A Liberal Defense of Clarence Thomas

Slate's Dahlia Lithwick had a very interesting column this weekend cautioning her fellow liberals against smearing Justice Clarence Thomas as they mount their defense of Judge Sonia Sotomayor:

The temptation to smack back and argue that we deserve to seat Sotomayor because Thomas was a lousy affirmative-action pick who turned into a third-rate justice is hard to resist. But it's flat wrong. Liberals achieve nothing by suggesting that Thomas' elevation to the high court was preposterous on its face or that his tenure there has been a disgrace….

Claims that Thomas is too stupid to ask questions and in constant peril of embarrassing himself at the court are just not that different than claims that Sotomayor is mediocre. Nobody who has followed Thomas' 18-year career at the Supreme Court believes him to be a dunce or a Scalia clone. Whether you accept Jan Crawford Greenburg's claim that Thomas' constitutional theories are so forceful that they have shaped Scalia's or you believe the more common view that Thomas has a deeply reasoned and consistent judicial philosophy that differs dramatically from those of the court's other conservatives, accusations that he's been a dim bulb are just false. They also reveal that the name-calling that originates now, during the confirmation process, engenders a mythology that can never be erased.

It's nice to see Lithwick make this point (even if she has done a little name-calling of her own). Whether you agree with his opinions or not, Thomas has quite obviously proven himself on the Court. Yet the ridiculous idea that he's less capable than his fellow justices still persists, even among people that ought to know better.

Comments

[John]

I don't have the time today. But some one who does, like an enterprising Reason intern, ought to search Lithwick's writings over the past 10 years and see what she has said about Thomas. I would be very curious.

Maybe she has been entirely reasonable. But I wouldn't be surprised if she has called Thomas all of the things that she now condems when it suited her purpose. Lithwick has rarely exhibited intellectual integrity in the past. I would be surprised if she is doing so now. But you never know.

[short, fat bastard]

It's just like high school. John expresses so much disdain for Dahlia that he must be secretly in love with her 😉

[Billy]

"Whether you accept Jan Crawford Greenburg's claim that Thomas' constitutional theories are so forceful that they have shaped Scalia's or you believe the more common view that Thomas has a deeply reasoned and consistent judicial philosophy that differs dramatically from those of the court's other conservatives, accusations that he's been a dim bulb are just false."

I'm going with Ms. Greenburg. She's brilliant.

[Paul]

Thomas, still my favorite of the nine judges. Is he perfect? Hell no. Show me one that's better.

My favorite anecdote about Thomas was during a talk to a bunch of young, college journalism students. It was during the height of the tobacco lawsuits in the 90's. During a qestion and answer session, students kept asking him the same question, albeit reworded which basically was:

"You know, like this tobacco thing, how do you deal with a ruling where you personally feel in your gut something's right or wrong?"

In frustration, Thomas finally slapped down his papers on the podium and said "Look, the Supreme court judges have this guide and we refer to it as The Constitution, and we're supposed to make our rulings based upon this guide."

I'm not sure if the young journo's 'got it'.

[creech]

How many votes from African-Americans has it cost liberals for their on-going absurd attacks on Justice Thomas?

[Citizen Nothing]

Creech,
Three.

[Xeones]

How many votes from African-Americans has it cost liberals for their on-going absurd attacks on Justice Thomas?

At least one or two, i'm sure, but probably no more than that.

[Xeones]

Yo, fuck Citizen Nothing. Gun-jumpin' barstad.

[Citizen Nothing]

I've been yo-fucked by Xeones. I'm finally somebody!

[Tony]

I'm sorry but Clarence Thomas is history's most successful recipient of affirmative action, and the biggest argument against it. After the elevation of Sarah Palin I think it's past time we have a new standard: never let Republicans engage in affirmative action. In order to find someone who's not a white male in their own ranks who will be a reliable conservative they have to really scrape the bottom of the barrel.

[R C Dean]

So Tony advocates a double standard on who can use double standards.

Only Democrats should be allowed to scrape the bottom of the barrel to find ideologically reliable minorities!

[SugarFree]

I've been yo-fucked by Xeones.

Needs a good branding. "You just got Xeone'd!" "Give him a good xeoning.

[The Angry Optimist]

Tony - how is Clarence Thomas a bad Justice? show your work.

[J sub D]

How many votes from African-Americans has it cost liberals for their on-going absurd attacks on Justice Thomas?

Three.

[Enough About Palin]

"I'm sorry but Clarence Thomas is history's most successful recipient of affirmative action"

What? Affirmative Action ended in 1991?

From the bottomless well that is Tony's ignorance.

[Enough About Palin]

Ooops Thought is read "most recent recipient".

Guess I'm diggin' a little well of my own.

[wingnutx]

The most successful recipient is currently filling the post of Messiah.

[Tony]

R C Dean,

Apply your own standard. If both Thomas and Sotomayor were white males who would be considered qualified for the supreme court at the time of their nomination and who wouldn't?

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[Citizen Nothing]

There goes J sub, always repeating my talking points.

So, the girls this bot keeps hyping, they've only got "big *BOOBS* online"? Sorry. Virtual boobs are not for me (present company excepted).

[wingnutx]

If both Thomas and Sotomayor were white males

Then Thomas would be a white guy who dissented in Raich, "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything, and the federal government is no longer one of limited and enumerated powers."

He'd be absolutely right no matter what color he is.

[Xeones]

I've been verbed! Awesome.

[Xeones]

He'd be absolutely right no matter what color he is.

...whereas Sotomayer's insistence that her experience as a hispanic woman should influence her jurisprudence would just be CRAZY.

[kevrob]

Why doesn't Ms. Lithwick worry about who sits on the high court of her country, for a change?

Kevin

[Xeones]

Because Canada isn't a real country, Kevin.

[wingnutx]

Canadia has a queen. Everything else is just details.

[Shannon Love]

The real danger for leftist in attacking Thomas is that doing so reduces the public respect for the Supreme court itself. If Thomas is an idiot and he got on the Supreme court then that means that the decisions of the Supreme court deserve less respect. Moreover, he can't be the only idiot to get seated. If the nomination process is as deeply flawed as leftist claim, then that means the court itself is deeply flawed.

Leftist rely heavily on the moral authority of the Supreme court to avoid the democratic process and impose leftist's policies via judicial fiat. Their power to do so depends on the willingness of the electorate to accept the authority of the Supreme court. That acceptance in turn arises from the respect for the legal skill of the justices themselves.

[MNG]

Tony, I think you're part right and part wrong. Yes, at the time he was elevated Thomas was much, much more or an identity pick than Sotomayer is. But he seems to have turned out to be quite a smart judge (I think he's wrong on a lot of cases, but the guy is a smart fellow).

But I'm one of these guys who thinks that just about every Supreme Court justice I've ever read is a very smart person.

[MNG]

"whereas Sotomayer's insistence that her experience as a hispanic woman should influence her jurisprudence would just be CRAZY."

I'm puzzled by this kind of thing. Imagine a Title IX case or such, certainly being a woman makes it more likely one might have had experiences that would inform one's decision and the crafting of a remedy if need be. Just like I imagine being a businessperson would inform one's decisions on business law matters, or having a career in the military might inform matters of military and national security law, etc.

[MNG]

"Leftist rely heavily on the moral authority of the Supreme court to avoid the democratic process and impose leftist's policies via judicial fiat."

That's a lot of crazy lazy bullshit right there Shannon. Like "the right" the "left" is happy to use democratic means or judicial means to advance their agenda. For example, the right loves it when the court reads the NLRA, the Endangered Species Act, the Clean Waters Act, etc., more narrowly or differently than the democratic legislatures that pass them.

[Nick]

at the time he was elevated Thomas was much, much more or an identity pick than Sotomayer is.

Really? Really?

[domoarrigato]

For example, the right loves it when the court reads the NLRA, the Endangered Species Act, the Clean Waters Act, etc., more narrowly or differently than the democratic legislatures that pass them.

I think the key here is the "more narrowly" part. I'd bet conservatives generally - libertarians certainly - love any branch of government when the exercise restraint, ie. interpret government power "more narrowly" on the whole. I don't think it has to do with which branch, fundementally, rather with one is currently picking out pocket/trampling our right/wasting money/telling us how we should live our lives.

[Tony]

MNG,

I don't think Thomas is an idiot, but I can only judge from what I've read in his opinions (extremist nonsense) and the few times I've heard him speak (he pontificates adequately on sports statistics).

[MNG]

domo
Sometimes it pleases conservative justices to read language narrowly, like when it comes to the NLRA or the ESA, sometimes it pleases them to read it broadly, like the Commander in Chief powers of Art II. Don't get me wrong, the left on the court does this all the time too. My point wasn't that either side tends towards my narrow or broad, but that neither side seems to prefer the democratic branches over the judicial one all that much either...

[MNG]

Clerks write a good deal of all their opinions these days anyway. The justices are more like editors.
I do think he got his ass handed to him by Alito in the Bong Hits case. His idea that kids have no first amendment rights because of the doctrine that teachers served in loco parentis was based on a goofy fiction (that parents voluntarily transfer their authority implicitly by consenting to their children going to school) that Alito demolished.

[R C Dean]

If both Thomas and Sotomayor were white males who would be considered qualified for the supreme court at the time of their nomination and who wouldn't?

As I've posted, Sotomayor is minimally qualified, and therefor should be confirmed. Ditto for Thomas. I would hope, however, that our Justices would be better than "minimally qualified"; I have yet to see anything that makes me think Sotomayor's long tenure (and I do mean tenure) as a Circuit Court judge has produced an exceptional portfolio of decisions.

Keep flailing, Tony. You're bound to connect sometime.

[domoarrigato]

MNG, yeah I guess I'd agree with that. Both sides are caught up in their ideological battles. I suppose (while none is perfect) that Thomas is one of the narrowest readers of the constitution on the court though - making him one of my favorites. Though, as someone said above: none of them are close to perfect from a libertarian POV.

[John]

"For example, the right loves it when the court reads the NLRA, the Endangered Species Act, the Clean Waters Act, etc., more narrowly or differently than the democratic legislatures that pass them."

But those legilsatures are free to overturn those rulings. Reading a statute narrowly is completely different than using the Constitution to strike down a legislative act. In the first case the legislature is always free to overrule the court and makes its intentions clear. In the second case the court's word if final.

Indeed, in many cases where the courts read statutes narrowly, they are doing so to stop a left shell game rather than a right shell game. The left loves to get legislatures to pass narrow statutes only to have courts broaden them beyond recognition and into meanings that would never have passed the legislature.

[domoarrigato]

The left loves to get legislatures to pass narrow statutes only to have courts broaden them beyond recognition and into meanings that would never have passed the legislature.

John is right, but too often apologists for right forget that they play the same shell game with abortion, executive power, homeland security, starting wars, etc. Not that I'm calling you in particular an apologist, John...

[Mike]

Clarence Thomas kicks ass. He is the most libertarian high-ranking government official we have had since Barry Goldwater, and before that, Calvin Coolidge. He has the most well consistent, originalist constitutional philosophy of any of the justices, including Scalia.

Was he appointed because he was black? Of course. At the time, it was believed that the Democrats wouldn't put up much of a fight because of it. He was going through just fine until Miss "A little bit nutty and a little bit slutty" Anita Hill gummed up the works. As it turns out, he has done such a good job that Democrats are scared to death to let any smart libertarian or conservative minority get a seat on the Federal appeals court. Ask Miguel Estrada.

[John]

"right forget that they play the same shell game with abortion, executive power, homeland security, starting wars, etc. Not that I'm calling you in particular an apologist, John..."

That is true with Homeland Seucrity. The Patriot Act has most certainly been applied in ways that were not intended. But, those applications don't seem to be changin under Obama. So, I don't see how you can say that is the product of the right as much as a product of both sides.

Seriously, when did the right over use authority to start wars? Iraq was approved by the Congress. So was Afghanistan. The last time I can think of a President misusing the approval of Congress to start a war was Johnson in Vietnam.

[R C Dean]

The last time I can think of a President misusing the approval of Congress to start a war was Johnson in Vietnam.

I'd go with George H.W. Bush in Panama, myself.

[John]

"I'd go with George H.W. Bush in Panama, myself."

That is a good one. So is Clinton in Kosovo.

[domoarrigato]

But, those applications don't seem to be changin under Obama. So, I don't see how you can say that is the product of the right as much as a product of both sides.

Given the iron law that gov't never gives back power once it has obtained it, I think it's more than fair to blame the right primarily for the abuses under the Patriot Act. The left is culpable as well, but to a lesser degree.

i don't believe congress authorized Iraq, as it has turned out. What we have is the definition of "war" which was never authorized as such. Congress authorized the "use of force" - and plenty of people on the left who voted FOR it have complained about how far it has gone. It clearly is an overuse of authority - though not as much of an over-reach as vietnam, in my opinion. Plus, RC Deans example - thanks buddy.

[domoarrigato]

Clinton in Kosovo: yup, I never said it purely on the right - just that right wingers tend to forget that their own side of the aisle is guilty as well.

[R C Dean]

What we have is the definition of "war" which was never authorized as such. Congress authorized the "use of force" - and plenty of people on the left who voted FOR it have complained about how far it has gone.

You're letting Congress off the hook way too easy here, domo. They knew what they were voting for, and their post facto protestations that Bush went too far are transparent ass-covering.

[John]

"i don't believe congress authorized Iraq, as it has turned out. What we have is the definition of "war" which was never authorized as such. Congress authorized the "use of force" - and plenty of people on the left who voted FOR it have complained about how far it has gone. It clearly is an overuse of authority - though not as much of an over-reach as vietnam, in my opinion. Plus, RC Deans example - thanks buddy."

Congress has voted to fund that war every year since its inception. They could have ended it any time they chose. Each funding authorization is nothing but an endorsement of its continuation. Also, if I am not mistaken and I may be, but didn't Bush get extra funding for the surge? If so Congress was explicitly authorizing an escalation of the war. Whatever you think of the Iraq war, responsibility for its existence lies at the feet of both Congress and the President including the past ones and the current ones.

[domoarrigato]

Each funding authorization is nothing but an endorsement of its continuation.

Not so. because pulling the funding does not obligate the President to pull the troops. As a practical matter, perhaps, but not as a legal matter. Moreover, you dont see republicans making waves about pulling the funding, as a rule. I dont know why everyone is arguing with me over minutia, here. The main point, which is that the GOP complains about overbroad interpretations of authority while simultaneously committing the same offense in many areas seems to be completely untouched.

[domoarrigato]

You're letting Congress off the hook way too easy here, domo.

Entirely possible. I do think that many people voted to authorize it thinking the conflict would be quick and cheap. If they did that through gullibility, they are slightly less culpable, than the people knowingly fabricating the rose-colored forecasts. Either way they deserve to be tossed out on their ears, though.

[John]

domorriagto.

All Congress had to do was put the following sentence into the yearly DOD Approp bill.

"No funds authorized under this act shall be used in support of operations in the country of Iraq or in support of Operation Iraqi freedom after the __ day of ____, 20__. And that would have ended US involvement in Iraq, period.

[MNG]

"Reading a statute narrowly is completely different than using the Constitution to strike down a legislative act."

Like striking down a democratically enacted gun control measure (Heller), or a democratically made decision to throw out a promotions test (Ricci), or striking down a democratically enacted eminent domain statute? Come on, you may like those decisions (I do), but they are examples of the right urging using the Constitution to overturn the democratic acts of legislatures...

[MNG]

"Clarence Thomas kicks ass. He is the most libertarian high-ranking government official we have had since Barry Goldwater, and before that, Calvin Coolidge."

He's a black man, but his tongue is probably black from all the police ass he licks. If you like the 4th Amendment, the 5th, the 6th or the 8th and you still think Clarence Thomas is a defender of liberty against government then you have not read many of his opinions in those areas.

[domoarrigato]

John,
the yearly DOD Approp bill

It would have to go under the yearly "emergency authorization" bill that is actually used to fund the war. at this point, the yearly regular spending bill is all routine crap. And as far as including your sentance in the Emergency bill - sure, but then why bother to pass the thing in the first place? Because to not approve it means you "dont support the troops". no one wants that on their record.

[John]

"Like striking down a democratically enacted gun control measure (Heller),"

That is pure sophestry. No one would argue that measures should be able to violate the Constitution no matter how democratically they were enacted. The issue is what does the Constitution mean. You don't have to read the Constitution very broadly to find that it protects the right to bear arms. You example proves nothing.

"a democratically made decision to throw out a promotions test (Ricci)"

Again, just because it is Democratic doesn't make it Consitutional. Everyone agrees about that. The dispute in that case is the meaning of due process. It has nothing to do one way or another with the right of courts to strike down democratically enacted policies.

"striking down a democratically enacted eminent domain statute?"

Last I looked, the 5th Amendent said "for a public purpose". If the emmenent domain is used for a private purpose, it is not legal no matter how democratically it was enacted.

MNG you are playing a bullshit shell game. Just because someone argues that the actions of legislatures deserve some deference and that we are better off not having unelected judges make our decisions for us, does not mean that legislatures should be free to disregard the Constitution. The issue is, what does the Constitution say. In each of the cases you give, conservatives are agrueing for a direct reading of what it says versus what we wish it says, which is entirely consistent with their judicial philosophy.

[domoarrigato]

MNG, I think your original point upthread was stronger - you said that both sides are only too happy to use whatever means to advance their agenda. Then you tried to equivocate and suggest the GOP was undemocratic by overturning statutes. By definition, all statutes are "democratically" enacted - else they would have failed. That doesn't make them constitutional - which is why the constitution created the supreme Court in the first place.

[Brandon]

I'm willing to overlook cases where Thomas and Scalia reach un-libertarian conclusions because they usually result from an honest reading of the Constitution. It's silly to expect a faithful reading of the Constitution to always result in a libertarian outcome. General fidelity to the Constitution and the rule of law is more important than the outcome of any one case.

When the others reach un-libertarian conclusions, and even when they reach libertarian conclusions, it's because they don't give a hoot what the Constitution says. They just make it up as they go along.

[T]

I can only judge from what I've read in his opinions (extremist nonsense)

Contrast with:

If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything, and the federal government is no longer one of limited and enumerated powers.

So, the idea of a federal government constrained by the Constitution is "extremist nonsense". Take a bow, Tony. Then go set yourself on fire, kthx.

[domoarrigato]

Off topic (slightly) Kennedy is 72 - what are the odds a) Obama doesn't get re-elected or b) he would appoint a conservative jurist to maintain the current balance of the court rather than replace Kennedy with a screaming liberal do gooder?

Kennedy is in good health - but the prospect of 8-12 years of democrats in the white house makes this a real problem.

[MNG]

domo
I'm making the same point. Both sides read statutes and amendments broad or narrow to get their policy preferences. John suggested that the left uses theourts to strike down democratically enacted legislation, but as the examples I used note the right does this all the time too. It's just that John and the right think that when the right does it it's not activism because their side is "correctly" striking down stuff while the other side is "incorrectly."

"You don't have to read the Constitution very broadly to find that it protects the right to bear arms." The 2nd Amendment is anything BUT clear. You can read it to strike down gun control legislation or not, but when you do don't pretend you are not striking down democratically enacted legislation.

"nor shall private property be taken for public use, without just compensation"

You can certainly read that reasonably to not require a stringent public purpose/use test. The legislature can certainly argue that their taking had, ultimately, a public purpose. Maybe they are wrong, but again, don't act like you aren't striking down a democratically enacted statute.

"Just because someone argues that the actions of legislatures deserve some deference and that we are better off not having unelected judges make our decisions for us, does not mean that legislatures should be free to disregard the Constitution."

This is just, it's OK when my side does it to reach results I like, not OK when the other side does it to reach results I do not like.

[MNG]

"replace Kennedy with a screaming liberal do gooder?"

After all the conservative bitching and moaning about Kennedy being so liberal it would be poetic justice to have him replaced with an actual liberal a la Brennan.

[R C Dean]

The 2nd Amendment is anything BUT clear.

Seems pretty clear to me. What about it do you find confusing, MNG?

You can certainly read that reasonably to not require a stringent public purpose/use test.

No, you can't. It says "public use", not public purpose. Pretending that it has different words than it actually does is not a reasonable reading.

[MNG]

RC
Basically the Amendment says
Since state militias are really important, the right to bear arms should not be infringed.

That first part mangles the Amendment making a collective right reading of it possible...

"No, you can't. It says "public use", not public purpose. Pretending that it has different words than it actually does is not a reasonable reading."

John said public purpose, so I was doing him a favor. Besides, it doesn't say "you can only take land for a public use" it says "no person shall have land taken from him for a public use without just compensation."

[domoarrigato]

After all the conservative bitching and moaning about Kennedy being so liberal it would be poetic justice to have him replaced with an actual liberal a la Brennan.

Yeah - the bitching annoys me. He voted with Rehnquist more reliably than any of the others on his court. I think he is unfairly maligned in this respect. Souter was the real turncoat, of course, though liberals often try to claim the court moved right around him.

Sotomayor is not a slam dunk liberal either, by the way. I could almost see a scenario where 15 years from now, democrats complain as bitterly about her as republicans do about Souter.

[domoarrigato]

MNG,

Concerning you difficulty in reading 😉 I think the purposes are clear enough. The 2nd amendment was enacted for the purpose stated - to protect the right to bear arms. Any reading of it which concludes that the intent was NOT for that purpose stretches credibility.

The same is true of "public use" in the 5th. The express purpose of the clause is to protect private property from public takings - a reading which uses it to make it arbitrarily easy to take property is perverse indeed. If that were the intent of the author - surely they would have done better to not write an amendment at all!

Suppose we read the 1st amendment as a "collective right" (a phrase and concept which is unknown in the constitution, or from writings from that period) What would that look like?

Maybe you and I would not, in fact, individually have the freedom to say what we want - that only publications authorized by the federal government enjoy freedom of speech/press. Chilling indeed. So much so, that the amendment itself would be construed as limiting the freedom the protection of which it was enacted to effect. The same is true of the "collective right" argument against the 2nd. In my opinion, the ACLU's credibility as an organization and their effectiveness has suffered much as a result of their constant and disingenuous propagation of this nonsense.

[MNG]

Domo
If the 1st read something like "Because newspapers are crucial in a democracy, Congress shall pass no law abridging free speech" then I could see how someone would think the right only was for the press.

I agree with Heller actually, and I would incorporate the 2nd to the states. But I don't pretend that it's so clear cut. A reasonable person who wants to find a collective rather than individual right has some things on which to hang that hat.

The libertarian reading of the takings clause is even less clear cut. It reads "nor shall private property be taken for public use, without just compensation." It doesn't say "private property can't be taken for public use" or that "private property can only be taken for public use" or that "private property cannot be taken unless for a clearly public use" it says in effect "you can't take private property for publice use unless you pay the owner a fair price."

"The express purpose of the clause is to protect private property from public takings"

That certainly seems wrong, if by express you mean on the face of the text. As I said it seems much more clearly to be taking "takings" for granted and making sure that a "just compensation" is provided in any such case.

BTW-As a judge I would read the takings clause expansively to protect individuals like Kelo from government. But that's probably because I have a lot of empathy for the little guy 😉

[MNG]

Also, as a policy (statutory) matter, I would make it hard as shit for a government to take private property.

I'm just saying the 5th certainly isn't clearly libertarian on this...

[domoarrigato]

MNG, I agree that the case for the libertarian reading of the 5th is less strong than for the 2nd. Some libertarians wish the writers of the fifth had left off the words "without just compensation".

But if I were to expand a broad reading to the logical extreme, I could parse the 5th thusly:

"nor shall private property be taken for public use, without just compensation."

Gosh - this must mean that the ONLY reason I have to compensate the owner is if I intend to take the property for a public use! If the government wants to take the property for private use, or just for the hell of it, it's free to do so - as long as they DON'T justly compensate the owner

No reasonable person would argue that this was the intent of the clause - therefore I conclude that it's reasonable beyond doubt that the purpose of the clause is twofold a) to set out that public use is the only justifiable reason for a taking, and b) that if that requirement is met, just compensation is mandatory.

I appreciate that you are giving the little guy a break, and im not even really arguing with your points here - just making the logical point that many of the twisted readings that have been put forth over the course of time are pretty far from what was very likely intended. In fact your statement concerning incorporation is (naturally) another libertarian complaint, as the process is entirely fictional from a textual standpoint, having been invented by the Court to get around enforceing rights it didn't like at the time. Appalling.

as to your point about the wording of the 2nd compared to the 1st - fair enough. Please make a reasonable substitution of example using the 4th, the text of which is much closer to the 2nd. be back later, pal!

[MNG]

I'm not sure I follow you on the takings clause. I think a reasonable person could look at just the text and say that the evil that was trying to be prevented was not government takings of private property in general, or requiring a strict public use test for such takings, but takings without just compensation. I don't know, but I imagine government taking was pretty well settled law at the time of the Founding, and that what the Founders were mad about was people not being fairly compensated when takings occurred. I argue the text itself certainly lends itself to that reading.

But again to my main point: conservative justices, just like liberal ones, don't necessarily defer to democratica enactments, if it furthers preferred policy. There is amazing irony in the conservative crowd denouncing Sotomayer as an activist and non-originalist and then immediately pointing to the Ricci case for example. I abhor affirmative action, but one thing I'm pretty sure about is that the "original intent" of the Framers of the 14th didn't bar race conscious government programs (these were the same guys behind the Freedman's Bureau and other Reconstruction measures aimed exclusively at black "upliftment").*

* Were I a judge I would strike such programs on 14th grounds, but then I'm not much of an originalist...

[MNG]

And domo, I don't think the 2nd is much like the 4th. In fact, the 4th is pretty clear cut in comparison, having two pretty strait forward provisions that if translated to clear modern English would be "the right of people to be secure from unreasonable searches and seizures of shall not be violated and no warrants will issue unless there is probable cause supported by oath and they have to have a very particular description of the place and persons to be searched and seized."

If the 4th were like the 2nd it would be like this "Since good police are important to society, there shall be no unreasonable searches and seizures or warrants without probable cause."

It's that "because well regulated militias are important" part that fucks up the 2nd.

[John]

MNG,

You are settiing up a complete false dichotomy whereby one must either think that the courts have no authority to strike down statutes or every authority to do so. That is just bullshit and you know it. The quality of your aruments on this thread were very low. You just can't bring yourself to admit that the left could be more guilty of something than the right.

[MNG]

The left does not think that courts have "every authority" to strike down legislation, at least not much more than the right. There are many opinions where the leftist judges bemoan the "judicial activism" of the right wing judges when the latter strike down statutes.

It's hilarious to hear this trope of the left hating democratically enacted measures and favoring the courts when, as I've already noted, other than abortion, the "big cases" on the right (gun control, affirmative action, eminent domain, campaign finance) recently have all been about striking down democratically enacted statutes!