would go much further and sweep aside 60
years of law by ruling that the 1st Amendment did not limit a state's power to
"establish" an official religion.

"Quite simply, the Establishment Clause . protects state establishments from
federal interference. [It] does not protect an individual right," he wrote.

He pointed to its words: "Congress shall make no law respecting an establishment
of religion." Until the Civil War, the 1st Amendment and the rest of the Bill of
Rights limited only the federal government. After the Civil War, however, the
Constitution was amended and states were barred from infringing on "the
privileges and immunities" of Americans, including their rights to due process
of law and the equal protection of the law.

By the mid-20th century, the Supreme Court had ruled that the Constitution as a
whole prohibited states and local governments from violating basic rights, such
as freedom of speech and religion, by denying fair trials or by promoting an
official religion.

The Rev. Barry Lynn, executive director of Americans United for Separation of
Church and State, called Thomas' view "breathtakingly radical."

"Mississippi could be officially Baptist, and Utah could be officially Mormon.
If his viewpoint ever became the majority on the high court, it would tear our
country apart along religious lines," he said.

Constitutional scholars in the area of religion credit Thomas with reviving a
historical, if now outdated, view of the 1st Amendment.

"I thought his was the most interesting opinion in the pledge case. Thomas is
right as a matter of history," says Richard W. Garnett, an associate professor
at the University of Notre Dame Law School "But I think most people would see it
as water under the bridge."

Others were less charitable. "This is a pretty astonishing view. No one [among
past justices] has gone remotely this far, and I don't think he'll get a second
vote for it," said University of Texas law professor Douglas Laycock.

"He is a hard-nosed originalist who looks back to 1791," when the Bill of Rights
was ratified, Laycock said. "He acts as though the Civil War didn't happen, or
it didn't matter."

The significance of the Reconstruction-era amendments often divides
conservatives and liberals.

While conservatives emphasize that the Constitution of 1787 limited the national
government and protected the rights of the states, liberals counter that the
Reconstruction amendments fundamentally widened the scope of the Constitution by
imposing limits on the states and protecting the rights of individual Americans.

Thomas will be 56 next week. Despite his 13 years on the high court, he remains
its youngest member. He expects, he has said, to serve for several more decades.

It is not clear what impact, if any, will flow from his view of an
"establishment of religion." He noted Monday that the 1st Amendment also
protected the "free exercise of religion," and this would forbid states from
requiring participation in religious services.

None of the other justices have adopted Thomas' 18th century view of "commerce"
or "punishment." But Thomas' distinctive views are likely to figure in a pending
struggle over police interrogations and the Miranda warnings.

Under the famous 1966 Miranda vs. Arizona ruling, the court said the
Constitution's protection against self-incrimination required officers to warn
suspects of their rights to remain silent and to have a lawyer.

Last year, however, Thomas set out a much narrower view of the 5th Amendment,
which says a person shall not "be compelled in any criminal case to be a witness
against himself." The word "witness" refers to a court trial, not a police
station, Thomas said.

At the time, three others agreed with him: Rehnquist and Justices Sandra Day
O'Connor and Antonin Scalia. With only one more, the court could undercut the
basis for the Miranda warnings, which restrict police questioning.

Shortly afterward, the court took up two new cases that test the reach of the
Miranda warnings. Though the cases were argued in December, they are still
awaiting decisions as the court enters the last two weeks of its term.

If you want other stories on this topic, search the Archives at
latimes.com/archives.

Article licensing and reprint options

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Copyright 2004 Los Angeles Times

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<A=20
href=3D"http://www.latimes.com/news/nationworld/nation/la-na-thomas17jun1=
7.story">http://www.latimes.com/news/nationworld/nation/la-na-thomas17jun=
17.story</A>=20

<H1>Thomas' Take on the Law Rooted in 18th Century</H1>
<H2>The justice's historical perspective challenges many widely held =
beliefs=20
about the Constitution.</H2>By David G. Savage Times Staff =
Writer June=20
17, 2004 WASHINGTON =97 Justice Clarence Thomas may be silent in =
the=20
Supreme Court during public arguments, but he is not shy about making =
bold=20
pronouncements in written opinions. His latest challenge to =
conventional=20
wisdom came this week in the Pledge of Allegiance case, when he opined =
that the=20
Constitution protected a state's right to recognize an official=20
church. Almost everyone has assumed that the opposite is true. =
 It=20
is not the first time Thomas has tried to turn the standard thinking on =
its head=20
when it comes to understanding key parts of the U.S. Constitution. He =
has done=20
so by focusing on the words and history of the document as it was =
written in=20
1787. "He likes to say we should look at this afresh. Our law is =

muddled, and we should rethink it," Yale Law School professor Akhil Amar =
said=20
admiringly of Thomas.<BR><BR>But the consequences of his "rethinking" =
could be=20
far-reaching.<BR><BR>For example, Thomas has argued that the word =
"commerce" in=20
the Constitution should be understood as it was in the 18th century: the =

movement of goods across state lines. Under this view, the states could =
not=20
erect tariffs or other barriers to the free flow of goods. In the =
20th=20
century, however, the Supreme Court adopted a much broader view of =
commerce,=20
relying on that definition to uphold federal laws that set minimum =
wages,=20
prohibited discrimination in the workplace, protected the environment or =

regulated the manufacture of products, including autos and =
drugs. In a=20
separate 1995 opinion, Thomas said that this broad view conflicted with =
the=20
Constitution and should be reconsidered. If his colleagues ever agree, =
many of=20
today's workplace laws would be struck down. Soon after joining =
the court=20
in 1991, Thomas wrote that the word "punishment" in the Constitution =
restricted=20
only "judges, not jailers." The high court had adopted a broader view of =
the ban=20
on "cruel and unusual punishment" in the 1970s and protected prisoners =
from=20
being subjected to needlessly cruel treatment. When Thomas =
denounced=20
this view as flatly mistaken, Justice Harry A. Blackmun pointed out that =
his=20
opinion would permit the torture of inmates by prison guards. Two =
years=20
ago, Thomas condemned the doctrine supporting the separation of church =
and=20
state, saying it grew out of "anti-Catholic bigotry" during the 19th =
century.=20
Then, Protestants controlled the public schools, and immigrant Catholics =
set up=20
their own schools to escape the Protestant influence, he said. =
 Beginning=20
in the 1940s, a unanimous Supreme Court said that the 1st Amendment =
erected a=20
"wall of separation between church and state," quoting Thomas Jefferson. =
Relying=20
on that view, the court in the early 1960s struck down state-sponsored =
prayers=20
and Bible readings in the public schools. Later, the justices voided =
state laws=20
that funneled tax money into religious schools. Many =
conservatives,=20
including Chief Justice William H. Rehnquist, say the court has gone too =
far. On=20
Monday, he said the court should uphold the words "one nation, under =
God" in the=20
Pledge of Allegiance because its daily recital in the schools was "a =
patriotic=20
exercise, not a religious one." In his separate opinion, Thomas =
said he=20
would go much further and sweep aside 60 years of law by ruling that the =
1st=20
Amendment did not limit a state's power to "establish" an official =
religion.=20
 "Quite simply, the Establishment Clause =85 protects state =
establishments=20
from federal interference. [It] does not protect an individual right," =
he wrote.=20
 He pointed to its words: "Congress shall make no law respecting =
an=20
establishment of religion." Until the Civil War, the 1st Amendment and =
the rest=20
of the Bill of Rights limited only the federal government. After the =
Civil War,=20
however, the Constitution was amended and states were barred from =
infringing on=20
"the privileges and immunities" of Americans, including their rights to =
due=20
process of law and the equal protection of the law. By the =
mid-20th=20
century, the Supreme Court had ruled that the Constitution as a whole =
prohibited=20
states and local governments from violating basic rights, such as =
freedom of=20
speech and religion, by denying fair trials or by promoting an official=20
religion. The Rev. Barry Lynn, executive director of Americans =
United for=20
Separation of Church and State, called Thomas' view "breathtakingly=20
radical." "Mississippi could be officially Baptist, and Utah =
could be=20
officially Mormon. If his viewpoint ever became the majority on the high =
court,=20
it would tear our country apart along religious lines," he=20
said. Constitutional scholars in the area of religion credit =
Thomas with=20
reviving a historical, if now outdated, view of the 1st Amendment. =
 "I=20
thought his was the most interesting opinion in the pledge case. Thomas =
is right=20
as a matter of history," says Richard W. Garnett, an associate professor =
at the=20
University of Notre Dame Law School "But I think most people would see =
it as=20
water under the bridge." Others were less charitable. "This is a =
pretty=20
astonishing view. No one [among past justices] has gone remotely this =
far, and I=20
don't think he'll get a second vote for it," said University of Texas =
law=20
professor Douglas Laycock. "He is a hard-nosed originalist who =
looks=20
back to 1791," when the Bill of Rights was ratified, Laycock said. "He =
acts as=20
though the Civil War didn't happen, or it didn't matter." The=20
significance of the Reconstruction-era amendments often divides =
conservatives=20
and liberals. While conservatives emphasize that the Constitution =
of 1787=20
limited the national government and protected the rights of the states, =
liberals=20
counter that the Reconstruction amendments fundamentally widened the =
scope of=20
the Constitution by imposing limits on the states and protecting the =
rights of=20
individual Americans. Thomas will be 56 next week. Despite his 13 =
years=20
on the high court, he remains its youngest member. He expects, he has =
said, to=20
serve for several more decades. It is not clear what impact, if =
any,=20
will flow from his view of an "establishment of religion." He noted =
Monday that=20
the 1st Amendment also protected the "free exercise of religion," and =
this would=20
forbid states from requiring participation in religious services. =
 None=20
of the other justices have adopted Thomas' 18th century view of =
"commerce" or=20
"punishment." But Thomas' distinctive views are likely to figure in a =
pending=20
struggle over police interrogations and the Miranda =
warnings. Under the=20
famous 1966 Miranda vs. Arizona ruling, the court said the =
Constitution's=20
protection against self-incrimination required officers to warn suspects =
of=20
their rights to remain silent and to have a lawyer. Last year, =
however,=20
Thomas set out a much narrower view of the 5th Amendment, which says a =
person=20
shall not "be compelled in any criminal case to be a witness against =
himself."=20
The word "witness" refers to a court trial, not a police station, Thomas =

said. At the time, three others agreed with him: Rehnquist and =
Justices=20
Sandra Day O'Connor and Antonin Scalia. With only one more, the court =
could=20
undercut the basis for the Miranda warnings, which restrict police =
questioning.=20
 Shortly afterward, the court took up two new cases that test the =
reach=20
of the Miranda warnings. Though the cases were argued in December, they =
are=20
still awaiting decisions as the court enters the last two weeks of its =
term.<BR=20
clear=3Dall> 
<DIV class=3Dcopyright align=3Dcenter>If you want other stories on this =
topic,=20
search the Archives at <A=20
href=3D"http://www.latimes.com/archives">latimes.com/archives</A>. <A =

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