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.]