by Mark Davis
At the end of each term, Associate Justice of the Supreme Court Clarence Thomas takes his clerks to Gettysburg in order to give them a perspective on what this nation has endured, and to illustrate what sacrifices those who came before us have made to protect the liberty we enjoy today. In a recent speech at Stetson University College of Law, Justice Thomas recalled Abraham Lincoln’s famous words when he told the students: “The people who sacrifice so that we can be here in peace will be long remembered. Our little job, while we’re here, is to make their sacrifices worthwhile.” I believe, as Thomas enters his third decade as a Supreme Court justice, that this is a time to remember the contributions that Clarence Thomas has made to secure those sacrifices.
Justice Thomas is perhaps the Court’s foremost defender of the originalist perspective of constitutional interpretation. Originalism is the belief that the Constitution is to be interpreted as the founders intended it to be read, and as it was understood at the time of its inception and writing. Living constitutionalism, by contrast, is an interpretation that believes the constitution changes as our nation and society do. It is Thomas’ belief in originalism which provides the basis of every decision he makes. It is this belief that has made Justice Thomas the Court’s most outspoken and stalwart defender of adult freedom of speech. In Justice Thomas’ concurrence to the 1995 decision in Mcintyre v. Ohio Elections Commission, he wrote that, while he agreed with the ruling, he could not join the majority analysis of the decision because it deviated from the settled approach and superimposed modern theories upon the constitutional text. He noted that the the opinion “sheds no light on what the phrases “free speech” or “free press” meant to the people who drafted and ratified the First Amendment.” All speech, anonymous or otherwise, valuable or not, should be afforded the protection of a right. “We need not provide this analysis, when the original understanding provides the answer,” Thomas wrote.
Thomas’ concurrence in the 1995 case United States v. Lopez has helped provide the groundwork for the current case against “Obamacare.” In this case, Thomas observed “that our case law has drifted far from the original understanding of the Commerce Clause. In a future case, we ought to temper our Commerce Clause jurisprudence in a manner that both makes sense of our more recent case law and is more faithful to the original understanding of that clause.”
He implied that over-interpretation of the Commerce Clause (the portion in Article 1 Section 8 of the Constitution that declares the power of Congress to regulate commerce among the various states) is beginning to undermine the purpose of the Constitution overall. This is not difficult to see; as the Commerce Clause is used more and more to justify the reach of the federal government, the limitations afforded by the Constitution cease to be limitations at all.
For his part, Thomas refuses to “make stuff up,” and keeps his view of what constitutes a right refined yet broad. There are many people to whom we owe our liberty, Justice Thomas is among them. We should pray for 20 more years of service.