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.

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