Reactionary ideology and Constitution-worship
By 
Mark Joseph Stern lays out a very important point about Clarence Thomas, and Thomas’s jurisprudential commitments represent, in this essay about last week’s big tax case in the SCOTUS. This case was ginned up by the lawyer lackeys of various plutocrats, to attack the constitutionality of a potential wealth tax, on the basis of a completely spurious ahistorical argument that the 16th amendment wasn’t intended to authorize such a tax. (The court ultimately dodged that issue, deciding the case on narrower grounds, leaving it to a future majority to do Harlan Crow’s dirty work, in exchange for services rendered).
Stern details why Thomas’s historical argument in the case is law office history in the worst sense of the term. But the real significance of that argument is a lot broader than the issue of wealth taxes, as important as that is:
There’s another, more explicit bias at work: He simply does not grant constitutional amendments the same respect that he gives to the original Constitution. His jurisprudence is inspired by “natural law,” a theory that interprets the Constitution as, essentially, a divine revelation to the founders that codifies rights bestowed by a higher authority. Under this view, the product of the Constitutional Convention was nearly perfect, minus its accommodation for slavery—yet, as his Moore dissent illustrates, the justice is willing to downplay or write off this glaring defect when necessary.
Thomas will embrace the 14th Amendment’s equal protection clause to outlaw affirmative action, but he otherwise gives remarkably short shrift to the Reconstruction amendments. These amendments fundamentally altered the balance of power between states and the federal government, giving Congress vastly more authority to enforce a panoply of civil rights. But Thomas routinely interprets them as marginalia at best—shooting down, for instance, Congress’ prerogative to stamp out race discrimination in voting. In these opinions, the justice insists on enforcing aspects of the original Constitution that, he claims, allow states to suppress civil rights and civil liberties without federal interference. The Reconstruction amendments, in his preferred narrative, fall away as an irrelevant relic rather than the radical transformation of the Constitution that they were meant to be.
In Moore, the 16th Amendment gets the Thomas treatment. His (misleading) account of the amendment’s enactment largely erases the progressive reformers who pushed it over the finish line—as if, to his mind, they have no legitimate role to play in the story of our founding charter. They are written off as interlopers who foolishly tinkered with our God-given Constitution, inserting errors that must be corrected by black-robed rulers who just know better. It’s a frighteningly arrogant approach to judging, one that effectively closes off amendments as a way to fix the court’s mistakes. The Constitution begins with the declaration “We the People” and invites future generations to help build a “more perfect union.” But to Thomas, the wealthy white men who wrote those words got almost everything right the first time, and the people must never be trusted to build upon their flawed work.
This is a really important point. On one level, it’s certainly true that Thomas is simply being bribed to produce opinions that advance the economic interests of his billionaire paymasters. But on another, Thomas’s reactionary ideology may well make that bribery superfluous (although it’s always best to be sure, given how comparatively trivial the sums are that allow billionaires to buy their own personal judges).
The radically reactionary legal and political ideology of judges like Thomas, law professors like Randy Barnett et. al., — basically the whole Federalist Society rigamarole — must treat constitutional amendments in the way the old common law judges back in the 16th and 17th centuries treated Parliament’s statutes: as artificial, quasi-illegitimate incursions on the majesty of the law itself, that should therefore be read in the most narrow way possible, to minimize the damage done to the organic splendor of the law (meaning, of course, the judges’ own creation and extension of that law via adjudication).
That radical reaction is the precise political ideology undergirding what most law students today are still taught to think of as “the Constitution” is an under-appreciated fact.