Monday, August 29, 2011

You Say You Want A Revolution

Walter Russell Mead pens what might constitute law porn for right-wing legal geeks like myself, when reviewing Jeffrey Toobin's piece in the New Yorker about Clarence Thomas...
In fact, Toobin suggests, Clarence Thomas may be the Frodo Baggins of the right; his lonely and obscure struggle has led him to the point from which he may be able to overthrow the entire edifice of the modern progressive state.
...There are few articles of faith as firmly fixed in the liberal canon as the belief that Clarence Thomas is, to put it as bluntly as many liberals do, a dunce and a worm.  Twenty years of married life have not erased the conventional liberal view of his character etched by Anita Hill’s testimony at his confirmation hearings.  Not only does the liberal mind perceive him as a disgusting lump of ungoverned sexual impulse; he is seen as an intellectual cipher.  Thomas’ silence during oral argument before the Supreme Court is taken as obvious evidence that he has nothing to say and is perhaps a bit intimidated by the verbal fireworks exchanged by the high profile lawyers and his more, ahem, ‘qualified’ colleagues.

At most liberals have long seen Thomas as the Sancho Panza to Justice Antonin Scalia’s Don Quixote, Tonto to his Lone Ranger.  No, says Toobin: the intellectual influence runs the other way.  Thomas is the consistently clear and purposeful theorist that history will remember as an intellectual pioneer; Scalia the less clear-minded colleague who is gradually following in Thomas’ tracks.

If Toobin’s revionist take is correct, (and I defer to his knowledge of the direction of modern constitutional thought) it means that liberal America has spent a generation mocking a Black man as an ignorant fool, even as constitutional scholars stand in growing amazement at the intellectual audacity, philosophical coherence and historical reflection embedded in his judicial work.

Toobin is less interested in exploring why liberal America has been so blind for so long to the force of Clarence Thomas’ intellect than in understanding just what Thomas has achieved in his lonely trek across the wastes of Mordor.  And what he finds is that Thomas has been pioneering the techniques and the ideas that could not only lead to the court rejecting all or part of President Obama’s health legislation; the ideas and strategies Thomas has developed could conceivably topple the constitutionality of the post New Deal state.
Put rather simply, Mead's thesis (with an admirable use of Lord of the Rings analogies to make geeks feel even more welcome) is compelling because what he is positing may be the Tea Party's ultimate solution to stopping the leviathan known as Big Government, at least at the federal level.  If the Supreme Court suddenly decided the 10th Amendment has meaning, then there may well be lots of activities that the federal government is actually prohibited from undertaking... activities that it currently undertakes with little question.

Is it likely?  Probably not, except Mead notes that 10-15 years ago, an interpretation of the 2nd Amendment that enshrined an individual right to own firearms was widely viewed as controversial at best.  It's now Supreme Court doctrine and even  accepted by leading liberal scholars like Larry Tribe.  Obamacare may present the first opportunity to rollback the expansion of the Commerce Clause, but the 10th Amendment would be something more -- it would be a shot across the bow of the federal government.

And yes, that's worthy of a Lord of the Rings reference.  Even though I'm not sure that Scalia would enjoy being Gandalf.

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