Thomas’ Take on the Law Rooted in 18th Century

Times Staff Writer

Justice Clarence Thomas may be silent in the Supreme Court during public arguments, but he is not shy about making bold pronouncements in written opinions.

His latest challenge to conventional wisdom came this week in the Pledge of Allegiance case, when he opined that the Constitution protected a state’s right to recognize an official church.

Almost everyone has assumed that the opposite is true.

It is not the first time Thomas has tried to turn the standard thinking on its head when it comes to understanding key parts of the U.S. Constitution. He has done so by focusing on the words and history of the document as it was written in 1787.


“He likes to say we should look at this afresh. Our law is muddled, and we should rethink it,” Yale Law School professor Akhil Amar said admiringly of Thomas.

But the consequences of his “rethinking” could be far-reaching.

For example, Thomas has argued that the word “commerce” in the Constitution should be understood as it was in the 18th century: the movement of goods across state lines. Under this view, the states could not erect tariffs or other barriers to the free flow of goods.

In the 20th century, however, the Supreme Court adopted a much broader view of commerce, relying on that definition to uphold federal laws that set minimum wages, prohibited discrimination in the workplace, protected the environment or regulated the manufacture of products, including autos and drugs.

In a separate 1995 opinion, Thomas said that this broad view conflicted with the Constitution and should be reconsidered. If his colleagues ever agree, many of today’s workplace laws would be struck down.

Soon after joining the court in 1991, Thomas wrote that the word “punishment” in the Constitution restricted only “judges, not jailers.” The high court had adopted a broader view of the ban on “cruel and unusual punishment” in the 1970s and protected prisoners from being subjected to needlessly cruel treatment.

When Thomas denounced this view as flatly mistaken, Justice Harry A. Blackmun pointed out that his opinion would permit the torture of inmates by prison guards.

Two years ago, Thomas condemned the doctrine supporting the separation of church and state, saying it grew out of “anti-Catholic bigotry” during the 19th century. Then, Protestants controlled the public schools, and immigrant Catholics set up their own schools to escape the Protestant influence, he said.

Beginning in the 1940s, a unanimous Supreme Court said that the 1st Amendment erected a “wall of separation between church and state,” quoting Thomas Jefferson. Relying on that view, the court in the early 1960s struck down state-sponsored prayers and Bible readings in the public schools. Later, the justices voided state laws that funneled tax money into religious schools.

Many conservatives, including Chief Justice William H. Rehnquist, say the court has gone too far. On Monday, he said the court should uphold the words “one nation, under God” in the Pledge of Allegiance because its daily recital in the schools was “a patriotic exercise, not a religious one.”

In his separate opinion, Thomas said he would go much further and sweep aside 60 years of law by ruling that the 1st Amendment did not limit a state’s power to “establish” an official religion.

“Quite simply, the Establishment Clause ... protects state establishments from federal interference. [It] does not protect an individual right,” he wrote.

He pointed to its words: “Congress shall make no law respecting an establishment of religion.” Until the Civil War, the 1st Amendment and the rest of the Bill of Rights limited only the federal government. After the Civil War, however, the Constitution was amended and states were barred from infringing on “the privileges and immunities” of Americans, including their rights to due process of law and the equal protection of the law.

By the mid-20th century, the Supreme Court had ruled that the Constitution as a whole prohibited states and local governments from violating basic rights, such as freedom of speech and religion, by denying fair trials or by promoting an official religion.

The Rev. Barry Lynn, executive director of Americans United for Separation of Church and State, called Thomas’ view “breathtakingly radical.”

“Mississippi could be officially Baptist, and Utah could be officially Mormon. If his viewpoint ever became the majority on the high court, it would tear our country apart along religious lines,” he said.

Constitutional scholars in the area of religion credit Thomas with reviving a historical, if now outdated, view of the 1st Amendment.

“I thought his was the most interesting opinion in the pledge case. Thomas is right as a matter of history,” says Richard W. Garnett, an associate professor at the University of Notre Dame Law School “But I think most people would see it as water under the bridge.”

Others were less charitable. “This is a pretty astonishing view. No one [among past justices] has gone remotely this far, and I don’t think he’ll get a second vote for it,” said University of Texas law professor Douglas Laycock.

“He is a hard-nosed originalist who looks back to 1791,” when the Bill of Rights was ratified, Laycock said. “He acts as though the Civil War didn’t happen, or it didn’t matter.”

The significance of the Reconstruction-era amendments often divides conservatives and liberals.

While conservatives emphasize that the Constitution of 1787 limited the national government and protected the rights of the states, liberals counter that the Reconstruction amendments fundamentally widened the scope of the Constitution by imposing limits on the states and protecting the rights of individual Americans.

Thomas will be 56 next week. Despite his 13 years on the high court, he remains its youngest member. He expects, he has said, to serve for several more decades.

It is not clear what impact, if any, will flow from his view of an “establishment of religion.” He noted Monday that the 1st Amendment also protected the “free exercise of religion,” and this would forbid states from requiring participation in religious services.

None of the other justices have adopted Thomas’ 18th century view of “commerce” or “punishment.” But Thomas’ distinctive views are likely to figure in a pending struggle over police interrogations and the Miranda warnings.

Under the famous 1966 Miranda vs. Arizona ruling, the court said the Constitution’s protection against self-incrimination required officers to warn suspects of their rights to remain silent and to have a lawyer.

Last year, however, Thomas set out a much narrower view of the 5th Amendment, which says a person shall not “be compelled in any criminal case to be a witness against himself.” The word “witness” refers to a court trial, not a police station, Thomas said.

At the time, three others agreed with him: Rehnquist and Justices Sandra Day O’Connor and Antonin Scalia. With only one more, the court could undercut the basis for the Miranda warnings, which restrict police questioning.

Shortly afterward, the court took up two new cases that test the reach of the Miranda warnings. Though the cases were argued in December, they are still awaiting decisions as the court enters the last two weeks of its term.