THE U.S. CONSTITURION & NATURAL-LAW JURISPRUDENCE:
DEFENDING U.S. SUPREME COURT JUSTICE CLARENCE THOMAS
By Tom Krannawitter
Reid's comments came during speculation over the possible successor to Chief Justice William H. Rehnquist, should he retire soon. Aside from the fact that Reid was disrespectful, we must ask why a Democrat would go on national television and criticize the second black Supreme Court justice in history, while praising fellow-Conservative Justice Antonin Scalia as "one smart guy"?
Savvy Liberals like Reid are right to be more concerned with Thomas than Scalia because Thomas' natural-law jurisprudence represents the greatest threat to the Liberal desire to replace limited, constitutional government with a regulatory-welfare state of unlimited powers.
Thomas is one of the few jurists today, Conservative or otherwise, who understand and defend the principle that our rights come, not from government, but from a "Creator" and "the laws of nature and of nature's God," as our Declaration of Independence says, and that the purpose and power of government should therefore be limited to protecting our natural, God-given rights.
The political Left understands that if it is to succeed in its endeavor to destroy constitutional government (limited government) and establish a full-blown regulatory-welfare state, the principles of constitutional government and natural rights stated in the Declaration of Independence must be jettisoned, or at least redefined. Thomas' recourse, not only to the text of the United States Constitution, but specifically to the American Founders' natural-law defense of constitutional government is fatal to Liberalism's statist goal.
The most sophisticated and enduring critique of U.S. constitutional government was first made by Progressive-era Liberals at the turn of the 20th. century. Their main charge was that the U.S. Constitution was old and outdated and, therefore, irrelevant to modern times and modern problems. Woodrow Wilson, for example, insisted that, unlike the physical universe, the political universe contains no immutable principles or laws. "Government … is a living thing … accountable to Darwin," explained Wilson. The Constitution, therefore, must be "Darwinian" as well — it too must grow and evolve.
From the Liberal view, liberty cannot be a natural right, protected by a government of limited powers, because there are no natural rights. As Liberal political scientist Charles Merriam explained in 1920, the "natural law and natural rights" of the Founders had been discarded by intellectuals "with practical unanimity. "Instead, "the state … is the creator of liberty."
Bigger government means more liberty, not less. "It is denied," Merriam concluded, "that any limit can be set to governmental activity," and, therefore, the Constitution's original intent, which was limited governmental power, "no longer seems sufficient."
The Liberal critique of the U.S. Constitution has been repeated so long and with such intensity that it has become orthodoxy in our law schools, courtrooms, and legislative halls. By 1986, Liberal Justice William Brennan could easily dismiss the Constitution out of hand because it belonged "to a world that is dead and gone."
Before Anita Hill took the spotlight, the most controversial part of Thomas' confirmation hearings in 1991 stemmed from allegations that he had invoked the n-word — the natural law. Members of the Senate Judiciary Committee hardly knew how to respond, so alien was the Founders' vocabulary. Perhaps this is why Reid finds Thomas' opinions "poorly written."
A generation of law students and politicians has been trained in "legal realism," which is nothing but Liberal contempt for the Constitution dressed in academic garb. For Liberals who believe rights come from and can be revoked by government and judges, a high court justice talking about natural rights is an embarrassment.
The size, scope, and purposes of our government are no longer anchored in and limited by our Constitution. For Conservatives who want to restore limited government, their first order of business is to restore the authority of the Constitution's original intent. The American people need to be reminded of the source of their rights and persuaded that limited government is good; that the principles of the Constitution — which are the natural-law principles of the Declaration of Independence — are timeless, not time-bound; that, without those principles, the noble ends set forth in the Constitution's preamble can never be achieved.
Of the current U.S. Supreme Court justices, only Thomas has offered a defense of the natural-law principles of the Constitution, a defense that nearly cost him a seat on the Court and continues to elicit the kind of disdain recently voiced by Senate Minority Leader Reid. Conservatives should unite behind Justice Thomas and defend his natural-law jurisprudence, because nothing less will resuscitate the Constitution they hope to save.
Legal Issues & America's Judiciary:
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Declaration of Independence
Constitution of the United States of America
Constitutionalism: The First Essential Ingredient
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Dictatorship: The Opposite of Constitutionalism
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Tom Krannawitter is the Vice President of the Claremont Institute for the Study of Statesmanship and Political Philosophy.
The foregoing article by Tom Krannawitter was previously published in the December 13, 2004, issue of Precepts, a publication of the Claremont Institute, a Conservative political, cultural, and educational organization in the U.S.A. The Claremont Institute describes its central purpose as the mission "to restore the principles of the American Founding to their rightful, preeminent authority in our national life." Committed to American constitutionalism and republicanism as well as representative democracy, the Institute's mission statement declares: "America's Founders endowed our Republic with sound principles and a framework for governing that is unmatched in the history of mankind. The prosperity and freedom of America can only be made secure if they are guided by a return to these basic principles as our country enters the 21st. century."
A version of Krannawitter's article appeared in the Los Angeles Times, December 12, 2004.
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