A rather silly, stupid, and anti intellectual article has got me riled up this morning. In fact it has got me so upset it has got my mind off LSU's heartbreaking loss to Auburn. For that I thank the author of this piece.
See Why Clarence Thomas Owes African-Americans an Apology
Now I know what is going on here. Looking at Mr Love's politics it is clear he not talking here as a legal commentator but as someone with a specific political agenda. Well that is fine I guess. However it does not excuse the tones of character assassination, and misleading statements.
Further this article in my view quite dangerous as to the issue of black Americans and the Civic / legal life.
Mr Love for whatever reason has decreed that to be African American one must think X and in fact if one is the law field one cannot have X Judicial philosophy. It appears that certain avenues of inquiry have been made off limits to blacks by Mr Love. That does not sound very progressive to me
Now Mr Love can get away with this because the average American, no matter what their politics, is pretty clueless about the law.
They might rant about a Supreme Court opinion , but it is a rare event that they actually read it themselves. Further the American public only hears about a small percentage of cases that come before the court. Thus the public does not see the overriding Judicial viewpoint of an individual Justice. Mr Love takes advantage of all this.
I would recommend downloading this very readable recent law review article. Via Mirrors of Justice and their link see "Clarence X? The Black Nationalist Behind Justice Thomas's Constitutionalism"
Mr Love is quite aware of those cases but has decided not to engage them or even list them. In Catholic terms this is a sin of omission. In secular terms it is intellectual dishonesty.
Now let me address just a few points of his article itself.
Mr Love gives us this whopper:
Thomas was the only justice to vote against a key provision of the Voting Rights Act on the grounds that blacks no longer need protection against denial of ballot access through intimidation and violence.
Now one should be alerted right off the bat that this is one case he decided not to link. So I will do it for him. See the overview and various links at Northwest Austin Municipal Utility District No. 1 v. Holder.
Now this is an interesting case on many levels. It is also an example (listen to the oral arguments which is linked) of where despite the huge misgiving of most of the conservative Justices they gave huge deference to Congressional finding. Thought they hinted strongly they were not buying it.
In a nut shell the case involves certain parts of the historic voting act whose provisions are largely restricted to the states of the Old Confederacy.
Majority/ Minority voting political districts are what are at issue here. These majority / minority voting districts on the local, state, and federal level are easier to form in these States.
Mr Love fails to clue in readers that almost every Southern Republican votes for the extension of this act. Why do they do that? Mr Love knows the answer no doubt.
When a black majority district is done in many cases it makes the surrounding districts more white and more Republican. I have no doubt if this act was not extended the GOP would have little chance for instance talking control of the House this year.
Now there is an argument , one that I agree with, that many of these majority/ minority districts are a disaster for African Americans on the whole. That is it actually dilutes African American voting power. You might get a black face elected but what about the African Americans in the other surrounding districts? There influence become very limited. It also has the effect of preventing coalition politics. In fact from Mr Love's political progressive viewpoint this is a disaster for him too. It has resulted in a vast number of very very conservative Congress critters being elected. That is because they do not have to form a coalition with somewhat more moderate to liberal black voters.
Mr Love again knows this but he must abide by the unspoken rule that this pact between black politicos and the GOP cannot be discussed in public. Many of the conservative Justices don't come out and say it , but one can sense that they find using the Constitution to implement this political arrangement rather distasteful. Mr Love does not let Justice Thomas speak for himself here so I will give that opportunity. Go to page 21 of the opinion and start reading.
Mr Love in his tome also states:
Thomas staunchly defended gun rights for African-Americans by cynically making an argument that had hints of Malcolm X or the Black Panther Party. He suggested that black people needed guns to protect themselves from the mob violence of the Ku Klux Klan during Reconstruction. True, but that argument seems misplaced in the realities of present-day black America, when young black men in the cities are shooting each other to death. The staunch second amendment advocate had nothing to say about that.
Mr Love in this case links to an article talking about Justice but not to the opinion itself. Though I do give Mr Love credit that he links an article that is somewhat positive of Thomas. Again I will provided Justice Thomas speak for himself. See overview and links to the opinion at McDonald v. Chicago.
Mr Love for no reason use the term "cynically" here. There is nothing at all to indicate that Thomas is being a cynic here. Our former Secretary of State Condoleezza Rice has wrote an incredible book on her life and family. That is Extraordinary, Ordinary People: A Memoir of Family (2010).
We learn that her minister Father was a big believer in gun rights and that it played a role in Southern blacks being able to protect themselves. I have a feeling the famed Deacons for Defense and Justice that was active in my area would agree.
There is nothing "cynical" about Justice Thomas views. It comes from a solid knowledge of history and I bet some personal experience.
That opinion was also noteworthy because Justice Thomas gave a great overview of the 14th amendment. In fact his opinion was widely lauded across the legal spectrum. In that case Thomas basically said what most students of the law know. That the Supreme Court really messed up in the latter 1800's in the famed Slaughterhouse cases.
See The Slaughterhouse Cases: Getting the 14th Amendment Wrong for 137 Years . See also this good piece Thomas’s Principled Jurisprudence in Arms Case .
Further from wilkipedia:
Harvard law professor Laurence Tribe writes that “the Slaughter-House Cases incorrectly gutted the Privileges or Immunities Clause.” Similarly, Yale law professor Akhil Amar has written “Virtually no serious modern scholar—left, right, and center—thinks that Slaughter-House is a plausible reading of the Fourteenth Amendment.”[13]
Because of that mistake and the gutting of the 14th amendment various protections of the Bill of Rights and the US Constitution have had to be be lodged in various other areas of the Constitution under some rather dubious legal arguments. Thomas made the bold proposal of lets correct this mess. The majority disagreed thinking perhaps well there has been too much Judicial opinion water under the bridge to do that.
Still it was a rather bold opinion by Thomas. The sort of bold opinion that might in some form in the future become part of majority opinions. Mr Love might suspect that and it no doubt drives him crazy.
Earlier in his article he states:
An originalist, Justice Thomas believes in the original intent of the framers of the Constitution. That is bad news for black folks, and presumably for Thomas as well, given that under that judicial philosophy, he and all other blacks should be in chains on someone’s plantation.BALDERDASH!! Please note that Mr Love gives no hint of the 14th amendment discussion that I just I did. That is because that originalist viewpoint that Thomas has made him look at what the 14th amendment was suppose to mean and do. In this specific case it was to help ensure in part that blacks could not be disarmed.
This post is getting rather long so I can't go into all his slander. He for whatever reason thinks there is one correct black way to look at the Citizens United case. Mr Love fails again to clue his readers in on some very interesting strong First Amendment views that Thomas has. Well he can't let his progressive readers know about that.
Thankfully for progressives their advocates that argue in front of the Court do not take his simplistic view of the world. They know on various cause they can tailor their arguments to get Justice Thomas attention.
In the end Mr Love is right. An apology to African American needs to be given. However it needs to come from him
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