Clarence Thomas on the 14th Amendment

(Justice Clarence Thomas)

Over the Yom Tov, I've been obsessively thinking about the 14th Amendment. The Amendment basically allows the Federal Government to protect individual rights against an infringement by the States. The reason why an amendment was necessary for that is that before, the Bill of Rights only applied to the Federal Government, both in text and in logic. The logic is very simple: the States are the sovereign. They create an organization called Federal Government, whose job is to create a union between the States and preserve it, but the Federal Government cannot have any kind of sovereignty over the States themselves.

Here lies the problem with the 14th Amendment. Seemingly, it reverses the polarity between the States and the Federal Government. If the Federal Government can come in and enforce, say, freedom of religion, in Massachusetts (where, to begin with, it was the State's supposed right to enforce Protestant Christianity and tax all its citizens for the purpose of building Protestant churches), then the Federal Government is the sovereign, not the States.

Not only is this a problem from practical point of view (since it grants the Federal Government unlimited power to interfere with the States), but it's also a problem from the point of view of legal philosophy. Where does the Federal Government get the authority to do so? Was the 14th Amendment effectively a revolution that replaced a federal government with a national government? Was it, furthermore, a conquest -- with the Federal Government suddenly becoming an independent entity ("it's alive!") and then conquering the States and subjugating their sovereignty?

It may be troublesome for a libertarian that the States have no checks on their power except their own constitutions (although that is arguably not worse than the Federal Government having an unlimited power; it's much easier to move to another state; furthermore, states can compete with each other), but the legal legitimacy of the 14th Amendment is equally troubling.

In his opinion on a 2010 case concerning gun rights, Justice Thomas significantly clarified the issue.

The general background for the case is described here.
The specific analysis is here.
You can read the opinion here (search for "Opinion of Thomas, J." several times to get to his opinion in the text; for the crux of the matter go to page 39 of the opinion).

Briefly, in his opinion, Thomas argues that the 14th Amendment is necessary for the preservation of the Union and the Constitution, since it protects the legitimacy of the individual States' governments, which is the source of the legitimacy of the Federal Government and the Constitution. Since the States derive their moral power to government from the purpose of protecting people's rights ("...and to protect these rights the governments are formed"), when the States fail to do so, they lose their legitimacy. As a result, the Federal Government and the Constitution also lose their legitimacy. Therefore, it is a responsibility of the Federal Government and the Constitution, as the preservers of the Union, to make sure that the States protect individual rights.

What about the sovereignty? Well, no, the States are still the sovereigns. But, when the States created the Union, they alienated some of their rights for that purpose. For instance, the States agreed not to exercise their rights to coin money or make independent treaties with foreign governments, delegating those rights fully to the Federal Government. The same goes for imposing tariffs on each other: the States gave up that right, in the context of being in the Union; furthermore, they authorized the Union, under the Commerce Clause, to "regulate interstate commerce", including making sure that the States cannot impose the tariffs on each other.

So, Thomas's view explains why the Federal Government has a right to enforce individuals' rights against the States: it is an act of protecting the Union and the Constitution from moral and legal illegitimacy.

This view is novel and very interesting for a libertarian, because it does not take for granted the moral and legal legitimacy of either the Federal Government or a State's government.

Furthermore, it provides legal justification for the benign mechanism of protection of the individuals' rights against the States' tyranny. And, finally, it explains that the 14th Amendment does not need to be interpreted as an inversion of the sovereignty between the States and the Federal Government.

So much for being an idiot, eh?

[Many people consider Justice Thomas to be an idiot because he does not participate in the oral arguments. In an interview, Thomas explained that he does not participate in the arguments because interrogation of the lawyers adds nothing to the case for him. For the most part, Justices comes to the oral argument having already decided on the case, and most of the discussion happens between the Justices behind the closed doors anyway. His job, Thomas says, is not to interrogate the lawyers, but to vote on the cases and write the opinions.

I disagree that it's not important to interrogate lawyers. First, one must give the lawyers a chance to present their case and defend it (thus, one must approach the case with an open mind as much as possible; certainly, it may not always be feasible, but to make a doctrine out of the made-up mind is not acceptable, in my opinion, for a judge). Second, oftentimes, other Justices' opinions are swayed by the arguments. For instance, Justice Kennedy is well known as a swing-vote. Also, even the liberal Justices' opinions may be swayed. For instance, in a recent case, Justice Alito (a Conservative) swayed a Liberal Justice Breyer's opinion on a case regarding firing a teacher from a religious school. (The case was regarding whether a Lutheran school may fire a teacher who sued the school in a secular court, which is against the Lutheran doctrine. Alito asked the question: Can a Catholic school fire a priest who became married?)

Having said the above, just because I disagree with Justice Thomas's decision not to speak, I cannot agree with the popular view of him as an idiot. The above opinion of his is a good example why not.]

Three answers to the vast majority of liberal arguments

I think if there was a way to answer in one sentence to the vast majority of liberal arguments of why the government should do X or Y, this would be the best answer from constitutional point of view:


(source)

In the famous case of United States vs. Lopez, it was argued whether the government has powers, under the Interstate Commerce Clause, to make it illegal to carry concealed firearms on school campuses. The argument that the General Solicitor (the government's lawyer) presented was that carrying guns on school campuses disrupts education, which eventually has an effect on commerce of the nation. Therefore, in an effort to preserve the national commerce, the government has a power to ban guns on the campuses.

The defense lawyer argued that the Congress has to make findings explicitly linking the banned activity to the interstate commerce, not a hypothetical that might affect interstate commerce. Furthermore, he argued, it is not within jurisdiction of the Federal Government to fight crime on campuses or protect education — that remains a State's prerogative, and when the Government tries to interfere, it is crossing into the State's jurisdiction.

Justice Kennedy asked whether the Federal Government can make it illegal to throw a firebomb into a school house.

Before the lawyer had a chance to answer, Justice Scalia said the text quoted above. Sometimes the concept of the limit on the government's powers means a limit on the government's powers to do good things as well.

Or what one considers to be a good thing.

This, then, is another argument that one can throw at the liberals. The reasons why the government should not regulate people's private lives in an effort to improve the society are:

1. It is pragmatically bad, because the government is plagued by all the problems of a central planner and cannot predict (as nobody can) how to distribute resources most effectively, how to regulate without creating perverse incentives and unintended consequences, etc. In short, when the government interferes, it makes things worse. Opposite from what it was trying to do. Therefore, distribution of resources and improvement of society is best left to private entities competing on a free market. This is an economist's argument.

2. It is a violation of people's natural rights. Even if something is a good thing, you can't violate natural law, in the form of people's natural rights, to achieve this good thing. It is naturally illegal. The function of the law is not to improve society, but to resolve conflicts. When the government attempts to do the former by interfering with people's private lives, it is not only misusing the function of the law but is in fact going against it. This is a libertarian legal philosopher's argument.

3. It is unconstitutional. The people simply have not given the government such powers in the Constitution when it was written. If people wish to do so later, they can do so by ratifying an Amendment. But until that has been done, the Constitution must be interpreted according to the original intent, because the original intent shows which powers the people and the states have clearly ceded to the government.

For instance, imagine I give you a job of cleaning my house under the arrangement that you only clean in the specific places that I told you to. Then, if you want to enter room A, you have to make sure I have given you explicit instructions to do so. If "situation has changed" and, say, there was a spill that went under the door into room A, you can try to call me and obtain my permission to enter the room A. But until I have given you an explicit permission to do so, it is unlawful for you to enter my property without a permission. The same way, under the Constitution, the government has been given a limited list of enumerated powers that the individuals and the States have delegated to it. If the government tries to do something that it was not delegated to, it is infringing the States' and the individuals' rights. This is a conservative constitutionalist's approach.

This is a good video about Justice Scalia:

Exclusionary rule

Interesting news on developments in the exclusionary rule.

Reading stuff like this makes me want to drop everything and go learn my Gemara (see, there is a misnaged in all of us).