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Is this textualism?
Clarence Thomas reveals his hypocrisy
Clarence Thomas prides himself on his adherence to the original text of the Constitution. Called “textualism,” the idea is that courts must rely on what the Constitution specifically says. Where it is silent, the Court cannot superimpose its opinion.
In Lewis v. Casey Thomas wrote
“It is a bedrock principle of judicial restraint that a right be lodged firmly in the text or tradition of a specific constitutional provision before we will recognize it as fundamental. Strict adherence to this approach is essential if we are to fulfill our constitutionally assigned role of giving full effect to the mandate of the Framers without infusing the constitutional fabric with our own political views.”
That all sounds good, but we must remember that the Constitution is a document written over 200 years ago in a very different world. For instance, in Article I, Section 8 of the Constitution, Congress is empowered to raise, support and regulate “land and naval forces.”
To someone who is an absolute textualist, in other words, the fact that the Congress has created and funded an Air Force is… anti-Constitutional.
As Jeffrey Toobin pointed out, Thomas would “transform much of American government and society,” overturning almost a century of progressive social policies. “By Thomas’s reading,” Toobin writes, “Social Security and the National Labor Relations Act, to say nothing of Medicare and Medicaid, might all be unconstitutional.”
His approach is so extreme that conservative Justice Antonin Scalia once quipped regarding Thomas “I’m a textualist. I’m an originalist. I’m not a nut.”
Some have argued that Thomas is a man of principle, committed to certain ideals. Steven G. Calabresi, a conservative professor at Northwestern University School of Law and a co-founder of the Federalist Society, has described Thomas’s opinions as “very scholarly, with lots of historical sources” and views him as “the most…
