POLITICAL observations & opinions

* The way Justice Thomas and the Tea Party portray our Constitution reflects a fundamental ignorance of one of the major pillars of the American experience

Posted by Lew Weinstein on September 8, 2011

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Constitutional Convention ... intelligent men with profoundly differing views argued and argued, and finally compromised

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Jeffrey Toobin writes in the New Yorker (8/29/11) …

  • Supreme Court Justice Clarence Thomas is probably the most conservative Justice to serve on the Court since the nineteen-thirties.
  • From the moment Thomas arrived on the Court, he has been a committed originalist
  • he believes the Constitution should be interpreted as the words were understood by the men who wrote it.
    • “When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning,”
    • “When interpreting a constitutional provision,” Thomas wrote earlier this year, “the goal is to discern the most likely public understanding of that provision at the time it was adopted.”
    • To that end, he plumbs the words of the framers and the eighteenth-century (and earlier) thinkers who influenced Jefferson, Madison, and their contemporaries.
  • The Tea Party has developed a distinctive reading of the Constitution … that only the originalist position, as opposed to the view that the meaning of the Constitution may change over time, is legitimate.
  • Thomas’s approach underlines some of the problems with his approach to the Constitution, and with originalism generally.
    • it is difficult to know what the framers would have thought of any given situation
    • it is true, too, that the framers often disagreed profoundly with each other
    • making a single intent behind the Constitution even more difficult to discern
    • and the twenty-seven amendments (all with their own framers) created another overlay of complication.

For all of Thomas’s conviction,

originalism is just another kind of interpretation,

revealing as much about Thomas as about the Constitution.

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LMW COMMENT …

The opinions of Supreme Court Justice Clarence Thomas have, through the vigorous activities of his wife Ginny, become a central part of the Tea Party catechism.

The problem is that Justice Thomas, for all his supposed historical research, has entirely missed the point.

There is no single “originalist” view. The writers of our Constitution disagreed with each other and fought viciously for years. The result is not a document that represents their fixed views, but rather a political compromise that cries out to be re-interpreted as conditions change.

It is unlikely that a single of our country’s founders would ever be so dogmatic as to insist that there is just one immutable meaning to what they know so well was an imperfect compromise. And if one of them did, you can be sure that two others would quickly and vociferously object.

The position of Justice Thomas and the Tea Party

reflects a fundamental ignorance

of one of the major pillars of the American experience.

They should all read the marvelous Miracle at Philadelphia: The Story of the Constitutional Convention, May to September 1787 by Catherine Drinker Bowen to understand just how our unique form of government came about.

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8 Responses to “* The way Justice Thomas and the Tea Party portray our Constitution reflects a fundamental ignorance of one of the major pillars of the American experience”

  1. Lew Weinstein said

    We don’t disagree on the need for serious change. We were discussing the purpose of the Constitution and what led to its creation.

  2. chris said

    strong ? 14 trillion in debt makes you strong?

    • Lew Weinstein said

      Clinton gave Bush a balanced budget and a reasonable and reducing debt. Bush, with Republican majorities in the House and Senate, proceeded to destroy the financial fabric of this country with two wars of choice, an unfunded prescription plan for seniors, and a huge tax cut for the wealthy. That was the Republican program, driven by the Reagan ideology supported by big business lobbying and political contributions.

      Democrats are different (although far from perfect) and politics does matter. Who is elected President and to Congress in 2012 will make a huge difference. Democrats have always cared more for the middle class and the poor than have Republicans, who care mainly for the wealthy. Right now our country needs to employ the unemployed. That is the highest priority. We also need to reduce the going-forward deficit, educate our people, re-vitalize our industrial base, rebuild our infrastructure, compete effectively in a global economy, and many other things, most of which require strong governmental leadership. That means we must work together through government rather than as 300 million individuals.

      The Reagan premise that “government is the enemy” has taken us in a wrong direction with many bad consequences. That premise has been adopted by many people (including the Tea Party) who have no understanding of our history or of the consequences of what they often mindlessly promote.

      Obama worked to meet all of the above goals. Most recently he has submitted a plan to stimulate employment, to deal with our highest current priority. If anyone has a better idea, let them speak up. But it is important to act quickly, not simply to say NO. And it is not helpful for people to simply rail against all politicians and all government.

      By the way, it seems to me that your understanding of history is a whole lot better than Michelle Bachmann’s or Rick Perry’s. But you are focusing on only one aspect of the Constitution. Protection of individual rights is a crucial part of that document, but not the only part. Shaping a government which, with checks and balances, has the capacity to act, is also important. There is a reason why the federal government was given the powers it has by the framers. Leaving too many powers to the states, as under the Articles of Confederation, simply did not work and would have doomed us as a viable country. We continue to seek the right balance in an imperfect and rapidly changing world.

      There is of course a need to balance the interests of big business, small business, workers of all kinds, minorities, the sick, young people and old people, and all of the other subsets within our population. There are naturally disagreements on how to do that.

      There are also distortions caused by the infusion of money into the political system. The answer to these problems will not be achieved by simply condemning everyone in government and politics. The answer is to find the better people with the better ideas (based on facts and reason and not ideology or faith) and get them elected and then watch what they do to assure they stick as closely as possible to what they said they believed, in a world where compromise is necessary. It is an ongoing and difficult incremental process that requires patience and constant attention.

      I think President Obama’s record and his achievements show he is trying to do exactly that. The Republicans seem to have no goal except to destroy Obama, which does not help solve our country’s problems (see the recent post on the hugely different levels of bi-partisan support for Bush and Obama). To me, it’s an easy choice.

      • Chris said

        Unfortunately I feel your view is unrealistically optimistic. Bush may have spent too much but present company is spending at unsustainable levels.

        The belief that democrat elected houses and white house is the solution does not pass the smell test. They had two years and accomplished little. Health care was rushed through and never clearly laid out prior to making into law.

        I am not saying that republicans are the answer. They republicans policy are just as bad if not worse.

        To say democrats are for little guy lacks proof.
        Obama administration has given Billions to their big business friends. What happen to the million jobs their stimulus was going to create? Where is the outrage that the noble peace prize winner started an unnecessary war? What about those week air quality regulations. The broken promises are no different then the men before him. I thought he was going to be different? The people are being squeezed more and more by every level of government. But the banks and big business are too big to fail and get help from the printing press.

        How can you not see the impending train wreck coming? Financially, socially, and politically this country is in grave danger. Currency wars have started, trade wars will follow, then real wars after that. History is repeating itself.

  3. Lew Weinstein said

    Actually, the Constitution was developed because the Articles of Confederation which preceded it had proved totally inadequate, and our country, without a strong federal government, would soon have ceased to exist. One of our great educational failings is in the teaching of history in our schools, and we pay a huge price for that when too many of our citizens do not understand what has made us great.

    We need a strong central government just as much today. Those who argue that we need to reduce our government by eliminating all social programs, regulations to protect our food, research to develop medical cures, etc, etc, are simply not facing reality. I find that line of thought terrifying in its failure to consider the consequences of going in that direction.

    Slogans instead of fact-based reasoning is a sure way to national disaster.

    • Chris said

      Perhaps my understanding of the constitution is different from yours. I can read and I have read it.
      Do you suggest there is no limit to the federal government’s powers?
      Do you suggest that the federal government acting in our best interest should continue to borrow 40% of what it spends?
      Yes the government involvement in big business has been such a positive for us.
      Like subsidies to big oil, conagra, and every other industry known to man.
      Markets don’t even compete openly they compete in buying legislation. How does that help the people?
      The consequences of not changing our ways is far more terrifying

    • Chris said

      What you think made this country great is not fact it is your opinion. The constitution is designed to restrict the government by defining its powers and responsibilities. It also has rights which are protection for individuals. See you do not need a master’s degree to read the constitution. Maybe I don’t know everything but I learn more every day. I will not stop learning and understanding as much as I can because this country is heading into the toilet. You can blame republicans and tea part people all you want. You are not entitled to your own facts.

  4. Chris said

    The constitution was written to limit government and defend individual liberties and freedoms. This has been completely lost and Government sees no limits to its power or reach into our lives. Both sides bear much the blame but none more than the American people. We have bickered back and forth while our politicians have been bought and paid for by multi national companies. Want change you can believe in? Support a constitutional convention and lay out amendments to take back our government from big business.

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