Clarence Thomas and Thurgood Marshall

Corey Robin works through Clarence Thomas’s approach to the Fourteenth Amendment, which, according to Robin, is where Thomas’s bad ideas come from.

The due-process clause, which prohibits the state from depriving anyone of “life, liberty, or property, without the due process of the law,” is the basis for the constitutional right to contraception, same-sex sexual conduct, same-sex marriage, and, until a few weeks ago, abortion. To some, it might seem strange that the clause contains an affirmative right to anything. Doesn’t it simply require that the state declare the law, set out a punishment for violating the law, charge a suspect for its violation, try him in court, and so on? That, as it happens, is Thomas’s view.

Thomas finds another part of the Fourteenth Amendment more persuasive, the privileges or immunities clause, which was gutted during Reconstruction. To Thomas, it nationalizes some rights because the states can’t be trusted to preserve them, but ho-ho, not the rights you’re thinking about. Gun rights but not the right to privacy. And Thomas wants those gun rights in case of race war. It’s a complex argument. Read the whole article.

Today’s felt absence of physical security is the culmination of a decades-long war against social welfare. In the face of a state that won’t do anything about climate change, economic inequality, personal debt, voting rights, and women’s rights, it’s no wonder that an increasing portion of the population, across all races, genders, and beliefs, have determined that the best way to protect themselves, and their families, is by getting a gun. A society with no rights, no freedoms, except for those you claim yourself—this was always Thomas’s vision of the world. Now, for many Americans, it is the only one available.

David Kurlander writes about Dobbs through Thurgood Marshall’s view of law. Thomas occupies Marshall’s seat on the Court

In a moment of particular prescience, Marshall argued that the Payne decision–which relied on a narrow reading of the Due Process Clause–could one day lead to the type of 14th Amendment-related rights rollbacks for which Thomas is now advocating: “The majority sends a clear signal that essentially all decisions implementing the personal liberties protected by the Bill of Rights and the Fourteenth Amendment are open to reexamination.”

Marshall’s jurisprudence continued to influence the Court, but as his colleagues grew old and died, a new group replaced them.

Marshall’s solution was simple: to fight against the overriding hostility. “We cannot play ostrich,” he warned. “Democracy just cannot flourish amid fear. Liberty cannot bloom amid hate. Justice cannot take root amid rage. America must get to work. In the chill climate in which we live, we must go against the prevailing wind. We must dissent from the indifference. We must dissent from the apathy. We must dissent from the fear, the hatred and the mistrust. We must dissent from a nation that has buried its head in the sand, waiting in vain for the needs of its poor, its elderly, and its sick to disappear and just blow away.”

Two good articles, better together. Thanks to John Holbo, who mentioned the Robin article in a Twitter thread that is also worth reading with them.

Photo: Supreme Court Justice Thurgood Marshall faces reporters in the Supreme Court’s East Conference room, two days after announcing his retirement, June 29th, 1991 (Photo Credit: John McDonnell via The Washington Post/Getty Images)

One comment

  1. OG · July 14

    Thomas is correct about the due process of law clause.

    Privileges and immunities is a pretty vague term, a term not listing or defining what constitute privileges and immunities. A vague term is subject to debate and disagreement about meaning and exactly what those are. You have the privilege of freedom of speech and immunity from unreasonable searches and seizures. Privileges and immunities as set out in the bill of rights and additional amendments. Rights not enumerated are subjective and a matter of opinion.


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