I realize that this Op Ed is focused on the interpretation of the constitution but it is important to note that Justice Thomas is very likely guilty of sexual harassment as is our current president. Over the past few months, it seems that Americans can accept someone who treats women in demeaning or degrading way but I cannot. Therefore, it seems odd to suggest that he might be the role model for anyone.
1
The court needs neither one of them, ever again.
Conservatism, achieving a restoration of the original meaning of the Constitution would sound great if your living in real tine late 1700's.
The twenty first century requires twenty first century legal remedies.
Justice Scalia was an uber Catholic thug.
Justice Clarence Thomas, deep and tenacious intellect, inflexible to the point of absurdity.
The twenty first century requires twenty first century legal remedies.
Justice Scalia was an uber Catholic thug.
Justice Clarence Thomas, deep and tenacious intellect, inflexible to the point of absurdity.
Why why would the foremost political thinkers who fashioned our constitution want to put future judges in a straight jacket when they would be applying broad, sweeping principles in the constitution such as liberty or due process of law, as opposed to narrow words with a set meaning?
1
Clarence Thomas got away with sexually harassing Anita Hill just like Donald Trump got away with sexually harassing women.
We don't need either of these men as role models for boys and young men!
We don't need either of these men as role models for boys and young men!
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If Thomas believed in original meaning, corporations would not be people.
The two-faced conservatives -- Thomas, Scalia, indeed the entire court including its supposedly liberal justices -- should be ashamed of this gross misinterpretation of amendments meant to guarantee rights to former slaves.
The two-faced conservatives -- Thomas, Scalia, indeed the entire court including its supposedly liberal justices -- should be ashamed of this gross misinterpretation of amendments meant to guarantee rights to former slaves.
Great idea soon as you can explain precisely and realistically what the one and only original meaning of the Constitution or any of its parts is. Clarence Thomas obviously thinks he has the divine speaking to him with that information. Hearing voices is not a good place from which to make serious decisions.
When the Tea Party Congress assembled in 2010, they made their first oder of business the public reading of the Constitution, to show they were pure of heart; but they stopped after a while because it was so embarrassing. (Wait, what? A slave gets three- fifths of a vote?)
So having a justice who considers the supposed "original intent" of the Constitution should be an overriding factor in their selection? Was it also the original intent of the Constitution that a political party could deny a sitting president his rightful selection of a nominee for a year-old vacancy on the court so they could gain a partisan advantage? Where exactly does it say that?
The last thing this country needs is another misguided entitled conservative stalling the arc of social justice at the Supreme Court. We have too many there already.
The World has turned upside down. A TV Business man is President & the NYT is the champion of Chief Justice Clarence Thomas. Maybe it is time to build a bunker.
1
Where are the women?
The concept of "originalism",or "strict constructionism", implies that the Constitution is rigid and irrevocable, unsusceptible to interpretation or contest. It suggests that it is the work of the brilliant minds who understood what the emerging country needed for guidance and government, and as such, was to be observed without challenge or question.
The argument that the Constitution was the product of great minds is without question. How fortunate we were to have had such a wise, intelligent, forward-thinking group of men (unfortunately, no women) come together in one place at one time. In comparison, consider the failed attempts to create a free and democratic entity elsewhere in the world.
But the most telling component of the document they created is the inherent mechanism for change and reinterpretation, a recognition that, as thoroughly and carefully they sought to make their work, there was an awareness that circumstances could change, conditions could arise that no one could anticipate or imagine. (Consider the 2nd amendment in the context of bombs, missiles, Uzis, etc.)
Limiting interpretation of laws to the world of the 18th century is an insult to the great men who, despite compromises they had to make, gave us a blueprint to create a great country that has survived for 2 centuries. Let us respect that and proceed with wisdom and reason.
The argument that the Constitution was the product of great minds is without question. How fortunate we were to have had such a wise, intelligent, forward-thinking group of men (unfortunately, no women) come together in one place at one time. In comparison, consider the failed attempts to create a free and democratic entity elsewhere in the world.
But the most telling component of the document they created is the inherent mechanism for change and reinterpretation, a recognition that, as thoroughly and carefully they sought to make their work, there was an awareness that circumstances could change, conditions could arise that no one could anticipate or imagine. (Consider the 2nd amendment in the context of bombs, missiles, Uzis, etc.)
Limiting interpretation of laws to the world of the 18th century is an insult to the great men who, despite compromises they had to make, gave us a blueprint to create a great country that has survived for 2 centuries. Let us respect that and proceed with wisdom and reason.
Having spent last summer binge reading biographies of Hamilton, Washington, Adams, Jefferson and others, as well as books on the Revolution and Shay's Rebellion, the founders were adaptable and opportunistic. They knew very well that growth of the new America and the constant influx of new immigrants would require a flexible framework that like a reed could bend but not break. Although clear compromises were made to balance federal, personal and state rights, the context for interpretation has ever changed through the years. Do the originalists really think that we should go back to white males only as voters?
Washington himself in a brilliant speech/letter to the Jewish congregation in Savannah articulated the potential future of religious freedom for the Jews of America. Indeed by freeing his slaves he posthumously argued for change in the existing constitution as he knew it when he died.
Clearly a living breathing constitution that is not encased in amber was the intent of many of the founders. This does not mean that the tension between federal power and individual and states power will not continue. The document was designed to nurture this creative tension with clear rules and guidelines.
Washington himself in a brilliant speech/letter to the Jewish congregation in Savannah articulated the potential future of religious freedom for the Jews of America. Indeed by freeing his slaves he posthumously argued for change in the existing constitution as he knew it when he died.
Clearly a living breathing constitution that is not encased in amber was the intent of many of the founders. This does not mean that the tension between federal power and individual and states power will not continue. The document was designed to nurture this creative tension with clear rules and guidelines.
I never cease to be amazed at (a part of) the legal profession's eternal clinging to authorial intention. Authorial intention has been discredited/set aside in all other disciplines of close reading.
There is, simply, no way to determine what a particular piece of language meant on a given day, at given time in the past- especially 200+ years later.
To the untrained observe,r it seems that "originalism" is a cloak or veil to for those who justify turning back the clock- a backward vision of an imagined greatness, or time, that denies, and demeans, the great flexibility and potential growth of the American constitution and political system.
I always ask originalists with whom I come in contact- 'so on what day and at what time did each particular piece of language become fixed?' 'How far back to do you want to take originalism?'
Originalism is a flimsy veil for those who want deny that the history of the United States is a constant- albeit slow- expansion or rights and individual franchise.
There is, simply, no way to determine what a particular piece of language meant on a given day, at given time in the past- especially 200+ years later.
To the untrained observe,r it seems that "originalism" is a cloak or veil to for those who justify turning back the clock- a backward vision of an imagined greatness, or time, that denies, and demeans, the great flexibility and potential growth of the American constitution and political system.
I always ask originalists with whom I come in contact- 'so on what day and at what time did each particular piece of language become fixed?' 'How far back to do you want to take originalism?'
Originalism is a flimsy veil for those who want deny that the history of the United States is a constant- albeit slow- expansion or rights and individual franchise.
Did you really say we need another Clarence Thomas? The first thing I remember about him is the infamous hearings and Anita Hill being pilloried for asserting that he sexually harassed her. Back in those times it took a woman of incredible courage to stand up and assert something like that since of course a bunch of white men were never going to pay attention to something as unimportant as that.
But joking aside, we do not need another narrow-minded white male harkening back to the days when women were kept in their place and there was no global economy. Most especially not with the likelihood of spending four decades on the bench asserting the rights of corporations and states over more compelling global concerns - because that is clearly where all those Republicans are headed. Gerrymandering the courts as they are so deliberately doing is not good for a country that is increasingly diverse.
But joking aside, we do not need another narrow-minded white male harkening back to the days when women were kept in their place and there was no global economy. Most especially not with the likelihood of spending four decades on the bench asserting the rights of corporations and states over more compelling global concerns - because that is clearly where all those Republicans are headed. Gerrymandering the courts as they are so deliberately doing is not good for a country that is increasingly diverse.
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Now that there is a nominee, does Elizabeth Price Foley still think this?
Let's get real here.
There has only been one "Originalist".
That was Scalia.
He came up with the term because he knew he'd be laughed out of Court if he used the real term: "Natural Order".
"Natural Order" was the defining construct of the Catholic Church.
It placed God at the top rung of its ladder, man below that: Popes, Kings, Warriors, Merchants of Wealth, Educated Aides, Craftsmen, and then, way below, any females of Rank, all other females and, then, on the bottom most rung, the slaves.
Our Constitution reflected that: it kept the slaves, denied females any rights, and shut out any male that didn't own "property".
That's the "Original" Constitution.
And, that wasn't good enough for the American people.
Enter Scalia: rule for corporations, rule against voting rights, rule against women's rights, bust the unions, break affirmative action.... ah, it could have gone on forever....
He called himself an "Originalist", but he was really just a bully for the Hierarchy. He was a legal Pinkerton, a union buster with a baseball bat of words and legal rulings. He even considered himself above the Code For Legal Ethics, and partook readily of all those free junkets that are denied to any attorney except one on the Supreme Court.
No, Elizabeth. You, as a woman, are only in that Constitution in one place: You can vote - but Scalia did his best to see that that is the only legal right you have.
.... and you want another one?
Wake up, girl.
It's 2017, not 1717.
There has only been one "Originalist".
That was Scalia.
He came up with the term because he knew he'd be laughed out of Court if he used the real term: "Natural Order".
"Natural Order" was the defining construct of the Catholic Church.
It placed God at the top rung of its ladder, man below that: Popes, Kings, Warriors, Merchants of Wealth, Educated Aides, Craftsmen, and then, way below, any females of Rank, all other females and, then, on the bottom most rung, the slaves.
Our Constitution reflected that: it kept the slaves, denied females any rights, and shut out any male that didn't own "property".
That's the "Original" Constitution.
And, that wasn't good enough for the American people.
Enter Scalia: rule for corporations, rule against voting rights, rule against women's rights, bust the unions, break affirmative action.... ah, it could have gone on forever....
He called himself an "Originalist", but he was really just a bully for the Hierarchy. He was a legal Pinkerton, a union buster with a baseball bat of words and legal rulings. He even considered himself above the Code For Legal Ethics, and partook readily of all those free junkets that are denied to any attorney except one on the Supreme Court.
No, Elizabeth. You, as a woman, are only in that Constitution in one place: You can vote - but Scalia did his best to see that that is the only legal right you have.
.... and you want another one?
Wake up, girl.
It's 2017, not 1717.
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"Surely you're joking, Mr. Feynman." Thomas is not only a flawed justice, he's a flawed thinker. As in, never original, usually not a thinker, unless you count "Ditto" to the closest to him in ideology. Not for nothing was he commonly known as Scalia's sock puppet.
"Justice Thomas’s originalism is unflinching...his fearlessness in defying unconstitutional actions is needed now more than ever."
Three words: Bush v. Gore.
Three words: Bush v. Gore.
So we've found out it's Gorsuch. I suppose the good news is that no, he's not another Clarence Thomas.
The suggestion that critics of Thomas are racist does not hold water, because many of those critics are ardent supporters of President Obama. For many reasons, Clarence Thomas is among the least appropriate person to be occupying a place on the Supreme Court. There is no longer any doubt that Thomas committed sexual harassment. That, and the fact that he used pornography as part of his approaches to seduce women make it difficult to imagine how he can be trusted to rule impartially on cases that involve women's issues. When Scalia passed away, people came out of the woodwork to praise him. Admittedly I have not read all of his writings, but his dissent opinions are mostly personal attacks on his fellow justices for not going along with him. Maybe he had presented he case in court, and did not feel like documenting it again. Or, maybe his arguments, mostly ideological or political in nature, just were not coherent or substantive enough to capture in writing. Justices and legal scholars should show more accountability by analyzing the merits of arguments in front of them, instead of speculating what the founders may have intended. Many of the most important cases in front of the court have underlying circumstances that the founders would never have imagined possible. Would they have imagined that it would become necessary for citizens to have health insurance, and face financial ruins for lack of it?
Professor Foley lives in her own dream world of what the "founders" intended. In fact, they expected the Constitution to be continually revisited, revised and updated to reflect the changing times and and circumstances. It was never intended to be etched in stone and treated as a religious object for worship.
Justice Thomas is a sexual predator just like the Predator in Chief. Neither deserve anything but scorn and shaming.
And as for never asking questions? I would simply call that lazy.
Justice Thomas is a sexual predator just like the Predator in Chief. Neither deserve anything but scorn and shaming.
And as for never asking questions? I would simply call that lazy.
"“I am not an advocate for frequent changes in laws and Constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.” Thomas Jefferson. One of at least five similar quotes.
A strict original Constructionist has no place on the Supreme Court.
A strict original Constructionist has no place on the Supreme Court.
Scalia was not an originalist. No originalist would have penned Bush v. Gore. Instead, Scalia was an ideologue masked in originalism.
Leave it vacant. 4 & 4 is just fine.
By all means let's go back to the days when the Constitution was written, when abortion was legal and you could drink and smoke anything you wanted. Of course, that's not what our Conservative Christian Brethren and sistren believe, but those are the facts. Furthermore, I believe that we should use Thomas Jefferson's version of the Bible and replace all our current Bibles with Jeffersonian Bibles in our churches. Finally, I would argue for a new age of Enlightenment where everyone understands that reason trump's faith.
A true strong originalist (leaving aside whether I believe it is possible to be any such thing) might be very interesting! Such a jurist might, after all, if addressing an issue involving the right to bear arms, consult the Hamilton papers! Now that could be very interesting indeed!
President Obama's pick for Supreme Court Justice should be nominated. President Trump has a responsibility to admit the unethical blocking of this justice by Republicans.
How can anyone advocate for counting some people as 3/5 of a person in the 21st Century? Or women not having voting rights? Strict constructionism is just a veneer for bigotry.
Not too far away from the Supreme Court, on the southeast portico of the Thomas Jefferson Memorial is the proper response to the notion of "achieving a restoration of the original meaning of the Constituion:
"I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors."
Thomas Jefferson
-Excerpted from a letter to Samuel Kercheval, July 12, 1816.
"I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors."
Thomas Jefferson
-Excerpted from a letter to Samuel Kercheval, July 12, 1816.
I'm still waiting for Justice Thomas and the rest of SCOTUS to accept the "original meaning" of the Second Amendment, that was intended to address national defense of a peaceful and law-abiding nation. Not what leaders of the National Rifle Association claim
What we need, more than anything else, is to ensure that no more Souters or Bryers are appointed to the court. Their complicity in ensuring that the Kelo decision favored the city of New London, over individual property and homestead rights, is abominable.
So whether it's a Scalia clone, or a Thomas clone, is far less important, than ensuring that collectivist judges who approve of arbitrary and capricious confiscation of private property never see a seat on that court again.
So whether it's a Scalia clone, or a Thomas clone, is far less important, than ensuring that collectivist judges who approve of arbitrary and capricious confiscation of private property never see a seat on that court again.
Re Justice Thomas's dissent in Obergefell v. Hodges: Exactly when did the freedom to marry whomever one wishes become "an entitlement to government benefits"? If that, Professor Foley, is the kind of reasoning you recommend in the next member of SCOTUS, then we're in for even more trouble than we've already seen.
Originalism is a fraud. Not even the founding fathers were certain what the Constitution was saying in all circumstances. In any case, the 1700s are a long time ago and we have gone far beyond what any of them could have imagined in science, medicine, weaponry, etc. We must interpret the general principles they intended to protect. It is ludicrous to think we can know all of James Madison's thoughts, and then to think that those we do understand are always appropriate to our very different world.
Except ignore those inconvenient few words in the 2nd Amendment about a "well-regulated militia".....
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Every time conservatives bring up "originalism" liberals fall silent, have no response. Of course, most of us assume, we should interpret the meaning of the Constitution in the way the founders intended. But how does anyone know what that intent was? How can we take a contemporary controversy and determine what late-18th century thinkers would have said about it? Can we hold a seance and ask them?
I don't want to read any more editorials about how we need another originalist on the bench until someone can explain how modern judges, faced with having to rule on a contemporary problem, can ascertain the intent of the founding fathers, UNLESS someone can explain how that intent is determined in the first place.
And another thing: aren't judicial rulings also very often based on PRECEDENT? How do precedents that are set 100 or 150 years after the Constitution allow us to use originalism to make rulings today?
Instead of conservatives always pulling out terms like this and receiving no response from timid liberals who afraid of looking unAmerican, we need an honest discussion about: 1) whether the original intent of the founding fathers and originalism are in fact the same thing; and 2) whether we can even know what their original intent even was.
I don't want to read any more editorials about how we need another originalist on the bench until someone can explain how modern judges, faced with having to rule on a contemporary problem, can ascertain the intent of the founding fathers, UNLESS someone can explain how that intent is determined in the first place.
And another thing: aren't judicial rulings also very often based on PRECEDENT? How do precedents that are set 100 or 150 years after the Constitution allow us to use originalism to make rulings today?
Instead of conservatives always pulling out terms like this and receiving no response from timid liberals who afraid of looking unAmerican, we need an honest discussion about: 1) whether the original intent of the founding fathers and originalism are in fact the same thing; and 2) whether we can even know what their original intent even was.
For those who would like an old and compelling discourse on the nature of a constitution, read carefully Chief Justice John Marshall's opinion for a unanimous Court in McCulloch v. Maryland. The complete text of the opinion is available in multiple places on line. It's a lengthy opinion and you can skim through parts until you reach his discussion of the functions of constitutions.
"... A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves."
"... a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs."
After digesting this masterpiece, read Justice Thomas dissent in US Term Limits v. Thornton. Again, the case and opinion are readily available. I think after you understand Thomas' ideas about the nature of the American Constitution you will be (or should be) disquieted and distiburbed.
"... A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves."
"... a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs."
After digesting this masterpiece, read Justice Thomas dissent in US Term Limits v. Thornton. Again, the case and opinion are readily available. I think after you understand Thomas' ideas about the nature of the American Constitution you will be (or should be) disquieted and distiburbed.
Thank goodness for a article which acknowledges the intellect and professionalism of Justice Thomas. In any discussion I have with his detractors, there seems to be an assumption that somehow he is intellectually inferior to other court members. Yet, when I ask if anyone has ever read his opinions, or even knew how many opinions he authored, not one person can acknowlegde that they have read anything he wrote. When I dig deeper in an effort to ascertain how they developed such a low opinion of Justice Thomas, it invariably comes down to a blind acceptance of a false narrative perpetrated by his detractors.
Thank you for writing this insightful article about this honorable man.
Thank you for writing this insightful article about this honorable man.
I totally agree with your concept.
Just as Justice Thomas, a hard conservative, replaced Justice Marshall, a renowned liberal, it would now be an appropriate and justified symmetry to replace Justice Scalia, a leading voice of conservatism, with a Justice who is a leading voice of liberalism.
Just as Justice Thomas, a hard conservative, replaced Justice Marshall, a renowned liberal, it would now be an appropriate and justified symmetry to replace Justice Scalia, a leading voice of conservatism, with a Justice who is a leading voice of liberalism.
Thomas is a brilliant jurist, an intellect of the highest order. Either of these two will never be another Nino but a only close approximation. Stay tuned. Kennedy must retire. He has single handily re-written the constitution.
Both finalists sound decent - for Republicans who don't like women's rights. Scalia sat on my last nerve - a condescending non-empathetic gasbag.
Trump is going to play "Survivor" or perhaps "Queen for a Day" tonight as he announces his nominee -- bringing TWO to stand there. He's so Reality TV he'll Snooki the Supreme Court nomination.
When is some Republican going to tell Trump to stick it where it never shines?
When is some Republican going to tell Trump to stick it where it never shines?
What the nation and the Court actually need is no new members confirmed until we have a legitimate government, perhaps in four years or possibly a lot sooner than that. But not before.
If Clarence Thomas wants to be an 'Originalist', then he should allow himself only three-fifths of a vote.
Your argument posits the framers' "original intent"--which may be a huge mistake. Who's original intent? At what point in the 1787 convention to you find an "original intent"? Are we to believe that all c. 40-50+ delegates carried some fully-formed idea about republican government with them into the Philadelphia convention? Like the Federalist Society, Cato Institute and Justice Thomas you are chasing a chimera, a ghost of your own making, not a set of concrete ideas espoused by framers who then divided(often bitterly) over the results of their collective work. "Original intent" is simply legal jargon for fighting to maintain the status quo in the face of constantly changing society and world--exactly what the framers likely didn't intend. I, for one, refuse to view the Constitution as some ossified relic.
The country needs another Justice Thomas like it needs a new, ... well..
So it has come to that? Justice Clarence Thomas?
Whose idea was it to give Ms. Foley column inches? This op-ed piece is an embarrassment. We need NEITHER another Scalia nor a Thomas. If you held a gun to my head, I would prefer another Scalia, but only if you showed me there were actually bullets in the gun and convinced me you were unafraid to use it.
What cultivated prose: a "quieter disposition".
Yet Justice Thomas's disposition was active enough to participate
in the implantation of the human mind and circuitry
imbuing lifeless corporations with the
inalienable rights of the citizen.
Yet Justice Thomas's disposition was active enough to participate
in the implantation of the human mind and circuitry
imbuing lifeless corporations with the
inalienable rights of the citizen.
Are you mad? In case you haven't noticed it is 2017, not 1789. If the Constitution is not a living document, it will soon be a dead one, ruling over a dying society. Originalism is a made up concept devised to justify archaic and often bigoted views.
Thomas was one of the least qualified Justices ever nominated and has gone on to be one of the one of the poorest by any standard. We need another Ginsburg, not another backwards looking ideologue who seems to care very little, if at all, for actual people.
Thomas was one of the least qualified Justices ever nominated and has gone on to be one of the one of the poorest by any standard. We need another Ginsburg, not another backwards looking ideologue who seems to care very little, if at all, for actual people.
So, it's like nothing has changed since the Constitution was written 300 years ago? That's a pretty silly presumption isn't it. For one thing it has been amended 27 times and interpreted 100's of ways to meet the times. Even as written, it wasn't obeyed. Witness slavery, how did that jive with the Constitution. Or our rampant, uncontrolled sickness of guns, how does that mesh with having " A well regulated militia "? The court is a political unit and as such doesn't need on it someone who is divining the minds of our forefathers, it needs and must have on it someone who can interpret the Constitution to meet the needs of our times. Not a rubber stamp for the either the party or president who happens to be in power.
1
Thank you Ms Foley for simply disregarding my rights , yes RIGHTs, as an American. How does she define "freedom from government action" if its not the government picking which citizens get to deserve rights? As a gay American I can say I have been discriminated against, most recently when my husband and I were thrown out of our hotel simply for being gay! Does she think that is fair? Certainly judge Thomas has done nothing to extend rights to Americans he deems unworthy
Good grief! You can't be serious!
1
No. This country does not need another man who commits sexual harassment. We've got Donald "Grab them by the p***y" Trump in the White House, Clarence "Pubic Hair" Thomas on the Supreme Court, and a host of molesters and serial cheaters in Congress. We still haven't gotten rid of Newt Gingrich or Rudy Giuliani.
Ask yourself, why does the Christian Right, the holier than thou folks, have such a fascination with deviants?
Ask yourself, why does the Christian Right, the holier than thou folks, have such a fascination with deviants?
15
Let's face it, the only reason some people don't like Clarence Thomas is because they are racists. The anti Italian bias directed against Justices Scalia
And Aliotta is also deplorable. Senator Schumer should be particularly ashamed of all his "dog whistle" castigations of these gentleman, not to mention his innumerable micro aggressions...
And Aliotta is also deplorable. Senator Schumer should be particularly ashamed of all his "dog whistle" castigations of these gentleman, not to mention his innumerable micro aggressions...
3
And the only reason some People "like" him is to prove they are not racist
The court needs a Merrick Garland.
13
The Supreme Court needs another Clarence Thomas like it needs a hole in its collective heads. Thomas was nothing more than Scalia's Yes Man with Scalia being the worst bigot, homophobic, racist the court has seen in recent memory. But it's obvious with Trump that he will probably appoint the worst nominee available.
9
Clarence Thomas is many things, but he was never Scalia's "yes man." Take a look at his opinions, concurrences and dissents - obviously, he and Scalia often agreed, but Thomas has a very distinctive voice on the court. He doesn't speak at oral arguments, and many people mistake that for a lack of productivity or independence.
That being said, no, we most emphatically do NOT need another Clarence Thomas on the Court.
That being said, no, we most emphatically do NOT need another Clarence Thomas on the Court.
You mean the Court needs another perjurer. Aren't three enough (Alito and Roberts)?
6
This is a weak argument. Marijuana is not just subject to interstate commerce but also intrastate commerce. The Necessary and Proper Clause of Article One, Section 8 therefore gives the federal government the right to regulate it.
Please explain how the power to regulate intrastate commerce is a necessary or proper incident to the power to regulate interstate commerce.
Or am I misunderstanding your argument?
Or am I misunderstanding your argument?
I don't believe the necessary and proper clause gives the government any rights. They can either regulate economic activity through the Commerce Clause or they can't - necessary and proper only describes how the laws should be crafted based on that power.
The original intent of the founders was that religion should be tolerated but respect for religion was optional. That is why they gave us the supreme blessing of founding a secular nation. That way we can totally disregard anyone claiming to the spokesperson for a mythical supreme being.
3
What passes for Ms. Foley's "thinking" can be charitably described as deeply superficial.
While it is possible for her to be more wrong, I cannot for the life of me figure out how she'd go about it.
While it is possible for her to be more wrong, I cannot for the life of me figure out how she'd go about it.
5
Another man who believes women are sex objects? No thanks.
7
Yes, indeed, let's get another enigma on the court like Clarence; though another Sphinx-like cypher may be difficult to find. I mean, he (or she) would have to be able to vote in virtual lock-step with an established conservative on the bench, and only write an opinion or speak contemporaneously when the planets align. Maybe Mrs. Thomas is available.
3
This is a must read. Long term Supreme Court watcher and author Jeffrey Toobin's 2014 article notes that during Supreme Court hearings:
1. Justice Thomas rarely talks or engages, and acts bored:
"Thomas only reclines; his leather chair is pitched so that he can stare at the ceiling, which he does at length. He strokes his chin. His eyelids look heavy. Every schoolteacher knows this look. It’s called “not paying attention....”
2. He doesn't offer opinions. And sits in "disgraceful silence."
"By refusing to acknowledge the advocates or his fellow-Justices, Thomas treats them all with disrespect... eight years on, Thomas is demeaning the Court...."
3. He writes opinions later, but sitting with arms crossed looking bored, he doesn't engage or question those before the Court. Or his peers.
"Still, there is more to the job of Supreme Court Justice than writing opinions. The Court’s arguments are not televised (though they should be), but they are public. They are, in fact, the public’s only windows onto the Justices’ thought processes, and they offer the litigants and their lawyers their only chance to look these arbiters in the eye and make their case. There’s a reason the phrase “your day in court” resonates. It is an indispensable part of the legal system.
But the process works only if the Justices engage."
http://www.newyorker.com/news/daily-comment/clarence-thomass-disgraceful...
1. Justice Thomas rarely talks or engages, and acts bored:
"Thomas only reclines; his leather chair is pitched so that he can stare at the ceiling, which he does at length. He strokes his chin. His eyelids look heavy. Every schoolteacher knows this look. It’s called “not paying attention....”
2. He doesn't offer opinions. And sits in "disgraceful silence."
"By refusing to acknowledge the advocates or his fellow-Justices, Thomas treats them all with disrespect... eight years on, Thomas is demeaning the Court...."
3. He writes opinions later, but sitting with arms crossed looking bored, he doesn't engage or question those before the Court. Or his peers.
"Still, there is more to the job of Supreme Court Justice than writing opinions. The Court’s arguments are not televised (though they should be), but they are public. They are, in fact, the public’s only windows onto the Justices’ thought processes, and they offer the litigants and their lawyers their only chance to look these arbiters in the eye and make their case. There’s a reason the phrase “your day in court” resonates. It is an indispensable part of the legal system.
But the process works only if the Justices engage."
http://www.newyorker.com/news/daily-comment/clarence-thomass-disgraceful...
5
Is this an article from the Onion?
And by the way? Original meaning = this woman barefoot, pregnant and in the kitchen. Perhaps she is peachy keen on going back to being property?
Original meaning = words bigots use when they want to try to couch their bigotry in something that sounds vaguely like they are not a bigot.
And by the way? Original meaning = this woman barefoot, pregnant and in the kitchen. Perhaps she is peachy keen on going back to being property?
Original meaning = words bigots use when they want to try to couch their bigotry in something that sounds vaguely like they are not a bigot.
4
@W
I agree with you. This article shocked me. I hurried and linked Jeffrey Toobin's article on how Toobin observed for years that Clarence Thomas was NOT a good jurist. He refuses to engage and doesn't even stay attentive. Never speaks or offers an opinion. Maybe once in all these years.
Probably my worst written comment ever, but I wanted to get this in before comments closed.
I agree with you. This article shocked me. I hurried and linked Jeffrey Toobin's article on how Toobin observed for years that Clarence Thomas was NOT a good jurist. He refuses to engage and doesn't even stay attentive. Never speaks or offers an opinion. Maybe once in all these years.
Probably my worst written comment ever, but I wanted to get this in before comments closed.
The fatal flaw of the "originalist" school of thought is that it gives no credence to all human knowledge and experience acquired since 1787. Unfortunately for the "originalists" we've learned quite a bit, and the world and our understanding of it have evolved substantially since then, and this knowledge and experience must guide our path forward!
8
I'll defend originalism. It's not a denial that human knowledge grows or social changes happen. It is the idea that a law means what it means, and that if citizens would like to change the law, then the legislature should change the law. Gay marriage would be a good example. Want to include a new class of relationship? Pass a law correcting the definition.
We can be cynical about Congress, or the way originalism has been applied. But in theory all the idea represents is fidelity to the law even when the Justices think that the law ought to be changed based on experience.
We can be cynical about Congress, or the way originalism has been applied. But in theory all the idea represents is fidelity to the law even when the Justices think that the law ought to be changed based on experience.
This is a novel effort to validate Clarence Thomas as a contributor to the evolution of American society. A role model taking us back to those remarkable, far-seeing geniuses, even gods, who understood all that could happen, how large the country could become, airplanes, computers, greedy billionaires dedicated to destroying liberty. Or, maybe he is just a reasonable intellect who uses the original concept, formed 200+ years ago, as a mechanism for preventing the safeguards of liberty being applied to all humans, regardless of how much land or money they possessed. Citizens United proved not his belief in the hopes and aspirations of our forefathers, but his belief in the sanctity of money.
Anita Hill told the truth. He has no business on the Supreme or any other court.
Anita Hill told the truth. He has no business on the Supreme or any other court.
7
Professor Foley has convinced me that the Supreme Court needs another Justice Thomas with "unflinching originalism" about as much as the National Security Council needs another Steve Bannon.
16
The premise of the column seems to be that we can predict how someone will interpret cases yet to be heard. Of course, we must vet these nominees (the shameful failure to do that last year, notwithstanding). But we deceive ourselves if we think we know how they will vote. We can know only how they have voted. Nuances between Thomas and Scalia, for example, are evident only after the fact.
Who would have predicted that in 2000, the states' rights advocates on the Supreme Court of the United States would all vote to overrule the Florida Court's decision to recount the votes? I'm afraid political bias has assumed equal weight to jurisprudence, even on the Supreme Court.
So hold hearings and do your best, Senators! Good luck in your deliberations in choosing someone who, in theirs, will have considerable power to impact very directly our lives and our history.
Who would have predicted that in 2000, the states' rights advocates on the Supreme Court of the United States would all vote to overrule the Florida Court's decision to recount the votes? I'm afraid political bias has assumed equal weight to jurisprudence, even on the Supreme Court.
So hold hearings and do your best, Senators! Good luck in your deliberations in choosing someone who, in theirs, will have considerable power to impact very directly our lives and our history.
1
The court needs another Ruth Bader Ginsburg!
12
Justice David Souter spoke at my daughter's graduation in 2010. He focused his speech on constitutional originalism and went into some depth on the subject. He pretty much destroyed every argument for it. Justice Souter was appointed by president George H. W. Bush back when the GOP cared about the welfare of the country and its citizens rather than the reactionary, jingoistic crypto-fascist, plutocracy we're well down the road toward these days. Originalism is nothng more than the justification the radical right wing uses to underpin these awful concepts.
Justice Scalia was an articulate, likable, funny guy; he was also a hypocrite (and likely corrupt, as well). Where were his hidebound state's rights principles when he decided Bush v. Gore, robbing Florida of its seeming right to recount votes cast there? Souter, a man of real principles, dissented, BTW.
Justice Scalia was an articulate, likable, funny guy; he was also a hypocrite (and likely corrupt, as well). Where were his hidebound state's rights principles when he decided Bush v. Gore, robbing Florida of its seeming right to recount votes cast there? Souter, a man of real principles, dissented, BTW.
11
Vincenzo, you like most liberal are ignorant of or misrepresenting the Bush v. Gore case, in this case to say it contradicts state's rights principles. Article II sec 1 cl 2 of the U.S. Constitution clearly states that, "each State shall appoint, in such a manner as the LEGISLATURE thereof may direct." The Legislature... not the Executive... and not the Judiciary. Therefore while the Constitution granted the elector selection as a right of the state, it granted it to the state legislature. SCOTUS based it's decision halting the recount on 3 points. 1) The state legislature had required the vote counting process to be completed by Dec. 12 (BTW the day SCOTUS ruled) 2) Florida's legislature had outlined and accepted practices to determine the "intent of the voter" in casting their ballots. Several counties were conducting recounts using methods of determining that intent that had never been authorized by the Legislature or the Florida Executive branch. 3) Because of the new and variable counting methods being utilized by the counties there was no way, in the short time frame required, to assure equal protection of the voters across the state using the State Court's rulings. Therefore it required the existing recount that was validated by the FL Sec. of State showing Bush as the winner to be the official count. And no subsequent count of ballots, using any manner previously prescribed by the FL LEGISLATURE, has ever shown Gore to have a majority of votes. Not one.
The author has to be joking. Another Thomas? Let's just make being a mute part of the vetting process, ok?
Ignorance disguised as "originalism" is no excuse.
No more Thomas', no more Scalia's. Dems should abstain from attending any judiciary hearings for the entire session.
Ignorance disguised as "originalism" is no excuse.
No more Thomas', no more Scalia's. Dems should abstain from attending any judiciary hearings for the entire session.
4
Baloney. Justice Thomas has a milder temperament than Scalia, but the same originalist view of the Constitution and the law that miraculously can be twisted to fit their far right agenda no matter the question. It is the core principles of the Constitution that must guide the justices, but when I was in law school I was taught that it is a living thing and will evolve and adapt over time to resolve issues never contemplated by the framers, like the right to privacy in a world with the internet. Justice Thomas also has displayed a particular insensitivity to the cause of minorities which is counterintuitive and frankly baffling.
I hope that the president names someone who is capable of judging each case on its merits rather than applying an ideology and making their view fit it, someone who will perhaps do the unexpected as Justices Kennedy and Souter have done.
I hope that the president names someone who is capable of judging each case on its merits rather than applying an ideology and making their view fit it, someone who will perhaps do the unexpected as Justices Kennedy and Souter have done.
5
I wonder how the Presidential Election would have turned out if the amount of resulting turmoil was foreseen by anyone then. JGAIA
1
Jerry
You fail to appreciate this chaos is purposeful, a concious choise. And it's exactly what these cretins want.
For people to foolish to realize coal isn't coming back, that whatever business is bullied into returning here will be efficientl;y handled by Chinese-made robots, or that Hillary Clinton offered them their only real chance at a decent future with her plans to to prvidfe rtrainig and education.
Instead, they prefer to die for Massey Energy huindreds of fewet underground, watch their homes ripped apart by mountain top destruction and unfettered polution, and see their leaders destroy the safety net6 that at least would have bought them groceries for a bit.
The Bannons, McConnells, and Ryans of the Right are not just impotent hypocrites, they are scheming opportunists willing to move from Starve the Beast to Crash The Whole Thing in order to get what they want.
They will be unopposed by a homogeneous Supreme Court which takes it's law the same way it takes it's religion, as if every word has been handed directly down from God. Never mind that their allegiance, such as it is, to a bible and a Constitution which has been translated, interpreted and modified by many human hands, not all of them careful or honest or even humane.
Any justice claiming originalism as a motivating factor is an intentional liar and a hypocrite. Any Republican politician claiming to have the nation's interest, or the well being of the struggling poor at heart is a scam artist.
You fail to appreciate this chaos is purposeful, a concious choise. And it's exactly what these cretins want.
For people to foolish to realize coal isn't coming back, that whatever business is bullied into returning here will be efficientl;y handled by Chinese-made robots, or that Hillary Clinton offered them their only real chance at a decent future with her plans to to prvidfe rtrainig and education.
Instead, they prefer to die for Massey Energy huindreds of fewet underground, watch their homes ripped apart by mountain top destruction and unfettered polution, and see their leaders destroy the safety net6 that at least would have bought them groceries for a bit.
The Bannons, McConnells, and Ryans of the Right are not just impotent hypocrites, they are scheming opportunists willing to move from Starve the Beast to Crash The Whole Thing in order to get what they want.
They will be unopposed by a homogeneous Supreme Court which takes it's law the same way it takes it's religion, as if every word has been handed directly down from God. Never mind that their allegiance, such as it is, to a bible and a Constitution which has been translated, interpreted and modified by many human hands, not all of them careful or honest or even humane.
Any justice claiming originalism as a motivating factor is an intentional liar and a hypocrite. Any Republican politician claiming to have the nation's interest, or the well being of the struggling poor at heart is a scam artist.
This is the most ridiculous op-ed. Clarence Thomas is a complete failure as a Supreme Court judge. There is no doubt at all that he does not belong on the Supreme Court. We certainly do not need another one like him.
6
All I will say is this. I believe Anita Hill.
6
Nominate Merrick Garland.
5
I see no reason why we should be beholden to the "original meaning" of 18th century men when interpreting what is less holy writ and more a structure of government with enumerated restrictions on government power (i.e., to impose on individual liberty). More often than not, divining what the drafters "meant" when they finally wrote down the results of months of compromise and debate requires a Ouji board, and that is no way to interpret the law.
5
What on God's earth justified the publication of this ridiculous article?
7
No, No, Never nominate someone like Justice Thomas. He was a horrific mistake right from the beginning during the confirmation process. Is Elizabeth Price Foley too uninformed or too young to remember the sexual harrassment charges by Anita Hill? That testimony alone should have disqualified him. Sadly, he was confirmed and we have had to live with his twisted judgements since. He is a black racist, who seems to go out of his way to put down those who would offer justice for minorities. At this particular moment in time, Thomas is the exact opposite of what we need.
5
Oh yeah. Just what we need - another sexual harasser in a powerful position.
4
This is a chance to deprive trump of his media fix.
The networks should not broadcast his dog and pony show. No video, no sound bites. just announce his choice in next print edition or next news broadcast, or next site update, but without any video or sound from the actual "unveiling"! Now is the time and this is the chance to change the way he gets covered. DO IT!
The networks should not broadcast his dog and pony show. No video, no sound bites. just announce his choice in next print edition or next news broadcast, or next site update, but without any video or sound from the actual "unveiling"! Now is the time and this is the chance to change the way he gets covered. DO IT!
1
I believe that the original intent of the Constitution is that the people should rule themselves. It's about time we started doing that.
3
I thought she was kidding! Who in heaven ever thought of those two as viable alternatives in jurisprudence?
4
The S.C. if it is going to have a conservative justice it needs one with a brain and an ethical core. Thomas is quiet because he is stupid and does not want to show that to the world. Has the world forgotten his sexual pursuit of Anita Hill? I haven't. The investigation of him revealed he was fascinated with pornographic videos. One was titled "Long Dong Silver." Trump is ruining our democracy right now. Please don't let it slip further down the rabbit hole.
4
I can accept a partisan congress but not a Supreme Court with its lifelong appointment or a President either. Our little experiment fails in justice and representation when these two branches aren't centrists.
2
Oh, I suppose, Clarence Thomas' belief in the originalism of the Constitution would include counting slaves as 3/5ths of a human being.
5
How about someone who realizes that knowledge and human consciousness need to keep trying to get better?
1
First, Justice Thomas has often voted in line with what Scalia voted for with no evidence of a world view or philosophy on display. Indeed, no one but this author has ever accused Clarence Thomas of having a deep intellect. Second, why would anyone want another person on the court who displays an apparent lack of intellectual curiosity and disinterest in history as evidenced by his failure to participate in oral arguments and his rejection in opinions of any sort of historical context. Third, the idea that anyone is an "originalist" is false and misleading. While the author seems to ascribe to conservative and right wing opinions, she fails to note that the constitution was intentionally left vague to reserve fights for a later date and leave room for future advancement and chance. As a result, an original interpretation of the constitution did not have the interpretation of the 2nd or 11th amendments that we have today, and could not have predicted computers and the internet, among other things. NYT, just because someone write something does not mean you should publish it.
4
Yes, Professor Foley, we must go back to the original constitution. C1788 should be our goal. Let's forget those new fangled rights the country thought of later, like getting rid of slavery and giving women the right to vote. True originality is our goal. In those good old days the government had the right to establish a state religion and state legislatures appointed US senators, as well they should. Unfortunately, we will have to give up the right to keep and bare arms, but that is a small price to pay for our sacred originalism.
4
Perhaps Professor Foley might be asked to write another article outlining and in support of the approach of Original Meaning. It is well documented that our founders' had a number of conflicting arguments as to the meaning of each and every article of the constitution, even among federalists such as Jay, Hamilton and Madison there was significant disagreement. Which viewpoint is controlling? In fact, the interpretive approach of Original Intent undermines the very lynchpin of the Constitution's legitimacy and that is the "consent of the governed." Our consent today is based upon a much different understanding than that held by our founders.
3
stay away from the Profe's class and the Law School where she teaches...I never taught someone like a law professor praising Clarence Thomas. RATE MY PROFESSOR ACTUAL QUOTE; "Kind of a blend of Ann Colter and Laura Ingraham" but hotter LOLOL
WOW
WOW
3
How about his lone dissent on Hamdi vs Rumsfeld? Arguing the executive has the power to detain a US citizen indefinitely without Habeas Corpus?
Thomas is an embarrassment to the court. God forbid we have more justices like him.
Thomas is an embarrassment to the court. God forbid we have more justices like him.
3
One major and revealing act of courage by Justice Thomas has not been covered here. When the SCOTUS heard the McDonald v Chicago case in 2010, the lead attorney for McDonald, Alan Gura, asked the Court to nationalize gun rights via the Privileges and Immunities clause of the 14th Amendment, which would overturn Slaughter-House 1873.
As any student of Constitutional law can tell you, Slaughter-House is the last Great Stain upon our Constitution. It effectively crippled the most powerful civil rights language in the 14th Amendment. It is the last Giant Legal Prize for civil rights, and the biggest.
4 conservative Justices, fearing things like gay marriage and healthcare rights, chose to follow the NRA's advice and apply the Second Amendment to the States using the jerry-rigged legal tactic of "Incorporation via the Due Process Clause"...A tactic invented by the SCOTUS in 1901 as a band-aid for its already-regrettable 1873 decision.
Meanwhile, 4 liberal Justices also chose to ignore Gura.
McDonald v Chicago produced 5 votes for the NRA's Due Process argument, applying the Heller 2008 decision to the States.
However, Justice Thomas issued a separate, powerful call for the overturning of Slaughter-House. The first and only such SCOTUS opinion issued since 1873, I believe.
He will always deserve high praise for that.
As any student of Constitutional law can tell you, Slaughter-House is the last Great Stain upon our Constitution. It effectively crippled the most powerful civil rights language in the 14th Amendment. It is the last Giant Legal Prize for civil rights, and the biggest.
4 conservative Justices, fearing things like gay marriage and healthcare rights, chose to follow the NRA's advice and apply the Second Amendment to the States using the jerry-rigged legal tactic of "Incorporation via the Due Process Clause"...A tactic invented by the SCOTUS in 1901 as a band-aid for its already-regrettable 1873 decision.
Meanwhile, 4 liberal Justices also chose to ignore Gura.
McDonald v Chicago produced 5 votes for the NRA's Due Process argument, applying the Heller 2008 decision to the States.
However, Justice Thomas issued a separate, powerful call for the overturning of Slaughter-House. The first and only such SCOTUS opinion issued since 1873, I believe.
He will always deserve high praise for that.
I don't recall whether the "Founding Fathers" included any women, slaves, free black persons, Buddhists, Muslims, Hindus, Jews, persons from southern Europe (Spain, Italy or Greece), atheists, Native Americans, need I go on?
How long would it take to get an answer from a question from a person in Mississippi to one in Maine? 2 seconds? Were the "Founding Fathers" deities or Profits? Would they if alive today take the position that there view of the world 225 years ago was the way to view world and country today?
A trick I use to view the world and myself is to take my age and look at the world and country as though I was my present age in the year I was born and subtract my present age. In other words if I am 76 I would have been born in 1941 and subtracting 76 from 1941 would put me in the year 1865. What could I have anticipated and foresaw just at the end of the Civil War and what would life had been like? The general principals would not change but to justify your opinion on what you allege the "Founding Fathers" wanted is to determine that you have God like gifts to see the world as the "Founding Fathers" experienced. Is this not sacrilegious?
How long would it take to get an answer from a question from a person in Mississippi to one in Maine? 2 seconds? Were the "Founding Fathers" deities or Profits? Would they if alive today take the position that there view of the world 225 years ago was the way to view world and country today?
A trick I use to view the world and myself is to take my age and look at the world and country as though I was my present age in the year I was born and subtract my present age. In other words if I am 76 I would have been born in 1941 and subtracting 76 from 1941 would put me in the year 1865. What could I have anticipated and foresaw just at the end of the Civil War and what would life had been like? The general principals would not change but to justify your opinion on what you allege the "Founding Fathers" wanted is to determine that you have God like gifts to see the world as the "Founding Fathers" experienced. Is this not sacrilegious?
1
Does the author believe that all meaningful thought regarding governance, political science and jurisprudence stopped around 250 years ago? That's remarkable.
1
That's why Denmark
The last Justice William Brennan, I believe, offered the most striking rebuke of originalism I have ever read. I leave a brief excerpt from that piece here, which I do not think requires any further commentary.
"There are those who find legitimacy in fidelity to what the call 'the intentions of the Framers." In its most doctrinaire incarnation, this view demands that Justices discern exactly what the Framers thought about the question under consideration and simply follow that intention in resolving the case before them. It is a view that feigns self-effacing deference to the specific judgments of those who forged out original social compact. But in truth it is little more than arrogance cloaked as humility. It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions... Indeed, it is far from clear whose intention is relevant - that of the drafters, the congressional disputants, or the ratifiers of the states? - or even whether the idea of original intention is a coherent way of thinking about a jointly drafted document drawing its authority from a general assent of the states."
"There are those who find legitimacy in fidelity to what the call 'the intentions of the Framers." In its most doctrinaire incarnation, this view demands that Justices discern exactly what the Framers thought about the question under consideration and simply follow that intention in resolving the case before them. It is a view that feigns self-effacing deference to the specific judgments of those who forged out original social compact. But in truth it is little more than arrogance cloaked as humility. It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions... Indeed, it is far from clear whose intention is relevant - that of the drafters, the congressional disputants, or the ratifiers of the states? - or even whether the idea of original intention is a coherent way of thinking about a jointly drafted document drawing its authority from a general assent of the states."
3
Wow. Your solution is another Thomas. Wow.
2
Choices NYT's readers will love:
Justice Thomas has mostly been very consistent on his opinions about State Rights; for example in his concurring opinion in Wyeth v Levine, he upheld a Vermont Jury verdict in favor of Ms. Wyeth over the objections of the FDA's claim that federal preemption barred a state tort claim.
In his concurring opinion for Ms. Wyeth curtailing the limits of federal preemption over state tort law, Justice Thomas cited the decision in Silkwood v Kerr-McGee as one of his supporting precedents; in Silkwood the SC upheld an OK verdict awarding punitive damages for the decedents estate (Silkwood) over the objections of the Atomic Energy Commission who also relied on the federal preemption doctrine.
However, while he leans heavily on states' rights, his objection to Scalia's support for the Chevron Deference Doctrine is without merit; simply put an executive agency's interpretation of a legislative act is given preference for its interpretation of the statutes they were tasked to enforce unless the agency's interpretation is clearly outside the scope of legislative intent. Any decision overturning the Chevron Deference Doctrine will lead to an astronomical leap in court cases challenging regulatory authority
Finally, I believe Scalia was far more stringent in his support of the individual protections provided by 4th Amendment, and while I am not a supporter of either Justice I would prefer a justice whose beliefs are closer to Scalia's than Thomas.
Justice Thomas has mostly been very consistent on his opinions about State Rights; for example in his concurring opinion in Wyeth v Levine, he upheld a Vermont Jury verdict in favor of Ms. Wyeth over the objections of the FDA's claim that federal preemption barred a state tort claim.
In his concurring opinion for Ms. Wyeth curtailing the limits of federal preemption over state tort law, Justice Thomas cited the decision in Silkwood v Kerr-McGee as one of his supporting precedents; in Silkwood the SC upheld an OK verdict awarding punitive damages for the decedents estate (Silkwood) over the objections of the Atomic Energy Commission who also relied on the federal preemption doctrine.
However, while he leans heavily on states' rights, his objection to Scalia's support for the Chevron Deference Doctrine is without merit; simply put an executive agency's interpretation of a legislative act is given preference for its interpretation of the statutes they were tasked to enforce unless the agency's interpretation is clearly outside the scope of legislative intent. Any decision overturning the Chevron Deference Doctrine will lead to an astronomical leap in court cases challenging regulatory authority
Finally, I believe Scalia was far more stringent in his support of the individual protections provided by 4th Amendment, and while I am not a supporter of either Justice I would prefer a justice whose beliefs are closer to Scalia's than Thomas.
Thomas?
A friend of a friend of mine informed me that Thomas was an undergrad student of his at Holy Cross.
Dimwit, said he!
A friend of a friend of mine informed me that Thomas was an undergrad student of his at Holy Cross.
Dimwit, said he!
I wonder how the founders would feel about giant international corporations spending millions to insure the election as lawmakers of people under their influence. It would be sort of like the East India Company getting to appoint regional governors to protect their interests - that went well, didn't it? The search for judges with apparent gravitas and limited imagination must always be confined to a narrow pool of candidates. But judges evolve, particularly when their tenure is assured. We may not have heard the last of the Sauters.
As John McEnroe would have said on another: "You cannot be serious."
2
By threatening us with a Clarence Thomas clone, is the author hoping to get us to settle for an Antonin Scalia clone?
1
Among other things, this author fails to appreciate that Clarence Thomas buys his special brand of originalism at the price of historical ignorance. Not only do Thomas' opinions consistently ignore the shift in our federalist order brought about by the Civil War amendments, but they also often ignore precedent. At least Scalia recognized that on many questions of Constitutional law, there is no going back - this, born of a respect for the rule of stare decisis. Thomas not so much. All this on top of the major failing of originalist thought, which is this: trying to re-construct the historical milieu that gave birth to the Constitution is every bit as mystical an exercise as divining what concepts such as "equality" and "cruel and unusual" mean in an evolving society. The latter, of course, has the advantage of actually being responsive to our present needs.
2
Trump shouldn't be picking any Supreme Court Justice at this time, Obama's appointment should have prevailed. But another Thomas or even another Scalia are bad choices since they support money over individuals and religious nonsense over science.
With Trump the next choice could be a fruitcake and the republicans would vote for it.
With Trump the next choice could be a fruitcake and the republicans would vote for it.
1
A really bad article by someone from a third rate law school. thomas has no intellect. He is afraid to ask questions because he doesn't undertand most of what is going on. As for so called "original intent", just whose intent are we talking about-Hamilton and those who agreed with him about a strong central government or tommie jefferson and his supporters. Very different views on the Constitution. Original intent is a facade for the Constitution means what I say it means.
4
My reading of the "original" Constitution would have, in all likelihood, excluded Justice Thomas from being eligible to serve as a Justice. I believe he can trace his ancestry back to slavery prior to the Civil War.
I suppose Ms. Foley could argue for Justice Thomas being three fifths of a Justice.
I suppose Ms. Foley could argue for Justice Thomas being three fifths of a Justice.
2
I have no problem with originalism but it seems to me it is applied as a matter of political convenience. Interestingly enough Prof. Foley doesn't mention Thomas's stand on racial discrimination where he seems to be of two minds.
Under "originalism," Clarence Thomas would still be three-fifths of a person.
3
".....achieving a restoration of the original meaning of the Constitution ...." Stop right there. Scalia did not do this. The "original meaning" of the Constitution that Scalia "achieved" was nothing more than Scalia's interpretation of the Constitution.
In the "Citizens United" decision Scalia opined that corporations are people. That decision alone is a smoking heap of feces proving that his "strict original constitutionalism" is a fraudulent concept. Justice Thomas was Scalia's poodle.
In the "Citizens United" decision Scalia opined that corporations are people. That decision alone is a smoking heap of feces proving that his "strict original constitutionalism" is a fraudulent concept. Justice Thomas was Scalia's poodle.
2
Isn't Clarence Thomas just a mute version of Scalia? The author makes a distinction without a difference, ideologically speaking.
2
Foley (the author) tries to give weight to the persistent lie that the radical-right's use of the term "Conservative" is about conserving something, restoring some nostalgic imaginary past, when the truth it's about undermining the US Constitution and especially the Bill of Rights. The verbiage about Scalia's "originalism" betrays her motive: Don't read the US Constitution, we "conservatives" will tell you what it says. Pay no attention to the first ten words of the First Amendment or the first four words of the Second Amendment, we "originalists" will fabricate what we want so that the Republican Party can consolidate more power.
Above all, pay no attention to Merrick Garland and the Republican's persistent and calculated violation of the US Constitution.
Thomas isn't competent. He was nominated for his skin color, nothing more. We'd all benefit from diversity in the Supreme Court, but not when it celebrates racism with a blatant quota pick like Thomas.
Above all, pay no attention to Merrick Garland and the Republican's persistent and calculated violation of the US Constitution.
Thomas isn't competent. He was nominated for his skin color, nothing more. We'd all benefit from diversity in the Supreme Court, but not when it celebrates racism with a blatant quota pick like Thomas.
2
The problem I have with Constitutional "originalists" is the sneaking suspicion that the part they are so "original" about is that pesky little "three-fifths" thing.
I'm not a lawyer or a student of history of law, but my understanding of our Constitution is that the Founders never intended it to be carved in stone. The very existence of the Bill of Rights is evidence that their intent was that the Constitution would have to be changed and even emended to meet and grow and maintain relevance into an uncertain future, not to be constrained to the specific time and place of its origins. Such change would be necessary as we strive to form "...a more perfect union..."
I'm not a lawyer or a student of history of law, but my understanding of our Constitution is that the Founders never intended it to be carved in stone. The very existence of the Bill of Rights is evidence that their intent was that the Constitution would have to be changed and even emended to meet and grow and maintain relevance into an uncertain future, not to be constrained to the specific time and place of its origins. Such change would be necessary as we strive to form "...a more perfect union..."
1
Anyone else have the impression that Thomas is mute and was Scalia's lap dog?
1
Going on the "Original Meaning of the Constitution":
Clarence Thomas would be a slave
Clarence Thomas would not have a white wife
The 3 women on the Court would be home making cookies for their 15 forced breed-outs.
So, given "original intent" at least 4 members of the Supreme Court would not be anywhere near the Supreme Court except as janitors and cleaning- ladies.
You should know all of this, Elizabeth Price Foley.
I'm not buying your book.... or what you've written here.
Clarence Thomas would be a slave
Clarence Thomas would not have a white wife
The 3 women on the Court would be home making cookies for their 15 forced breed-outs.
So, given "original intent" at least 4 members of the Supreme Court would not be anywhere near the Supreme Court except as janitors and cleaning- ladies.
You should know all of this, Elizabeth Price Foley.
I'm not buying your book.... or what you've written here.
3
Just love the way The Times flip flops. In the past Thomas has come under fire for being the silent judge.
Different writers in the opinion pages have different opinions. You understand that they aren't here to represent some dominant Times ideology, right?
Maybe the Times should stop printing viewpoints from the right if the Trump supporters are just going to use it against them.
Maybe the Times should stop printing viewpoints from the right if the Trump supporters are just going to use it against them.
2
Hamilton, a far brighter man than either Scalia or Thomas, couldn't really reconcile these conflicts in his own mind -- he advocated for "the firmness of judicial magistracy," thinking it could constrain the legislature from passing measures that were "iniquitous" in their intention. But he also admitted that we would come to depend upon a moderate, fair, and impartial judiciary mainly because "no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day."
"What goes around comes around" is my guess at what he thought as he advocated for judicial independence.
But Clarence Thomas doesn't need to worry about that kind of karmic justice -- the terribly unjust legal positions he's taken over the years don't seem to have made a bit of difference to him. And we certainly don't need someone else like him on the court.
"What goes around comes around" is my guess at what he thought as he advocated for judicial independence.
But Clarence Thomas doesn't need to worry about that kind of karmic justice -- the terribly unjust legal positions he's taken over the years don't seem to have made a bit of difference to him. And we certainly don't need someone else like him on the court.
1
It seems that the question is who will Steve Bannon, Steve Miller, or Mike Pence choose as they seem to be the policy and king makers these days. But we shouldn't forget who Jared and Ivanka might pick. The announcement later today will probably be one the best indicators of who has the greatest influence over Trump these days.
Number 2 should have read:
2. In cases where corporations versus the government, they always vote in favor of the corporations.
2. In cases where corporations versus the government, they always vote in favor of the corporations.
Foley's concept of meaning, let alone original meaning, would get her a C- in Philosophy 101.
Meaning is one of the modalities of intentionality. Intentionality is grounded in purposeful behavior. Purposeful behavior is by its nature incomplete.
What is meant by that?
Well, is there anyone reading this comment who would say her life is complete, that she has reached the terminus ad quem of all her purposes?
Of course not.
Even Donald Trump is still searching for the perfect grope that will Nirvanaize him.
That is the same with all meaning. Authentic, as distinguished from bad faith, meaning is always open to new possibilities. It's never complete and closed, as Foley in her C- essay seems to presume, and Thomas - and Scalia - embodied in their verkochte theory of original intent.
Actually, less a theory than a disingenuous attempt to disguise an agenda of resentment that they didn't get the respect they thought they deserved.
Is there any useful concept of "original intent?"
Yes, but one which notes that original intent, which itself always starts out in medias res, is a terminus a quo, i.e., a starting point, not a concluding position.
Stunning how with so much education, and as good Catholic boys, neither Thomas or Scalia ever got this point, which suffuses the philosophy of both Augustine and Aquinas.
Foley?
I have no idea where she might have gotten her philosophical training, if any.
Meaning is one of the modalities of intentionality. Intentionality is grounded in purposeful behavior. Purposeful behavior is by its nature incomplete.
What is meant by that?
Well, is there anyone reading this comment who would say her life is complete, that she has reached the terminus ad quem of all her purposes?
Of course not.
Even Donald Trump is still searching for the perfect grope that will Nirvanaize him.
That is the same with all meaning. Authentic, as distinguished from bad faith, meaning is always open to new possibilities. It's never complete and closed, as Foley in her C- essay seems to presume, and Thomas - and Scalia - embodied in their verkochte theory of original intent.
Actually, less a theory than a disingenuous attempt to disguise an agenda of resentment that they didn't get the respect they thought they deserved.
Is there any useful concept of "original intent?"
Yes, but one which notes that original intent, which itself always starts out in medias res, is a terminus a quo, i.e., a starting point, not a concluding position.
Stunning how with so much education, and as good Catholic boys, neither Thomas or Scalia ever got this point, which suffuses the philosophy of both Augustine and Aquinas.
Foley?
I have no idea where she might have gotten her philosophical training, if any.
1
Original intent?
Would there even be a Florida International University College of Law without federal student loans and grants, none of which I recall reading about in the Constitution?
https://law.fiu.edu/students/financial-aid-2-2/
Would there even be a Florida International University College of Law without federal student loans and grants, none of which I recall reading about in the Constitution?
https://law.fiu.edu/students/financial-aid-2-2/
The court should decide matters based on the Constitution as it is today, not over 200 years ago. Jefferson defended the Amendment process by pointing out that society will change over the centuries, as will ethics and mores, and the Constitution must be able to change to match modern society and modern thinking. He warned against the idea that the people in 1787 knew it all and that their knowledge should be carved in stone. There have been three constants during the Scalia years:
1. In cases where corporations versus the people, the wingnut-five always vote for the corporations.
2. In cases where corporations versus the government, they always vote in favor of the people.
3. In cases where government versus the people, they always vote for the government.
Whatever the issue, whatever the circumstances, they are all a brick wall against the people, except for the occasional swing vote of Justice Kennedy on the most obvious issues.
1. In cases where corporations versus the people, the wingnut-five always vote for the corporations.
2. In cases where corporations versus the government, they always vote in favor of the people.
3. In cases where government versus the people, they always vote for the government.
Whatever the issue, whatever the circumstances, they are all a brick wall against the people, except for the occasional swing vote of Justice Kennedy on the most obvious issues.
2
Merit Garland or no one. Let the the peopse speak? They have by almoat 2 million votes.
2
We can sit and argue about original intent ad nausea. What this country faces is a 21st Century reality with an 18th Century map. Jefferson stated that each generation should review and redo the document. I always thought he was wrong and the US Constitution was sacrosanct. Not anymore. When a minority party can control all arms of government because of the number of states and not the number of voters then this country is in trouble. When a foreign government can influence our elections, then this country is in trouble. When citizen is pitted against citizen by amoral politicians who just want to keep the status quo, then this country is in trouble. When one religion is pitted against another religion, then this country is in big trouble. When our leaders deal in "alternative facts" and many of our fellow citizens accept these as truths, then not only are we in big trouble but we have somehow entered an alternate universe.
Hannah Arendt said, " “The ideal subject of totalitarian rule is not the convinced Nazi or the dedicated communist, but people for whom the distinction between fact and fiction, true and false, no longer exists.”
Truer words were never spopken.
Hannah Arendt said, " “The ideal subject of totalitarian rule is not the convinced Nazi or the dedicated communist, but people for whom the distinction between fact and fiction, true and false, no longer exists.”
Truer words were never spopken.
3
The idea of "originalism" dates only to the 1960's, near as I can tell. Scalia considered himself a "textualist", as I understand it. ("I am an originalist. But I'm not a nut.) The "living constitution" believers see it differently.
In my experience, people see the world through their own predilections and prejudices. That includes how they read the constitution. Judges are people. So, they do that, too.
It's extremely difficult to tease out the intent of the framers, let alone those who ratified it with their votes. (Shouldn't it matter what *they* thought they were voting for?)
The early SCOTUS protected "free" market principles. Later, the Court turned toward civil rights and personal freedom. Now, a large body of people wish to protect the "original" intent of the document. The pendulum will swing again. But which way?
In my experience, people see the world through their own predilections and prejudices. That includes how they read the constitution. Judges are people. So, they do that, too.
It's extremely difficult to tease out the intent of the framers, let alone those who ratified it with their votes. (Shouldn't it matter what *they* thought they were voting for?)
The early SCOTUS protected "free" market principles. Later, the Court turned toward civil rights and personal freedom. Now, a large body of people wish to protect the "original" intent of the document. The pendulum will swing again. But which way?
1
Professor Foley, have you lost your mind? Clarence Thomas is very much, as is Trump, an embarrassment.
3
This piece is just a typical strict constructionist screed and adds nothing new to the argument. What the country needs are jurists and legislators and executive officers who understand that the world evolves and that over time humans acquire more knowledge about everything. If the universe is not static, and if we appreciate that we consistently learn more about the universe, and if we are to have an effective constitution, then that constitution cannot be interpreted in such a way as to deny the reality of change. The constitutions' framers were educated, learned men, schooled in classics and history. They understood that things always changed and would change but surely they could not predict change. Embodied within the constitution is a penumbra of adaptability based on the framers' understanding that the world evolves. We need to stop trying to have jurists with 18th century thinking making decisions in a 21st century world.
The idea that right-wing judges are following the "original meaning" of the Constitution is a marketing slogan, not truth.
Ms. Price Foley praises Justice Thomas for arguing that gay-marriage bans were constitutional because “Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits."
Well, what about his dissent in Lawrence v. Texas in 2003, when he joined in arguing that the Fourth Amendment's protections against unreasonable searches should not prevent the government from going into your bedroom and arresting you for having gay sex?
The Dred Scott decision was based on "original intent." Justice Roger B. Taney argued that the Founding Fathers never intended the Bill of Rights to apply to less-than-human black people. The original Constitution accepted slavery.
Ms. Price Foley praises Justice Thomas for arguing that gay-marriage bans were constitutional because “Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits."
Well, what about his dissent in Lawrence v. Texas in 2003, when he joined in arguing that the Fourth Amendment's protections against unreasonable searches should not prevent the government from going into your bedroom and arresting you for having gay sex?
The Dred Scott decision was based on "original intent." Justice Roger B. Taney argued that the Founding Fathers never intended the Bill of Rights to apply to less-than-human black people. The original Constitution accepted slavery.
2
Given that words, concepts, norms and values, their meanings, dimensions
and valences, change with and over time and context, and that willful blindness and deafness exist with many metaphoric gorillas in the room, and having been warned by the General Semanticists that the “map is not the territory,” and that a lettered word is not the actual thing, while many cope, adapt and function, daily, as if uncertainty and unpredictability are not ever present, what can “originalism” be other than a questionable belief system favored and fostered by some influential stake holders and criticized by others.Is it appropriate, and sufficient, during these,
and other troubled times, that judges and the judiciary only go back to the Constitution in order to interpret, ascertain, and assure right from wrong, to protect and to punish? Should the next candidate for the US Supreme Court, or any other secular or religious court, also be sufficiently knowledgable about the original intent of the Ten Commandments and its pre- Judaic, Christian, Islamic creator;among other Gods? Are today’s “originalists, ” and those whom they interpret from the past, a diverse group, a homogeneous one or what?What are and what can be, the originalists’ take on mutual trust, mutual respect, mutual caring for and with, and menschlichkeit, as a societal and community-systemic necessity and not just a possible choice to be considered!
and valences, change with and over time and context, and that willful blindness and deafness exist with many metaphoric gorillas in the room, and having been warned by the General Semanticists that the “map is not the territory,” and that a lettered word is not the actual thing, while many cope, adapt and function, daily, as if uncertainty and unpredictability are not ever present, what can “originalism” be other than a questionable belief system favored and fostered by some influential stake holders and criticized by others.Is it appropriate, and sufficient, during these,
and other troubled times, that judges and the judiciary only go back to the Constitution in order to interpret, ascertain, and assure right from wrong, to protect and to punish? Should the next candidate for the US Supreme Court, or any other secular or religious court, also be sufficiently knowledgable about the original intent of the Ten Commandments and its pre- Judaic, Christian, Islamic creator;among other Gods? Are today’s “originalists, ” and those whom they interpret from the past, a diverse group, a homogeneous one or what?What are and what can be, the originalists’ take on mutual trust, mutual respect, mutual caring for and with, and menschlichkeit, as a societal and community-systemic necessity and not just a possible choice to be considered!
The Supreme Court needs neither another Scalia or Thomas.
4
Clareance Thomas?! Same mane who the great Thurgood Marshall's seat was replaced with? For as much as conservatives dislike Obama filling the seat of Scalia, why don't you do a little research on Marshall's seat. The only similarity between Marshall and Thomas is - sadly - the color of their skin. Mashall was a brilliant and outspoken man who would have ran circles around Scalia, not the shallow man in Thomas who has spoken less than a 3-year old would be expected.
Thomas was the exact opposite of Marshall and was 40 years his junior. Obama's pick was a moserate and the oldest selection ever. It's funny how conservatives seem to forget history. And now those same conservstives want 8 Democrat senators to "do the right thing and allow Trump's pick'. What a joke! Republicans said they wanted "the people to make the Court pick". Fine. We did. Back in 2012 Obama won by 6,000,000 votes and in 2016 Hillary won by 2,900,000 votes. They can nominate Obama's pick, or we will just have to have 8 Justices until 2020. Democrats, and everyone reqding this, you better filibuster all day every day on this.
Thomas was the exact opposite of Marshall and was 40 years his junior. Obama's pick was a moserate and the oldest selection ever. It's funny how conservatives seem to forget history. And now those same conservstives want 8 Democrat senators to "do the right thing and allow Trump's pick'. What a joke! Republicans said they wanted "the people to make the Court pick". Fine. We did. Back in 2012 Obama won by 6,000,000 votes and in 2016 Hillary won by 2,900,000 votes. They can nominate Obama's pick, or we will just have to have 8 Justices until 2020. Democrats, and everyone reqding this, you better filibuster all day every day on this.
1
Clarence Thomas wrote, "Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved." From this is is but a short step to conclude that slavery was OK. Someone who thinks this way does not comprehend the most basic concepts of liberty or human life, and we certainly do not need another such twisted mind on the Supreme Court.
1
This op-ed assumes that Democrats will confirm a Trump nominee. I think that is dangerous and unnecessary. First it rewards Republican intransigence. I ask the Democrats, and any truly responsible Republicans, to refuse to confirm any Republican nominee until Merrick Garland is confirmed. Intransigence should not be rewarded.
Second, since intransigence has apparently been rewarded, Democrats should return the favor and filibuster and refuse to confirm each and every Republican nominee. I understand that Justice Kennedy has said he will retire. If so, and if no Republican nominee is affirmed, the court will be well set to proceed with seven members, composed of Democratic and Republican appointees, and the right wing doctrinaires proposed by Trump/Bannon and the Republicans will not be able to govern the direction of our country.
Second, since intransigence has apparently been rewarded, Democrats should return the favor and filibuster and refuse to confirm each and every Republican nominee. I understand that Justice Kennedy has said he will retire. If so, and if no Republican nominee is affirmed, the court will be well set to proceed with seven members, composed of Democratic and Republican appointees, and the right wing doctrinaires proposed by Trump/Bannon and the Republicans will not be able to govern the direction of our country.
The framers wisely intended for the Constitution, with its capacious and broad dictates, to be a document whose import and meaning evolves over time as the nation progresses morally, politically and economically. Originalism is a self-defeating doctrine: the original intent was one of development, not stasis.
what utter nonsense, including the idea that somehow permitting states to restrict people's right to marry is somehow an increase in liberty. and that the right to marry is a nothing but a government benefit.
the writer's dishonesty is demonstrated in her convoluted discussion of the chevron case where she attempts to distinguish between scalia and thomas. she refers to arlington doubling down on what she claims to be chevron wrongheadedness. but what she dishonestly fails to mention is that thomas actually joined scalia's decision and opinion without so much as writing a dissent that qualified his total support of scalia's opinion.
the writer's dishonesty is demonstrated in her convoluted discussion of the chevron case where she attempts to distinguish between scalia and thomas. she refers to arlington doubling down on what she claims to be chevron wrongheadedness. but what she dishonestly fails to mention is that thomas actually joined scalia's decision and opinion without so much as writing a dissent that qualified his total support of scalia's opinion.
Neither Justice Thomas nor Scalia as torch bearers for original intent have ever gotten it completely correct. Yes, interpretation of how laws should be applied does require an understanding of legal history and the discussions about how things came about, but there is not a complete and accurate record for anyone to completely rely on. But more importantly, no embrace of original intent can properly ignore how much has changed in how commerce, government, the military and society operates today.
Any judge, but emphatically one who becomes a Justice of the Supreme Court, needs not rigid ideology as hie or her guide in reasoning, but an amalgam of the body of law, precedent, social science and sense of fairness that transcends what they might do or feel personally. Anyone can have, in this case write, opinions that merely echo their own, but Justices should, we expect, be held to a vastly higher standard.
Those who believe that the next Justice will be on the Court to advance their own cause and crush any other view or opinion are in violation of the original intent of the Court. It is not about winning, as they seem to insist, but about upholding both the intent and spirit of the law. Otherwise, we as a county are no different than countries we chastise for their extreme actions, validated by their highest courts.
Any judge, but emphatically one who becomes a Justice of the Supreme Court, needs not rigid ideology as hie or her guide in reasoning, but an amalgam of the body of law, precedent, social science and sense of fairness that transcends what they might do or feel personally. Anyone can have, in this case write, opinions that merely echo their own, but Justices should, we expect, be held to a vastly higher standard.
Those who believe that the next Justice will be on the Court to advance their own cause and crush any other view or opinion are in violation of the original intent of the Court. It is not about winning, as they seem to insist, but about upholding both the intent and spirit of the law. Otherwise, we as a county are no different than countries we chastise for their extreme actions, validated by their highest courts.
1
This opinion piece, and its publication by the NY Times, is just another step in the normalization of Senator McConnell's refusal to even consider President Obama's nomination of Merrick Garland. Senate Democrats should block any candidate proposed by this administration. Patriotism, precedent, the public good--none of these things matter to these people. The only thing they understand is power.
1
What the court needs another smart but humble lawyer, dedicated to the principles and traditions of law, not another preening ideologue or a mute too incompetent or disinterested to even question attorneys who appear before the court. Thomas' opinions are clearly written by his clerks, and the only guidance he provides is as to the ideological outcome he prefers.
As to Antonin Scalia, he was not nearly as brilliant as the media and his conservative sycophants would have us believe. He was a colorful and often mean-spirited ideologue, differing from Thomas only in that he was more outgoing and articulate. But the so-called originalist opinions he articulated were largely right-wing hogwash, which the media and his fans saw as 'brilliant' only because they were spiced with entertaining phraseology -- 'jiggery pokery' probably his most memorable --that barely concealed his core belief that his elevation to the court was a mere sop for what he felt was his God-given destiny: To be king. Thankfully, his God 'called him home' and hopefully he has been assigned a well-deserved eternal resting place, painfully close to the fire.
As to Antonin Scalia, he was not nearly as brilliant as the media and his conservative sycophants would have us believe. He was a colorful and often mean-spirited ideologue, differing from Thomas only in that he was more outgoing and articulate. But the so-called originalist opinions he articulated were largely right-wing hogwash, which the media and his fans saw as 'brilliant' only because they were spiced with entertaining phraseology -- 'jiggery pokery' probably his most memorable --that barely concealed his core belief that his elevation to the court was a mere sop for what he felt was his God-given destiny: To be king. Thankfully, his God 'called him home' and hopefully he has been assigned a well-deserved eternal resting place, painfully close to the fire.
Since Clarence Thomas is said to be such an originalist always willing to interpret the constitution as the founding fathers intended, as an African American, I always how far back Justice Thomas is willing to go since the genius founding fathers considered him (and other blacks like myself) 75 percent humans.
For instance, was Abraham Lincoln emancipation proclamation of 1863 constitutional Justice Thomas?
And since Justice Thomas believes so much in the sovereignty of states rights, should the Federal government have interviewed to stop Jim Crow laws and at allow segregation by race to continue. Are the federal laws barring states from such laws as racial discrimination constitutional Justice Thomas? Should blacks and women be disallowed from voting as the genius founding fathers intended?
Should you, a black man, be disallowed from holding office as Justice of the Supreme Court because of your race as those genius founding fathers intended?
If Justice Thomas were to answer the above questions, you'll see the crack in his so-originalist philosophy. He is a typical hipocrite who is being used as tool by people who are held-bent on rolling back civil rights laws. And what a perfect tool he has been. An incompetent black opportunist, willing to toll the partisan line consistently, without saying a single word, lest he might embarrass his bosses. There have always been people like him throughout the 400 years history of blacks in this country. Why not more like him.
For instance, was Abraham Lincoln emancipation proclamation of 1863 constitutional Justice Thomas?
And since Justice Thomas believes so much in the sovereignty of states rights, should the Federal government have interviewed to stop Jim Crow laws and at allow segregation by race to continue. Are the federal laws barring states from such laws as racial discrimination constitutional Justice Thomas? Should blacks and women be disallowed from voting as the genius founding fathers intended?
Should you, a black man, be disallowed from holding office as Justice of the Supreme Court because of your race as those genius founding fathers intended?
If Justice Thomas were to answer the above questions, you'll see the crack in his so-originalist philosophy. He is a typical hipocrite who is being used as tool by people who are held-bent on rolling back civil rights laws. And what a perfect tool he has been. An incompetent black opportunist, willing to toll the partisan line consistently, without saying a single word, lest he might embarrass his bosses. There have always been people like him throughout the 400 years history of blacks in this country. Why not more like him.
1
The Supreme Court, this nation, and this democracy need neither another Clarence Thomas nor another Antonin Scalia. Both of these jurists were among the five justices that equated free speech with unlimited political campaign contributions in the five-to-four landmark precedent of Citizens United.
Eight people have as much wealth as poorest half of the people in the world. The basic concept of democracy is "one person, one vote." Justice Alito may not see monumental wealth inequality as a problem, but Senator Bernie Sanders and many other clear-thinking people do.
Eight people have as much wealth as poorest half of the people in the world. The basic concept of democracy is "one person, one vote." Justice Alito may not see monumental wealth inequality as a problem, but Senator Bernie Sanders and many other clear-thinking people do.
2
Why shouldn't one's vote be counted relative to their stake in this country? And what better reflection of that stake than wealth since the power to tax IS the power to control? John Jay said it best during a debate on the granting of voting rights: "The country should be run by (those) who own it." What right does a 47%er, who pays no federal income tax have to elect someone who promises to increase those same federal taxes on others?
reply to Leave Capitalism Alone:
Warren Buffett (you may have heard of him) said:
"I was lucky. I was born in the United States. The odds were 30 or 40-to-1 against that. I had some lucky genes. I was born at the right time. If I’d been born thousands of years ago I’d be some animal’s lunch because I can’t run very fast or climb trees. So there’s so much chance in how we enter the world.
How you came out of the womb has really nothing to do with what kind of person you are. You decide what kind of person you’re going to be. It does decide whether maybe you never have to do an item of work in your life and maybe determine whether you’re fighting uphill all of the time. In my eyes we’re all created equal, but we don’t all have an equal opportunity by a long-shot."
I believe that in a democracy the "equal" right to vote balances out somewhat this fact of reality that "we don’t all have an equal opportunity [in life] by a long-shot." And, it also a fact that some suffer very unfortunate vicissitudes of life (through no fault of their own) that are not suffered by others.
If Warren Buffett is able to express himself so well on this subject, perhaps lesser "capitalists" should take heed.
Warren Buffett (you may have heard of him) said:
"I was lucky. I was born in the United States. The odds were 30 or 40-to-1 against that. I had some lucky genes. I was born at the right time. If I’d been born thousands of years ago I’d be some animal’s lunch because I can’t run very fast or climb trees. So there’s so much chance in how we enter the world.
How you came out of the womb has really nothing to do with what kind of person you are. You decide what kind of person you’re going to be. It does decide whether maybe you never have to do an item of work in your life and maybe determine whether you’re fighting uphill all of the time. In my eyes we’re all created equal, but we don’t all have an equal opportunity by a long-shot."
I believe that in a democracy the "equal" right to vote balances out somewhat this fact of reality that "we don’t all have an equal opportunity [in life] by a long-shot." And, it also a fact that some suffer very unfortunate vicissitudes of life (through no fault of their own) that are not suffered by others.
If Warren Buffett is able to express himself so well on this subject, perhaps lesser "capitalists" should take heed.
1
LCA: Good point; let's weigh a state's electoral vote based on how much money that state contributes in federal taxes. Are you okay with that, based on the logic you just used?
California will finally get the voice it deserves in the nation, so I somehow doubt you will agree.
California will finally get the voice it deserves in the nation, so I somehow doubt you will agree.
1
Clarence Thomas sits on our highest court because he lied during his confirmation hearing. Can there be a greater travesty? He also sits there because of the complicity of Republican senators who rushed his confirmation through, while many women waited in the wings to testify about Thomas' sexual harassment of them. Anita Hill was only one.
Our country will benefit when he retires. To use him as an example to follow is disgusting.
Our country will benefit when he retires. To use him as an example to follow is disgusting.
1
I thought Thomas and Scalia were supposed to be "strict constructionists" "judicial restraint" justices not conservatives making law from the bench.
Um, no. The people need to decide, after the next election. Remember???
1
Yet again, another NYT opinion piece extolling the virtues of the late Supreme Court Justice Atonin Scalia. Today we're told he was "a brilliant and ardent defender of conservatism" known for "eloquent" opinions. Times readers have been reminded again and again that Scalia was a friendly guy and that liberal justice Ruth Bader Ginsberg really liked him a lot.
Justice Scalia wrote the Citizens United vs. Federal Election Commission decision of January 21, 2010, which in the opinion of many historians was, along with Dred Scott, Plessy v. Ferguson and Bush v. Gore, among the worst Supreme Court decisions of all time. By far the most significant opinion Scalia ever wrote, it has lead to unlimited anonymous political bribes that now appear to have replaced the American democracy with a dictatorship controlled by a few billionaires.
I fail to understand how a university law professor can praise Justice Scalia without mentioning that he wrote what many now regard as the worst Supreme Court decision in American history,.
Justice Scalia wrote the Citizens United vs. Federal Election Commission decision of January 21, 2010, which in the opinion of many historians was, along with Dred Scott, Plessy v. Ferguson and Bush v. Gore, among the worst Supreme Court decisions of all time. By far the most significant opinion Scalia ever wrote, it has lead to unlimited anonymous political bribes that now appear to have replaced the American democracy with a dictatorship controlled by a few billionaires.
I fail to understand how a university law professor can praise Justice Scalia without mentioning that he wrote what many now regard as the worst Supreme Court decision in American history,.
1
I am amazed by those who want an original interpretation of the US Constitution. When in reality, they would not want the writers of the US Constitution to sit on the Supreme Court Bench.
Justice Thomas' originalist views are perhaps best expressed in his concurrence in the 2005 Ten Commandants decision, Van Orden v. Perry. In his concurrence, Justice Thomas reiterated his long held view that the Establishment Clause contained in the First Amendment was never intended to restrict the states. In other words, the Establishment Clause, unlike most of the Bill of Rights, should never have been incorporated via the Fourteenth Amendment Due Process Clause and made expressly applicable to the states as well as the federal government. This view is at odds with every other member of the Supreme Court, including the late Justice Scalia. What this would mean quite simply is that under Justice Thomas' originalist construction states would again be free to establish a "state" religion, a practice quite common at the time of the founding of the Republic. He went on to note that under his originalist theory the Establishment Clause should be limited to actual legal coercion, such as mandatory religious observance. Justice Thomas is a fine technical writer, but with respect, his views are antediluvian.
1
I see no evidence at all of "deep intellect" in Mr. Thomas, nor for that matter did I see it in Mr. Scalia. They have been right-wing ideologues who have engaged in exactly what they claim they abjure: judicial activism.
Several here have mentioned Citizen's United -- indeed it is a blatant case. One should not forget the decision in Bush v Gore.
I will bring up Heller v DC ... where the majority invented new gun rights out of next to nothing, overturning 200 years of precedent. The particularly telling elements of this decision are the detailed specificity of a right to a handgun in the home, and a side swipe at laws requiring safe storage and locks.
This decision creates obvious problems: if an individual has a constitutional right to a firearm for self defense, why is it limited to the home, why is it specifically a handgun? The latter is particularly problematic given that handguns are the firearm most used for crime and murder, and the long history of prohibitions against handgun ownership and carriage in city jurisdictions: Tombstone AZ and Dodge City KS were famous for their boothills, and the fact that handguns were prohibited in town. The "battle of the OK corral" was fought because the Earps enforced the ordinance on the Clantons.
Conservatives would stand on much better ground if the judges they laud did not engage in legal hypocrisy to suit petulant whims.
Several here have mentioned Citizen's United -- indeed it is a blatant case. One should not forget the decision in Bush v Gore.
I will bring up Heller v DC ... where the majority invented new gun rights out of next to nothing, overturning 200 years of precedent. The particularly telling elements of this decision are the detailed specificity of a right to a handgun in the home, and a side swipe at laws requiring safe storage and locks.
This decision creates obvious problems: if an individual has a constitutional right to a firearm for self defense, why is it limited to the home, why is it specifically a handgun? The latter is particularly problematic given that handguns are the firearm most used for crime and murder, and the long history of prohibitions against handgun ownership and carriage in city jurisdictions: Tombstone AZ and Dodge City KS were famous for their boothills, and the fact that handguns were prohibited in town. The "battle of the OK corral" was fought because the Earps enforced the ordinance on the Clantons.
Conservatives would stand on much better ground if the judges they laud did not engage in legal hypocrisy to suit petulant whims.
2
Hey he was born 2 miles down the road from my childhood and later retirement home. Right by Bethesda, the oldest orphanage in USA. But Thomas grew up downtown under the catholic priests. He never learned anything about life except from the priests. We need people like Clarence Cooper, federal judge in Atlanta, on the SCOTUS. Or my great classmate, Bob Benham from the GA Supreme Court. Trump needs to put both of those fair and great jurists up on the supremes. Both happen to be black.
How discouraging. Professor Price prefers to return the United States to the 18th Century, re-establishing the "original intent" of the constitution (which , please note the irony, would not have allowed her to vote, let alone be a law professor." As an alternative, we can hope that The Leader's actual nominee will only return us the 19th Century. The definition of "liberty" as removal of government interference is a good deal for the powerful, not so great for those they prey on. I do wish i could have hope that we will remain in the 21st century, but clearly that is not our fate.
3
Actually, there's an even better option: Ask David Souter to return to the Supreme Court.
He's already 'vetted' AND has already had experience on the Court.
Another Scalia? Another Thomas?
Haven't you learned anything???
He's already 'vetted' AND has already had experience on the Court.
Another Scalia? Another Thomas?
Haven't you learned anything???
2
Among so many of Thomas' opinions, the Obergefell dissent was a particularly cynical piece of jurisprudence, demonstrating how bankrupt and ethically compromised so-called originalism - a laughable gimmick of a term - truly is. Originalism, in this instance, amounts to little more than a Trojan Horse for the exercise of deep seated bigotry, which Thomas has the audacity to proclaim as "liberty."
The author appears not to have fully thought through this...Scalia at least observed stare decisis, even if at times opportunistically as opponents claim. Thomas doesn't at all. If you took his approach to its logical conclusion, which he appears more than willing to do, almost none of the federal constitution would apply to the states including free speech and the prohibition of cruel and unusual punishments.
Originalists and strict constructionists are kissing cousins. We need living constitutionalists, justices who are able to extrapolate and apply constitutional meaning, as has long been the "mainstream" practice, rather than justices who limit themselves to eighteenth-century words and contexts. Though many see these interpretive distinctions as firmly marking a justice as either progressive or conservative, with party affiliations becoming less relevant, our common goal should be to avoid extremist and fundamentalist justices who, by definition, are virtually incapable of fulfilling an independent judicial role.
7
A justice cast in either mold would be extremely beneficial to this country.
Mould, not mold.
The Court needs another Thomas or simply a potted plant.
3
Poor, poor Clarence Thomas.
After Scalia died, he's been trying, without much success, to find a Justice that he can rubber stamp his opinion to.
Hopefully, Trump (or rather Bannon) can find someone equally as reprehensible as his dear, departed mentor.
After Scalia died, he's been trying, without much success, to find a Justice that he can rubber stamp his opinion to.
Hopefully, Trump (or rather Bannon) can find someone equally as reprehensible as his dear, departed mentor.
You're arguing for another Thomas on the grounds that his intellect, knowledge of the Constitution, writing ability, and general acumen all tower far about ANTONIN SCALIA?
Good grief. Are you insane?
Good grief. Are you insane?
1
Exactly on point. It is time to end the ridiculousness that governs the court today. We truly need a justice who will follow the Constitution and not consider it something to ignore when it doesn't fit that judge's philosophy (like Gingsburg and Kagan so often do). You want the rule of law liberals? The place to start is to actually read the Constitution and follow it. Liberals love abortion and hate guns. The Constitution protects gun ownership. Nothing in it says anything about abortion. Rule of law starts by following the guiding document of our nation.
1
I hope Trump will nominate another Souter. Someone who will not be reliable to the president, but reliable to the Constitution.
3
We don't need either one of them. We need another Justice Douglas, another Justice Marshall, another Justice Black.
4
We don"t need a judge like either Scalia or Thomas, but rather one like Brennan.
1
The farcical pretense that 21st century judges should divine the "original" intent of the framers (who were seldom united about anything) was definitively refuted by none other than Thomas Jefferson. In a letter dated July 12, 1816, to Samuel Kercheval, Jefferson wrote
"Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment."
He added, "But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times."
Thus, it was Jefferson's "original intent" that the founders' original intent not govern future generations.
"Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment."
He added, "But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times."
Thus, it was Jefferson's "original intent" that the founders' original intent not govern future generations.
1
Yes, I too would prefer a sexual harasser to a Christian Dominionist, but then, I'm male, and it's a close call.
2
It seems everyone's forgotten about what he did to Anita Hill. That's disgraceful.
It was never proven that he did ANYTHING to Anita Hill.
She testified that he did, and there were other women set to do the same before Biden chose not to have them testify at all.
Hill didn't come to testify of her own volition, she was subpoenaed. You think she'd offer herself up like that for kicks?
Hill didn't come to testify of her own volition, she was subpoenaed. You think she'd offer herself up like that for kicks?
I could not disagree more. Under libertarians like Thomas the comm9 clause will be eviserated. This will leave it to the corprortatists and the wealthy elute to self regulate. That does not work well. We could be entering an era of the revival of snake oil salesmen. Anything goes in the marketplace. Consumer protections are so yesterday.
I always thought that H.W. Bush's choice of Thomas was a stroke of genius. I say that as a person who has never voted for a Republican in his life. A black conservative who towed Scalia's line. That was a poison pill we were fooled into having to take. I am certain he was guilty as sin in his actions with Anita Hill and others, but, the disgraceful actions of the all male Senators who presided over his nomination process, sealed his fate.
Women, take note!
I have followed the career and many conflicts of interest of both Scalia & Thomas. I always thought that Thomas was in way, way over his head. I felt he subscribed to the Confucius philosophy about "removing all doubt" if he spoke up during hearings.
As for Trump nominating anyone, I think it is way too late in his term for that. I think the nomination should be held off till either President Marty Walsh or Tim Ryan is inaugurated in 2021. That seemed to be the path Mitch McConnell took. His playbook should come back to haunt him. He paid no price for delay tactics.
Women, take note!
I have followed the career and many conflicts of interest of both Scalia & Thomas. I always thought that Thomas was in way, way over his head. I felt he subscribed to the Confucius philosophy about "removing all doubt" if he spoke up during hearings.
As for Trump nominating anyone, I think it is way too late in his term for that. I think the nomination should be held off till either President Marty Walsh or Tim Ryan is inaugurated in 2021. That seemed to be the path Mitch McConnell took. His playbook should come back to haunt him. He paid no price for delay tactics.
1
In quoting Judge Thomas in the Obergefell case Prof. Foley seeks to reinforce his credentials as an originalist. What this leaves unsaid is that freedom from governmental action as the core of liberty was the moral foundation of the slave republic which lasted until the Civil War. Originalists ignore the fact that the founders not only left the nation with no peaceful way with which to resolve the conflict, but that it was the very idea of negative liberty which caused the war. Lincoln and the Republican party clearly meant, as expressed in the Civil War amendments, the idea that positive liberty, as expressed in the Voting Rights Act, was now a moral duty of the government. Thomas, who voted to declare Section 5 of that act to be unconstitutional, and other originalists simply refuse to believe that the original rationale of the government, i.e. negative liberty, was buried at Gettysburg. This refusal is why Thomas does not believe that the constitutional change since the Civil War now protects voting and other rights, such as privacy. Both Judge Thomas and Prof. Foley willfully ignore history in favor of their personal political and social preferences.
1
Justice Thomas will go down in history as one of the worst justices to ever sit on the Supreme Court. Replicating him would give the Court two of the worst justices ever at the same time.
1
Contrary to the assertion of President George H.W. Bush that Thomas was the most qualified person for the Court, Clarence Thomas was not even the most qualified black conservative Republican for a seat on the Supreme Court. Moreover, Thomas perjured himself about his regular routine perverted practice of sexual harassing his black female underlings and colleagues by prancing, preening and pretending to be the victim of "a high-tech lynching".
Thomas was and is the rare black person who was not qualified by affirmative action to be any position that he occupied from Yale to SCOTUS. Being a subservient white worshipful mis-educated while black man was Clarence's ticket to Republican colored prominence. See "The Mis-Education of the Negro" by Carter G. Woodson and "Strange Justice: The Selling of Clarence Thomas" Jane Mayer and Jill Abrahamson
Thomas was and is the rare black person who was not qualified by affirmative action to be any position that he occupied from Yale to SCOTUS. Being a subservient white worshipful mis-educated while black man was Clarence's ticket to Republican colored prominence. See "The Mis-Education of the Negro" by Carter G. Woodson and "Strange Justice: The Selling of Clarence Thomas" Jane Mayer and Jill Abrahamson
2
This sacrosanct deference to “original intent” is disingenuous to say the least. James Madison, a founding father, saw shortcomings in the original Constitution and penned the Bill of Rights, the sweeping first ten amendments to that sacred document, barely two years after it was created. Since then 17 other amendments to the Constitution have been ratified, including the 13th amendment that abolished slavery.
So the “original intent” of the Constitution has undergone revisions to reflect changing times. It is amazing that in the age of the Internet, where change is happening constantly and rapidly, we have not had an amendment to the Constitution in nearly 25 years! There are 18th century amendments to the Constitution that need to be revisited to reflect modern living. If Trump were really intent on bringing about change, he’d nominate someone along the lines of Anthony Kennedy and not Scalia or Thomas?
So the “original intent” of the Constitution has undergone revisions to reflect changing times. It is amazing that in the age of the Internet, where change is happening constantly and rapidly, we have not had an amendment to the Constitution in nearly 25 years! There are 18th century amendments to the Constitution that need to be revisited to reflect modern living. If Trump were really intent on bringing about change, he’d nominate someone along the lines of Anthony Kennedy and not Scalia or Thomas?
1
30 years ago this fall, the Robert Bork nomination was voted down by a Democratic-majority Senate. It was, and remains, a watershed as the only instance in at least modern times in which a Supreme Court nominee whose qualifications were beyond dispute was rejected for ideological reasons. One of its lasting effects was putting two current justices on the Supreme Court. That's right, TWO. Here's how:
1. After Bork, President Reagan nominated Douglas Ginsburg, who then had to withdraw because of prior instances of marijuana use. Finally, in the winter of '88, Anthony Kennedy was confirmed, for better (Obergsfell) or worse (Citizens United).
2. If ever a Supreme Court nominee should have been rejected, it was Thomas in the fall of '91. But the Democratic-majority Senate of that day let Thomas through, in part because of sexual harassment-related skeletons in some of their closets, but also in part because of lingering blowback from the Bork rejection. The change from Thurgood Marshall (who Thomas replaced) to Thomas was stark, to say the least.
1. After Bork, President Reagan nominated Douglas Ginsburg, who then had to withdraw because of prior instances of marijuana use. Finally, in the winter of '88, Anthony Kennedy was confirmed, for better (Obergsfell) or worse (Citizens United).
2. If ever a Supreme Court nominee should have been rejected, it was Thomas in the fall of '91. But the Democratic-majority Senate of that day let Thomas through, in part because of sexual harassment-related skeletons in some of their closets, but also in part because of lingering blowback from the Bork rejection. The change from Thurgood Marshall (who Thomas replaced) to Thomas was stark, to say the least.
I'm deeply impressed at the skill with which conservatives defend ideological positions as being based, somehow, on reason and insight and wisdom, and not, heaven forbid, on personal political views. But when judges consistently reason their way to conclusions that reflect their personal beliefs, they don't necessarily have a "deep and tenacious intellect".
2
Where in the Constitution is the duty and privelege of Judicial Review of laws granted to the Supreme (or any other Federal) Court?
If "originalism" would be a legitmate school of legal thought, it would reject judicial review of laws, only granted to the Supreme Court because nobody challenged John Marshall's original piece of judicial activism, 213 years ago now.
If "originalism" would be a legitmate school of legal thought, it would reject judicial review of laws, only granted to the Supreme Court because nobody challenged John Marshall's original piece of judicial activism, 213 years ago now.
1
I was hoping for the bar (pun intended) to be set higher.
12
Yes, by all means, lets have another Supreme Court Justice that lets another Justice do his thinking for him. The "perfect" Justice should be someone that follows orders and does exactly what Roberts tells him to do. I'm sure that this is what Trump has in mind.
Sooner or later President Trump will be sued over his ethics violations. The Justices of the Supreme court should defend separation of powers and prevent President Trump from looting the country and the world through his multinational companies and year 2000 re-election campaign coffers.
1
I am very happy I am not a student in a class of Ms. Foley, whose article has no sense: talking of Thomas as a normal guy who knows law? Ha! I am sorry to say there are no arguments possible with people such as Ms. Foley since her premises are totally a-critical. And an original question to the originalists: if they believe we are now as then, why they still accepts "contempo" guns? Shouldn't we be back to bayonets? If you want your arguments to have some weigh coherence is a must. Ciao!
1
"Shouldn't we be back to bayonets?"
Indeed. We should have single sheet newspapers printed on a manually operated press. The Constitution doesn't anything about the news being disseminated by TV and radio of the Internet.
Indeed. We should have single sheet newspapers printed on a manually operated press. The Constitution doesn't anything about the news being disseminated by TV and radio of the Internet.
2
What a ridiculous wish! As if there was a consensus on what "original intent" was or is. Justice Scalia only cited original intent when it served his ideological needs. Often he was making it up as he went. The original intent of the Constitution was for corporations to have the same political rights as people? And for people to have the right to bear arms individually?
And, if the founders wanted the original intent to be followed in perpetuity, why did they make the Constitution amendable, and amend it ten times right off of the bat? Why did they want the Constitution to be a living document and to not tie the hands of future generations?
This is a completely bogus approach to constitutional law and a smokescreen to cover other desires. By arguing that "this is what historical greats meant and wanted" is a simple appeal to authority and not to reason, logic, emotion, facts or any other inconveniences.
And, if the founders wanted the original intent to be followed in perpetuity, why did they make the Constitution amendable, and amend it ten times right off of the bat? Why did they want the Constitution to be a living document and to not tie the hands of future generations?
This is a completely bogus approach to constitutional law and a smokescreen to cover other desires. By arguing that "this is what historical greats meant and wanted" is a simple appeal to authority and not to reason, logic, emotion, facts or any other inconveniences.
23
" and amend it ten times right off of the bat?"
Why? because the states refused to ratify it as it stood. They wanted the protections the Bill Of Rights affords.
They also wrote 85 pamphlets called the Federalist Papers as an apologetic for the finished work to explain its provisions. Paper #46 answers your question of the individual to own firearms.
Why? because the states refused to ratify it as it stood. They wanted the protections the Bill Of Rights affords.
They also wrote 85 pamphlets called the Federalist Papers as an apologetic for the finished work to explain its provisions. Paper #46 answers your question of the individual to own firearms.
Sorry? Alexander Hamilton wrote the majority of constitution so that it could be loosely interpreted and adapted to changing times. He spent his entire short life defending it against the strict constructionists, and fighting for flexible interpretation. Thomas Jefferson and Madison were the strict constructionists. This was the beginning of our two-party system. Washington and Hamilton, The Federalists. Jefferson and Madison, the Republicans; those patriots who cherished their liberty and freedom to own slaves. This is not controversial. I cannot believe Ms Foley is this ignorant of basic High School history lessons. It is flat-out dishonest. This is right-wing think tank style propaganda. She could have a stellar career with Breitbart, if she didn't already teach in a private Florida university and write Tea party flavored books. NYT, please do a better job of "vetting" your contributors. Foley's got Hamilton all wrong, and her purpose is to mislead. Shame on you NYT. Remember, lie by any other name is still a lie.
1
There's no excusing Bush v Gore or Citizens United. Constitutional overreach on the right is not a proper response to constitutional overreach on the left.
But questioning the astonishingly broad interpretation of the Commerce Clause is a proper response. Some of the indispensable benefit we get from that interpretation could probably be achieved with a very broad interpretation - just let the man grow his own wheat or corn to feed to his own cattle. Sheesh.
Some of the indispensable benefit (like a broad reach for federal civil rights laws) could possibly be achieved by combining a broad interpretation with Justice Thomas's interesting take on the Privileges and Immunities Clause. Intellectually, that seems a more defensible ground for these matters than substantive due process (which, remembering Lochner, can cut both ways).
Questioning Chevron deference seems salutary.
As to constitutional overreach on the left such as Roe v Wade, with abortion (unlike gay sex or gay marriage) there's the question whether the fetus is entitled to society's protection and, if so, the extent to which that protection must be balanced against other considerations. I think we would live in a more liberal society if those questions had been worked out in the political process.
But questioning the astonishingly broad interpretation of the Commerce Clause is a proper response. Some of the indispensable benefit we get from that interpretation could probably be achieved with a very broad interpretation - just let the man grow his own wheat or corn to feed to his own cattle. Sheesh.
Some of the indispensable benefit (like a broad reach for federal civil rights laws) could possibly be achieved by combining a broad interpretation with Justice Thomas's interesting take on the Privileges and Immunities Clause. Intellectually, that seems a more defensible ground for these matters than substantive due process (which, remembering Lochner, can cut both ways).
Questioning Chevron deference seems salutary.
As to constitutional overreach on the left such as Roe v Wade, with abortion (unlike gay sex or gay marriage) there's the question whether the fetus is entitled to society's protection and, if so, the extent to which that protection must be balanced against other considerations. I think we would live in a more liberal society if those questions had been worked out in the political process.
I admit, I read the OpEd or tried to and wondered is this a satire, written by a robot, or what.
So the first thing a former professor does is look for a list of publications to see what the Professor of Law has published.
I begin with the URL to her web page. There is no web page. I click on bibliography and I see Faculty scholarship 20013 to present, one book and one article. The book is presumably what led the Times to give her OpEd space or to have invited her. I click on SSU and see 13 publications indicating an earlier interest in the regulation of cloning and in health-care decision making.
I am left posing a rhetorical question: David Leonhardt, is this the best the Times could give us in this field? Telling us readers that the court needs a Clarence Thomas?
I end by siding with the top 6 Readers’ recommended and thank DB from Sweden for chiming in.
I still wonder if a robot wrote this.
Only-NeverInSweden.blogspot.com
Dual citizen US SE
So the first thing a former professor does is look for a list of publications to see what the Professor of Law has published.
I begin with the URL to her web page. There is no web page. I click on bibliography and I see Faculty scholarship 20013 to present, one book and one article. The book is presumably what led the Times to give her OpEd space or to have invited her. I click on SSU and see 13 publications indicating an earlier interest in the regulation of cloning and in health-care decision making.
I am left posing a rhetorical question: David Leonhardt, is this the best the Times could give us in this field? Telling us readers that the court needs a Clarence Thomas?
I end by siding with the top 6 Readers’ recommended and thank DB from Sweden for chiming in.
I still wonder if a robot wrote this.
Only-NeverInSweden.blogspot.com
Dual citizen US SE
1
Larry -- the New York Times needed to find some right-winger to produce a an Op-Ed. The thing about right-wingers is that brains are in very very short supply over there -- this is why people like Scalia are called "brilliant" and Clarence Thomas is described as having an "equally deep and tenacious intellect."
Contemplating Mr. Thomas' contributions -- i've got a potted plant i thing would serve the supreme court better ... and by right-wing standards would surely be judged to have "tenacious intellect."
Contemplating Mr. Thomas' contributions -- i've got a potted plant i thing would serve the supreme court better ... and by right-wing standards would surely be judged to have "tenacious intellect."
OMG! What the Court needs is another William, either Brennan or Douglas would do.
1
In true originalism, Clarence Thomas wouldn't even be considered a person, let alone be a Supreme Court Justice. I wonder how he squares that circle.
"Justice Thomas’s quieter disposition — he rarely asks questions at oral arguments — camouflages an equally deep and tenacious intellect."
How are you drawing this conclusion? Thomas rarely speaks or writes anything. I think you are giving him much too much credit. He tends to vote in line with whatever his lobbyist wife would benefit from the most, and doesn't recuse himself when appropriate. He's not worthy of high praise at all.
How are you drawing this conclusion? Thomas rarely speaks or writes anything. I think you are giving him much too much credit. He tends to vote in line with whatever his lobbyist wife would benefit from the most, and doesn't recuse himself when appropriate. He's not worthy of high praise at all.
Are you serious? Clarence Thomas shouldn't even be on the court according to the Dred Scott v. Sandford ruling on the Founders 'Original Intent' of Constitution! Many Trump voters still feel the exact same way, as I'm sure will any Trump SCOTUS appointee if Bannon has any say in it. This next 4 years is going to be bad enough without attempts to normalize Trump or what he plans to do to the SCOTUS for generations to come.
The first Judiciary Act established 6 as the number of SCOTUS justices. Under Jefferson's guidance, the number was expanded to 7 in recognition that an odd number is preferable. It's been 9 since the days of US Grant, save for a couple meanders at other numbers. How about we return to the wisdom of TJ and avoid appointing another Thomas or Scalia? The country might be a better place and the strict constructionists might have a notch to put on their belts at the same time. Or maybe that's an original construction not to their liking?
1
Clarence Thomas? You mean "Long Dong Silver." A more intellectually vacuous, white person wannabe, waste of time and space has never served on the court. The fact that he took the seat of Thurgood Marshall, a true lion of American History, was a cynical and sickening spectacle, which was made worse by the fact that it made it impossible to ever look at a can of Diet Coke the same way again.
2
Like many readers, I'm a liberal and disagree with many of Thomas' opinions. Yet I'm also a lawyer, and submit that many readers terribly oversimplify when it comes to Justice Thomas. Two examples.
First, none of the readers' comments undercut Professor Foley's claims about Raich and the Commerce Clause. Although Thomas can in many cases be fairly described as conservative, in Raich he sided with the States that wanted to keep their medical marijuana laws and against the "liberal" Court majority that held that Congress' commerce power extends to breaking down a sick woman's door and tearing up the two marijuana plants in her back yard that she uses to relieve her symptoms. Where is the commerce in consuming plants grown in one's back yard, and where is the interstate component of a plant in the ground? Thomas' position in Raich was heroic - he did not let his social conservatism get in the way of his fidelity to federalism and undeniable limits on Congress' commerce power.
Second, Thomas' adherence to liberal principles in some cases is evident in his affirmative action rulings. He has always supported nondiscrimination against any individual based on race - just as the 14th Amendment and civil rights laws command. In those cases, Justice Ginsberg is the one with the indefensible, collectivist view that rejects protection of the individual.
Finally, Thomas is no moron, as some have said. Agree or not, his opinions are always thoughtful and well written.
First, none of the readers' comments undercut Professor Foley's claims about Raich and the Commerce Clause. Although Thomas can in many cases be fairly described as conservative, in Raich he sided with the States that wanted to keep their medical marijuana laws and against the "liberal" Court majority that held that Congress' commerce power extends to breaking down a sick woman's door and tearing up the two marijuana plants in her back yard that she uses to relieve her symptoms. Where is the commerce in consuming plants grown in one's back yard, and where is the interstate component of a plant in the ground? Thomas' position in Raich was heroic - he did not let his social conservatism get in the way of his fidelity to federalism and undeniable limits on Congress' commerce power.
Second, Thomas' adherence to liberal principles in some cases is evident in his affirmative action rulings. He has always supported nondiscrimination against any individual based on race - just as the 14th Amendment and civil rights laws command. In those cases, Justice Ginsberg is the one with the indefensible, collectivist view that rejects protection of the individual.
Finally, Thomas is no moron, as some have said. Agree or not, his opinions are always thoughtful and well written.
2
There's no need for another Clarence Thomas on the SCOTUS, because Donald Trump himself can perform of all of the sexual harassment of women, complete with private-parts groping, that needs to be done by the federal government.
Nominate another Thurgood Marshall, or an Anita Hill for the first time, but never again a Clarence Thomas or Antonin Scalia.
We certainly do not need another Clarence Thomas. He has added nothing worthwhile to some of the most important cases before the Court. No questions to lawyers and no sparkle of real intellectual acuity. Please, let's have someone who is first rate.
[[The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them.]]
Wrong. Let's have a conversation about how quickly someone can become deranged while in solitary confinement.
[[And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits.]]
Wrong again. Imagine the gay "partner" who has no legal standing and therefore cannot make end of life decisions or child care decisions or medial decisions for the other half in the relationship. Why should heterosexual couples be able to put their spouse on their insurance but gay couples must have a separate but unequal arrangement?
Thomas just seems wrong on so many issues of the day. How he got there doesn't matter to me. He seems warped and angry at life.
Wrong. Let's have a conversation about how quickly someone can become deranged while in solitary confinement.
[[And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits.]]
Wrong again. Imagine the gay "partner" who has no legal standing and therefore cannot make end of life decisions or child care decisions or medial decisions for the other half in the relationship. Why should heterosexual couples be able to put their spouse on their insurance but gay couples must have a separate but unequal arrangement?
Thomas just seems wrong on so many issues of the day. How he got there doesn't matter to me. He seems warped and angry at life.
If the original constitution was so great as the defenders would have you believe, we wouldn't need all those amendments that came after it.
1
Let's have justices that have the common sense to properly read the second amendment. That would be an interesting place to start.
2
If we're aiming for a 'restoration of the original meaning of the Constitution', then do we change Pennsylvania to Pensylvania as in the original text? How about throwing out all those dollar bills as the text specifically empowers government to 'coin money'. No mention of printing it.
The call for a return to 'original meaning' is nothing more than a modern Conservative con which aims to remove rights that generations of Americans have fought to obtain over the course of our nation's history. Pretending that these people are 'guardians of the Constitution' is risible. The only thing they guard is the pocketbooks and of interests of the rich and powerful, while trampling on the rights of ordinary citizens.
The call for a return to 'original meaning' is nothing more than a modern Conservative con which aims to remove rights that generations of Americans have fought to obtain over the course of our nation's history. Pretending that these people are 'guardians of the Constitution' is risible. The only thing they guard is the pocketbooks and of interests of the rich and powerful, while trampling on the rights of ordinary citizens.
What the Court needs is some one who lives in the real world. O'Connor was the last justice who actually had been elected to anything. What we have now are a bunch of academics ruling on how the world should be - not how it is.
Get some ex-governors on the Court and maybe we will get more rulings based on reality rather than theories or penumbras.
Get some ex-governors on the Court and maybe we will get more rulings based on reality rather than theories or penumbras.
1
The Constitution was written full of compromises necessary to get it passed by at least nine of the thirteen colonies. The Bill of Rights was the same kind of compromise. Some of the Founders thought those rights should be explicit; some didn't think so. So when something is or not mentioned explicitly as a right in the Constitution, it may be no more than an accident. Original intent is nothing more than being captive to the political reality of the 1780's. In the words of the new president, so sad!
I stopped taking originalism seriously after Scalia told us to "get over it" regarding the SCOTUS conservative votes to install W in the White House.
I never saw anything of the original meaning of the Constitution in that decision.
I never saw anything of the original meaning of the Constitution in that decision.
In the Constitution's original meaning Thomas was considered 3/5 of a person and would probably not be a free man and certainly would not have the right to vote.
1
Nice call.
What troubles me as much as the prospect of another Justice "in the mold of Scalia" is the prime-time game show hype. Is Donald a serious person?
I always wonder when someone like Professor Foley writes about a "devotion to the Constitution’s original meaning." It seems to me that what is left out in that viewpoint is the Preamble to the Constitution. A Preamble is the introduction to a statute, which states its purpose, aims, and justification. So I think justices are encouraged by the Preamble to interrupt the Constitution to try to achieve these ends:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Seems to me that Professor’s goals are to strictly enforce the Constitution while ignoring the Preamble. Thomas certainly has and does.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Seems to me that Professor’s goals are to strictly enforce the Constitution while ignoring the Preamble. Thomas certainly has and does.
Extremists are found not just citing religious texts,
but, in our country's case, the Constitution,
as if words written by man, apply in unchanging form, to all mankind, forever and ever.
Talk about fanaticism!
but, in our country's case, the Constitution,
as if words written by man, apply in unchanging form, to all mankind, forever and ever.
Talk about fanaticism!
1
In other words, the court needs another man who is uncomforatble in his own skin.
1
The small man in the white house is treating the supreme court justice nomination process just like a Miss Universe contest.
..."tune in at 8 PM!...and the second runner up is..."
I can't wait for the swimsuit competition!
..."tune in at 8 PM!...and the second runner up is..."
I can't wait for the swimsuit competition!
1
One like Justice Stevens would be better. Someone who weighs each case without a preconceived answer is someone we need. Someone who will question what happens to the women that need to have an abortion once they repeal Roe v Wade, and what problems will the repeal cause as opposed to the benefits to the religious groups. Once they get rid of woman's choice, what will the religious groups go after next? Someone needs to redefine the separation of church and state again it seems and take away non-profit status for those religious groups that work politics.
12
Originalists are extremist who don't believe the Bill of Rights should be part of the Constitution.
1
Is this is the case, I wonder how many of President Trump's executive orders will be annulled? I suspect very, very few...
1
Thomas voted with the majority in Citizens United, which found that corporations were "people". There is a lot of historical information making it rather clear that our founding fathers did not like or particularly approve of corporations. A corporation is not "born." Rather, a document "organizing" it is filed with the office of the Secretary of State where it is "incorporated." When no longer needed, another document is filed "dissolving" the corporation. There is also not a small amount of historical evidence indicating that at the time of our founding fathers, abortion was not illegal or even that uncommon. Indeed, the original pressure to make abortion illegal came from the medical profession because at that time, medical science found that abortions were then dangerous to the health of women. Today, the US is way down on the list of countries with respect to maternal mortality rates, meaning far too many US women die in childbirth. And, statistically, abortion is far safer for women than childbirth anywhere in the world. Thomas is neither "original" nor an "originalist." He is a zealot who would impose his version of catholicism on everyone else.
I hear there's a judge named Merrick Garland who is brilliant, ethical and has the respect of the left and right. Whatever happened to that guy?
3
This article clearly shows that "intelligence" is relative. We need another Thomas like we need a hole in the head as I think him to be the least qualified person ever for the Supreme Court. He is an ideolog and if you don't believe me ask his wife.
1
Divining original intent is a fool's errand; it's merely a cover for supporting a conservative agenda.
1
Between college and law school, I worked at a public radio station. This was shortly after the Supreme Court's Miranda decision, which had a tectonic effect on criminal law, and more broadly on perceptions of individual rights. As part of my work for the station, I interviewed an assistant district attorney. When I asked him about Miranda, he said, "Do you really think the Framers meant that when the take a suspect to the station, the police would have to read him his rights?" I replied, "At the time the Constitution was written, we didn't have police stations. We didn't have police." Times change, and our views of the Constitution change, too. Original intent is a recipe for causing the Constitution to become more and more remote from the real world--and it is the real world where the Constitution, and the law, must live. Judges should be guided by the values of those who wrote the Constitution, but not confined by opinions that were formed in their limited view of the world.
The last thing we need is another "originalist" on the Supreme Court. We need no more champions of the reactionary notion that the US Constitution is a dead document, mired in the 18th century and oblivous to the world as it exists today.
What the Constitution says and the intent of the framers in saying it has always been the foundation for Supreme Court decisions; that should never change. The ideals upon which the Constitution was founded, the framers' focus on preserving individual rights and on separation of powers, of checking balancing power, are as relevant and essential to good governance and a free society today as they ever were. But the framers were the liberals of their time. Their eyes were set on building a future for this country, not capturing their time in a bottle and forcing succeeding generations to conform to it.
When the US Constitution ceases to be a living document, the US will begin to die. If we put more Clarence Thomases on the Supreme Court, we will be binding ourselves and our descendants to that fate. Resist!
What the Constitution says and the intent of the framers in saying it has always been the foundation for Supreme Court decisions; that should never change. The ideals upon which the Constitution was founded, the framers' focus on preserving individual rights and on separation of powers, of checking balancing power, are as relevant and essential to good governance and a free society today as they ever were. But the framers were the liberals of their time. Their eyes were set on building a future for this country, not capturing their time in a bottle and forcing succeeding generations to conform to it.
When the US Constitution ceases to be a living document, the US will begin to die. If we put more Clarence Thomases on the Supreme Court, we will be binding ourselves and our descendants to that fate. Resist!
Justice Thomas is a blank canvas - you can project whatever you want on him. Since he does not ask much and shows no intellectual curiosity, it is easy to project whatever one wants on his sphinx like demeanor. Add to that selective amnesia and we get the present article.
Neither Scalia (whose idiotic ramblings have some how given him the reputation for brilliance) nor Thomas are believers in the original intent. Like most conservatives they have no special respect for the constitution. They only use the marketing term original intent to justify whatever regressive and/or repressive idea they may be currently supporting.
Neither Scalia (whose idiotic ramblings have some how given him the reputation for brilliance) nor Thomas are believers in the original intent. Like most conservatives they have no special respect for the constitution. They only use the marketing term original intent to justify whatever regressive and/or repressive idea they may be currently supporting.
1
"The Court Needs Another Clarence Thomas..."?
Really?
How about another John Paul Stevens, for an inspirational suggestion?
Really?
How about another John Paul Stevens, for an inspirational suggestion?
1
Great article, and great focus on the Commerce Clause. If over the next 4 years we can get 3 solid votes to relook at the Commerce Clause it would be an amazing advance for Liberty.
I'm not sure why we can't admit that the original Constitution created a woefully inadequate federal government at the expense of State power in order to get States to sign on. That lead to a horrible civil war, the bloodiest in our countries history. The Constitution was amended after the Civil war and effectively increased the power of the federal government and extended federal rights to the people.
Ignoring facts to idolize some fantasy based on failure is not the way forward.
Ignoring facts to idolize some fantasy based on failure is not the way forward.
I consider the capacity of Original Intent judges to be terrifying and absolutely vile. Don't forget that the original intent of the Constitution supported slavery, forbade women from voting, and only allowed for the direct election to the House of Representatives by the voters, not the Senate, Presidency, or Federal Judiciary. Reading the Federalist papers and the other documents written by the people who wrote the Constitution shows there were many disagreements. There is no single coherent Original Intent. OI judges just cherry-pick.
Thomas Jefferson clearly understood the danger of Original Intent:
"Some men look at constitutions with sanctimonious reverence and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment... But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, and more enlightened as new discoveries are made, new truths disclosed, and manners and opinions changed with the change of circumstances, institutions must advance also and keep pace with the times."
Thomas Jefferson clearly understood the danger of Original Intent:
"Some men look at constitutions with sanctimonious reverence and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment... But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, and more enlightened as new discoveries are made, new truths disclosed, and manners and opinions changed with the change of circumstances, institutions must advance also and keep pace with the times."
Justice Scalia was entertaining and extremely effective, but he had a few blind spots: for example, his permissive view of the separation of church and state did not pay sufficient heed to what the Constitution actually says, and seemed to commit the liberal sin, in this case imbuing his own view of the merits of religion into the Constitution and into reality.
Justice Thomas does not seem to have blind spots. His opinions are short, to the point and interpret the Constitution mainly by what it actually says. If you read the convoluted opinions of some of the other current Justices, and other Justices going back in history, you realize that Justice Thomas is just about the only one that virtually always gets it exactly right. To use Justice Roberts’ analogy, Justice Thomas’ strike zone is very tight. A great Justice, and a great example to follow.
I have been saying for years that Justice Thomas is the best Justice on the Court, and I am glad this writer has recognized these virtues.
Justice Thomas does not seem to have blind spots. His opinions are short, to the point and interpret the Constitution mainly by what it actually says. If you read the convoluted opinions of some of the other current Justices, and other Justices going back in history, you realize that Justice Thomas is just about the only one that virtually always gets it exactly right. To use Justice Roberts’ analogy, Justice Thomas’ strike zone is very tight. A great Justice, and a great example to follow.
I have been saying for years that Justice Thomas is the best Justice on the Court, and I am glad this writer has recognized these virtues.
1
Original intent is a bull hockey replacement for intellectual brilliance. It looks and sounds like "smart" but in fact it is a straight jacket that over time distorts the meaning of law even as the passage of time and usage makes many words in the English language archaic and peculiar. That is what many of Scalia's decision often were: archaic and peculiar.
We certainly don't need another Clarence Thomas; an angry bitter man, influenced by a wife works for the most extreme reactionaries in the country. Besides, since the seat was stolen, I hope that it remains open until Trump is gone. The voting population tried to elect Democrats 6 of the last 7 Presidential elections. While a corrupt Supreme court awarded the Presidency to Bush in 2000 and a corrupt FBI smeared Clinton in 2016, the will of the people is clear; Democrats in the White House.
The Supreme Court should reflect this, 7 or 8 of the justices should be Democrats and the Trump/Bannon shouldn't select the next justice.
The Supreme Court should reflect this, 7 or 8 of the justices should be Democrats and the Trump/Bannon shouldn't select the next justice.
In his concurrence in the Ten Commandants case, Van Orden v. Perry, 545 U.S. 677, 692-98 (2005, Justice Thomas again espoused his originalist view that the Establishment Clause contained in the First Amendment does not restrain the States, i.e., and should never have been incorporated by reference via the Fourteenth Amendment under the Selective Incorporation Theory. That would mean, for example, that a state would be free to establish a state religion, a common practice two centuries ago. He also noted that the Establishment Clause be limited to his understanding of its original meaning, actual legal coercion, e.g., mandatory religious observance. Justice Thomas is a fine writer, but his originalist views are, with respect, antediluvian.
Did you all see? The Judiciary was deleted from the WH web site. By the logic of those who voted for the President, it no longer exists.
Ta Da!
Ta Da!
Clarence Thomas was the cynical choice of Bush 41 and Dick Thornburgh to replace civil rights champion Thurgood Marshall on the court, thereby maintaining the unstated "quota of one" black justice.
Before Merrick there was Oliver Garland, a fictional African American judge in the Clarence Thomas/Robert Bork mold whose nomination by Ronald Reagan, while Thurgood Marshall is still alive, creates a situation called a "diversity double" by Stephen L. Carter in his 2002 novel "The Emperor of Ocean Park."
Clarence Thomas was nominated because he was a black opponent of Affirmative Action, a policy he benefited from and conservatives, who would love nothing more than to have "another Clarence Thomas" on the court, now have their best chance under The Donald.
Before Merrick there was Oliver Garland, a fictional African American judge in the Clarence Thomas/Robert Bork mold whose nomination by Ronald Reagan, while Thurgood Marshall is still alive, creates a situation called a "diversity double" by Stephen L. Carter in his 2002 novel "The Emperor of Ocean Park."
Clarence Thomas was nominated because he was a black opponent of Affirmative Action, a policy he benefited from and conservatives, who would love nothing more than to have "another Clarence Thomas" on the court, now have their best chance under The Donald.
As a non-lawyer and non citizen, but keen observer of US politics, it always amazes me that there are those who say all things should be looked at through the prism of the constitution as written over 200 years. Using that logic I don';t know how women got to vote and slaves were freed. Society has evolved and so must the legal principles used to measure what is right and wrong. Here in Canada we call it a living tree approach. Yes, some don't like because it involves change but a society frozen the past will never successfully deal with many urgent issues.
Our Constitution is a living document, and not just through amendment. The Framers understood English common law and its ability to evolve over time through setting, resetting, and occasionally abandoning precedent. Their constitutional argument with Great Britain was with arbitrary power based on hereditary rights. All branches of our federal system have an obligation to weigh in on the “constitutionality” of issues facing the country. Any of them that ignore present reality do so to our detriment.
The notion that there is an eternal original meaning of the Constitution as the Framers created it is both ahistorical and mistaken. The document was drafted when almost all people lived on farms and lived their lives within a few miles of their birthplaces. To meet the demands of a global society, such notions are not just quaint but divorced from the current reality. The time for recognizing that change in the manner of governance and a more recent declaration of the rights of citizens beyond the 3/5ths rule has long past. The last thing we need is another "Originalist" who is neither original or right.
The notion that there is an eternal original meaning of the Constitution as the Framers created it is both ahistorical and mistaken. The document was drafted when almost all people lived on farms and lived their lives within a few miles of their birthplaces. To meet the demands of a global society, such notions are not just quaint but divorced from the current reality. The time for recognizing that change in the manner of governance and a more recent declaration of the rights of citizens beyond the 3/5ths rule has long past. The last thing we need is another "Originalist" who is neither original or right.
1
How about we wait 4 years and "let the people decide"? I'm sure Mitch McConnell would agree, right?
Nominee for worst NYT headline of the year.
1
Thomas has been tainted since his confirmation. Unable to fill the shoes of Thurgood Marshall or even understand what he stood for.
He has been little more than Scalia's handmaiden.
Without Scalia he has had to find his own tiny little voice.
I'm all for original intent, lets go back to 6 Justices.
He has been little more than Scalia's handmaiden.
Without Scalia he has had to find his own tiny little voice.
I'm all for original intent, lets go back to 6 Justices.
Well, it would be better if "he" were not an abuser of women. I certainly don't expect a woman to be nominated. Women are to be used and abused, like poor Melania and Evanka, but never respected by these manly men.
1
ChesBay--And, let's not forget that Bannon was beating, and threatening, his wife, so badly, that she was afraid to show up in court to testify against him. The police, and others, corroborated her initial complaint. This is a scary, criminal.
1
President Trump should re-nominate Judge Garland. That seat was stolen.
I did not vote for President Obama either time, but the appointment was his to make- not Donald Trump's. Rewarding Mitch McConnell and the other radical Republicans for the theft of a Supreme Court seat should not happen.
The only way this can be made right is to nominate Judge Garland.
I did not vote for President Obama either time, but the appointment was his to make- not Donald Trump's. Rewarding Mitch McConnell and the other radical Republicans for the theft of a Supreme Court seat should not happen.
The only way this can be made right is to nominate Judge Garland.
2
I read a lot of the liberal comments here and it's remarkable how similar they are. Basically, every liberal wants to discard our founding document on the basis that we ought to have a "living Constitution" - which basically means Justices doing whatever their political beliefs suggest. And almost universally, the liberals equate the Constitution to Bible casting dispersion both on originalism and religion with one swing.
I would have thought that eight years of Obama issuing royal proclamations like a King ... and now perhaps Trump doing the same thing ... would convince people that we are far better following the "rule of law" than the "rule of men".
Yes, the 21st century is in many ways far different from the time when the Constitution was ratified. But we're not talking about computer chips and "morning after" pills. We're talking about our principles. And when those principles change, we have an amendment process for that. The problem for liberals is that this amendment process intentionally requires a near consensus with they know they cannot achieve with their current numbers. Instead, they prefer to nominate Justices who claim to know what is better for us than we do for ourselves. Thank you very much. But I'll stick with Madison and Jefferson rather than Kagan and Sotomayor.
I would have thought that eight years of Obama issuing royal proclamations like a King ... and now perhaps Trump doing the same thing ... would convince people that we are far better following the "rule of law" than the "rule of men".
Yes, the 21st century is in many ways far different from the time when the Constitution was ratified. But we're not talking about computer chips and "morning after" pills. We're talking about our principles. And when those principles change, we have an amendment process for that. The problem for liberals is that this amendment process intentionally requires a near consensus with they know they cannot achieve with their current numbers. Instead, they prefer to nominate Justices who claim to know what is better for us than we do for ourselves. Thank you very much. But I'll stick with Madison and Jefferson rather than Kagan and Sotomayor.
11
Both Jefferson and Madison ridiculed religion, an opinion I support.
1
Before you attack every liberal for wanting to the throw out the Constitution. Please see my other comment. You'll find that I only want clarity on how the meaning of the Constitution is determined by the originalists that most of you conservatives believe have the correct interpretation, not to support justices who would rule according to their political beliefs.
Let's have a serious discussion about how the Constitution's meaning should be determined in particular, real-life situations, instead of treating all those who disagree with us a minority determined to undermine American.
What about it?
Let's have a serious discussion about how the Constitution's meaning should be determined in particular, real-life situations, instead of treating all those who disagree with us a minority determined to undermine American.
What about it?
Our Constitution originally made slaves only partial people to placate the southern states and Clarence Thamas would not have been allowed to clean the chamber pots, but I am sure that he would have voted for Dred Scott if he had been given the opportunity. 7/00000 people died during the Civil War to give him the opportunity to sit where he does now and the right to bash the voting rights of so many across the country.
I do not say this to say that he must cast his opinions to defer to the rights of any one segment of society, but a justice must weigh the rights of all. Clarnce Thomas never sees the lives of the people he hurts with his decisions,. To oobtain a more perfect union the happiness and equality of our citizens must be considered or we are just a rabble that can have no unity at all and our Constitution becomes just a scrap of paper.
I do not say this to say that he must cast his opinions to defer to the rights of any one segment of society, but a justice must weigh the rights of all. Clarnce Thomas never sees the lives of the people he hurts with his decisions,. To oobtain a more perfect union the happiness and equality of our citizens must be considered or we are just a rabble that can have no unity at all and our Constitution becomes just a scrap of paper.
What the court needs is Merrick Garland.
If any other judge, of any intellectual persuasion, sits in the stolen seat, it will be the final nail of the coffin of the Supreme Court's legitimacy.
Trump already has the nation hurtling towards violent revolution and the world towards nuclear annihilation, so the delitigimization of our rule of law is an indignity we can least afford now.
There's no place left to hide. Anyone or anything with the power to avert disaster is being systematically replaced by an idiocracy of white nationalist bloggers and twitterati.
Hug your children a little tighter tonight.
If any other judge, of any intellectual persuasion, sits in the stolen seat, it will be the final nail of the coffin of the Supreme Court's legitimacy.
Trump already has the nation hurtling towards violent revolution and the world towards nuclear annihilation, so the delitigimization of our rule of law is an indignity we can least afford now.
There's no place left to hide. Anyone or anything with the power to avert disaster is being systematically replaced by an idiocracy of white nationalist bloggers and twitterati.
Hug your children a little tighter tonight.
And read them "Green Eggs and Ham."
Yes, you always know where Clarence Thomas's principles will take him (same results as Scalia, in spite of the different style). He will always favor the rich over the poor, corporations over consumers, capital over labor, management over employees, police and prosecutors over defendants, straight over gay, white over black. That's how it worked in 1789 and that's how it should apparently work now. No thanks.
1
"President Trump should heed Hamilton’s advice and nominate a jurist with the fortitude and devotion to the Constitution’s original meaning that has been exhibited by Justice Thomas."
Gosh, what a target-rich environment; I scarcely know where to start. So just a few points. First and foremost, let's not pretend that most justices actually aren't concerned with "the Constitution’s original meaning." Seriously? This is just today's political code for "conservative," "not liberal," "pro-business," "anti-anything new," etc. Just come out and say it.
Second, please don't cite a dissent (a DISSENT!) in Obergefell v. Hodges as an example of a higher view of what "liberty" means. That's just pitiful. Unless by "liberty" you mean the time-honored tradition in this country of the folks in power, self-appointed arbiters of the status quo, telling all the lesser mortals what rights they may be permitted to enjoy.
We don't need another Scalia or Thomas, another Roger Taney. We need a William O. Douglas or Louis Brandeis. Or John Marshall, if he's still available. "I knew John Marshall. He was a good friend of mine. Believe me, Clarence, you're no John Marshall." That's what Hamilton would say.
Gosh, what a target-rich environment; I scarcely know where to start. So just a few points. First and foremost, let's not pretend that most justices actually aren't concerned with "the Constitution’s original meaning." Seriously? This is just today's political code for "conservative," "not liberal," "pro-business," "anti-anything new," etc. Just come out and say it.
Second, please don't cite a dissent (a DISSENT!) in Obergefell v. Hodges as an example of a higher view of what "liberty" means. That's just pitiful. Unless by "liberty" you mean the time-honored tradition in this country of the folks in power, self-appointed arbiters of the status quo, telling all the lesser mortals what rights they may be permitted to enjoy.
We don't need another Scalia or Thomas, another Roger Taney. We need a William O. Douglas or Louis Brandeis. Or John Marshall, if he's still available. "I knew John Marshall. He was a good friend of mine. Believe me, Clarence, you're no John Marshall." That's what Hamilton would say.
1
1. Invoking Hamilton to defend an extreme states' rights perspective is a bit rich.
2. Originalism, is frankly, plain daffy to me and clearly counter to the flexible, malleable document the founders' created (intentionally, I might add).
3. It is also repeatedly hypocritical in practice, as its adherents never fail to deviate from it when it runs counter to their other beliefs. Otherwise, Thomas would insist the 2nd amendment only applies to muskets.
2. Originalism, is frankly, plain daffy to me and clearly counter to the flexible, malleable document the founders' created (intentionally, I might add).
3. It is also repeatedly hypocritical in practice, as its adherents never fail to deviate from it when it runs counter to their other beliefs. Otherwise, Thomas would insist the 2nd amendment only applies to muskets.
1
Its rather disingenuous to suggest that Thomas even has a philosophy. He is universally known as a follower with limited intellect. The fact that his appointment was tarnished only makes him a more divisive figure. Chief Justices have rarely let him even write opinions, because they know he is intellectually limited. When they do, it is usually softball opinions with nearly unanimous decisions. I don't know Foley, but she appears to be completely divorced from judicial reality.
1
President Trump promised he would choose a conservative Supreme Court justice and I am sure he will deliver on his promise. So far he has been carrying out his agenda that he vowed he would do for his supporters. He will not disappoint us and will select the justice with the best qualifications. He will appoint one who follows the constitution as it was intended to be done. We will finally have nine justices on the court and will hear cases again that must be decided.
One argument stands out in this column -- "right" vs. "entitlement." How one uses which word partly explains the huge partisan divide we see today. When certain groups of people demand something, i.e. marriage, Democrats tend to look at it as a right that should be expanded and the Republicans tend to look at it as an entitlement. Generally, we don't like people who feel entitled because it equates to being special, being better than the rest of us for no reason, asking for things without paying for it with money or hard work. What I hope for in the next Justice is someone with real life experience, no religious ties, no Ivy League background. Why not someone who immigrated to this country, who is from a broken family, who has LBGT family members, who got divorced him/herself, etc. These Justices make decisions that affect everyone and it sometimes feels like they live in an alternate world. We don't need another mute justice like Thomas or a justice like Scalia who appeared to enjoy being a bully.
1
The court does NOT need a jurist "devoted to the Constitution's original meaning," it needs a jurist appointed by a Democrat, since the seat is a stolen one, and Trump has no right to fill it. But if it did need such a person, that person would hardly be Clarence Thomas, who has joined the majoritiy on some of the most overreaching decisions in modern times, such as Citizens United, Bush v. Gore, and Burwell v. Hobby Lobby. It's provocative, even picquant, to uphold Clarence Thomas as an exemplar of anything (unless it's refusing to recuse himself when he has clear conflicts of interest), but Originalism, certainly not.
Individual motivations do not change. Whether for love or power motivations remain the same. But the size of populations, the means and attributes of communication, transportation, etc. have changed not just in quantity but in quality. News travels today at the speed of electricity. Traveling abroad takes not a weeks but hours. The Constitution itself is not sufficient to address those changes. The Constitution must remain the moral basis of the nation. It has and continues to serve us well. Decisions need to take account of that moral basis. But to stay stuck in the technical precision which would ignore cars, jets, nuclear devastation is to ignore the wisdom that has accumulated and built upon the Constitution.
Abstract theory is all well and good. What about an example? In no way does the Constitution address near instant annihilation of an entire city, of millions killed in the flash of a nuclear explosion. Should only one person - the President as Commander in Chief - have the ability to authorize nuclear weapons? The question has not been asked but with an adult child who acts out as Commander in Chief there is now a person who may be incapable of actually understanding the horror created by a nuclear bomb. If Congress were to pull that power back we can assume the President would challenge the law. Is there enough communication from the past, in other words in the original meaning of the Constitution to answer that question in the present?
Abstract theory is all well and good. What about an example? In no way does the Constitution address near instant annihilation of an entire city, of millions killed in the flash of a nuclear explosion. Should only one person - the President as Commander in Chief - have the ability to authorize nuclear weapons? The question has not been asked but with an adult child who acts out as Commander in Chief there is now a person who may be incapable of actually understanding the horror created by a nuclear bomb. If Congress were to pull that power back we can assume the President would challenge the law. Is there enough communication from the past, in other words in the original meaning of the Constitution to answer that question in the present?
4
For all those who believe in a "living Constitution" and in the great American experiment in self-government via representative democracy, the solution is in the Constitution itself: amend it. If you cannot garner the requisite support of The People to do so then you do not have the consensus necessary to follow the laws that result. For those who argue the process is too slow for our changing times then you are merely exchanging liberty for expediency. Such a view has no successful example in all of human history. The argument that the Constitution is old and fails to mention modern developments shows a profound lack of understanding of its primary purpose -- the protection of individual liberty via representative government and separation of powers.
13
Now there's a prescription for maintaining the status quo if I've ever heard one!
My God what a horrific idea. Originalism, the constitutional philosophy of the Luddite legal scholar, suggests the founders were able to foresee social, cultural, and technological changes that were simply not foreseeable. It renders the Constitution to history, not to the present or the future. And that would be tragic for our democracy.
the Constitution is not a textbook on social engineering and fashion.
1
Oh, yes, back to the Articles of Confederation. The Constitution, like all sacred documents, relies on interpretation that sagely addresses the challenges of eras, not literalism that binds the body politic in a time warp. And justice that is not leavened with intelligent compassion will undermine a civil and civilized society.
Liberty taken to absolute extreme is no virtue, as Aristotle taught. But, of course, who reads his Ethics anymore? Certainly not Thomas, whose opaque intellect applies constitutionalism as a hammer to pound back any errant nails.
Liberty taken to absolute extreme is no virtue, as Aristotle taught. But, of course, who reads his Ethics anymore? Certainly not Thomas, whose opaque intellect applies constitutionalism as a hammer to pound back any errant nails.
1
Neither was or is brilliant and neither is/was an originalist. Where in the constitution does it say corporations are people? The founders hated corporations but both Thomas and Scalia fed from the corporate hand and gave them total support. Both let their religion dictate many of their decisions. There's no brilliance there or in never saying anything.
1
This Op-Ed presumes that Trump might be sympathetic to conservatives who wants to limit the expansion of Executive power beyond a close reading of the Constitution. Not a chance.
Half of this column is right: We definitely do not need another Justice Antonin Scalia, whose “originalism” was contrived and flexible to fit whatever personal agenda he had and could sell with skilled sophistry.
The other half of this column is wrong: We definitely do not need another Justice Clarence Thomas.
Justice Thomas may have a more sincere form of conservatism, although even that is in doubt, given his wife’s radical Tea Party activities.
The main problem with Justice Thomas is his complete disdain for the concepts of precedent and stare decisis. Those are the principles which allow the law to evolve in an orderly fashion and which give some degree of predictability to the law.
What we need is another Justice Anthony Kennedy.
The other half of this column is wrong: We definitely do not need another Justice Clarence Thomas.
Justice Thomas may have a more sincere form of conservatism, although even that is in doubt, given his wife’s radical Tea Party activities.
The main problem with Justice Thomas is his complete disdain for the concepts of precedent and stare decisis. Those are the principles which allow the law to evolve in an orderly fashion and which give some degree of predictability to the law.
What we need is another Justice Anthony Kennedy.
4
"Justice Thomas may have a more sincere form of conservatism, although even that is in doubt, given his wife’s radical Tea Party activities."
Last time I checked, Justice Thomas was not his wife.
Last time I checked, Justice Thomas was not his wife.
1
If you are suggesting, John Xavier III, that Mrs. Thomas exerts no influence over her husband, that would make Justice Thomas very unlike the rest of us married men. I doubt that he is any different -- particularly with such an outspoken spouse.
Both Scalia and Thomas are corporatists. It's a matter of price when it comes to originalism. And pure meanness is their intellectual legacy.
2
What the court needs is another RBG or Sotemayer. Of course it won't get one.
2
The court needs a serious moderate with extensive knowledge of the constitution and the global society we live in. Period
4
I was just reading about the Internet, cyberbullying and ICBMs in the Constitution.
Those founders, they really did think of everything!
Thank you Ms. Foley!
Bring on those dinosaurs. Hallelujah! Another Justice for all times.
Those founders, they really did think of everything!
Thank you Ms. Foley!
Bring on those dinosaurs. Hallelujah! Another Justice for all times.
4
I hope any such "originalist" would follow the intent of James Madison, who during the debate regarding the Second Amendment rejected the proposals from an Anti-Federalist faction that wanted the specifics of hunting and self defense in the wording of that amendment.
2
Rest assured that whoever President Bannon nominates, male or female, whatever skin color, that person will be uniquely unqualified to serve.
4
It seems as though almost every comment calling for an "unbiased" justice to be appointed is, in one way or another, calling for a justice who would adhere to liberal philosophies alone. Talk about a dog whistle!
2
When the Supreme Court decided unanimously to vacate the criminal charges against the corrupt Republican governor last year, it became painfully apparent that all of those justices need to be replaced.
What about Merrick Garland?
Whoever is nominated, I simply wish that Democrats refuse to meet with him/her. The GOP can go nuclear it it wants. The American people will remember come 2018 and 2020.
Whoever is nominated, I simply wish that Democrats refuse to meet with him/her. The GOP can go nuclear it it wants. The American people will remember come 2018 and 2020.
3
"Justice Thomas’s originalism is unflinching."
That is, he thinks the second amendment applies only to flintlock, muzzle loading firearms, right?
That is, he thinks the second amendment applies only to flintlock, muzzle loading firearms, right?
2
They need to confirm Garland before worrying about who to nominate for the next opening. And the long-spineless Dems need to filibuster EVERYTHING until this is done. It's time for the Dems to be as ruthless as the Repubs finally.
2
I think you assume that the president's promise to appoint a justice in the mold of Justice Scalia means anything. I doubt that 45 ever read one of Scalia's opinions, or even a precis of his opinions. He uses the words that inflame his followers. The words have no factual meaning, only emotional meaning.
Your reasoning will fall on deaf ears.
He will appoint someone, call him "Scalia like" and his propaganda troops will spread the word throughout the land. The vox populi will be heard.
Your reasoning will fall on deaf ears.
He will appoint someone, call him "Scalia like" and his propaganda troops will spread the word throughout the land. The vox populi will be heard.
If memory serves, Clarence Thomas was 43 when appointed. Merrick Garland is 64. Particularly in light of the travesty Mitch McConnell was able to get away with since Antonin Scalia's death, the very last thing this country needs is an extra 21 years of an extremist like Clarence Thomas on the Supreme Court.
3
What happens if the Justice trump appoints decides against one of trump's policies? We found out last night.
Please. I have had more than enough of the concept of originalism. It is out of step with contemporary life.
3
The original founders were not believers in Originalism, which is a twentieth century invention. The last thing we need is a justice like either Thomas or Scalia, both of whom failed to understand the the spirit of justice that the Constitution tried to embody.
5
What a choice! Like in -- I think -- Utah, where the condemned get to choose whether to be shot or hung.
1
Why is it that most "originalists," seem to forget that we had a bit of a dust-up in the 1860's that led to the 13th, 14th, and 15th Amendments? If you apply "originalist" theory to the 14th, you come to a much different place that either Scalia or Thomas.
3
Good point, but see Thomas's concurrence in McDonald v Chicago. He's on your side on this issue, I think.
So, what did the phrase "a well-regulated militia" mean to Thomas? He's a "strict constitutionalist" when it serves his political interests.
1
Good point about "a well-regulated militia."
To me this is a cautionary tale about overreach.
The right talks about the constitutional right to bear arms. The left essentially seemed to say for years that the constitution lets you have a firearm if you're in the armed services.
When I read it and look at the Federalist Papers I get the idea that there's a constitutional right to bear arms that is subject to serious governmental discipline and regulation and that comes with tremendous responsibility. But I don't recall the political discussion proceeding along those lines.
To me this is a cautionary tale about overreach.
The right talks about the constitutional right to bear arms. The left essentially seemed to say for years that the constitution lets you have a firearm if you're in the armed services.
When I read it and look at the Federalist Papers I get the idea that there's a constitutional right to bear arms that is subject to serious governmental discipline and regulation and that comes with tremendous responsibility. But I don't recall the political discussion proceeding along those lines.
Wow. There IS competence to consider. Thomas?
2
We don't need more extremist justices like Scalia and Thomas. #Filibuster every Trump nomination
3
"Originalist" is simply a dog-whistle for supporting extremely right wing policies, constitution be dam-ed. Ms. Foley, congrats on convincing yourself that Clarence Thomas is an intellectual. To most of us, he appears to be incurious, hidebound, and to simply follow his own tortured logic, not that of the Constitution. In other words, the opposite of what we commonly refer to as an intellectual.
4
Remember Thomas' confirmation hearings? How those who questioned him were engaged in 'high tech lynching.' Well, he got his sinecure position on the court. But how many actual opinions did he write? And, what are they worth?
Clarence Thomas is the worst Supreme Court Justice in modern times, an opinion widely shared throughout the legal community on both the left and the right. For a law professor to praise him in this way is disingenuous, as Professor Foley is surely aware of just how poor Thomas's work has been.
If you want an originalist, fine. I disagree, and think originalism is a monstrous ideology founded on assumptions and facts that are absurd on their face, but I recognize it as a school of legal thought with intelligent and thoughtful adherents, and I bow to the reality that some people disagree with me about how to interpret law. However, if you wish to advance originalism, pick a better standard bearer than Thomas, who is a disgrace to the Court, to America, and indeed, even to originalism.
If you want an originalist, fine. I disagree, and think originalism is a monstrous ideology founded on assumptions and facts that are absurd on their face, but I recognize it as a school of legal thought with intelligent and thoughtful adherents, and I bow to the reality that some people disagree with me about how to interpret law. However, if you wish to advance originalism, pick a better standard bearer than Thomas, who is a disgrace to the Court, to America, and indeed, even to originalism.
58
Worst. What is your basis of deciding? How many opinions you disagree with or how many opinions you disagree with which are nonetheless well reasoned?
1
Please provide one credible example supporting your blindly prejudiced statement that Justice Thomas is the "worst" Supreme Court Justice , an opinion "widely shared" throughout the legal community.
I suspect you judge a person's capability solely by whether they agree with your political philosophy, without any regard for their true capabilities. You are an example of why this country has become so divided.
I suspect you judge a person's capability solely by whether they agree with your political philosophy, without any regard for their true capabilities. You are an example of why this country has become so divided.
1
the originalism is bunk. the idea we need to adhere to the idea of adhereing to an earlier time is ludicrous. we live now not then. my biggest problem all those years with scalia was this bunk of an argument. specially being his originalists wrote the bible and those yarns from long ago.
1
Any real strict constitutionalist would decline the nomination until Mr. Garland was seated, as clearly that nomination was valid and the constitution ignored by Mr. McConnell et al.
3
I laugh when I hear the ever-present "original meaning of the Constitution". The Constitution is a living breathing document. I know this because it's starts out as "We the people....". The phrase "We" certainly didn't include women and it definitely didn't include African-Americans. So, we need people who have common sense to serve on the court, not "strict constructionists" (whatever that means). The Constitution is an amazing document, but it needs to be interpreted for 2017 and beyond and not for the actual date it was written.
1
No, we don't need another Clarence Thomas. We need another Thurgood Marshall.
2
You are lecturing to whom? Trump will make a decision based on spite. Save your breath and pixels with advice for what Trump ought to do. He has as much knowledge about the supreme court as a high-school dropout.
3
Why, its 2017, the world has changed, the meaning of wards has changed, the Constitution exists as a fluid document to be interrupted for 2017, not within the meaning of 1785 language.
Being an Originalist sound great at dinner parties, but has limited practical use now. Justice Scalia got away with it, to the determent of many.
Why repeat such folly.....
Being an Originalist sound great at dinner parties, but has limited practical use now. Justice Scalia got away with it, to the determent of many.
Why repeat such folly.....
As we have seen rather often Originalism gets twisted to align with a jurist's conservative opinions.
What a coincidence that the Founding Fathers agreed wholeheartedly with Scalia and Thomas!
What a coincidence that the Founding Fathers agreed wholeheartedly with Scalia and Thomas!
1
What a ridiculous article. Clarence Thomas is the single biggest embarrassment to the judiciary and the legal profession ever to sit on the court. Yep, I said it. And originalism, another simpleton rule of construction to assist those who don't want to do any actual legal analysis......it means what the words say and i determine what the framers meant. See e.g. the second amendment......no mention there of every other duffus walking around with a concealed handgun looking for a militia. that was Scalia.....which brings me back to, how about nominate a jurist who is not lazy, or one that asks a question showing their understanding of the issue or one that does not rely on their ability to read the mind of the framers. This article is a completely upside down view of the role of judges in society and what a competent jurist justice looks like. Thomas......really Professor?
3
SCOTUS doesn't need another Thomas or Scalia. It seems to be doing just fine with eight members.
In fact, as the GOP kept pointing out when faced with Garland's nomination, that SCOTUS has worked fine with 8 members before.
In fact, as the GOP kept pointing out when faced with Garland's nomination, that SCOTUS has worked fine with 8 members before.
1
Hasn't anybody noticed that the original Constitution endorsed slavery and the slave trade? That it also endorsed an amendment process?
I read through this column and I found it hypocritical and dishonest that this writer is all concerned about the nature of the next Supreme Court Justice now that there is a Republican in the White House to appoint a Conservative. The Republicans in the Senate showed their contempt for the rule of law and Constitution in denying President Obama advice and consent on his choice--Garland. They also showed that getting their way whether they deserved to or not was their main and in fact only concern for almost a year. I hope the Democrats in the Senate have the courage to deal with Mr. Trump's nominee the same way McConnell and the GOP dealt with Obama's a year ago.
1
Justice Scalia was a textualist, not an originalist. He believed that what was written in the text of the Constitution should be the law and prevail in disputes. Thomas is an originalist, which makes little sense, because few are capable of interpreting something written twenty years ago, let alone 225 years ago.
A new Scalia on the Court would not be the worst thing; a new Thomas would.
A new Scalia on the Court would not be the worst thing; a new Thomas would.
24
The ONLY cases that these so-called "strict constructionalists" employ this philosophy on are cases that serve their ideology, but they abandon it all when need be: Bush V Gore, Citizens United, Voting & States Rights.
Fakers.
Fakers.
4
No, not Thomas!
We need a Justice who will interpret law according to the purpose of the Constitution, as clearly stated in the Preamble, not speculate on the intent of founders long dead!
We need a Justice who will interpret law according to the purpose of the Constitution, as clearly stated in the Preamble, not speculate on the intent of founders long dead!
1
Lifetime appointments are always a little tricky, particularly when you look at 45 year olds that might have a 45 yr tenure. As a result all I think you can do is try to find an appointee that has a strict constructionist history in prior analysis if you are looking for a more predictable outcome and if your desire is to have a more " progressive" ( which some consider a 4th political power after the President, House and senate) then you shy away from the strict constructionist. And in the end you cross your fingers and hope because once the lifetime appointment is confirmed, all bets are off!
Remember, when the Constitution was written the appointed justices were generally old and life expectancy was considerably shorter so one thing is for sure: It is doubtful that the framers of the Constitution contemplated appointments that lasted 40 years!
Remember, when the Constitution was written the appointed justices were generally old and life expectancy was considerably shorter so one thing is for sure: It is doubtful that the framers of the Constitution contemplated appointments that lasted 40 years!
20
For all the "originalists" out there: The "original meaning" of the Constitution held that slavery was just fine. Perfectly "constitutional." What part of this don't you understand?
2
Hmm, we need another justice who takes money from people who present arguments before him. We need another justice that wants strict constructionist views who would ban his own marriage? We need another justice who would pull up the ladder of advancement for others behind him.
I don't think so.
I don't think so.
4
You've got to be joking. I couldn't stand Scalia but thought that he was an exceptionally smart man. Clarence Thomas, not so much and he should never have been appointed to the Court to begin with.
5
Anyone who thinks Justice Thomas is a stupid man clearly knows nothing about the Court
"Restauration of the original meaning of the Constitution" is apparently the ultimate goal of some jurists, legal scholars and magistrates.
But then why should anyone criticize those fanaticts who claim that, restauring the Coran "original meaning", including Jihad and death to the unbelievers, is their own ultimate goal?
Why would these "religious or neo religious" beliefs be deemed cast in stone forever, when they themeselves were an evolution of past practices and beliefs?
But then why should anyone criticize those fanaticts who claim that, restauring the Coran "original meaning", including Jihad and death to the unbelievers, is their own ultimate goal?
Why would these "religious or neo religious" beliefs be deemed cast in stone forever, when they themeselves were an evolution of past practices and beliefs?
1
It's disturbing to say the least that this column was written by a purported law professor. The idea that judges should somehow "divine" and then blindly follow the "revealed intent" of a group of white men, many of whom owned slaves, who lived over 200 years ago without any regard to changes in the country,the world or even case precedent is ridiculous and dangerous. Perhaps this professor needs a a CLE refresher course on the common law system
4
This is ripe baloney sliced thick. Block ALL of Trump's appointments. Stop his agenda, every single item on it without exception.
3
It is oh so convenient to proclaim that one can divine the intent of the writers of a document that was crafted two centuries ago. Nice if you can play god and get away with it!
1
It doesn't matter in the short term who is appointed. Decisions will come down to Justice Kennedy, just as they have for the past several years.
The court needs another Thurgood Marshall, certainly not another Clarence Thomas, formerly of Monsanto
4
Originalists who use a literal word by word analysis of the Constitution create distorted interpretations that miss the founders true purpose of creating a body of law that mades principled democratic governing possible.
2
Gee, what a choice. An supremely activist conservative who denied it, who believed that middle-class, working Americans are worthless users of Earth's air except in their capacity to service the rich, or a self-loathing African-American who doesn't understand the first thing about core American values that don't help the wealthy gain power.
1
An article that fails to mention Merrick Garland? An article that likes an African American for his devotion to "original intent?" The original intent of slave owners? God Help America!
5
It's not 1787 any more, and thankfully even Justice Thomas counts as 1 person, not 3/5 of one, in a census.
5
ORIGINAL MEANING of the Constitution? And what is that, exactly? When are these regressionists going to admit that that is an impossible goal? We can not possibly understand now what the original meaning was to the founding fathers. It can't be done and the regressionists know it. It's just a way to justify the thing they say they most ashore - jurists making new law instead of just interpreting it. They are tinkled pink when the Constitution is interpreted to agree with their beliefs, in which case, it surely must have been simply the proper reading of the founding fathers' intent.
2
"Justice Thomas’s quieter disposition"
One thing we can never accuse Thomas of: Verbosity.
No one ever knows what Thomas is thinking because he never opens his mouth! My guess is that he took to heart the admonition: It's better to remain silent and and let others question if you're a fool than to speak up and confirm their suspicions!
Or maybe, he's just intellectually lazy and really has nothing to contribute to any argument.
Democrats must resist any effort to put a trump nominee for at least a year! There are consequences for actions and payback can be principled and in this case, defensible!
One thing we can never accuse Thomas of: Verbosity.
No one ever knows what Thomas is thinking because he never opens his mouth! My guess is that he took to heart the admonition: It's better to remain silent and and let others question if you're a fool than to speak up and confirm their suspicions!
Or maybe, he's just intellectually lazy and really has nothing to contribute to any argument.
Democrats must resist any effort to put a trump nominee for at least a year! There are consequences for actions and payback can be principled and in this case, defensible!
4
Has the NYT editorial section lost the last of its marbles? This article belongs in The National Review, not in the Times.
Yes, folks, the Founders created the Jucidical branch to hold us true to our Constitutional roots. The realized it was not the legislative branch, nor the executive branch. Instead, our Supreme Court was created to prevent errant rulings and interpreations of our laws and rules of governance.
Take for example: Roe-Wade: In recent years with a Liberal majority, The Court bypassed Congress and modern science-based neonatology, Blackmun and The Court determned that human life was no longer human until the magic number of weeks went by. Never mind the DNA of the human fetus making it not the body of the mother, but safely in the body of the mother until she said, No!
Row-Wade was and is madness, and after 50,000,000 lost humankind, it's horrific. Tragic doesnt't begin to describe. Thomas knows that, and so did Scalia. Let's hope a Justice is chosen who knows what human means.
Yes, folks, the Founders created the Jucidical branch to hold us true to our Constitutional roots. The realized it was not the legislative branch, nor the executive branch. Instead, our Supreme Court was created to prevent errant rulings and interpreations of our laws and rules of governance.
Take for example: Roe-Wade: In recent years with a Liberal majority, The Court bypassed Congress and modern science-based neonatology, Blackmun and The Court determned that human life was no longer human until the magic number of weeks went by. Never mind the DNA of the human fetus making it not the body of the mother, but safely in the body of the mother until she said, No!
Row-Wade was and is madness, and after 50,000,000 lost humankind, it's horrific. Tragic doesnt't begin to describe. Thomas knows that, and so did Scalia. Let's hope a Justice is chosen who knows what human means.
2
Is Roe v. Wade the reason that the human species is endangered?
Forcing a woman to give birth to an unwanted child is cruel and unusual punishment. Mind your own business.
Forcing a woman to give birth to an unwanted child is cruel and unusual punishment. Mind your own business.
Elizabeth Price Foley: one more argument for not poring my tourist dollars into Florida, as if one were needed.
3
Is this a joke?
Thomas was merely Scalia's clerk agreeing with him on almost all decisions.
He has showed himself to be incapable of independent thinking and is adrift since the departure of Scalia.
Thomas was merely Scalia's clerk agreeing with him on almost all decisions.
He has showed himself to be incapable of independent thinking and is adrift since the departure of Scalia.
3
More likely the Trump nominee will regard Thomas as a second class citizen - haven't you been paying attention at all?
5
Elizabeth Price Foley is exactly what her name indicates: she works for a price and she is a folly. It's mere neo-fascism transvestited into intelectual idealism.
Will the NYT continue its (suggested) fair and balanced approach to news and opinions NOW, even after a depressing and beyond-scary week with Trump? If the president wants a witch hunt, the logical part of this country has to reply with a denouncement of all puritanical hypocrites helping him. Price Foley has NO place here for a dialogue anymore. Unless the NYT wants to jump ship. If so there will be no hope for the hundred of millions who did not vote for this clown.
Will the NYT continue its (suggested) fair and balanced approach to news and opinions NOW, even after a depressing and beyond-scary week with Trump? If the president wants a witch hunt, the logical part of this country has to reply with a denouncement of all puritanical hypocrites helping him. Price Foley has NO place here for a dialogue anymore. Unless the NYT wants to jump ship. If so there will be no hope for the hundred of millions who did not vote for this clown.
3
Is this a joke? Clarence Thomas was picked b/c he was black and conservative and that he would not have an oroiginal thought or an argument but follow Scalia's line without saying a word (or writing much).
In any case 45 is likely to pick yet another racist bigot who will rubber stamp his EOs and overturn (5-4) all progressive rulings.
In any case 45 is likely to pick yet another racist bigot who will rubber stamp his EOs and overturn (5-4) all progressive rulings.
4
This column is a carefully crafted, cherry-picked spin to make Justice Clarence Thomas seem like a thoughtful jurist. All you need to know about him is that he got his job through affirmative action---indeed, his seat was referred to as the Thurgood Marshall seat---and as soon as he was appointed he came out against affirmative action for all the Black people in America. It is said that two sure things are death and taxes. My observation was the third sure thing was that Scalia and Thomas would always vote identically, at least 90% of the time. It was as if Scalia was the puppeteer and Thomas the puppet. You never had to ask how they voted. If it was a liberal/social issue they voted NO, and if it was a conservative issue they voted YES. Malcolm X would have called Justice Thomas a "House Negro." What good was it to have a black Supreme Court justice who voted against black issues at every opportunity?
1
NYT, are you serious?
'Originalism"?
Devoting column inches to this faux legal movement created by conservatives to set the country back centuries should not be in this newspaper.
I would further amplify my remarks, but I need to hitch my horses to my plow and get to work in the fields.
'Originalism"?
Devoting column inches to this faux legal movement created by conservatives to set the country back centuries should not be in this newspaper.
I would further amplify my remarks, but I need to hitch my horses to my plow and get to work in the fields.
8
For Christ's sake, it's 2017 not 1789. Plus, Clarence Thomas is an idiot!
6
Neither Thomas or Scalia is worthy of praise. They are entirely partisan, vide bush v. Gore. Give us a Thurgood Marshall or an Earl Warren. It would take a miracle, but Moses found water in the desert
4
Another Clarence Thomas? Not such an easy task to find such a brilliant and eloquent Justice.
Hmmm....How about Bill Cosby?
Hmmm....How about Bill Cosby?
2
"Original Meaning?" Let's apply the 1789 Constitution when corporations were without person's rights and gun technology stopped at single shot flintlocks, requiring external ignition.
5
Thomas - the Flat Earth Society justice. Is this op-ed from The Onion?
4
I'm betting that interns draft most of the justices' opinions.
2
Democrats should Occupy the Senate and block all nominations. If they let themselves be further bullied by the Republicans, they quill never get respect, or votes, from the American People.
1
"Original meaning" was a con. It covered up the GOP's dishonest use of power. Thomas and Scalia always proclaimed the doctrine of states' rights until they halted Florida's recount effort in Bush v. Gore, installing Bush into the presidency.
Then they proclaimed that this was a UNIQUE case, not to be applied to any subsequent states' rights cases.
Hypocrisy matters!
Then they proclaimed that this was a UNIQUE case, not to be applied to any subsequent states' rights cases.
Hypocrisy matters!
1
I can not believe anyone would argue about who was, is, would be better for the court another Scalia or Thomas. To take the Constitution literally is to deny the changes to this country. What would the writers of the Constitution have done about having a crazy in the White House. This might need to be addressed by this body one day and I don't think they are going to find an answer by looking back.
1
The court needs neither.
3
No!
Donald Trump will appoint a Supreme Court justice and will make up his own mind. He is very capable of doing so and hopefully it will be a conservative. A Scalia or Thomas type would be wonderful though as long as he is conservative.
The Democrats should take a page from the Republicans, and block any nominees until there is a Democratic--and sane--President.
2
Um, with all due respect no.
Don't be naive- he'll double down on a Scalia and then some.
The comments are interesting. A whole bunch of people seriously incapable of arguing with the knowledgeable and brilliant Elizabeth Price Foley inadvertently make her point: there need not be a constitution because law should be made and confirmed by all these smart people who really knows what is good for the people. If you follow that logic, you should ask why we have a Supreme Court. If what is being done is simply deciding what the majority thinks, then shouldn't the legislature, elected by the people, be above any court of a few unelected judges? So, let's start a movement to eliminate the Supreme Court and all the expenses and hassles that it initiates.
2
What a load of absolute rubbish! But, Trump and Bannon really don't care about SCOTUS so they may introduce another idiot to us. 'Original Meaning' is an archaic concept when applied to a document designed to adapt to the times.
1
Yes. Clarence Thomas. Just what the Court needs is another sexual assaulter. Should fit right in to the Trump scheme.
Anita, we should have listened to you.
Anita, we should have listened to you.
8
Originalism is just an excuse to ignore precedents that happened after the drafting of the constitution. In other words, progress. It's lazy and irresponsible. Who wants to go back to the year 1800 ? Not me or anyone I know.
3
What we the people don't need is another liberal supreme like Sonia Sotomayor whose decisions are in part, according to her own words based on "national origins and gender".
1
If what you want is a jurist that views the Constitution as something akin to a holy writ that must be interpreted only in it's original then you must be OK with treating people of color as 3/5's of a person. Right?
1
I totally misunderstood the title, I thought the author was suggesting the president hires someone similar to himself and Justice Thomas..... accused of sexual harassment.
5
Ironic, isn't it, that the NYT should be praising Clarence Thomas now, as women march for equality and deplore sexual harassment. Does anyone remember Anita Hill?
6
The NYT isn't praising him. An "op-ed contributor" is.
You mean, we need another Supreme Court judge who sexually harasses women and then lies about it under oath at a confirmation hearing?
7
Thanks for your opinion Ms. Foley. But it is falling on deaf ears. Fair to say the majority of readers of the NYT certainly don't want another Clarence Thomas. And Trump only listens to his own instincts, now heavily influenced by his alt-right minions and the hoard who elected him. He doesn't care about your thoughtful analysis and is incapable of understanding it or appreciating it anyway.
2
You have got to be kidding! What the Supreme Court needs is another Clarence Thomas?Stayed tuned for Trumps choice!And the following sea of demonstrators across America.It just may equal the 1,500,000 who "came" for the inauguration.Only this time---it will be real people---not the figment of a buffoons imagination.
1
Is The Times now pandering to the far right? Is this how Times management expects to prosper in the age of Trump? By larding the opinion pages with ignorant right-wing screeds like this one?
Clarence Thomas is a disgrace to American jurisprudence.
Period.
Clarence Thomas is a disgrace to American jurisprudence.
Period.
9
Originalism is excellent, in theory - to return to the minds of those who wrote the constitution and follow their thinking. In so far as that has been accomplished through the years since the constitution was written, we can connect to those minds. But what would they think today? A more important questions. How would they apply their 18th century concepts? THAT is difficult, something that many present-day originalists seem to want to avoid. The authors probably were not familiar with "transgender" nor did they likely think of "abortion" as an issue they should apply themselves to.
28
Merrick Garland and nobody else. Filibuster all the way.
7
What utter nonsense. Clarence Thomas was the obedient lap dog of Scalia for many years. The list of damaging votes of his including the notorious Bush v. Gore debacle is long. Do we really need another candidate for Mount Rushmore on the bench who, when he actually says anything at all, makes sure he toes the party line?
The horrific Trump Era - now unfolding for your viewing pleasure in all its absurdity - needs free thinkers, not just party hacks.
The horrific Trump Era - now unfolding for your viewing pleasure in all its absurdity - needs free thinkers, not just party hacks.
3
Oh Please God, No...
3
Originalism is a false legal doctrine, just a cover for outcome-based right wing decisions. When it does not produce the desired outcome (i.e., interpretion of the 2nd Amendment) the Judges who say they are originalists either change the facts or reframe the question. Glad I did not attend FIU Law School.
8
Utter rubbish. The original meaning of the constitution is that is is a living and evolving document, not a static religious text. The 9th amendment, the necessary and proper clause, and the interstate commerce clause all point in this direction. Originalism is an attempt to rewrite the constitution ignoring anything that smacks of constitutional evolution. Originalists are a stain on America. Thomas is no role model. Ginsberg is.
3
What matters is the keyholder, not the lock. Once the filibuster is gone from the Senate - thank the hubris of Harry! - the keyholder will name and receive the first of three appointments due by the end of 2024. While it may not be the current keyholder in charge by that time it will be a champion of the red states because the Warren/Sanders takeover of that party will lead to a Dukakis-style defeat in 2020. By 2018, if they all make it, three Justices will be in their 80s; two already are and are in failing health. The lady lunches the two baby boomer female justices enjoy will no doubt be discussions over which gets the byline for the dozens of dissenting opinions their clerks will labor over. Should have gone to MIT ladies.
I suppose Clarence Thomas's vote should only be worth 3/5 of a vote then?
And what about the late 18th century definition of militia, for those 2nd Amendment purists? Oh, we can ignore that clause, because . . . original textualism blah blah blah we make this up and decide things the way we want under the pretext of some governing theory?
And what about the late 18th century definition of militia, for those 2nd Amendment purists? Oh, we can ignore that clause, because . . . original textualism blah blah blah we make this up and decide things the way we want under the pretext of some governing theory?
7
Peter, the Second Amendment has been analyzed thoroughly, and what is clear is that the militia clause is a sufficient but not a necessary condition. When you calm down, you should ruminate on the difference, since you are fighting a lost battle.
1
"Justice Thomas’s quieter disposition camouflages an equally deep and tenacious intellect."
I have read Thomas' writings and Foley lost me with that one sentence. It simply is not supportable or true. I am not suggesting Thomas is outright dumb, but he is not the smartest person in the room. Thomas knows that, and that is why he rarely speaks.
I have read Thomas' writings and Foley lost me with that one sentence. It simply is not supportable or true. I am not suggesting Thomas is outright dumb, but he is not the smartest person in the room. Thomas knows that, and that is why he rarely speaks.
7
Justice Thomas is reticent to ask questions from the bench during oral arguments because he is afraid that his questions may be perceived as lacking intelligence by his peers, scholars, and journalist.
5
What we most need is a jurist with compassion, and someone who is in touch with the modernity in which we find ourselves. But the "right" side of the bench are not just conservative, they are also 75 years behind in history...totally out of touch with people's real 21st century lives, and the technological information age in which real people are grappling to live.
But we won't get that...because too many, including the President and his GOP enablers, want American life to revert to the 1950s. The only way life works is going forward, none of us can live backwards...and this propensity to always look back longingly is a recipe for disaster.
But we won't get that...because too many, including the President and his GOP enablers, want American life to revert to the 1950s. The only way life works is going forward, none of us can live backwards...and this propensity to always look back longingly is a recipe for disaster.
74
The early 50's, before Brown v Board of Education. My intuitive feeling (which is in my mind, not my gut) is Trump would welcome the return of Jim Crow, perhaps even slavery. Does anyone doubt Trump would have been a slave owner had he lived in the 18th century?
1
Where are the minorities?
What is so great about originalism? In the views of originalists like Scalia, it means the Constitution is not a "living document" and should be interpreted exactly as written in the 18th century. For those people, the country has not evolved and nothing should ever change. Sort of like believing the world was created in six days 5,000 years ago.
87
For at least some of those people, the amendment process is how changes should be handled. This change mechanism was burned into the constitution from the beginning.
1
Nobody says the Constitution should not change. It's called a Constitutional Amendment/Convention, and the procedure for it is right in the Constitution, in plain English. So, if you want to change the Constitution, please, be my guest.
1
Obviously an amendment would be the method of change, but the last one that passed was in 1992, a procedural change about congressional pay. It is very difficult to get one passed. For instance, the ERA. Six amendments have failed since the document was written; four of those are still "pending," one dating back to 1789. Yes, I have a great deal of confidence that this method works.
Thomas has been sulking ever since he ascended the bench, and agreed with Scalia instead of thinking for himself. Another Thomas would be a disaster--not that anyone Trump appoints will be any good.
5
It is difficult yo believe that prof Foley of the Florida International University College of Law has read many of Clarence Thomas's opinions. As a start I recommend Brumfield v. McCain in which a large part was devoted to discussion of the murder victim’s son’s National Football League career.
Then there is his is dissent in Obergefell, the same-sex marriage case. Thomas did not even mention the key gay-rights precedents, Romer v. Evans, Lawrence v. Texas, and United States v. Windsor; instead, he mashed up John Locke, Magna Carta, 18th-century British legal philosophy, natural law, and the Declaration of Independence.
As for his silence on the bench, read Jeffrey Toobin's articlae in the New Yorker, "CLARENCE THOMAS’S DISGRACEFUL SILENCE." As Tobin says:
"By refusing to acknowledge the advocates or his fellow-Justices, Thomas treats them all with disrespect. It would be one thing if Thomas’s petulance reflected badly only on himself, which it did for the first few years of his ludicrous behavior. But at this point, eight years on, Thomas is demeaning the Court. Imagine, for a moment, if all nine Justices behaved as Thomas does on the bench. The public would rightly, and immediately, lose all faith in the Supreme Court. Instead, the public has lost, and should lose, any confidence it might have in Clarence Thomas."
Then there is his is dissent in Obergefell, the same-sex marriage case. Thomas did not even mention the key gay-rights precedents, Romer v. Evans, Lawrence v. Texas, and United States v. Windsor; instead, he mashed up John Locke, Magna Carta, 18th-century British legal philosophy, natural law, and the Declaration of Independence.
As for his silence on the bench, read Jeffrey Toobin's articlae in the New Yorker, "CLARENCE THOMAS’S DISGRACEFUL SILENCE." As Tobin says:
"By refusing to acknowledge the advocates or his fellow-Justices, Thomas treats them all with disrespect. It would be one thing if Thomas’s petulance reflected badly only on himself, which it did for the first few years of his ludicrous behavior. But at this point, eight years on, Thomas is demeaning the Court. Imagine, for a moment, if all nine Justices behaved as Thomas does on the bench. The public would rightly, and immediately, lose all faith in the Supreme Court. Instead, the public has lost, and should lose, any confidence it might have in Clarence Thomas."
6
More like Clarence Thomas? Is this some kind of a joke? Thomas has been the ) silent menacing presence on the SCOTUS for way too many years and now you want another one of him? See: http://www.newyorker.com/news/daily-comment/clarence-thomass-twenty-five....
4
I'm sorry New York Times, but if this is an effort to appear "balanced," you've gone too far. This reads like a parody of balanced coverage. You, perhaps, found one of the very few people in America who would call Clarence Thomas' intellect, in comparison to many other Supreme Court Justices, "deep and tenacious." If the author wanted to praise a conservative justice, there are still much better choices.
What is this take a misogynist to lunch week? Glad I didn't get the memo.
What is this take a misogynist to lunch week? Glad I didn't get the memo.
8
The court needs another Ruth Bader Ginsberg.
The last thing the court needs is another Scalia or Thomas.
Perhaps also another Sotomayer or Elena Kagen would be a good idea.
The last thing we need is another Thomas, who does not know to recuse himself when his wife is involved with business interests in one side.
The last thing the court needs is another Scalia or Thomas.
Perhaps also another Sotomayer or Elena Kagen would be a good idea.
The last thing we need is another Thomas, who does not know to recuse himself when his wife is involved with business interests in one side.
10
He doesn't talk, rarely issues an opinion, and he was accused of sexual harassment. What a catch!
15
Thomas is the most unqualified person ever appointed to the Court. He doesn't participate in oral arguments. And it seems to me all he ever did was vote however Scalia voted -- as if not bothering to think about the cases for himself. Why in the world would anybody want another Thomas on the Court?!
9
Anita Hill would beg to differ!
9
Clarence Thomas? Sweet Lord, what we need is another Thurgood Marshall!
9
Yes, yes, and yes. But Trump will suffocate if he accidentally does that!
You have got to be kidding!
All this man ever did was mimic Scalia. His only credit is his complete lack of originality. Probably the worst justice ever sit on the court.
Only the NYT would print such an opinion!
All this man ever did was mimic Scalia. His only credit is his complete lack of originality. Probably the worst justice ever sit on the court.
Only the NYT would print such an opinion!
7
The court needs six more Ruth Bader Ginsbergs, Sonia Sotomayers and Elena Kagans.
37
I always assumed that Thomas did not ask questions because he did not have any. Until recently, he voted however Scalia voted. He is a strict constructionist, supposedly, except when he isn't. The idea that Thomas has a brilliant mind remains unproven.
24
The idea that Justice Thomas even has a mind is up for debate. When he joined the Court, Scalia sent over a number of his assistants to staff up Thomas's office. The only time I can remember an 8-1 vote in SCOTUS was when Thomas took a position so far to the right that even Scalia and the other ultra-conservatives couldn't justify.
When he was nominated, the Democrats were too cowardly to be seen attacking a black nominee on his lack of qualifications and his lack of competence, so they tried to eliminate him by hyping the Anita Hill scandal. It didn't work, and we now have a justice who voted as a rubber stamp to Scalia, and, on at least one occasion, to the right of Scalia. Trump's new list of candidates was prepared for him by the uber-right-wing Heritage Foundation and his pick is a cinch to be more extreme than Scalia was.
When he was nominated, the Democrats were too cowardly to be seen attacking a black nominee on his lack of qualifications and his lack of competence, so they tried to eliminate him by hyping the Anita Hill scandal. It didn't work, and we now have a justice who voted as a rubber stamp to Scalia, and, on at least one occasion, to the right of Scalia. Trump's new list of candidates was prepared for him by the uber-right-wing Heritage Foundation and his pick is a cinch to be more extreme than Scalia was.
The great irony is that Thomas is what replaced one of the great justices of the latter part of the twentieth century, Thurgood Marshall, for whom the title "Mr. Justice" was as fitting as it is inappropriate for his successor. Of course, the great tragedy is that declining health forced Marshall to announce his retirement in the spring of 1991, less than sixteen months before Bill Clinton was elected president — which is how George H.W. Bush got the opportunity to debase the Court (with the imprimatur of a Senate under Democratic control, 52-48; the Judiciary Committee was under the chairmanship of Senator Joe Biden).
3
The originalists have this proclivity of interpreting history to suit their present day agenda, throwing out things that don't conform. They are phonies.
In any case, it is too late for originalism as the Constitution has already been interpreted over and over again to fit modern times and there is now an extensive history of precedent that cannot be thrown out without shattering the function of our modern economy and society.. well, unless we get a government that just wants to throw bombs and run around like a bull in a china shop. But that can't happen...
In any case, it is too late for originalism as the Constitution has already been interpreted over and over again to fit modern times and there is now an extensive history of precedent that cannot be thrown out without shattering the function of our modern economy and society.. well, unless we get a government that just wants to throw bombs and run around like a bull in a china shop. But that can't happen...
6
Well - I think Ms. Foley is certainly the exception to suggest the Supreme Court needs another Clarence Thomas. Justice Antonin Scalia may not have been the most polite or considerate of the opinions of others - but his colleagues spoke of his shape mind and claimed he was a respected intellect. There has been no such claims of Clarence Thomas - quite the opposite.
4
I would beg to differ with your assessment of Judge Thomas. There is an excellent and fair evaluation of his writings by Ralph Rossum (Understanding Clarence Thomas). You should read it. While you can disagree with his views, denying his intellect or impact on the court is not fair or reasoned judgement of his 25 years as a justice.
2
We do not need another Supreme Court nominee who is marginally qualified, mired in credible allegations of sexism and abusive behavior, who will spend the rest of their days vocalizing their resentment of the two preceding facts while playing the victim.
7
There are many qualified black federal judges right here in Georgia. Thomas was never qualified morally or intellectually, just like many of the white male judges were and aren't.
Give us a good intelligent black male federal judge or a black female federal judge. We need more women of any color on the bench and more blacks on the bench. We have had all the white males we could ever need.
Give us a good intelligent black male federal judge or a black female federal judge. We need more women of any color on the bench and more blacks on the bench. We have had all the white males we could ever need.
7
What can Clarence Thomas possibly mean by calling marriage equality an entitlement to government benefits?
That's gobblygook.
Stable, loving families make for stable societies.
That's gobblygook.
Stable, loving families make for stable societies.
12
Reverting to an extremely narrow view of the Commerce Clause would end our federal government for many purposes, which is what the right-wingers want. It would make it much easier for the plutocrats to consolidate further their death grip on our country.
9
The "original intent" was not to hamstring endless generations with an eighteenth century understanding. Our barbarous ancestors knew their time would pass, and did their best to leave us principles within which we could grow. We do not need another judicial toddler on the bench - neither the petulant Scalia nor the pouting Thomas.
9
The New York Times should not give voice to narrow minded, reactionary people. We all know what they think. To propose a justice like Thomas, who should have never been confirmed as justice to the country's highest court, is an insult to all of us and especially, to all women. Obviously, the writer of this article would think it is fine to proposed someone like a supreme court justice who harassed women at work. After all, the new president of the United States has shown no respect for women and was elected. We need to give voice to decency and sound ethics and propose someone who will defend the spirit of the constitution.
12
Originalists like to pretend that the Civil War did not happen. The Constitution exists as amended and the original intent was greatly changed by the 13th, 14th and 15th amendments. It's those amendments that define citizenship, due process and, most of all, equal protection.
9
Is it asking to much to find a Justice who marries Thomas' fealty to Federalism and understanding of the limitation of Executive Authority with Scalia's courage, wit and flair for evoking this conservative principles in a manner that resonates will people's understanding of liberty ?
3
I will be just as relieved when Thomas is no longer on the SC as I was when Scalia was. (No, I am not withing anyone dead). We have a perfectly suitable candidate nominated who has shown his suitability by waiting patiently and making no splashy news while the gop spilled gallons of ink stealing a president's rights and who was conciliatory enough to nominate someone the right was known to approve of. No. Another Thomas would be a travesty.
9
I am sure that President Trump was not aware of the fine distinctions made in this article. It appears to me that the President and his base would be satisfied with anyone who embodies the judicial philosophies of either Scalia or Thomas.
1
Another Clarence Thomas will be another Scalia. Thomas was Scalia's puppet.
He usually just voted the way that Scalia voted, because he cannot not form his own opinions.
The man has no sense of intellectual inquiry or discourse; he's not even engaged enough to ask a question to clarify any line of reasoning. This indicates that he has made up his mind, argumentation be damned.
If we get another Thomas, all we'll be getting is an "uppity Black man" (his own words) who bears a grudge against any social progress of the past two centuries. If he's truly an originalist, then according to the original Constitution, he should only get 3/5 of a vote because he is Black.
He usually just voted the way that Scalia voted, because he cannot not form his own opinions.
The man has no sense of intellectual inquiry or discourse; he's not even engaged enough to ask a question to clarify any line of reasoning. This indicates that he has made up his mind, argumentation be damned.
If we get another Thomas, all we'll be getting is an "uppity Black man" (his own words) who bears a grudge against any social progress of the past two centuries. If he's truly an originalist, then according to the original Constitution, he should only get 3/5 of a vote because he is Black.
5
Virtually every liberal commenter here makes the same specious argument, essentially dismissing [with contempt] any talk of Constitutional meaning or intent with the rejoinder that, "Yes, let's go back to slavery and women being denied the vote!".... a response that is literalistic, juvenile, wholly unconstructive and shows them to be uninterested in & undeserving of serious debate.
But when conservatives refer to a particular piece of legislation as being outside the original intent of the Framers of the Constitution they're clearly NOT making the point that Franklin, Hamilton, Washington and Madison et al, if brought here in a time machine, would personally not like this or that use or abuse of legislative power---after all, these men lived in a different time, with very different social mores & behaviors, some of which we would all abhor today. Duh.
Rather, they're saying that the Constitution---which was so brilliantly constructed as to allow for new situations & attitudes to inform the law (ahem) via due process---nevertheless did not allow for particular legislative action that break through the architecture of the Constitution.
Arguably the greatest Orwellian FalseTruth of our time is the image of liberals (in their own minds) as being the intellectually honest, tolerant & broadminded clear thinkers of American society. Ha.
But when conservatives refer to a particular piece of legislation as being outside the original intent of the Framers of the Constitution they're clearly NOT making the point that Franklin, Hamilton, Washington and Madison et al, if brought here in a time machine, would personally not like this or that use or abuse of legislative power---after all, these men lived in a different time, with very different social mores & behaviors, some of which we would all abhor today. Duh.
Rather, they're saying that the Constitution---which was so brilliantly constructed as to allow for new situations & attitudes to inform the law (ahem) via due process---nevertheless did not allow for particular legislative action that break through the architecture of the Constitution.
Arguably the greatest Orwellian FalseTruth of our time is the image of liberals (in their own minds) as being the intellectually honest, tolerant & broadminded clear thinkers of American society. Ha.
3
jrs, laws change -- both State and Federal -- literally almost every day and for good compelling reasons. Is there a conservative who disagrees with that basic fact?
Things change over 250 years in the USA and accordingly our laws need to change too.
"Arguably the greatest Orwellian FalseTruth of our time is the image of liberals (in their own minds) as being the intellectually honest, tolerant & broadminded clear thinkers of American society. "
Sorry but no one thinks that. You made it up in your head. I am not even sure what "liberal" means to you; yet you use the word repeatedly and too broadly. Stop watching Fox News please?
Things change over 250 years in the USA and accordingly our laws need to change too.
"Arguably the greatest Orwellian FalseTruth of our time is the image of liberals (in their own minds) as being the intellectually honest, tolerant & broadminded clear thinkers of American society. "
Sorry but no one thinks that. You made it up in your head. I am not even sure what "liberal" means to you; yet you use the word repeatedly and too broadly. Stop watching Fox News please?
money=speech? Not an ideological twist at all......
This is a very specious argument. So any legislation you do not like is outside the original intent, any thing that you like is necessary interpretation to suit new circumstances!!
Talk about Orwellian - the whole conservative modus operandi is to name something the opposite of what it is.
Talk about Orwellian - the whole conservative modus operandi is to name something the opposite of what it is.
1
I love reading the hilarious pontificating of right-wing ideologues like Professor Foley. The hypocrisy is so delicious. Notice that they never pick the second amendment for their little homilies. Could that be because they know that if the second amendment were to be interpreted according to its original intent its effect would be to guarantee that members of the National Guard may own flintlock rifles?
17
This is hilarious.
No one knows what the authors' "original" thought was. Even if we did it does not matter if the authors failed to include those thoughts.
The Constitution is what was written and what was later amended. It is not what other documents or writings say it is. The fact that we have a number of Federalist papers means that the authors accepted the fact that the Constitution needed interpretation, which is why they included a formal way of amending it.
They, unlike Justice Thomas and other 'originalists', understood that the document is not dead. It is an act of sedition against tyrannical rule that needs the interpretation of the living to remain valid.
No one knows what the authors' "original" thought was. Even if we did it does not matter if the authors failed to include those thoughts.
The Constitution is what was written and what was later amended. It is not what other documents or writings say it is. The fact that we have a number of Federalist papers means that the authors accepted the fact that the Constitution needed interpretation, which is why they included a formal way of amending it.
They, unlike Justice Thomas and other 'originalists', understood that the document is not dead. It is an act of sedition against tyrannical rule that needs the interpretation of the living to remain valid.
16
The primary argument among many contrary to Foley's advocacy is that Thomas has no respect for ethics rules for the federal bench. His repeated refusal to recuse himself in cases in which his wife has a strong vested interest is a complete disqualifier.
20
Those 53 participants that other commenters refer to do not appear to be "conservatives" to me; but, forward-looking fellows (yes, fellows) who would likely be considered "liberals" by people today.
Contracts are documents that are based on original intent, and a promise. A "constitution" governs all people, even those who were not alive back when. Scalia's, Thomas' and Foley's thinking on this "original intent" stuff as akin to a contract is faulty.
Contracts are documents that are based on original intent, and a promise. A "constitution" governs all people, even those who were not alive back when. Scalia's, Thomas' and Foley's thinking on this "original intent" stuff as akin to a contract is faulty.
4
The Democratic establishment has shifted to the right in hopes of picking off disgruntled moderate and legitimately conservative Republicans, horrified at what their party has turned into. Many of them are in the mold of the old Rockefeller Republicans.
The optimal makeup of the Supreme Court would be two Justices who hold a Conservative viewpoint, two who hold a Progressive viewpoint, and three non-ideological moderate Justices. For the court to swing away from center and to the right or left, the ideologues would have to convince three non-ideological moderates of the legal and Constitutional merits of their arguments.
The optimal makeup of the Supreme Court would be two Justices who hold a Conservative viewpoint, two who hold a Progressive viewpoint, and three non-ideological moderate Justices. For the court to swing away from center and to the right or left, the ideologues would have to convince three non-ideological moderates of the legal and Constitutional merits of their arguments.
OK, please stop with pieces that attempt to offer rational policies for a presidency that is already proved beyond a doubt that thrives on chaos and ideology. My prediction: select the nominee that would make Jeff Sessions look like a lefty.
7
Have never understood those who criticize Thomas' reticence on the bench. By all accounts, oral arguments carry much less weight than written briefs. Several of the other justices (including the late Justice Scalia and current Justice Sonia Sotomayor) make it a point to "play to the cameras" so to speak (no cameras allowed in the court). Great sound bites, but little impact on the outcome; a way of saying "Look how smart I am."
jasper
jasper
4
jasper, there is plenty to read coming from Thomas' bench. Read it -- it is all on the internet -- and you will see why people criticize.
Put Garland back up, or filibuster until the next presidential election, please.
I will never forgive Scalia and Thomas for Heller, Ledbetter, and Town of Greece, three horrible decisions, arrived at with twisted logic serving their own particular religions over humankind. And i will also never forget the imageo of Clarence Thomas in his bath being told by his wife that he got the seat on the supreme court, and Thomas replies, 'Whoop de g-d do." The cynicism and disrespect Thomas and his wife have for ethics and wisdom are astounding.
i
I will never forgive Scalia and Thomas for Heller, Ledbetter, and Town of Greece, three horrible decisions, arrived at with twisted logic serving their own particular religions over humankind. And i will also never forget the imageo of Clarence Thomas in his bath being told by his wife that he got the seat on the supreme court, and Thomas replies, 'Whoop de g-d do." The cynicism and disrespect Thomas and his wife have for ethics and wisdom are astounding.
i
9
If the author of this drivel were at all interested in "originalism", she would know that the only legitimate Supreme Court nomination is that of Merrick Garland.
There is no possible universe where the drafters of the Constitution wanted the Senate not to vote on a sitting President's nomination.
For the Senate to wait until they get a President from their preferred political party is an Orwellian violation of the separation of powers Republicans pretend to care about.
Any nomination other than Merrick Garland is illegitimate and unconstitutional.
To pretend otherwise is rank hypocrisy.
There is no possible universe where the drafters of the Constitution wanted the Senate not to vote on a sitting President's nomination.
For the Senate to wait until they get a President from their preferred political party is an Orwellian violation of the separation of powers Republicans pretend to care about.
Any nomination other than Merrick Garland is illegitimate and unconstitutional.
To pretend otherwise is rank hypocrisy.
15
Expect a moderate and if that is the case the Dems should voice vote the nominee in and fight another battle. If Trump nominates a conservative then the GOP will simply invoke the "nuclear" option and vote the nominee in. Either way, the GOP will not allow this thing to drag on for a year.
If the Dems choose to drag on the nomination of a moderate they will run the serious risk of exposing the Senators ( located in the states Trump won) who are up for election next year.
You have to win elections or you basically lose all power.
If the Dems choose to drag on the nomination of a moderate they will run the serious risk of exposing the Senators ( located in the states Trump won) who are up for election next year.
You have to win elections or you basically lose all power.
1
As is true with all other fundamentalist cults, "Originalism" is simply a cloak of respectability for a belief that "the law always agrees with me." The idea that freedom means "freedom from government actions not access to government benefits," is non-sensical, akin to saying that slaves are free, but not deserving of police protection, or even the right to vote. Preposterous, but fully in keeping with conservatives devotion to people who have mastered the art of sounding smart while mouthing gibberish.
2
Clarence Thomas has been an embarrassment to the Supreme Court of the United States, a permanently cynical stain on the reputation of George H.W. Bush, who called him "the best person for this position" as successor to the eminent Thurgood Marshall.
Before reading Professor Foley's article, it seemed as if fake news was the main thing we had to worry about online, but this reminds us that there's also quite a problem with fake opinion.
Before reading Professor Foley's article, it seemed as if fake news was the main thing we had to worry about online, but this reminds us that there's also quite a problem with fake opinion.
3
Clarence Thomas is my example of why the American People simply cannot trust the promises of candidates to life time office. Thomas promised over and over again he would rule as the law dictated, not as the far right political machine mandated. As soon as Thomas got his robes, he ruled from the extreme right, and refused to recuse himself from cases he or family members had a clear interest in supporting.
No, Thomas isn't an independent minded jurist, he is a far right bigot.
Hugh Massengill, Eugene Oregon
No, Thomas isn't an independent minded jurist, he is a far right bigot.
Hugh Massengill, Eugene Oregon
3
Lizzie - with all due respect -
Here you have shown yourself to be just another parrot for one of the most corrupt courts in our history, today's Supreme Court.
And speaking of respect, the justices you cite have none. Not for the Court, not for the rule of law, and obviously not for our Constitution. As you well know.
Thomas, Scalia, whoever, they have all demonstrated the willingness to lie straight-faced and repeatedly throughout their confirmation hearings (Roberts being the finest example), to constantly yap about their devotion to the original meaning of the Constitution, and to pervert case history, court precedent, common sense and, often, common decency to arrive at tortured rulings designed solely to support their extreme political leanings.
That Scalia was a mean-spirited political oaf, devoted to power and his personal pleasures and Thomas is a functional mute is a nice contrast but means nothing at all when it comes to differences of legal opinion, style, or philosophy.
They, like today's Republican's and our President du jour, want what they want. If they can get it while wrapping themselves up in the flag and Constitution all the better, it allows them to mock and demean any who deign to disagree. If not, well, they'll just say they care about the Constitution a lot and go their merry way.
What we need here, Liz, is a justice who cares about fairness, reason, and the nation, not crusaders for the True Faith and the Right.
Here you have shown yourself to be just another parrot for one of the most corrupt courts in our history, today's Supreme Court.
And speaking of respect, the justices you cite have none. Not for the Court, not for the rule of law, and obviously not for our Constitution. As you well know.
Thomas, Scalia, whoever, they have all demonstrated the willingness to lie straight-faced and repeatedly throughout their confirmation hearings (Roberts being the finest example), to constantly yap about their devotion to the original meaning of the Constitution, and to pervert case history, court precedent, common sense and, often, common decency to arrive at tortured rulings designed solely to support their extreme political leanings.
That Scalia was a mean-spirited political oaf, devoted to power and his personal pleasures and Thomas is a functional mute is a nice contrast but means nothing at all when it comes to differences of legal opinion, style, or philosophy.
They, like today's Republican's and our President du jour, want what they want. If they can get it while wrapping themselves up in the flag and Constitution all the better, it allows them to mock and demean any who deign to disagree. If not, well, they'll just say they care about the Constitution a lot and go their merry way.
What we need here, Liz, is a justice who cares about fairness, reason, and the nation, not crusaders for the True Faith and the Right.
2
No, there won't be another silent justice appointed. Trump has been very clear about appointing a Scalia replacement. And with Bannon pulling the strings in the background, with all his intentions of tearing the county apart, Trump will select the most unqualified, incendiary person possible. And that will be William Pryor. And then he'll wait for Ginsberg to die, and will appoint yet another right wing flamethrower.
Trump has no interest in maintaining the authority or credibility of the Court. He wants to bury the Judicial branch so that he can continue to wreak his havoc on America with impunity. Emasculate the only branch of government left which can control him, and he can run amok all he wants to shred the establishment. Or, actually, to fulfill the destiny that Bannon has in mind.
Trump has no interest in maintaining the authority or credibility of the Court. He wants to bury the Judicial branch so that he can continue to wreak his havoc on America with impunity. Emasculate the only branch of government left which can control him, and he can run amok all he wants to shred the establishment. Or, actually, to fulfill the destiny that Bannon has in mind.
3
A narrow interpretation of the Commerce Clause is, at its heart, intellectually dishonest. Leaving action to the states is code for: we won't enforce anything, the states will do nothing, the needs of the oppressed and disadvantaged won't be met. Conservatives: stop being such cowards. Say what you mean. Stop ducking and weaving behind hyper-rationalized legal theories that spell three things: Greed, Exclusion and Racism.
3
The Originals had no intention that the Constitution was to be a document locked in time. It was designed and written precisely so that it could be interpreted effectively through the changes that time would surely bring. Nor did the framers intend to shackle the justices of the Supreme Court to a document so rigid as to become unworkable in whatever time period it might be tested.
Clarence Thomas is so sure of his narrow opinions that he doesn't feel the need to question those who sit before him as opponents in legal battles. What kind of jurist is one who has no curiosity to hear from the players themselves?
If Clarence is such an originalist how, then, does he countenance having more than 3/5 of a vote? The last thing our country needs now is another Clarence Thomas.
Clarence Thomas is so sure of his narrow opinions that he doesn't feel the need to question those who sit before him as opponents in legal battles. What kind of jurist is one who has no curiosity to hear from the players themselves?
If Clarence is such an originalist how, then, does he countenance having more than 3/5 of a vote? The last thing our country needs now is another Clarence Thomas.
2
While I don't agree with the total concept of "Originalism", I do think the Constitution is plainly written and means what it says. Trying to expand it into areas that fit today's social whims sets the ingrained concepts adrift. I'm sure Trump will take this into consideration, when choosing the successor for Scalia's seat.
1
Whomever is nominated will be the lowest form of life, with the most exaggerated conservative racist misogynist views possible, as with all of Trump's cronies. I can hardly imagine....Sure, another Clarence Thomas, like Ben Carson, another minority that benefited from affirmative action but now opposes it for everyone else. Surely a man, most likely old white and creationist, who doesn't believe in vaccines or science. It's pretty predictable at this point. I'm terrified.
4
Ms. Foley seems to want to re-litigate the entire 20th century. In fact, I'm sure according to her and Justice Thomas the Court also got it wrong in the landmark McCulloch decision. She has a desire to revert back to the "horse and buggy" interpretation of the commerce clause, and to essentially repeal the progressive achievements of the last century. Talk about reactionary.
5
Under any strict "originalism" meaning, Ted Cruz would not be a natural born citizen. Anyone doubt that Thomas would have said he was, but would have said Obama was not had Obama actually been born outside the US to a citizen mother and non-citizen father? (FWIW, the Cruz birth situation would not have made him a citizen until sometime between WW1 and WW2, based on some laws passed by Congress. Congress is only authorized to pass laws of naturalization, and therefore anyone who becomes a citizen under those laws, rather than by definition in the Constitution, is therefore a naturalized citizen.)
Scalia, Thomas, Alito, are all ideologues for the right, not for the Constitution. And that is what the GOP wants and demands.
Scalia, Thomas, Alito, are all ideologues for the right, not for the Constitution. And that is what the GOP wants and demands.
3
No. What arrogance to think that Constitution is frozen in time. The founders, I'm sure, intended for the document to be for the ages. It's ideals weren't meant to be attained. As they came from other lands, I'm sure they had the foresight to know that the world would change as time marched on.
In fact, any written word is open to interpretation. Certainly the core ideas of the author/s matter, but to be ageless is to be constantly measured and read with the times or it is just a relic.
In fact, any written word is open to interpretation. Certainly the core ideas of the author/s matter, but to be ageless is to be constantly measured and read with the times or it is just a relic.
2
If you're going to get anyone whose close to understanding the original meaning, it won't be another conservative Catholic. The original writers were Protestant. Many were Quaker or Unitarian, whose upbringing and ways of thinking are much different than one brought up in other religions or backgrounds. So the point is, it is a folly to think that anyone can understand the original intent of the Constitution without similar backgrounds and time scope. The Constitution must be seen through today's eyes and attitudes not what someone in the 1770's thought. If anything, that is what the wise gentlemen of the Constitution understood to be the case. This is coming from a white Quaker/ Unitarian, who has more in common with the thinking of the founders than a black Catholic but who understands that the Constitution is for all not just conservatives.
2
This article is absurd and like most far right wing propaganda- it doesn't hold water and withers upon the slightest test of thought or logic.
The Constitution is a living document and must change with the times we live in while upholding basic tenets of the founding fathers of how our government is structured. Since the founding fathers were educated, enlightened people, I believe they would be horrified that the Constitution is being used as a yoke to stifle progress by conservative ideologues like Thomas- who voted along with Scalia on most if not all decisions. The founding fathers had the good sense to know they couldn't predict the future so they made sure to include the ability to pass amendments to the original document.
Moreover, if we were really tied to the original conditions of the constitution, Thomas would be a slave and women would not have the right to vote.
The Constitution is a living document and must change with the times we live in while upholding basic tenets of the founding fathers of how our government is structured. Since the founding fathers were educated, enlightened people, I believe they would be horrified that the Constitution is being used as a yoke to stifle progress by conservative ideologues like Thomas- who voted along with Scalia on most if not all decisions. The founding fathers had the good sense to know they couldn't predict the future so they made sure to include the ability to pass amendments to the original document.
Moreover, if we were really tied to the original conditions of the constitution, Thomas would be a slave and women would not have the right to vote.
6
This right's devotion to the "original" Constitution is merely a justification for a refusal to participate in the never ending process of improving the institutions of the United States. The Fathers as they are called, in pseudo-religious lingo, happily permitted slavery, designed the electoral college to make sure that the president was not elected by a popular majority, granted the South additional votes on behalf of the slave population, a distortion which persists in the rural states, gave us a garbled and incomprehensible 2nd Amendment that nobody understands, completely ignored the various states governed by one or another Christian theocracy, made women essentially the chattels of their fathers and husbands, and allowed for disparities in public education (Calif. vs. Mississippi) that left most of the country in barbarous ignorance. All this designed to govern a country made up of a tiny bunch of immigrants whose population was somewhat smaller than that of Panamá today. It is a preposterous notion that defies every element of logic that every decision should rely on the principles established in that document in 1789. Thomas is as emotionally damaged as Trump, though his damaged psyche displays itself in the opposite direction. While Trump explodes repeatedly each and every day with one or another expression of hatred and bile, Thomas sits in vitual silence on the bench, waiting for a chance of channel his inferiority complex into simplistic opinions. Some model!
9
The "originalists" have no answer to the point that the framers intended the principles set forth in the broad provisions of the bill of rights and in the civil war amendments to be construed by each generation according to the needs of the country in the most educated sense. These principles are not like the tax code, with a specific, narrow meaning. The great Chief Justice, John Marshall, told us in the early 19th century, never to forget that "it is a constitution" we are expounding, intended to endure for the ages and to address problems the founders could not, in their wildest imagination, have foreseen.
1
The Constitution says we are to settle constitutional issues by the amendment process or convening new constitutional conventions. Instead, our rights and liberties are being determine by the mortality rate among black-robed partisans who sit on the Supreme Court. The Constitution is no longer important. What’s important is who dies first—a liberal or a conservative justice.
2
The fact that Scalia and Thomas, both conservatives and devotees of the idea of "originalism" raises a fundamental question - why should one or other stream of conservative consciousness be privileged? Scalia generated more heat than light but is it is not evident that Thomas generates either in terms of the lucidity of legal argument.
The central issue is whether the Court needs a lawyer whose understanding of the American and other legal traditions will be helpful in articulating opinions that can help to foster a sense of national community based upon political, religious, and a broader cultural pluralism.
The central issue is whether the Court needs a lawyer whose understanding of the American and other legal traditions will be helpful in articulating opinions that can help to foster a sense of national community based upon political, religious, and a broader cultural pluralism.
3
The ideas written in the Constitution came from people that were relevant to their time. They were not particularly above average for their group and certainly not all seeing. There is no good reason for my life to be lived by their rules because that would impede progress. Each generation needs to regulate itself and define the terms of the Constitution in their own relevant way. The founding fathers were men of their time and today we are people of our time. We define due process and equal protection for our times!
3
The authors of the Constitution did not mean for you to live your life by their rules. The Constitution says we are to settle constitutional issues that might arise by the amendment process or convening new constitutional conventions. The Constitution has been amended six times in my lifetime. There is nothing stopping us for enacting new amendments or convening a new constitutional conventions, except people who don't think the partisans who sit on the Supreme Court should determine Americans rights and liberties instead of the American people.
1
The constitution is not the bible. It was not intended to be the bible. It was intended to be flexible and allow for change. That is its original meaning. It was born of revolution, tearing down of old out of date "truths" and realities. Trying to figure out what the constitution meant in the late 18th century and apply that to 21st century problems is as ridiculous as the trying to design highways for horse drawn buggies.
150
True, but the framers of the constitution had a clear intention to write the constitution with no time line. It is written in a way to allow the Supreme Court Justice to write an opinion based on today if called upon to do so. For the most part they do a fine job.
1
TOL - I agree there was (and should be) intended flexibility, to allow for evolution over time. However, there is an inherent need to recognize where the constitution covers the most fundamental principals (e.g., which facets are less mutable, vs. which are perhaps more flexible). One example: the principle of checks and balances may be one of the most critical. If we allow for flexibility in general, we need to be careful not to enable an eventual slippery slope (e.g., times when an "extremist" minority has power in government).
While I agree with the sentiment, comparison with the bible does not ring true. Nobody knows what the original intent of the writers of the bible was. Indeed the writers of the bible have created multiple versions.
(Continued...) Second, this op-ed doesn't say why ruling the what Thomas did on all of these cases is more of an originalist position than going the way Scalia did. Presumably the answers to difficult interpretative questions, even within an interpretative paradigm, aren't obvious. Scalia probably didn't think that his rulings were ad hoc or at odds with his interpretative strategy.
Third, even if originalism is a good idea, it's not clear why it would then be best to be as originalist as possible. Especially given that it seems possible (to me, anyway) to take the idea to absurd ends--e.g., to rule on a contractual dispute on the basis of what people would have taken the terms "due process" to mean centuries ago--a defensible originalism probably doesn't involve being as originalist as possible when encountering textual ambiguities.
So I just don't get who this piece is intended to persuade or how it's rationally tailored toward doing so.
Thomas is, I think, sometimes unfairly maligned for his judicial style, or for not being freethinking enough. It's fine to be a terse judge--there might be reasons for this. And Thomas seems rather independent to me, breaking with conservatives on civil libertarian issues when he thinks they would violate the constitution. If you're going to appoint a conservative originalist to the court, maybe he's a fine archetype. (So was Scalia, I think.) But why should we appoint someone like that in the first place? (2/2)
Third, even if originalism is a good idea, it's not clear why it would then be best to be as originalist as possible. Especially given that it seems possible (to me, anyway) to take the idea to absurd ends--e.g., to rule on a contractual dispute on the basis of what people would have taken the terms "due process" to mean centuries ago--a defensible originalism probably doesn't involve being as originalist as possible when encountering textual ambiguities.
So I just don't get who this piece is intended to persuade or how it's rationally tailored toward doing so.
Thomas is, I think, sometimes unfairly maligned for his judicial style, or for not being freethinking enough. It's fine to be a terse judge--there might be reasons for this. And Thomas seems rather independent to me, breaking with conservatives on civil libertarian issues when he thinks they would violate the constitution. If you're going to appoint a conservative originalist to the court, maybe he's a fine archetype. (So was Scalia, I think.) But why should we appoint someone like that in the first place? (2/2)
1
Can we please have a non-partisan, non-biased, judge for the Court? An interpretation of the Constitution through 21st century eyes, not 18th century limitations?
23
In fact, former Judiciary Committee chairman Orrin Hatch described one Merrick Garland as both the kind of centrist with outstanding credentials that Obama would "never nominate," but whom Hatch would surely support. Hatch, whose support would have carried considerable weight both in committee and in the consideration of the full $enate, went spineless when Mitch McConnell ordered him to stand down.
2
The record of the last 40 years shows some Republican appointed Justices (Souter, Kennedy, Roberts, etc) voting independent of their party's viewpoint but NOT A SINGLE contrary independent vote from a Democrat appointed Justice. So who appoints thoughtful Justices Mary?
You don't like what it says, there's a process for "Amending" it till then, the constitution means what it says. I'd dearly love to see far more of Justice Thomas's ilk on the #SCOTUS
1
I don't get how this op-ed could be remotely persuasive.
It doesn't say why originalism is a good idea. Why should we do legal interpretation by philology? The questions justices are tasked with answering are difficult ones. Why think that the method of carefully getting at what at term was taken to mean at the time part of the constitution was drafted (not obviously the same thing as what it meant, but whatever) is the right way to answer these questions? I can see why that might be useful in literary criticism or whatever, but why should it give us guidance for how to live together today?
And sometimes originalism seems to give no guidance whatsoever, or implausible guidance. How should justices interpret "due process of law"? The issue isn't just the denotation of the terms, but what amounts to due process. And that's a moral question. It's implausible to think that we could answer the question by deciding what the words "due" and "process" meant 250 years ago. Now, various people who wrote the constitution or who lived in the society they lived in probably had different ideas of what amounted to legal due process. They had those ideas, not because the words bore conventional signs and meanings that were transmitted to the text of the contitution, but because of reasons that they took to be subject to rational scrutiny. To evaluate those reasons, we need to engage in moral deliberation, the sort of thing originalism asks us not to do. (1/2)
It doesn't say why originalism is a good idea. Why should we do legal interpretation by philology? The questions justices are tasked with answering are difficult ones. Why think that the method of carefully getting at what at term was taken to mean at the time part of the constitution was drafted (not obviously the same thing as what it meant, but whatever) is the right way to answer these questions? I can see why that might be useful in literary criticism or whatever, but why should it give us guidance for how to live together today?
And sometimes originalism seems to give no guidance whatsoever, or implausible guidance. How should justices interpret "due process of law"? The issue isn't just the denotation of the terms, but what amounts to due process. And that's a moral question. It's implausible to think that we could answer the question by deciding what the words "due" and "process" meant 250 years ago. Now, various people who wrote the constitution or who lived in the society they lived in probably had different ideas of what amounted to legal due process. They had those ideas, not because the words bore conventional signs and meanings that were transmitted to the text of the contitution, but because of reasons that they took to be subject to rational scrutiny. To evaluate those reasons, we need to engage in moral deliberation, the sort of thing originalism asks us not to do. (1/2)
5
Which way did Thomas vote on the Citizens United case and others concerning the invented "rights" of corporations as citizens? Thomas favors "originalist" interpretations when they favor the interests of his party and of big business.
20
Absolutely! Originialism, doesn't exist except when it is convenient for those representing narrow interests and wish to disguise that fact in a little bit of mumbo jumbo.
As a dedicated New York liberal/progressive, I have to admit that I have never seen or heard a defense of Clarence Thomas that even temporarily rattled my prejudice against the notion of "originalism." This is a well-written piece. I grew up in the era of Anita Hill's testimony, which I believed. Justice Thomas' wife's political behavior has always irked me. It almost doesn't matter what we Times aficionados think, because Trump will almost certainly select someone we find deplorable. He has been offensive to me in all his actions so far, so I doubt that his suggestion for a SCOTUS position will change my perception of him. I hope the Democrats will use their limited power to balk (Bork?) every nominee presented by DJT, just as that almost criminal Mitch McConnell refused to allow a hearing on Merrick Garland. Professor Foley cites Federalist 78 at her peril, I believe. I doubt that Thomas really possessed legal knowledge and the courage to defy popular passions. Not just because of the play: I have always favored Hamilton over Jefferson politically, although he seems to be conservative in comparison. As I grow older, I see some merit in many of Jefferson's positions, especially those regrding freedom of the press, but I still opt for Hamilton. It is probably unlikely that I will afford similar devotion to Clarence Thomas.
2
Originalism is based one several highly problematic premises.
One is that it is possible to know what meaning the writers of the Constitution would expect us to find today. How would THEY interpret Congress' right to regulate interstate commerce, given that interstate commerce has grown into something far greater in complexity and in its effect on the everyday lives of Americans than they could have imagined?
Another is that the intentions of the founders for their own time are knowable. This implies that we can not only discover the "original" meaning of the Constitution, but that we can know, by some infallible test, when we have in fact discovered it. But the long history of contention over the meaning of the Constitution is evidence that no sure way to discover the meaning of the Constitution has been found.
Another is that we should cede to the founders all function of devising a government capable of meeting our peculiar needs. Is granting such power to the dead compatible with the ideal of self-government? Do we have so little trust in ourselves that we decline to adapt the Constitution to meet our own needs?
j
Lastly, that originalism is the antidote for "judicial activism". But the doctrine of originalism encourages judges to cast off the restraint imposed by the policy of stare decision -- that is, of deference to principles promulgated by earlier decisions of appellate courts -- leaving themselves unlimited scope for activism. See Scalia in Heller.
One is that it is possible to know what meaning the writers of the Constitution would expect us to find today. How would THEY interpret Congress' right to regulate interstate commerce, given that interstate commerce has grown into something far greater in complexity and in its effect on the everyday lives of Americans than they could have imagined?
Another is that the intentions of the founders for their own time are knowable. This implies that we can not only discover the "original" meaning of the Constitution, but that we can know, by some infallible test, when we have in fact discovered it. But the long history of contention over the meaning of the Constitution is evidence that no sure way to discover the meaning of the Constitution has been found.
Another is that we should cede to the founders all function of devising a government capable of meeting our peculiar needs. Is granting such power to the dead compatible with the ideal of self-government? Do we have so little trust in ourselves that we decline to adapt the Constitution to meet our own needs?
j
Lastly, that originalism is the antidote for "judicial activism". But the doctrine of originalism encourages judges to cast off the restraint imposed by the policy of stare decision -- that is, of deference to principles promulgated by earlier decisions of appellate courts -- leaving themselves unlimited scope for activism. See Scalia in Heller.
There is nothing in the Constitution allocating the right of judicial review to the Supreme Court. It was taken on as a perquisite in the original piece of Judicial Activism, Marbury v. Madison.
An originalist free of hypocrisy would reject judicial review as inappropriately taken by activism on the part of John Marshall.
An originalist free of hypocrisy would reject judicial review as inappropriately taken by activism on the part of John Marshall.
1
That's "stare decisis".
Yes, and Thomas Jefferson was outraged by his distant kinsman John Marshall's usurpation of power.
Oliver Wendell Holmes thought that the Supreme Court should show deference to the acts of Congress as expressing the will of the people, and thus should invalidate federal laws only rarely, if ever. He saw a use for judicial review mainly in reconciling acts of different states that were in conflict with each other.
Oliver Wendell Holmes thought that the Supreme Court should show deference to the acts of Congress as expressing the will of the people, and thus should invalidate federal laws only rarely, if ever. He saw a use for judicial review mainly in reconciling acts of different states that were in conflict with each other.
I have always felt that the Supreme Court should be the last bastion for the ordinary citizen against the government and the rich and powerful. The conservative court has taken the opposite view.
President Obama had the vacant seat on the court stolen. Democrats should filibuster whomever Trump nominates, hope they get a majority in the Senate in 2018, and then copy McConnell's strategy of refusing to even consider a nominee. The court should remain with eight (or less) justices throughout Trump's term.
President Obama had the vacant seat on the court stolen. Democrats should filibuster whomever Trump nominates, hope they get a majority in the Senate in 2018, and then copy McConnell's strategy of refusing to even consider a nominee. The court should remain with eight (or less) justices throughout Trump's term.
4
Clarence Thomas has dedicated his court career to the principle that whatever the framers thought in 1789 should be the law of the land forever. Teachers beating kids in school? Sure, they did it in 1789. Gay rights? No way, gays didn't even exist back in 1789. Torture and other cruel and unusual punishment? Well, they tortured folks back then so it's OK today.
But he has a very strange blind spot. Not in 1789, nor in 1868 when the 14th Amendment was adopted, did any of those framers think their laws would allow a black man to be a Supreme Court judge. Slavery, and later segregation, were "what was done" and "what was thought." We have evolved since then, of course, thankfully. But here's Clarence Thomas, saying that we should all be strict originalists.
If he truly believed it, he would resign. He doesn't, of course. Like Scalia, he makes exceptions to his philosophy whenever he feels like it. His "originalism" isn't a philosophy as much as a cover for his brutal, revanchist conservativism. It is cruel, heartless, and worst of all for a judge, spectacularly intellectually dishonest.
But he has a very strange blind spot. Not in 1789, nor in 1868 when the 14th Amendment was adopted, did any of those framers think their laws would allow a black man to be a Supreme Court judge. Slavery, and later segregation, were "what was done" and "what was thought." We have evolved since then, of course, thankfully. But here's Clarence Thomas, saying that we should all be strict originalists.
If he truly believed it, he would resign. He doesn't, of course. Like Scalia, he makes exceptions to his philosophy whenever he feels like it. His "originalism" isn't a philosophy as much as a cover for his brutal, revanchist conservativism. It is cruel, heartless, and worst of all for a judge, spectacularly intellectually dishonest.
5
Especially hypocritical for Thomas, a resident of Virginia, who owes the very legality of his marriage to Loving v. Virginia.
If he was really an originalist, he would admit that the Constitution's silence on marriage, coupled with the Tenth Amendment's allocation of all issues not in the constitution to the states, made Loving, and his own marriage, illegitimate.
If he was really an originalist, he would admit that the Constitution's silence on marriage, coupled with the Tenth Amendment's allocation of all issues not in the constitution to the states, made Loving, and his own marriage, illegitimate.
1
Sure nominate another Clarence Thomas so that the Democrats can have a circus as they did with Clarence Thomas and I leave a quote from him during his confirmation hearing. "This is not an opportunity 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"
1
Whenever I hear an originalist I just want to ask them "what about Brown vs The Board of Education?". When the 14th Amm was proposed by Congress the gallery above the floor was racially segregated. It is beyond historical debate that those who adopted the language of "equality before the law" did not think that it would require what they referred to as "social equality". Thus if one holds the originalist view of constitutional interpretation, a view that Madison himself rejected, then one is forced to overturn a decision that is the foundation of basic justice and fairness in this country. Maybe that is just what Prof. Foley wants, but she should say so.
1
Not just Brown, but during Obergefell, I was waiting for either Scalia or Thomas to have declared that Loving v. Virginia was a wrongly decided trampling of "states' rights." Since the Constitution is silent on marriage, and, due to the 10th Amendment, the power of regulation should have been left to the states. Failure to adhere to "originalism" was the only way that Thomas could have explained failing to try to advocate against his own marriage. Virginia residents, the Thomases marriage was only made legal by Loving, a decision standing athwart the very concept of "originalism." Well that's inconvenient, isn't it?
1
Ugh. No, ... just, no. Originalism, the effort to "restore the original meaning of the Constitution" is an unscientific effort to reconstruct language without any reference to broad historical context or the fabric of linguistic meaning. It is the sort of facile activity that historians and literary scholars swiftly dispatched decades ago. The suggestion that our founders might even remotely recognize the country we inhabit today as governed by their Constitution so preposterous as to be practically risible. The originalist position may be passionate and when it emerged from the mouth of Scalia it certainly sounded tenacious, but no academic today would describe this philosophy as academically sound.
4
Good Lord, No! Originalism is a narrow-minded and blindered understanding of the Constitution; we do not need another voice on the Supreme Court treating the founding document as "dead." It is a living document which must be interpreted and applied in light of contemporary knowledge and modern contexts. To do otherwise is to violate the intentional flexibility built into it by the Founders, to betray the very different and more complex country which now relies upon for governance, and to disserve the people of this country.
3
"Original meaning" and "faithful guardians of the Constitution" are not so easily decided. Meaning is a contextual thing. Guardians may consider themselves faithful, but who is to judge? Analogy is helpful, but is only heuristic, not definitive. Hamilton's guarding of the Constitution was a guarding of it from the "major voice of the community," the threat of the mob. That is, elections should not determine the interpretation of the Constitution. Obama's nominee should have been allowed to be processed. So we begin with a Constitution attacked by the Republican mob and now using Hamilton's warning about such mob mentality to support it. And they are saying they have the right because they know best how to interpret its meaning. How else is meaning determined than by interpretation of words, intent, and alternatives? Does Thomas do this better than Breyer or Sotomayor? My guess is that they all are trying to do this. Where does judicial brilliance really lie? Probably not in some simplistic principle, but rather in deep knowledge, a balancing sophistication of intellect, intentions to be moral and honest, and a willingness to consult colleagues and to go back weigh one's ideas, calm down and remain humble in the face of one's immense responsibility to real people, not simply to a document constructed by a well-intentioned but also limited folks long ago.
2
Ironic to have a female law professor argue for the appointment to SCOTUS of someone in the mold of Justice Thomas, a man of "quiet disposition" who "rarely asks questions at oral arguments" thus camouflaging his "deep and tenacious intellect." Silence and lack of participation as demonstration of a probing and engaged intellect? Not.
To the premise that originalism is of value: it's not altogether. If anything, it's out of date. Rights of the states? That's probably its greatest flaw, since it embedded authority with the several states that allowed for slavery and was conscious of it at the time. Without that reservation of authority, the Constitution would never have been ratified. Irony: J. Thomas, an African American, would never have been considered a candidate for SCOTUS--or likely even received an education. Too, Price Foley's voice would not have been heard in the time the Constitution was written. It was drafted by people who were trying to write a document to address real and present issues at THAT time. Not a single woman signed. Not a single woman would have been expected to qualify to.
Originalism is antiquarianism. It masks a conservative agenda to prohibit the progress of society toward ensuring freedom for all. It's become the Land of Wriggling: out of responsibility to address the present. The tensions in the Constitution are what need to be debated: a collision of what it meant then with what it means today is the point of having courts to interpret it.
To the premise that originalism is of value: it's not altogether. If anything, it's out of date. Rights of the states? That's probably its greatest flaw, since it embedded authority with the several states that allowed for slavery and was conscious of it at the time. Without that reservation of authority, the Constitution would never have been ratified. Irony: J. Thomas, an African American, would never have been considered a candidate for SCOTUS--or likely even received an education. Too, Price Foley's voice would not have been heard in the time the Constitution was written. It was drafted by people who were trying to write a document to address real and present issues at THAT time. Not a single woman signed. Not a single woman would have been expected to qualify to.
Originalism is antiquarianism. It masks a conservative agenda to prohibit the progress of society toward ensuring freedom for all. It's become the Land of Wriggling: out of responsibility to address the present. The tensions in the Constitution are what need to be debated: a collision of what it meant then with what it means today is the point of having courts to interpret it.
5
Elizabeth Foley's opinion is nonsensical. First, the Dems would filibuster another Thomas as extreme. The Reps would then either have to invoke the "nuclear option" ending filibusters for SCOTUS nominees or Trump would have to submit another nominee. Second, Foley does make convincing arguments about Thomas' jurisprudence. The Commerce Clause reaches both direct action and indirect affects reaching interstate commerce. If states chose to remove health benefits, their sick and disabled citizens would then drain the federal coffers through Medicaid benefits. Originalism is a contentions jurisprudence that gained coinage because of one vote, Scalia's, on the Court. Chevron rightly recognized that agencies, such as Energy on nuclear weapons, have the technical expertise that Congress doesn't have. And Hamilton believed in a very strong federal government to make internal improvements and he believed in a large federal debt to establish the credit of the US among European bankers. So, Foley is simply arguing from an extreme right-wing position for another Thomas. Not only won't that happen, but her arguments are spurious and vacuous as well.
3
Obviously I meant to say "Second, Foley does not make convincing arguments about Thomas' jurisprudence."
Total nonsense; original intent and other stupid claims are nothing but ideological interpretations of things no one actually knows about the "thoughts" of the politicians who wrote the constitution because there is not a detailed account of what the thoughts were about most provisions of the constitution. It is silly to even attempt to divine how he one determines what the original thinking was and Thomas contention that"We seem to be straying further and further from the constitution....". The constitution is an oppressive document in many ways, and we are seeing that clearly in trump being elected, using lies, corruption and racial policies. All we need to say about the constitution is it was based on maintaining slavery and elite control, and it is time to construct a government based on majority rule, not one based on oppression by a minority of politicians and ignorant people. The quote from Hamilton shows us how we lose touch with reality. Reactionaries such as Thomas and the other Republicans are nothing but hacks, and what more needs to be said about "possession of legal knowledge" but that the recent failure of Republicans to allow Obama an appointment to the court demonstrates how judges are based on adherence to a rigid ideology, and has nothing to do with "legal knowledge" or "original intent".
3
“that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.”
You mean like obtaining a driver's license and motor vehicle insurance, wearing seat-belts, placing toddlers in car seats, banning lead paint and de-leading residential buildings, banning DDT, inoculating children to prevent polio and eradicate other fatal diseases, placing fluoride in drinking water to prevent early onset tooth-decay, banning child labor, enacting labor standards, ending slavery, enfranchising women like you and your mother before you, and creating the Federal Reserve Bank of the United States, the horror, the horror!
Yeah, it takes some fortitude having been born in the 20th century, to grow up wishing you were in the 19th so as to enjoy the clamor of racial segregation and violence of the "major voice of the community."
You mean like obtaining a driver's license and motor vehicle insurance, wearing seat-belts, placing toddlers in car seats, banning lead paint and de-leading residential buildings, banning DDT, inoculating children to prevent polio and eradicate other fatal diseases, placing fluoride in drinking water to prevent early onset tooth-decay, banning child labor, enacting labor standards, ending slavery, enfranchising women like you and your mother before you, and creating the Federal Reserve Bank of the United States, the horror, the horror!
Yeah, it takes some fortitude having been born in the 20th century, to grow up wishing you were in the 19th so as to enjoy the clamor of racial segregation and violence of the "major voice of the community."
5
Originalism and Clarence Thomas both have substantive issues to address. Positing that the meaning of words written in 1787, have application to the legal and social context 230 years later, and are logically and legally congruent, is engaging in a form of intellectual delinquency. Justice Thomas has also taken it as a personal affront that affirmative action was the reason he was admitted to Yale law school.His opposition to affirmative action in every case is an attempt to psychologically expunge the reality of his law school acceptance His Fisher v Texas dissenting opinion states that affirmative action "demeans us all". Justice Thomas was wrong, his rote opposition to all AA cases demeans him, and limits opportunities for all minorities.
7
The Court needs neither another Thomas nor another Scalia. Justice Scalia, like many conservative jurists preached judicial restraint, yet usually contrived a legal rationale to reach his preferred policy outcome. But at least Scalia was a very intelligent and accomplished judge. Prof. Foley supports Thomas's desire to restrict the Federal government's use of the commerce power, but Thomas is hardly among the topmost legal thinkers in the U.S., and does not deserve to sit on the nation's highest court. His wacky theories about "natural law" and his ability to discern it have no place on the Federal bench. I recognize that President Trump will nominate a very conservative new Justice, but I hope that Justice is neither a Thomas nor a Scalia.
9
The US Constitution was promulgated as the first attempt in human history to institute representative government. At the time, there were no extant examples to show what worked and what did not, and over all the deliberations loomed the American original Sin of African slavery, the protection of which left its baleful mark on the the result, e.g. the Electoral College which has created the situation in which we are now mired.
It was also created in a time when the population was a few million limited to the seaboard, when the fastest means of communication and transportation was the horse, the most common firearms were the muzzle-loading musket and the single-shot pistol, when the majority of the people were farmers, and when the ocean was a true protective wall against foreign malefactors.
Is there any cogent reason why an instrument designed in that time should be appropriate to a transcontinental nation of 330 millions in the age of robots, the Internet, ICBMs, TV, and jet airliners? Methinks that the "originalists" are using fancy language and bogus philosophy to justify reactionary desires. And someone who finds a model for SCOTUS in Clarence Thomas does not live on the same planet as most of the rest of us.
It was also created in a time when the population was a few million limited to the seaboard, when the fastest means of communication and transportation was the horse, the most common firearms were the muzzle-loading musket and the single-shot pistol, when the majority of the people were farmers, and when the ocean was a true protective wall against foreign malefactors.
Is there any cogent reason why an instrument designed in that time should be appropriate to a transcontinental nation of 330 millions in the age of robots, the Internet, ICBMs, TV, and jet airliners? Methinks that the "originalists" are using fancy language and bogus philosophy to justify reactionary desires. And someone who finds a model for SCOTUS in Clarence Thomas does not live on the same planet as most of the rest of us.
11
2 major problems with "original intent." First, as demonstrated by Scalia, they find original intent based on the justice's values, not the founders. The founders were appalled by the legal protections given to corporations. They did not believe they were entitled to free speech rights as well. Scalia and the majority simply made this up.
The second problem is the founders themselves. They recognized that the world would change, and the constitution should change with it. They did not think they had created the Ten Commandments, cast in stone, never to be altered.
Trump may well appoint a justice in line with Justice Thomas -- after all, men who harass women are entitled to representation on the Court.
The second problem is the founders themselves. They recognized that the world would change, and the constitution should change with it. They did not think they had created the Ten Commandments, cast in stone, never to be altered.
Trump may well appoint a justice in line with Justice Thomas -- after all, men who harass women are entitled to representation on the Court.
10
The founders allowed for change by providing a mechanism to amend the Constitution. The alternative is either outright ignoring the Constitution or interpreting it the way a gypsy woman does Tarot cards. Your second "problem" is not a problem.
With all due respect to the author of this piece, the last thing we need on the Supreme Court is another Clarence Thomas.
First of all, the confirmation hearings that put him there were a disgrace, and resulted in GOP-generated hysteria that resulted in his being put on a court to which he has no business belonging.
Justice Thomas proved this in Bush v. Gore, from which he was ethically and morally required to recuse himself due to his wife's ties to the Heritage Foundation. While he was hearing Bush v. Gore, she was actually collecting resumes for possible appointees to the Bush administration.
The only acceptable nominee under the circumstances would be Merrick Garland, who was put forth by President Obama under the provisions of the Constitution, and who was obliged to be put forward for a vote by the Senate Republicans, who turned their collective backs on their own Constitutional oaths.
First of all, the confirmation hearings that put him there were a disgrace, and resulted in GOP-generated hysteria that resulted in his being put on a court to which he has no business belonging.
Justice Thomas proved this in Bush v. Gore, from which he was ethically and morally required to recuse himself due to his wife's ties to the Heritage Foundation. While he was hearing Bush v. Gore, she was actually collecting resumes for possible appointees to the Bush administration.
The only acceptable nominee under the circumstances would be Merrick Garland, who was put forth by President Obama under the provisions of the Constitution, and who was obliged to be put forward for a vote by the Senate Republicans, who turned their collective backs on their own Constitutional oaths.
17
The nomination of Supreme Court justices should not be momentous events. The founders would be shocked to learn that today we permit a small group of black-robed partisans to settle constitutional issues that they plainly intended to be settled by the people’s representatives. Neither the authors of the Constitution nor the delegates who signed it expected the conservatism or liberalism of Supreme Court justices or their views of presidential candidates to be of any consequence. They expected constitutional issues to be settled not by the Supreme Court, but by the amendment process or constitutional conventions. The arguments over what the Constitution says or doesn’t say arises because the document is mute on many issues that seemed unimportant or didn’t exist in the 1700s. The Constitution says what it says and doesn’t say what it doesn’t say. The founders didn’t expect jurists search to ponder the document’s implication and intent. We need periodically scheduled constitutional conventions—perhaps one a generation—to amend or clarify the Constitution and align it with changing circumstance.
3
I am dismayed by the assertion that Mr. Trump should appoint another justice i the mold of Justice Thomas. Justice Thomas has a terrible mean streak regarding civil rights and especially the rights of minorities. Neither a Justice like Scalia or Thomas is warranted but because of Mr. Trumps extreme right leanings one is guaranteed. This will not mean more freedom, or more liberty or more rights for individuals. It will create more power for the states who will individually continue fragmentation of dissolution of the power of the federal government and give the states power and authority outside the supremacy of the federal government and the constitution. The states are unequal and without a strong federal government they will evolve into medieval fiefdoms with their own laws and their own interpretation of law. There will be no uniformity of law in the nation. That is how we stray from the Constitution and dissolve the nation.
12
There were 53 participants from different colonies and regions who attended the Constitutional Convention and ALL of their work was collaborative. They were smart men but their agendas and beliefs were often in conflict. Virtually every clause in virtually every article of the Constitution represents a compromise and the idea that we can tease out the historical and psychological basis for the language is absurd. "Originalists" are the equivalent of fundamentalists who believe the Bible is the unerring word of God and no interpretation is ever necessary or appropriate. Originalism is nothing more than a legal mumbo jumbo effort to obfuscate and manipulate.
187
Dead on.
1
The bible-analysis comparison is apt. Just as the bible was a compilation of fantasmagorical tales of uneducated desert people, the constitution is not 'the word of God' but a political document above all. It should come as no surprise that it is regularly amended and interpreted to fit the realities of existence that humans face every day, not the lives and wishes of long-dead heavenly 'founders'. If liberty means anythiing, surely it encompasses freedom from the oppression of 234 year old ideas of Dead People who would have little if any comprehension of the realities of 2017. One of those realities is that as a guide to the orderly, just and civil operation of society, the law - including the constitution - must adjust to reality if it is to have any relevance at all to the living. Whether it is bent by amendment or interpretation is immaterial -- if the people, through their elected representatives, do not like an interpretation, there are ways to change it: i.e., via amendment or 're-intepretation.' And conservatives take note: The Bible is NOT a part of the constitution.
1
So what is the solution? For the majority east coast liberals to decide the "adapted meaning" of the Constitution over a glass of wine at a cocktail party? Or should the law clerks come up with a consensus?
I agree that the Court should be filled with justices who construe the Constitution only with a view toward what it meant to the men who wrote it.
Let's also get rid of indoor plumbing. Bring back chamber pots. Light the court with beeswax candles. Return our city streets to dirt and horses. Court nominees must remove their dental fillings and go with wooden teeth. I think we could also use some smallpox and polio. Anyone for a bit of slavery and Indian-killing?
I am engaged in heavy research to locate the founders' writings about nuclear energy, euthanasia, Internet privacy, trade with China, the "morning after" pill, and Ten Commandments plaques on courthouse lawns. It shouldn't be long now. Must be there somewhere. I'll let you know.
Yes, everything else evolves and knowledge and understanding grow in every field, but the Constitution is, and must remain, eternally fixed and forever 18th Century. Makes total sense, no?
These people remind me of people who claim that every single word in the Bible is literally true and capable of only one interpretation, which somehow always matches their own. Their literalism has a lot more do with their own rigidity and control impulses than it does with the Bible. So, too, with a certain kind of constitutionalist.
The very last thing the Supreme Court needs is another narrow mind like Clarence Thomas's. Although in the current Trumptastrophe, among too many spineless Democrats, that's probably what it's going to get.
Let's also get rid of indoor plumbing. Bring back chamber pots. Light the court with beeswax candles. Return our city streets to dirt and horses. Court nominees must remove their dental fillings and go with wooden teeth. I think we could also use some smallpox and polio. Anyone for a bit of slavery and Indian-killing?
I am engaged in heavy research to locate the founders' writings about nuclear energy, euthanasia, Internet privacy, trade with China, the "morning after" pill, and Ten Commandments plaques on courthouse lawns. It shouldn't be long now. Must be there somewhere. I'll let you know.
Yes, everything else evolves and knowledge and understanding grow in every field, but the Constitution is, and must remain, eternally fixed and forever 18th Century. Makes total sense, no?
These people remind me of people who claim that every single word in the Bible is literally true and capable of only one interpretation, which somehow always matches their own. Their literalism has a lot more do with their own rigidity and control impulses than it does with the Bible. So, too, with a certain kind of constitutionalist.
The very last thing the Supreme Court needs is another narrow mind like Clarence Thomas's. Although in the current Trumptastrophe, among too many spineless Democrats, that's probably what it's going to get.
269
Amen! And I'm sure Citizens United was born when they found that old Thomas Jefferson letter where he decided Henry's black smith shop is a person.
For all those "evangelicals" who cite Leviticus as a source of Biblical condemnation of homosexuality (in the absence of Jesus weighing in on the subject at all), that same book of Leviticus states that work on the Sabbath is punishable by death. Nobody goes THERE, do they?
1
Most of those who wrote the Constitution were slaveholders, men who owned human beings. Do you really thinks all their views should prevail today?
1
Scalia said: "The only good Constitution is a dead Constitution", and Clarence Thomas would likely agree. But that isn't true - there are 27 amendments to it - and in fact it can't be true (we would still have slavery).
We have new scientific and social information today that was unavailable to the founders. The frontier is closed, or whatever we might call a frontier has an entirely different meaning now. If we don't accept the Constitution as a living document then we will be forever stuck with an 18th century point of view. If the founders were here today and in possession of the history and experience we have they would surely create a different document than the one we have.
Scalia was concerned that if the Constitution is still alive, somebody has to determine how it grows, and he believed that is a too heavy burden to place on nine justices. But the growth of the Constitution is actually the result of a consensus among all branches of government with the consent of the governed.
Yet the Supreme Court does have awesome power. All the more reason not to appoint a deeply partisan justice to replace Scalia, and certainly not one like Clarence Thomas.
We have new scientific and social information today that was unavailable to the founders. The frontier is closed, or whatever we might call a frontier has an entirely different meaning now. If we don't accept the Constitution as a living document then we will be forever stuck with an 18th century point of view. If the founders were here today and in possession of the history and experience we have they would surely create a different document than the one we have.
Scalia was concerned that if the Constitution is still alive, somebody has to determine how it grows, and he believed that is a too heavy burden to place on nine justices. But the growth of the Constitution is actually the result of a consensus among all branches of government with the consent of the governed.
Yet the Supreme Court does have awesome power. All the more reason not to appoint a deeply partisan justice to replace Scalia, and certainly not one like Clarence Thomas.
136
You seem to have contradicted your own argument. You write that "If we don't accept the Constitution as a living document then we will be forever stuck with an 18th century point of view," but then point out that "there are 27 amendments to it...."
The straightforward position of the "originalists" is that the way to bring the Constitution up-to-date (if that is your desire) is to go through the amending process, not to read "new scientific and social information" into existing language.
The straightforward position of the "originalists" is that the way to bring the Constitution up-to-date (if that is your desire) is to go through the amending process, not to read "new scientific and social information" into existing language.
"But the growth of the Constitution is actually the result of a consensus among all branches of government with the consent of the governed." Could anyone of the 89 readers who recommended this comment, please explain what it means in real life?
No, we would not still have slavery. Slavery would have been peacefully phased out, under the rules of our Constitution.
What absolute nonsense this idea of originalism. Have these people never read anything about what the people who WROTE the constitution thought of it. They were so unhappy with it that they had to amend it quickly with the Bill of Rights.
Jefferson wanted people to know that "they didn't own the Constitution". That their positions were not be set in stone. As a matter of fact, he felt that things should be changed every generation. And then there is Edmond Randolph who was, I think, the chairman of the Committee on Details that was charged to put into words the decisions of the Constituent Fathers. He explicitly said that he formulated them in general terms so that "they would not tie the hands of future generations". Those people never had the arrogance or hubris to think that their words were god-inspired. They were struggling to create a balance between the selfish interest of the individual states and the need for over all order. The struggle, and even enmity, between Madison and Hamilton is a manifestation of that. If there is an originalism to be found, it is in their intention to guarantee freedom and justice in everything, from economic, to political, to social matters. These are the values that should inform every billand every decision. There is no need to look any further.
Jefferson wanted people to know that "they didn't own the Constitution". That their positions were not be set in stone. As a matter of fact, he felt that things should be changed every generation. And then there is Edmond Randolph who was, I think, the chairman of the Committee on Details that was charged to put into words the decisions of the Constituent Fathers. He explicitly said that he formulated them in general terms so that "they would not tie the hands of future generations". Those people never had the arrogance or hubris to think that their words were god-inspired. They were struggling to create a balance between the selfish interest of the individual states and the need for over all order. The struggle, and even enmity, between Madison and Hamilton is a manifestation of that. If there is an originalism to be found, it is in their intention to guarantee freedom and justice in everything, from economic, to political, to social matters. These are the values that should inform every billand every decision. There is no need to look any further.
29
I think the idea of originalism is nonsense. 1) it pretends to know what was in the minds of the framers some 200 + years ago; and 2) we live in a world they could not have begun to imagine, so even if we could get in their heads, their heads lived in a world of horse & buggy, no electricity, and a sparsely populated country which hugged the Atlantic coast. The idea that their thoughts, unchanged, could or should be applied for all time is silly and dangerous. If the Constitution is to be useful, it must be viewed as a living document.
112
Medical experts have never been able to detect a sign of life in the Constitution. It's a piece of paper. Since the Constitution is not a living thing, the founders recognized it could not evolve to adapt to changing circumstance. This is why the founders provided the amendment process and empowered Americans or Congress to convene new constitutional amendments. People who think jurists should "interpret" the Constitution or speculate about the intent of its authors undermine the Constitution.
1
The notion of originalism is eerily similar to some Christians' quest for the "historical Jesus". Both strive to reclaim what is impossible. The Constitution is an organic document. It grows and changes over time and is to be understood accordingly. Lauding Thomas' "originalism" is a smokescreen for his intellectual laziness. Thomas is no Scalia.
@ William Case
What absolute absurdity! - while the Constitution may be transmitted on paper through the generations, the IDEAS contained within that Constitution are LIVING IDEAS...people debate questions of constitutionality every day, and they wouldn't if those questions were dead and decided.
To think an extraordinarily cumbersome amendment procedure is required for each change in society as it goes through time is ridiculous...the changes go so fast, and there are so many of them it would be impossible to keep up!
In fact, they made the amendment process cumbersome on purpose, so that it would be very DIFFICULT to change, so that the underlying principles of individual liberty and societal stability could be guaranteed across the generations.
"Interpretation" of Constitutional principles as they apply to present-day circumstances does not "undermine" the Constitution...it allows the Constitution to continue to guide us, as the world evolves - an inevitability the founders well knew, and an inevitability not one of us can change.
What absolute absurdity! - while the Constitution may be transmitted on paper through the generations, the IDEAS contained within that Constitution are LIVING IDEAS...people debate questions of constitutionality every day, and they wouldn't if those questions were dead and decided.
To think an extraordinarily cumbersome amendment procedure is required for each change in society as it goes through time is ridiculous...the changes go so fast, and there are so many of them it would be impossible to keep up!
In fact, they made the amendment process cumbersome on purpose, so that it would be very DIFFICULT to change, so that the underlying principles of individual liberty and societal stability could be guaranteed across the generations.
"Interpretation" of Constitutional principles as they apply to present-day circumstances does not "undermine" the Constitution...it allows the Constitution to continue to guide us, as the world evolves - an inevitability the founders well knew, and an inevitability not one of us can change.
1
I assume this column is satire. If not, the commentary about taking our legal system back to the 1700's is just sad. Bring back slavery, witch trials, landed gentry are the only eligible voters,etc. etc etc. and hold seances in the Supreme Court to be able to determine the founder's intent.
197
The Framers' intent was clear. Limited Federal Government.
I think that's just about what is happening right now in Washington and will continue on that path as soon as the next Supreme Court justice is seated.
The Times doesn't do satire..... this is yet another depressingly serious Op-Ed submission that made the cut.
With President Trump and his cohorts, this original meaning thing, along with the liberal's "hermeneutics," will got kicked over the curb. Anyone with naked power like the late Justice Scalia will be cheered and any attempts to inject narrow scoped application of jurisprudence will be jeered.
While I am not legal expert, mark my words, the next court would set the country back by at least half a century, like all the EOs we have witnessed thus far.
Those who bought Mr Trump's line "what do you have to lose" might end up the most at risk population, like the women and minorities. That is rather sad, for the promise of jobs that might not return or that durable they gave up decades of progress of civil liberty
While I am not legal expert, mark my words, the next court would set the country back by at least half a century, like all the EOs we have witnessed thus far.
Those who bought Mr Trump's line "what do you have to lose" might end up the most at risk population, like the women and minorities. That is rather sad, for the promise of jobs that might not return or that durable they gave up decades of progress of civil liberty
25
The Constitution in its original meaning did not regard women as fully men, and did not contradict the continuation of slavery. It did not envision a society where most people were not farmers or farm workers and where property was generally not land but rather a person's own abilities.
Sovereign states will nimby each other and try to duck paying bills. Nobody wants nuclear wastes stored nearby, so it winds up being stored at the many sites that produced it. States used to really be sovereign; most of what was produced was consumed there,and vice versa. At present, any state or country that claimed sovereignty would produce a local and perhaps global economic mess.
Our jurisprudence needs to reflect this state of affairs rather than hiding from it.
Sovereign states will nimby each other and try to duck paying bills. Nobody wants nuclear wastes stored nearby, so it winds up being stored at the many sites that produced it. States used to really be sovereign; most of what was produced was consumed there,and vice versa. At present, any state or country that claimed sovereignty would produce a local and perhaps global economic mess.
Our jurisprudence needs to reflect this state of affairs rather than hiding from it.
43
Good satire from a rank partisan, like Justice Thomas.
Foley is the chief architect of the House of Representatives' lawsuit against President Obama, challenging the constitutionality of the President's implementation of the Affordable Care Act. The lawsuit is focused on the President's constitutional duty, under Article II, section 3 of the Constitution, to "take care that the laws be faithfully executed." Her testimony in February 2014 before the House Judiciary Committee provided a detailed four-part "road map" outlining how the House could obtain "institutional" standing to assert an institutional injury. Her subsequent testimony, in July 2014, before the House Rules Committee, provided further detail about her legal theory on both standing and the merits of a challenge based on the President's failure to faithfully execute the law
Foley is the chief architect of the House of Representatives' lawsuit against President Obama, challenging the constitutionality of the President's implementation of the Affordable Care Act. The lawsuit is focused on the President's constitutional duty, under Article II, section 3 of the Constitution, to "take care that the laws be faithfully executed." Her testimony in February 2014 before the House Judiciary Committee provided a detailed four-part "road map" outlining how the House could obtain "institutional" standing to assert an institutional injury. Her subsequent testimony, in July 2014, before the House Rules Committee, provided further detail about her legal theory on both standing and the merits of a challenge based on the President's failure to faithfully execute the law
34
When I got my first job out of college - a temp job assisting the owner of a sole proprietorship - the radio was always tuned to what sounded like a news/talk radio station. As I listened to the host I came to think, oh hey he makes a lot of sense. When the job ended I never listened to that show again. but the host, Rush Limbaugh, later became a nationally known radio figure.
My point is, we should always be aware of who is speaking and what their agenda is, because without perspective, without other sources of information, it's too easy to be swayed but what appear to be logical arguments.
Thanks for taking the time to flesh out Foley's background for us.
My point is, we should always be aware of who is speaking and what their agenda is, because without perspective, without other sources of information, it's too easy to be swayed but what appear to be logical arguments.
Thanks for taking the time to flesh out Foley's background for us.
1
“Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The framers created our Constitution to preserve that understanding of liberty.”
It's too bad Justice Thomas has spent a lifetime with such a conceited view of Liberty, to define it simply in terms of whether or not one receives something from government, or not. I guess it comes down to what gets you up in the morning.
Liberty is NOT just understood as 'freedom from' government action, but more broadly, freedom for a free People 'to decide' what kind of government they want (with whatever 'benefits' are appropriate for the time).
For a 'conservative' and from the 'originalist' school of thought, it's awfully convenient for jurists like Scalia and Thomas to argue all the way back to the supposed thoughts of the Founders, while skipping all the generations in between, to ground their decisions.
As if the project of democracy, liberty, and the law, and the sacrifices made by those generations to defend their conception of Liberty for their time, mean nothing to us.
It is a cheap kind of 'conservatism' that pays no homage to those that cared enough to maintain, nurture, and yes, conserve, the broader notions of Liberty and Freedom that so many generations of Americans before us believed they were building on, before these two jurists convinced their colleagues that their conservative conceit known as 'originalism' was a sign of brilliance.
It's too bad Justice Thomas has spent a lifetime with such a conceited view of Liberty, to define it simply in terms of whether or not one receives something from government, or not. I guess it comes down to what gets you up in the morning.
Liberty is NOT just understood as 'freedom from' government action, but more broadly, freedom for a free People 'to decide' what kind of government they want (with whatever 'benefits' are appropriate for the time).
For a 'conservative' and from the 'originalist' school of thought, it's awfully convenient for jurists like Scalia and Thomas to argue all the way back to the supposed thoughts of the Founders, while skipping all the generations in between, to ground their decisions.
As if the project of democracy, liberty, and the law, and the sacrifices made by those generations to defend their conception of Liberty for their time, mean nothing to us.
It is a cheap kind of 'conservatism' that pays no homage to those that cared enough to maintain, nurture, and yes, conserve, the broader notions of Liberty and Freedom that so many generations of Americans before us believed they were building on, before these two jurists convinced their colleagues that their conservative conceit known as 'originalism' was a sign of brilliance.
63
You're flat wrong. The constitution's concept of individual liberty is all about freedom from federal government intervention, carried into reality by sharply limited federal government authority.
As the administrative/regulatory state metastasizes, this concept is all the more important today.
We need justices who will stand up and say "no" when the federal government goes for, say, a "kale mandate". Enforced via a special tax (see Obamacare).
Most elements of our lives should be beyond federal reach.
As the administrative/regulatory state metastasizes, this concept is all the more important today.
We need justices who will stand up and say "no" when the federal government goes for, say, a "kale mandate". Enforced via a special tax (see Obamacare).
Most elements of our lives should be beyond federal reach.
The 13th, 14th and 15th amendments belie the "originalists."
1
Mr. 72521:
I may understand your aversion to kale and your desire to say 'no' to such a mandate, but do you also say 'no' when the government seeks to control sexual behavior, or health care, or uses tax money to deny anyone the right to vote, or uses tax money to support one vision of religion over another, or one conception of "life" over another, or to discriminate against members of a particular religion as your guy Bannon/Trump is doing.
Your inherently conservative/libertarian professions about the Constitution are fraught with "give me what I want dammit" jurisprudence.
Your pretend originalist leanings deprive the government, and you, of the ability to effectively address them. Leaving us in a state of mortal political combat without end.
Thanks for that.
I may understand your aversion to kale and your desire to say 'no' to such a mandate, but do you also say 'no' when the government seeks to control sexual behavior, or health care, or uses tax money to deny anyone the right to vote, or uses tax money to support one vision of religion over another, or one conception of "life" over another, or to discriminate against members of a particular religion as your guy Bannon/Trump is doing.
Your inherently conservative/libertarian professions about the Constitution are fraught with "give me what I want dammit" jurisprudence.
Your pretend originalist leanings deprive the government, and you, of the ability to effectively address them. Leaving us in a state of mortal political combat without end.
Thanks for that.
1
If the original intent of the constitution was scrupulously and literally adhered to, Justice Thomas would be picking cotton on a Southern plantation. Thankfully we have evolved to some extent and the interpretation of the constitution, which was designed to evolve, has done so as well. The clear intent of the Founding Fathers was to preserve and foster individual liberty, not to create a carved-in-stone system that must be adhered to for all time. As our societal concept of what liberty means has changed, so has the reading of the constitution. Sometimes the court has been in lead and sometimes it has lagged behind. Considering the present administration, we will need court leadership in defense of our liberty more than ever. Unfortunately there is no chance that a Trump nominee will provide that leadership. About all we can do at this point is pray that Justice Ginsburg lives forever.
155
The constitution was created to slow down change not to completely resist change.
Oh this conservative mantra of original meaning is a fraud as evidenced by the Citizens United decision which was a textbook example of legislating radically from the bench.
59
Exactly. Corporations were government entities when the constitution was written. Capitalism didn't even exist when the founders Rights given to corporations are taken wrote that government should provide for the general welfare of the people.
The supreme court has given human rights to fictitious persons repeatedly since the 1880s, and the "originalists" have been accelerating the process. Right now Ryan and McConnell are putting the finishing touches ibn the corporate take over of the US.
Stop them.
The supreme court has given human rights to fictitious persons repeatedly since the 1880s, and the "originalists" have been accelerating the process. Right now Ryan and McConnell are putting the finishing touches ibn the corporate take over of the US.
Stop them.
1
You are, of course, kidding me about Clarence Thomas, the silent justice. He has been the voice of injustice and intolerance since joining the Court. His self-serving opinions and posture have served to build a reputation in a narrow, fantasy oriented constituency that believes life in the 21st century is essentially the same as in the agrarian 18th. Perhaps he should try farming for a living instead of being a justice.
58
The Senate should oppose any jurist proposed for the current Supreme Court opening who isn't a centrist who could arguably have been proposed as a compromise candidate by President Obama. The antidemocratic maneuverings of Senator McConnell should not be rewarded.
It is to be expected that President Trump would propose more conservative jurists for any further openings that may occur during his administration. They should be considered on their legal merits, but standards should be very different for this opening.
It is to be expected that President Trump would propose more conservative jurists for any further openings that may occur during his administration. They should be considered on their legal merits, but standards should be very different for this opening.
15
The constitution has no original meaning. It was drafted with lawyerly evasions and contains within intentional compromises. At the same time it says nothing about the disagreements that were subsumed by the passing of the constitution into law. The "framers" disagreed violently. Madison and Hamilton who worked together soon broke apart as they ended up disagreeing over how the constitution worked in practice. Does the constitution include the concept of implied powers? Yes to Hamilton but no the the Jeffersonian party.
It only gets worse from there.
We can either accept that the original meaning has been lost over the years - and accept the jurisprudence for more than 2 centuries, or we can cripple ourselves by the so called original meaning.
It only gets worse from there.
We can either accept that the original meaning has been lost over the years - and accept the jurisprudence for more than 2 centuries, or we can cripple ourselves by the so called original meaning.
30
The constitution did indeed have an original meaning, but not an intrinsic one. It was the product of its interpreters, just as any meaning must be. The "original meaning" was the earliest interpretation, not some fetishized fantasy allegedly prior to interpretation.
The Supreme Court needs neither another Antonin Scalia nor another Clarence Thomas, and isn't likely to get either in any event. The author of this opinion believes that original intent, textualism, strict constructionism, is a legitimate judicial philosophy when it is in fact a notion, a rationalization - a fetishization of the constitution. Perhaps individuals such a Clarence Thomas and Mr. Scalia were and are attracted to this notion, that meaning was fixed at the time of its writing, as a way to invalidate 250 years of living history, thought, progress. Original Intent has been a great scam, one of its architects has passed on - and the court and the nation will be better for it if we allow the court(s) to put this particular pretense behind us.
47
A GOP bagman named Otis
Had advice for his friends on the SCOTUS:
No need for a ruction
About strict construction --
Just do as the Koch Brothers to'd us.
Had advice for his friends on the SCOTUS:
No need for a ruction
About strict construction --
Just do as the Koch Brothers to'd us.
Does the writer--a law professor--want the courts to be in charge of administrative departments within the government's executive branch? Her arguments for "separation" of powers sound more like an agenda for increasing the powers of the courts, esp. in areas of regulation. When individual justices have been correct (as Judge Thomas was about the rights of states to permit citizens the production of marijuana for medicinal use), correct rulings should not be used to expand the courts' powers.
The courts consider hundreds of cases besides the few cited. Looking forward, civil liberties are a growing legal territory that the courts need to move beyond "original intent"--once used to argue the defense of segregated schools (esp. by noted journalist Jack Kilpatrick, who wrote reams saying schools were not mentioned in the constitution and neither was segregation; society had a right to impose order as it saw fit (similar to the administration's view on immigration in which the idea of security is used to defeat the freedom it is supposed to protect!).
Outside of the narrow scope here, original intent is a frame that becomes a stranglehold on freedom and liberty (abortion, lgbt marriage, police reform, political money) and opportunity (educational reform, employment bias, voting rights, freedom of movement, healthcare).
Firm and correct at times, original intent shrinks the constitution and concentrates power at the expense of freedom as the nation expands.
The courts consider hundreds of cases besides the few cited. Looking forward, civil liberties are a growing legal territory that the courts need to move beyond "original intent"--once used to argue the defense of segregated schools (esp. by noted journalist Jack Kilpatrick, who wrote reams saying schools were not mentioned in the constitution and neither was segregation; society had a right to impose order as it saw fit (similar to the administration's view on immigration in which the idea of security is used to defeat the freedom it is supposed to protect!).
Outside of the narrow scope here, original intent is a frame that becomes a stranglehold on freedom and liberty (abortion, lgbt marriage, police reform, political money) and opportunity (educational reform, employment bias, voting rights, freedom of movement, healthcare).
Firm and correct at times, original intent shrinks the constitution and concentrates power at the expense of freedom as the nation expands.
14
Right. You want another Clarence Thomas. Scalia I loved to hate, because he spoke up and was smart. Thomas, on the other hand???? Rarely speaks up, just sits back and promotes a right wing agenda. Don't really see the point.
30
Good points, but how silent is Thomas is the presence of his activist GOP wife?
1
Don't worry, Trump will nominate another Clarence Thomas, the worst of the worst. Trump is incapable of doing anything else, and he'll do it with the usual sneer as well.
35
"His view, if ever accepted by a majority of the court, would...creat[e] more room...for individual liberty."
An utterly ridiculous contention. While not perfect, the federal government has been far more instrumental in affording citizens freedom than many states ever will be. Many states have specialized in limiting the freedom of whole classes of people for racist, religious, or other reasons. The Red states' idea of being laboratories for experimentation today are limited to voter suppression, union busting, and other freedom limiting activities.
An utterly ridiculous contention. While not perfect, the federal government has been far more instrumental in affording citizens freedom than many states ever will be. Many states have specialized in limiting the freedom of whole classes of people for racist, religious, or other reasons. The Red states' idea of being laboratories for experimentation today are limited to voter suppression, union busting, and other freedom limiting activities.
97
Yes, we need more African Americans on the bench to increase diversity, the Right to Life movement and GOP/conservative opinions on the bench.
3
Hallelujah. Let us declare the Air Force unconstitutional, as not within the original meaning "armed forces."
41
In evolutionary terms, "armed" may be interpreted as encompassing "winged."
2
Clarence Thomas is a disgrace to the Supreme Court. Model for Scalia's replacement? Hardly. He should never have been approved and has now served without distinction for far too long.
183
Thomas is not only a knee-jerk ultra-coservative, he is an angry man who denies his heritage and deliberately ignores the deep racial animus that exists in America today. He fits in marvelously with the politicians in black robes who make up the conservative block on the Supreme Court.
The definition of a conservative is essentially one who looks to the past—particularly an imagined glorious past— and not toward the future.
The definition of a conservative is essentially one who looks to the past—particularly an imagined glorious past— and not toward the future.
276
Sure, want Roe gone....Go for more Clarences on the Court.
25
There are few legal ideologies more absurd than originalism. The world does not stand still or go backwards - it is always moving forward and evolving. America will learn the hard way that most of the beloved constitution needs to be scrapped and a system put together that eliminates the dysfunction we see today in DC. Maybe try a parliamentary system like Canada?
116
Laughable that you present an opinion of no dysfunction in Canada's parliament: there is plenty with an immature man-child trying hard to be recognized as a 'leader' but believes Canadian parliamentary laws are not for him to follow (hence the ethics investigations that are now in progress), and he manhandles elected members of parliament by grabbing them by the arms to force them to sit down, and uses foul language in the House. No dysfunction - that is simply not the situation within Canada's parliamentary system since the last election of 2015. Decorum depends upon the Prime Minister's knowledge and treatment of elected colleagues - not brute force.
It may sound crazy, but I dare the Republicans to overturn Roe V Wade. Hell hath no fury like 150 million woman scorned. Those responsible would be cleared from government like snow before a plow
When then President Jerry Ford needed to make a Court appointment,Ford asked for the the best qualified candidate.
Ford appointed to the Court John Paul Stevens.
Another Stevens would be ideal today.
Trump will not appoint a judicial scholar but instead someone who will support Trump's political agenda.
Ford appointed to the Court John Paul Stevens.
Another Stevens would be ideal today.
Trump will not appoint a judicial scholar but instead someone who will support Trump's political agenda.
108
Jerry Ford had integrity. I didn't vote for him, but he may actually be the best GOP president since TR.
I understand the judicial conservative agenda at least this far: it exists to conserve - preserve if you like - that which needs preserving because it is essential to our practice of the Rule of Law, not people. And how that conservative agenda and impulse plays out is certainly different in the realms of the judicial, the legislative, and the executive.
But originalism as advocated by Justices Thomas and Scalia make little sense to me, first because the world has changed so much since the Constitution and its Amendments were written and second because that change has resulted not only in changes in degree but in changes of substance. Our social, political, and economic world is *nothing* much like the world which the founders and framers inhabited and through which they saw and wrote.
"Chevron" was a murky case. But it highlights that if the law is murky - ambiguous as to the intent of Congress - then the Court should throw the whole thing back to the Congress and skip its "interpretations."
The liberal agenda and impulse can be held in dynamic tension by the conservative ones. As the world changes - and now changes ever faster, too - the liberals' need to bring our understanding of how the law is going to work in this milieu becomes more and more pressing. And the originalist agenda - as the farthest-reaching arm of the conservative agenda - becomes a millstone around the neck of our ability to be flexible in updating our foundations and laws. (1500 characters! rrrr )
But originalism as advocated by Justices Thomas and Scalia make little sense to me, first because the world has changed so much since the Constitution and its Amendments were written and second because that change has resulted not only in changes in degree but in changes of substance. Our social, political, and economic world is *nothing* much like the world which the founders and framers inhabited and through which they saw and wrote.
"Chevron" was a murky case. But it highlights that if the law is murky - ambiguous as to the intent of Congress - then the Court should throw the whole thing back to the Congress and skip its "interpretations."
The liberal agenda and impulse can be held in dynamic tension by the conservative ones. As the world changes - and now changes ever faster, too - the liberals' need to bring our understanding of how the law is going to work in this milieu becomes more and more pressing. And the originalist agenda - as the farthest-reaching arm of the conservative agenda - becomes a millstone around the neck of our ability to be flexible in updating our foundations and laws. (1500 characters! rrrr )
22
Good for you, Lennerd! Even from Vietnam, this charade of 'originalism' can be seen for what it is. Nothing more than a play on the semantic differences of 21st century English versus 18th century English. If it were honest in its literary analysis of the Constitution, then there might be some value in it. But too often, such analysis is compromised by convenient omissions and tortured logic in order to support preconceived notions. That turns it into just another form of interpretation, but not one based on principled argument, or law, but on a conceit.
2
Hilarious: an early flowering of the satire that will thrive during the Trump months.
105
Discerning original intent is clearly entirely in the eyes of the beholder, and Justice Thomas vision clearly is more limited than most.
Trying to ascertain what the someone's mind contained 250 years or so ago, is no more fruitful, than trying to understand what is in POTUS' mind today.
The "conservative" approach is simply a thinly masked excuse for using past measures of worth, so that new concepts are not regulated except by wealth, and that immigrants, women, LGBT, people of color, and the poor are judged to have no worth, and of course, there is no more conclusive argument than having a black man deliver this judgment.
Trying to ascertain what the someone's mind contained 250 years or so ago, is no more fruitful, than trying to understand what is in POTUS' mind today.
The "conservative" approach is simply a thinly masked excuse for using past measures of worth, so that new concepts are not regulated except by wealth, and that immigrants, women, LGBT, people of color, and the poor are judged to have no worth, and of course, there is no more conclusive argument than having a black man deliver this judgment.
54
Amen.
With all due respect to Professor Price Foley, the vaunted Founders did not believe she should have been able to vote, own property, or attend university, let alone become a professor.
They supported or accepted the ownership of other human beings as property.
Further, we can discern 'original intent' of 18th-century minds without ourselves living in the 18th century.
Refusing to acknowledge the passage of time is not conservative; it is simply a foolish obstinance.
The stolen SCOTUS seat should remain vacant, unless the President wants to prove his desire to unify the country and nominate Judge Garland.
With all due respect to Professor Price Foley, the vaunted Founders did not believe she should have been able to vote, own property, or attend university, let alone become a professor.
They supported or accepted the ownership of other human beings as property.
Further, we can discern 'original intent' of 18th-century minds without ourselves living in the 18th century.
Refusing to acknowledge the passage of time is not conservative; it is simply a foolish obstinance.
The stolen SCOTUS seat should remain vacant, unless the President wants to prove his desire to unify the country and nominate Judge Garland.
308
It seems to me that if we apply originalism to the Second Amendment it applies only to flintlocks, and says nothing about any modern firearm, none of which could possibly on the mind of the framers of the Second Amendment.
34
Let's face it. Thomas is the most clueless, undeserving ignoramus to serve on the Court for a long time. He says nothing because he has nothing to say.. Admit it. At least have the courtesy to do that. He is struck dumb because he is. Hypocracy has gone far enough with the election of Trump. Do we have to have an ignorant Supreme Court too?
141
The fact that Thomas'dear wife is a national advocate for 17th century womanhood should not be overlooked! Viva la Salem!
18
Clarence Thomas is the epitome of neo-fascism. Thomas ALONE in dissent in a 8-1 SCOTUS ruling Hamdi v. Rumsfeld —said that the President of the United States, COULD assert Presidential powers as commander-in-chief of the armed forces which gave him the authority to detain Hamdi indefinitely; in other words Forced disappearance - http://tinyurl.com/nln6ymc
Thomas is one of the top five worst SCOTUS justices ever.
Thomas is one of the top five worst SCOTUS justices ever.
266
Scalia and Alito are somewhere in that range as well. Until they joined forces with Thomas and Roberts, the Second Amendment still contained the words "A well regulated militia, being necessary to the security of a free state," but that part of original intent got read right out of the Second Amendment so that their vision of America would prevail.
15
A reasonable Republican administration would nominate an Associate Justice in the mold of Anthony Kennedy. Remember that Kennedy was nominated and confirmed in the Reagan years. But we have not seen a reasonable Republican administration since George Herbert Walker Bush.
11
G H W B gave us Thomas.
But, yes, his administration was, sadly, the high point of the last four GOP administrations. He scaled the heights of mediocrity in a way that neither his predecessor, his son nor the new Narcissist-in-Chief could or can.
But, yes, his administration was, sadly, the high point of the last four GOP administrations. He scaled the heights of mediocrity in a way that neither his predecessor, his son nor the new Narcissist-in-Chief could or can.
26
President Carter established merit selection panels for federal judges. One of the first things Reagan did was to scrap the merit selection panels and replace them with a litmus test. As a result, competent jurists are appointed only by Democrats, and ideologues - Thomas, Scalia, Alito and Roberts on the Supreme Court and hundreds of others on the lower federal courts - are appointed by Republicans.
13
Bush 1, as well as Jerry Ford, who never gets any credit, had integrity, something lacking in all the other GOP presidents from Nixon on, including Reagan. I didn't vote for either of them, but I did, and do, appreciate their integrity.
1
Those who reject original meaning because the world has changed are probably not lawyers. Lawyers argue by analogy and can almost always find aspects of life in the past that are analogous to today. That they may seem a stretch is no reason to reject the analogies. Nothing gives a more principled standard for interpreting the meaning of the Constitution than interpreting its meaning, of course. Those who think the internet has rules of its own, and that original meaning does not apply, abandon the courts to unprincipled prejudice.
But Ms. Foley also misses the mark. There is no reason that original meaning leads to conservative jurisprudence. The Founders were a revolutionary crowd and it seems unlikely that they intended that the Constitution would consistently dictate conservative thought. So how about we get a Justice Thomas who is a liberal?
But Ms. Foley also misses the mark. There is no reason that original meaning leads to conservative jurisprudence. The Founders were a revolutionary crowd and it seems unlikely that they intended that the Constitution would consistently dictate conservative thought. So how about we get a Justice Thomas who is a liberal?
69
Arguing by analogy is a logical fallacy. Analogies can help understand but they make a poor premise. We need jurists smart enough to argue on the basis of facts and reality, not people who need crutches such as analogies. If that means people who are not lawyers...wisdom does not arise in law school. So which is more important, people who can lawyer or people who are wise?
I am a lawyer but have the common sense to observe that my colleagues do not wear powdered wigs, use quills for writing or wait for a circuit judge to travel by horseback to my district for a case resolution. None of this is by analogy; all of it is by common sense stirred into some basic history and pushed through the language of law. I doubt Justice Thomas has a hot line to deceased former politicians' thought process other than current Federalist writings. If he or other originalists claim to hear such voices, this country is in much worse shape than anyone thinks.
Thomas followed Scalia like a caboose after an engine. For entire years, Thomas said hardly a questioning word to witnesses or justices, and voted with Scalia.
To be sure, Thomas began to talk and write a bit after 2015.
But to say as Foley does that we need a second Thomas is to miss the so-called missing justice's years of being Scalia II. We don't need Scalia, Scalia II, or a Scalia 3. Let's get a strong legal mind, maybe an innovative mind. too. Resist Scalia II, would urge.
To be sure, Thomas began to talk and write a bit after 2015.
But to say as Foley does that we need a second Thomas is to miss the so-called missing justice's years of being Scalia II. We don't need Scalia, Scalia II, or a Scalia 3. Let's get a strong legal mind, maybe an innovative mind. too. Resist Scalia II, would urge.
14
Its just so amazingly funny and sad to see an NYT story advocating a Justice Thomas (the mute...did he ask a question in 2016?) model over a Justice Scalia (the little fat man with the flame thrower fueled by dark money) model. But just sour grapes on my part as I dont have the ear of President Bannon as Ms Foley obviously does.
14
Do be aware that, although the NYT gave space to Prof Foley and ran her editorial, their own editorial policy is not in agreement. The NYT, like all thoughtful MSM outlets, is open to the publication of differing viewpoints. This is not at all sad but a credit to their sense of free expression in their own editorial pages. And I do stress 'editorial'; the news department hies to a different, and more rigorous, standard.
1
May I suggest that Anita Hill for the Supreme Court? For all the sophistry being bandied about in the name discourse, isn't it time to acknowledge Thomas was a woeful mistake and to nominate the woman who bravely testified to his character, and is a fine judicial scholar in her own right. She knows how to speak truth to power, something Clarence Thomas is reluctant to do. Prof. Hill actually lives and thinks in the 21 century, Clarence Thomas is stuck in era of rutted roads and horse and wagons. Adhering to the "original intent" to deny civil rights and progress is not what we need to see on the court. Anita Hill would make a fine justice.
79
Sometimes writing down a strange notion just because it pops into your head isn't a good idea. Have you even paid attention to anything Trump has ever uttered?
2
The Republicans cannot be rewarded for their obstruction of Obama over Scalia's seat. Establishment Democrats had better filibuster like their jobs depend on it because they do.
96
They will and McConnell will change the ules by simple majority, game, set, match.
The joke is that supreme court decisions are effected by judge political bias. A court result should be based on law, not whether or not the is a numerical bias of Liberal or conservative justices.
If American law is so poorly written that it's interpretation varies due to political bias, than the law is unfit.
Let's stop the nonsense of calling the supreme court a separate, independent arm of government. Supreme Court justices are legal tools nominated by the President.... Their political mould is near absolute.
Demand better law, uncorruptable to supreme court political interpretation. ...
Of course, north of your border, Justin Trudeaus' father, Pierre, ushered in the ' Charter of Rights and Freedoms' in the 1980s... "Charter challenges" on just about any law disagreeable to liberals continue to this day....The charter more or less enshrined liberal doctrine into Canadian Law and tied the hands of federally elected law makers forever more.
If American law is so poorly written that it's interpretation varies due to political bias, than the law is unfit.
Let's stop the nonsense of calling the supreme court a separate, independent arm of government. Supreme Court justices are legal tools nominated by the President.... Their political mould is near absolute.
Demand better law, uncorruptable to supreme court political interpretation. ...
Of course, north of your border, Justin Trudeaus' father, Pierre, ushered in the ' Charter of Rights and Freedoms' in the 1980s... "Charter challenges" on just about any law disagreeable to liberals continue to this day....The charter more or less enshrined liberal doctrine into Canadian Law and tied the hands of federally elected law makers forever more.
1
Originalism is nonsense. It makes no sense to claim that 18th-century norms are appropriate for the 21st century. More important, original intent is defined at such a high level of abstraction that it can be used to justify pretty much any outcome the judge wants to see.
13
Before we start talking about "Originalism and the judicial philosophy of Clarence Thomas, what about his ethics? While Supreme Court judges don't have to follow the ethics code that Federal jurists do,don't Supreme Court Justices have a special obligation to avoid the appearance of impropriety? Thomas' behavior has raised serious questions.He and Justice Scalia attended a Koch brothers retreat before the Citizen's United decision and didn't recuse themselves. He failed to include his wife's $700,000 salary on a required government financial statement, he accepted a $ 15,000 bust of Lincoln and a $ 19,000 bible that belonged to Frederick Douglas as gifts. Thoroughly documented by the NYT is his close relationship with Harlan Crow, a Texas millionaire developer that raises serious ethical questions. He provide $500,000 for Thomas' wife to start a tea party lobbying group, right after the Citizens United decision, the Douglas Bible was his gift, Crow helped finance a library dedicated to Thomas in Savannah Georgia, and he started a multi million dollar project in Thomas' Pin Point Georgia home town which will have a museum and documentary featuring the justice. The Federal Judicial code discourages fundraising for non profit purposes.
76
Yep. Thomas should have been impeached long ago.
9
As I suspect that the vast majority of NY Times readers disagree with the writer's views of both Scalia and Thomas' intellect and moral righteousness, I am not sure why the paper gave her so much space. Dissenting or alternative opinions are welcome, extremist opinions under the guise of thoughtful legal analysis are not.
5
This is absurd.
The creeping Libertarianism within the judicial right wing should not be encouraged. The entire philosophy is empty philosophically, intellectually and emotionally.
Appointing justices that fit the profile Ms. Foley recommends will only increase populist reaction. Acting in a way that supports the desires of business over the needs of the people to be protected is what got us to this point of a Trumpist presidency. Those who have lost sight of the American dream promised them in their lifetime are his most rabid supporters. Meanwhile the richest among us have hoarded more and more of the wealth of the nation for themselves.
Going back to the legal framework of the early 20th century where right wing judges shut down all restrictions on business or attempts to provide social programs in any way is what created the anguish of the depression, and the need for a New Deal, where until Roosevelt threatened to stack the Supreme Court every one of his necessary social programs were overturned.
The ideas are outdated, destructive and the representation of corporate greed's growing hold on the conservative judiciary.
The creeping Libertarianism within the judicial right wing should not be encouraged. The entire philosophy is empty philosophically, intellectually and emotionally.
Appointing justices that fit the profile Ms. Foley recommends will only increase populist reaction. Acting in a way that supports the desires of business over the needs of the people to be protected is what got us to this point of a Trumpist presidency. Those who have lost sight of the American dream promised them in their lifetime are his most rabid supporters. Meanwhile the richest among us have hoarded more and more of the wealth of the nation for themselves.
Going back to the legal framework of the early 20th century where right wing judges shut down all restrictions on business or attempts to provide social programs in any way is what created the anguish of the depression, and the need for a New Deal, where until Roosevelt threatened to stack the Supreme Court every one of his necessary social programs were overturned.
The ideas are outdated, destructive and the representation of corporate greed's growing hold on the conservative judiciary.
24
In the Spirit of Good Old American Compromise may I suggest:
Justice Ginsborg agrees to step down if Trump will nominate and the
Senate approve Judge Merrick Garland. To replace Scalia, Trump
nominates Judge Neil Gorsuch.
Both men are fine Judges.
Both sides get what they want and the Supreme Court is back to 9 Justices.
[ For this wonderful suggestion of a Compromise in the Best of American
Traditions and my NYT Pick last week, I do think I should get Verified
Commentator Status - Idaho does deserve due representation among the
Verified Commentators.]
Justice Ginsborg agrees to step down if Trump will nominate and the
Senate approve Judge Merrick Garland. To replace Scalia, Trump
nominates Judge Neil Gorsuch.
Both men are fine Judges.
Both sides get what they want and the Supreme Court is back to 9 Justices.
[ For this wonderful suggestion of a Compromise in the Best of American
Traditions and my NYT Pick last week, I do think I should get Verified
Commentator Status - Idaho does deserve due representation among the
Verified Commentators.]
2
I wish to file a report that the Times op-ed page has been hacked.
6
Thomas literally believes the law should reflect 18th century values, and wholly ignores the transformative impact of the Civil War through the 13th, 14th and 15th amendments. He is not a principled conservative, but an inconsistent ideologue who seems to hate modernity. He is a role model only for what to avoid.
13
After Obergefell came down and I had read all the way to the Thomas dissent where he asserts the original understanding of "liberty" as freedom from government action, not a right (read "liberty") to have something, I paid a visit to the history museum in Darien, GA. And something jumped out at me!
GA was originally a free colony, but in competition with the Carolina slave colonies, began to consider adopting slavery. Darien opposed slavery and wrote, in the opening line of their Petition Against introducing Negroe Slaves (1738–39):
We are informed that our Neighbours of Savannah have petition to your Excellency for the liberty of having Slaves: We ... intreat ... your Excellency will consider ... of what dangerous ... consequences such liberty would be of to us ....
Putting aside the immense complication, if one can, of the disregarded liberty of the "Negroe Slaves," I was struck by the usage "liberty of having" something (here, "Slaves").
Now look at this similar usage from Lincoln addressing Marylanders: “With some the word ‘liberty’ may mean for each man to do as he pleases with himself, and the product of his labor,” ... “while with others the same word may mean for some men to do as they please with other men, and the product of other men’s labor.” https://mobile.nytimes.com/2017/01/21/opinion/sunday
Ascertaining the original public understanding of a certain term – here, "liberty" – is not as easy as it sounds.
GA was originally a free colony, but in competition with the Carolina slave colonies, began to consider adopting slavery. Darien opposed slavery and wrote, in the opening line of their Petition Against introducing Negroe Slaves (1738–39):
We are informed that our Neighbours of Savannah have petition to your Excellency for the liberty of having Slaves: We ... intreat ... your Excellency will consider ... of what dangerous ... consequences such liberty would be of to us ....
Putting aside the immense complication, if one can, of the disregarded liberty of the "Negroe Slaves," I was struck by the usage "liberty of having" something (here, "Slaves").
Now look at this similar usage from Lincoln addressing Marylanders: “With some the word ‘liberty’ may mean for each man to do as he pleases with himself, and the product of his labor,” ... “while with others the same word may mean for some men to do as they please with other men, and the product of other men’s labor.” https://mobile.nytimes.com/2017/01/21/opinion/sunday
Ascertaining the original public understanding of a certain term – here, "liberty" – is not as easy as it sounds.
11
Either another Scalia or another Thomas would be a disaster. What we need is a Louis Brandeis.
13
Exactly! Louis Brandeis is exactly what we need. Justice Souter was fairly close to that.
Professor Jack Rakove demonstrated the intellectual bankruptcy of the so-called 'originalists' jurisprudence. His Pulitzer Prize winning book, Original Meaning, asked pointedly where the originalists looked for such meaning.
The only trustworthy source would be the records of the debates at the 13 Constitutional Conventions held in the states, but there is no such record, because 'original meaning' was a worthless and inapposite theory of constitutional analysis. The Federalist Papers are not contemporary thoughts of those who voted on the constitution, but are a compilation of advocacy documents drafted only a few white men from among the many who voted on the constitution who also wanted the document adopted.
Only those who are ignorant of the law, but need some mantle of respectability to wrap around their personal biases and judgments reach for the tattered rags of 'originalism'.
if the author of this essay did not telegraph its comic and flimsy substance by referring to Justice Thomas as the type of justice the country needs, then a complete reading of this nonsense drives home that message and brings much mirth. It is a truly funny essay built on a ridiculous idea.
The only trustworthy source would be the records of the debates at the 13 Constitutional Conventions held in the states, but there is no such record, because 'original meaning' was a worthless and inapposite theory of constitutional analysis. The Federalist Papers are not contemporary thoughts of those who voted on the constitution, but are a compilation of advocacy documents drafted only a few white men from among the many who voted on the constitution who also wanted the document adopted.
Only those who are ignorant of the law, but need some mantle of respectability to wrap around their personal biases and judgments reach for the tattered rags of 'originalism'.
if the author of this essay did not telegraph its comic and flimsy substance by referring to Justice Thomas as the type of justice the country needs, then a complete reading of this nonsense drives home that message and brings much mirth. It is a truly funny essay built on a ridiculous idea.
21
And professor Foley,
I suppose we can go back to slavery then.
I suppose we can go back to slavery then.
9
An eloquent lunatic versus a tongue tied lunatic... It is hard to be sensible right now. On a serious note though, who would want to be nominated by Trump? And does Trump not corrupt the very core of conservatism by pretending to want to bring such a justice to the court?
2
"Justice Thomas’s quieter disposition — he rarely asks questions at oral arguments — camouflages an equally deep and tenacious intellect."
Fooled me. I thought his lack of questions showed he simply didn't care what the attorneys thought. He is the most self-contained Justice ever to sit on the Court. When he writes in dissent, almost all his citations are to his own prior dissents. A few more Justice Thomases and the Court could dispense with oral argument and perhaps dispense with briefing.
Fooled me. I thought his lack of questions showed he simply didn't care what the attorneys thought. He is the most self-contained Justice ever to sit on the Court. When he writes in dissent, almost all his citations are to his own prior dissents. A few more Justice Thomases and the Court could dispense with oral argument and perhaps dispense with briefing.
11
Sure, just what we need. Yhomas will go down as "who?" As never written any important opinion and probably never will.
I do not like or respect the judicial "philosophy" of Justice Thomas. He looks at every case as if the Supreme Court had never issued any relevant opinions on a matter before his. As I see it: He looks at the facts of a case; he looks at the statute or Constitutional provision; he reaches a conclusion; then he has his clerks go back and find prior cases to support the conclusion he has reached. He just does not credit what thousands of judges have learned over the past 225 years in America and 500 years before that in England.
99
Hmmmm...I thought he called his bosses the Koch Brothers first and foremost.
1
Sterling,
Given that there have been Federal Cases where the vast majority of all
the Judges who ruled on the case before it reaches the Supreme Court
all favoured one view and even the Supreme Court divided 5/4 -
it is hard to support your claim that all Judges, even the majority of Judges
truly ponder what previous Judges have decided in the past few hundred years.
From what I can tell - Supreme Justices vote the way they are inclined
and, indeed have the clerks write the notes supporting such a view.
tr
Given that there have been Federal Cases where the vast majority of all
the Judges who ruled on the case before it reaches the Supreme Court
all favoured one view and even the Supreme Court divided 5/4 -
it is hard to support your claim that all Judges, even the majority of Judges
truly ponder what previous Judges have decided in the past few hundred years.
From what I can tell - Supreme Justices vote the way they are inclined
and, indeed have the clerks write the notes supporting such a view.
tr
2
To the massively activist Justices on the Right, the Constitution never means what it says. It means what they want it to mean.
They freely ignore or distort stare decisis (precedent) in their zeal to make new laws favorable to their own ideology.
"When I use a word," Humpty Dumpty said, in a rather scornful tone, "it means just what I choose it to mean, neither more nor less."
- Lewis Carroll
They freely ignore or distort stare decisis (precedent) in their zeal to make new laws favorable to their own ideology.
"When I use a word," Humpty Dumpty said, in a rather scornful tone, "it means just what I choose it to mean, neither more nor less."
- Lewis Carroll
1
"Justice Thomas’s quieter disposition — he rarely asks questions at oral arguments — camouflages an equally deep and tenacious intellect." Nice presentation of 'alternative facts' Professor Foley. In his 25 years on the court, I believe that Thomas has asked two questions, two! In almost every decision with the few exceptions noted, he voted with Scalia. Every ... single ... time. Tenacious intellect, how would one know? He voted to install GW. Bush while his wife was on GW's payroll, and then denied they talked about it (a massive conflict of interest that would have disbarred a lessor judge). History now shows that he perjured himself during the hearings with Anita Hill. He presided at one of Rush Limbaugh's weddings and attended another besmirching the Supreme Court by (again) calling it's political neutrality into question. Another Clarence Thomas? Sure, sounds like a perfect fit for Donald Trump's "values."
15
That's some "camouflage" -- it's working a little too well, I think.
Clarence Thomas has a "deep and tenacious intellect." Oh yes, hilarious, that's a real thigh-slapper, right there.
7
When I joined a 5 million popular vote majority to elect Barack Obama in 2012, I hoped to see a liberal judge put on the Supreme Court.
Republicans in the Senate said NO, NO, NO. We waited 11 months and Merrick Garland, a centrist, not a liberal, was not even considered.
When I joined a 2.85 million popular vote majority to vote for Hillary Clinton in 2016, I again hoped to see a liberal judge put on the Supreme Court. The country waited 11 months last year. Now let Democrats in the Senate say NO NO NO until a Democratic majority takes over the Senate in the 2018 midterms.
Republicans in the Senate said NO, NO, NO. We waited 11 months and Merrick Garland, a centrist, not a liberal, was not even considered.
When I joined a 2.85 million popular vote majority to vote for Hillary Clinton in 2016, I again hoped to see a liberal judge put on the Supreme Court. The country waited 11 months last year. Now let Democrats in the Senate say NO NO NO until a Democratic majority takes over the Senate in the 2018 midterms.
14
Cults of personality are at best a distraction, and at worst a deformation of good reasoning. I think it would be wise for the Right to start to wean itself from them, especially in the age of Trumpism.
Scalia, Thomas, Roberts, or Alito, should the should not the call be, not for "another so-and-so," but rather, "another thus-and-so"? My meaning being, would it not be better if the public were drawn, not to personalities, but to detailed and specified principles?
This column goes a good way toward offering such specifics, and I applaud the author for that. It is refreshing. I hope we see more of these sorts of debates. Elevating cults of personality (which the Right has done with Scalia relative to SCOTUS and Reagan relative to POTUS) obscures being specific about what exact reasoning is at issue.
I think both conservatives and liberals could benefit from a focus on how well a nominee reasons the law. Focusing on the name tends to foster the rise of mere ideologues, which our court does not need. Cults of personality create vacuums of actual facts, into which mere ideology or opportunism gladly steps in.
Sadly, these are not the sorts of debates I would expect Trump and his minders to be capable of, or interested in, cultivating. So much easier, just blaring a name over and over and over.
Scalia, Thomas, Roberts, or Alito, should the should not the call be, not for "another so-and-so," but rather, "another thus-and-so"? My meaning being, would it not be better if the public were drawn, not to personalities, but to detailed and specified principles?
This column goes a good way toward offering such specifics, and I applaud the author for that. It is refreshing. I hope we see more of these sorts of debates. Elevating cults of personality (which the Right has done with Scalia relative to SCOTUS and Reagan relative to POTUS) obscures being specific about what exact reasoning is at issue.
I think both conservatives and liberals could benefit from a focus on how well a nominee reasons the law. Focusing on the name tends to foster the rise of mere ideologues, which our court does not need. Cults of personality create vacuums of actual facts, into which mere ideology or opportunism gladly steps in.
Sadly, these are not the sorts of debates I would expect Trump and his minders to be capable of, or interested in, cultivating. So much easier, just blaring a name over and over and over.
2
We now have passed through the looking glass into another world. We are unmoored. The anchor of our former selves has been hoisted. Our new national character is being forged as I write. When the new anchor is dropped, "America" will be a world gone. I doubt if we can find its way back: protests, the courts, voting, won't work. Go ahead. All exits are blocked. This is something we can't talk our way out of, ignore, or fix. Clarence Thomas. It is Wagner without art what is happening. "You're fired!"
1
Ha. I thought this was going to be satire. But to be honest the "deep and tenacious intellect" would have been humorous except for the dark cloud that has descended over our nation. The man is at best a judicial hack and he rarely opens his mouth because, sadly, he knows it.
3
Whoever that illegitimate con man appoints should be impeached as soon as we are rid of trump. Nothing he does is good. Period. As for Thomas, he hates gay people. His stupid and I mean stupid, bigoted, ahistoric balony, "“Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved,” idiocy which has nothing to do with gay marriage or gay people is just more fanatical right wing hatred spewing out. Of course trump could always surprise us in a good way, but the odds are very much against it.
3
Huh?
Better to have a Merrick Garland.
Better to have a Merrick Garland.
5
Clarence Thomas?
2
Sorry, but you are mistaken. the Court needs another Ruth Bader Ginsburg.
7
Justice Thomas does not demonstrate the intellect necessary for a Supreme Court Justice, as this author's handpicked examples, unfortunately, demonstrate.
Of the exceptional 'strict Constitutionalists' on the Court, it is puzzling why the author would hold up Justice Thomas as the example to replicate.
Why not another Justice Roberts? I am no conservative, but if we must have one, let us have one who can think.
Of the exceptional 'strict Constitutionalists' on the Court, it is puzzling why the author would hold up Justice Thomas as the example to replicate.
Why not another Justice Roberts? I am no conservative, but if we must have one, let us have one who can think.
6
What we need is of little or no consequence. What we will get is someone who follows the straight GOP party line. Trump will nominate. The obedient Trump Chumps in the Senate will approve.
9
What we need is someone who places natural rights beyond the reach of political or religious ideology, who will defend the individual against the majority, and who celebrates the principles of free and fair elections.
6
Thomas goes much further than this. His brand of constitutional purity is best exemplified by his unusual embrace of the 9th amendment. In his view, that oft-ignored amendment should vigorously protect the unenumerated liberties of the individual against government overreach. Coincidentally, his understanding of what those unnamed rights actually are just so happens to favor a far right political agenda.
4
What a grest idea! Or it would be if this were January, 1817. I seem to recall a conservative judge who said that while he might tilt in the originalist direction, unlike some on thr federsl bench, he was not delusional.
5