Constitution and Clarence Thomas Etc
Is the United States Constitution still relevant as we move toward the halfway mark of the second decade of the 21st century?
This issue was addressed In a hearing before the Judiciary Committee last week entitled “Enforcing the President’s Constitutional Duty to Faithfully Execute the Laws” which focused on President Obama’s increasing tendency in recent weeks to bypass Congress in order to get his political agenda passed.
During that hearing, my favorite liberal, Jonathan Turley, Professor of Law at George Washington University, who undoubtedly has one of the best legal minds of our time, decried the expansion of executive power which he says is happening so fast that America is at a “constitutional tipping point”.
He said he was very alarmed by the implications of that aggregation of power, and further testified that “What also alarms me is that the two other branches appear not just simply passive, but inert in the face of this concentration of authority.”
Amazing statement since Professor Turley has been a supporter of President Obama on most of his policies, so to hear him testify at a Congressional committee that “our system is changing in a very fundamental way….and it’s changing without a whimper of regret or opposition” is rather astounding.
I remember very clearly my defining moment with regard to the importance of our Constitution. It was in September 1991, and I happened to catch a programming announcement that confirmation hearings would begin the following day on President Bush’s nominee to the Supreme Court.
The name of Clarence Thomas meant nothing to me, but I was writing a weekly column of social and political commentary for the Springfield News-Leader at the time and my antennae were always up for a good story lead.
I grabbed a cup of coffee early that morning and curled up on the sofa thinking I would just catch a quick overview and be on my way. I don’t think I moved the rest of the day except to take advantage of commercial breaks. And the second day of hearings was just as intense, yet even more so as Anita Hill became a central figure in the battle for confirmation.
The Constitutional issues, including abortion, arising out of that two-day hearing so mesmerized me that I have never forgotten it and further instilled in me a genuine respect for the man who eventually won confirmation to the Supreme Court.
Who could forget the passion he displayed in this remarkable (and somewhat sarcastic) statement: “This is not an opporunity to talk about difficult matters privately or in a closed environment. This is a circus. It’s a national disgrace. And from my standpoint, as a black American, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.”
Justices differ in how they interpret the Constitution. Some take the “living Constitution” approach, interpreting the document in such a way that it “keeps up with the times”, taking into account society’s changing values.
Others have taken the “original intent” approach, sometimes called the text and tradition method, taking their interpretation cues from the writings of the Founding Fathers and the traditions of law going back to the founding of our nation.
Justice Thomas follows the natural law approach, a form of the original intent way of thinking, but instead of drawing mostly from the Federalist Papers, etc. he and others like him look to the Declaration of Independence, believing that the original intent of the Constitution was to fulfill the ideals of the Declaration of Independence.
That is so profound if you can really get your mind wrapped around it.
Thomas Jefferson and James Madison were said to have agreed with the natural rights approach, believing that America’s moral and political principles are found in “the laws of Nature and of Nature’s God.”
In a speech to the American Enterprise Institute For Public Policy Research in 2001, Justice Thomas clearly defined his philosophy with regard to the Constitution (and notice his clear reference to the role of the President).
“My approach recognizes the basic principle of a written Constitution. We "the people" adopted a written Constitution precisely because it has a fixed meaning, a meaning that does not change. Otherwise we would have adopted the British approach of an unwritten, evolving constitution. Aside from amendment according to Article V, the Constitution’s meaning cannot be updated, or changed, or altered by the Supreme Court, the Congress, or the President. Of course, even when strictly interpreted as I believe it should be, the Constitution remains a modern, "breathing" document as some like to call it, in the sense that the Court is constantly required to interpret how its provisions apply to the Constitutional questions of modern life. Nevertheless, strict interpretation must never surrender to the understandably attractive impulse towards creative but unwarranted alterations of first principles.”
As a proud Missourian, I also noted that Justice Thomas practiced law in the state, served as an Assistant Attorney General for Missouri, and became a Legislative Assistant to Missouri Senator John Danforth.
Although he graduated from Yale Law School in 1974 with a Juris Doctor degree, he says his degree was not taken seriously by law firms to which he applied because potential employers assumed he obtained it by affirmative action policies and went so far as to tell him outright that they doubted he was “as smart as my grades indicated”.
I have attempted in this column to delineate the importance of maintaining the integrity of the U.S. Constitution as it was written, using examples from both ends of the political spectrum, i.e. Jonathan Turley, Professor of Law representing the liberal point of view and Supreme Court Justice Clarence Thomas, representing conservative thinking. It is clear that in this regard, these two men, who may disagree in many ways on many different things, are unified in their love and respect for the Constitution, and their unwavering faith in it.
© Joan Rowden Hart 2014
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