Opinion: Mailbag: Clarence is come; false, fleeting, perjured Clarence

As ‘dodgy’ and ‘disingenuous’ as McGough characterizes the arguments of those Supreme Court justices who formed much of the majority in the ‘BONG HiTS 4 JESUS’ case, I believe Justice Clarence Thomas is just as dodgy and disingenuous. By employing his originalist ‘technique’ to interpret the Constitution, Thomas fails to acknowledge the given fact that societies and their mores change over time. The framers of the Constitution never believed that slavery would be deemed unlawful, or that women would be allowed to vote, or that consuming wine or beer would be prohibited. By Thomas’ originalist barometer, he’d never have been able to learn to read, let alone attend law school and ascend to the highest court in the country. Whatever we may think, schools are not parent substitutes. While it’s their job to teach and to provide order to their students during the day, it is not their job to regulate their speech to the point where it limits their ability to express themselves. Justice Stevens was right that the ‘Bong Hits’ banner was simply an attempt to grab attention. Further, the First Amendment, as it has been interpreted for generations, clearly establishes that the federal or state governments may not be seen as having any bias toward any particular religious belief, or even religious belief at all. Since public schools fall under local, state, and federal government oversight, any insertion of religious doctrine, such as those contained in the Pledge of Allegiance and inscribed on our currency, can be construed in a way that the government promotes religious faith, and is therefore unconstitutional.

Someone please give Justice Thomas some pornography cases to ponder when the Court hears its next desegregation case.

The article on Thomas is tripe. He is not a great thinker. He doesn’t march to a different drummer. He is not a man in touch with who he is. He is not siding with the conservative majority because he shares their worldview. Thomas hates the fact that he is Black. He rejects what he is and thinks his actions on the court will blunt the fact that he hates what he sees in the mirror. To alleviate the obvious racial/self hate pathology he exhibits, he has taken against most things beneficial to minorities. Some of the decisions he has joined, from any point of view, would highlight that this guy would sell his soul to be a WASP. Since that isn’t possible, he does what he considers to be the next best thing - to repudiate laws/policies for others that helped him get where he is now. What idiot, who is a minority, could in any good conscience, vote that race cannot be a factor in where children go to school. Well documented studies with longevity to bolster and provide unassailable proof that most minority neighborhoods, especially those of Blacks and Latinos have basic, economic inequities in resources, facilities, teacher pay rates and tax bases render such a decision by the court as the one handed down today as beyond foolish to land in the ludicrous column. The years since the decisions in the 60’s have not been that conducive to rectifying the injustices of the past. This majority is doing its best to ensure that corporate and conservative views on these matters prevail. You can say say that race and economics on the part of the other four justices did not factor into their decision. I say you are wrong. Race is the greatest underlying factor in their decision and in Thomas’s concurrence with economics a very close second. All the concurring justices have the same motivation, keep the minorities as a permanent underclass, using ‘ringer cases’ that cannot be appealed to a higher power. The same strategy has been used throughout the long history of American jurisprudence in matters concerning race, class and economics. I hate that Thomas hates himself enough to pretend he is not like ‘those people’ he is consigning to some difficult days. I agree, he isn’t like us, he is worse. This was a shoddy decision based on amost cavalier reasoning. Just find something to hold up a pre-planned decision.

Perhaps Mr. McGough would like to elaborate on how originalism is an “inadequate” method of constitutional interpretation, even as he graciously concedes that it is at least respectable. Don’t beg the question and assume we’re all on board. While there may be some circumstances brought about by modernity which are inadequately addressed—or completely unanticipated—by the document’s original and intended meaning, its framers were sufficiently erudite to include within the Constitution a mechanism for amending it as necessary in order to adapt it to unforeseen changes in our society and culture. The fact that the amendment process was intended to be difficult to pull off, highly deliberative and super-majoritarian has not stopped it from being used a full 27 times in the 218 years since the Constitution was ratified. What the framers never would have envisioned, and certainly never would have stood for, is the notion of 9 oligarchs in black robes wielding the power to change the meaning of their great work according to whim, fad or whether a justice had a case of indigestion. ‘We shall never prevent the abuse of power if we are not prepared to limit power in a way which occasionally may also prevent its use for desirable purposes.’ –F. A. Hayek

If Justice Thomas believes that schools should retrogress to colonial times, then he should remove himself from the bench. After all, he should not only have no vote or right to hold office but is also, in fact, less than a whole man. On Election Days, he can wait on the women folk sipping tea at the big house. After all, there is no point in their going to the polls either. Hopefully, no one gets sick while all the men folk are off voting. None of the ladies know how to properly bleed a patient to cure maladies.

Mr. Mcgough, Gee Michael, how sweet your support for Justice Thomas. Born from racial and sexual controversy, no need to mention disproved. An independent thinker because he is only 1 of nine that fills the job description of using the Constitution as the basis for decision. A legal compass pointing out the obvious legal flaws and dysfunction of the ‘O’Connerist’ living constitution approach which of course you see as superior though dishonest at best. Not a single bow to his superior intellect, but there it is unstated in your prose none the less. After all, we would not want to conjure up the insults to the intelligence and morality of this man during his inquisition, i mean confirmation. Add thank God there is but one honest and superior intellect of his ability on the court and sign off. Sir, if i had a friend, colleague, or relative of your ilk i would delete him or her so fast their vestiges would be but a dim forgotten haze. You cook your thinking up just as the other 8 do.What is right and correct is what we perceive is politically needed at the moment. Yes Michael, your living constitution has severed, i mean served the constitutional rights and liberty of man so well. Fire yourself Mike, you earned it. When the future history of the court is written justice Thomas will be remembered as a giant and the leftest waffle makers will be recalled as toads. That just has to ruin your day eh?

The need to maintain precedent is a great need because it makes claer what the rule of law is, and what litigants or law-abiders may expect. That means that a bad decision becomes a good decision once it has been made. This is of course an unintended consequence. For example, many folks think that Roe is terrible law, even while accepting the legality of terminations of pregnancy. But stare decisis carries its own weight. The court reverses, ‘de jure’ as with ‘We Reverse’ but also reverses ‘de stealthio’ with its incomprehensible parsing of how cases are distinguished from one another, vs how they are on all fours or maybe three and half or 2.9. The adherence to bad precedent is a complicated question. Thomas has made the most incisive public comment: he says that unless the Court can reverse, then only the impossibility of a Constitutional Amendment can reverse, and this is nonsense. Yet reversals encourage ‘gaming the system’ and disrespect for the rule of law. In Bong Hits, the court was wrong, in that this was off-campus speech, and obviously political speech at that; glorification of drug use, via mockery and spoof, and mockery of religion, in a religious society, are exactly political speech and thus protected. Thomas referred back to the early days of education, but, without reading the decision, only the commentary, the case cites Thomas uses are state courts, not federal, and to give state courts precedent power over the federal court is an awesome abdication of the federal issues of free speech protections. For myself, as a trained social science PhD, all invocations of social reality, such as the role of schools, requires statistical argumentation, not opinion or whimsy. The 1954 Brown desegregation matter relied on social science data, lousy data, but was a science drive enterprise. Most social science data re equivocal, and so the justices should abstain from sociological invention. Justice Thomas is free to form originalism, and a lot of us like that. Originalism does not mean that 1840s precedent are binding over 2007 precedent. Originalism means what did the drafters mean; if they are silent, then so must we be. Or, wemust find our meaning in the original debate. The power of precedent is a nontrival power.