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Jewish World Review
July 7, 2010
/ 25 Tamuz 5770
A New Birth of Freedom: The 14th Amendment Restored
It was expected. The outcome of the Supreme Court's hearing on Chicago's prohibitive handgun law had been predictable since a similar local ordinance was struck down in the nation's capital.
The reaction to the decision was predictable, too: Supporters of the Second Amendment and the right to bear arms cheered; the gun-control crowd predicted the worst, as they always do when Americans are allowed to defend themselves and their homes. Once again, we're being told that all hell is going to break loose -- even though it never does as one state after another passes a concealed-carry law.
The legal reasoning that led to the court's opinion in McDonald v. Chicago last week was scarcely new. It was a routine Fourteenth Amendment case. All the court had to do was decide whether some right, like the right to bear arms, was covered by the broad language of the amendment. If so, it was deemed "fundamental" and could not be abridged. To use the currently accepted euphemism, it was "incorporated" into the Constitution. As for those rights that aren't, well, they just have to wait their turn -- till public opinion or the court, which can be much the same, changes.
It's a wholly arbitrary approach, more a matter of whim than law. Whenever the Supreme Court has to decide which rights make the cut, an almost metaphysical discussion ensues. The arguments may be sophisticated but they're also sophistical, hinging on which rights the justices like and which ones they don't. Rather than clear law. But there's an advantage to such an approach: It allows the court to pick and choose, even cherry-pick, which of our rights it will protect this year.
Not even the clear language of the Fourteenth Amendment, deliberately designed to assure the rights of even the least of us, the newly freed slaves after the Civil War, could keep sharp legal minds from finding ways around, through and right past this part of the Constitution. Hence the dubious doctrine of "incorporation" was born, or at least foreshadowed, with the infamous Slaughter-House cases that mainly slaughtered the Fourteenth Amendment.
That's how the Fourteenth Amendment has been reduced to protecting due process, rather than the essential rights it ostensibly protects. So that, in this week's extension of Second Amendment rights, four of the justices in the majority could base their decision on the usual, largely arbitrary interpretation of what constitutes due process.
But the fifth justice concurring in this decision -- the Hon. Clarence Thomas -- decided he wasn't playing this game any longer. He could read the Fourteenth Amendment and, however long its plain meaning had been ignored, he proposed to resurrect it. In whole -- including its most sweeping and vital provision: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...." And that includes not just the right to bear arms, as in this case, but the whole Bill of Rights and beyond.
Justice Thomas actually seems to believe that the Constitution means what it says. And is prepared to uphold it.
His 56-page concurrence in this case is also a sweeping history of the interpretation (and misinterpretation) of the Fourteenth Amendment through the years. He reviews the various conniptions of those legal scholars who, in the dubious tradition of the Slaughter-House cases, have sought to cut and trim the Fourteenth Amendment to fit their own passing prejudices. Looking over this history of legal legerdemain, Justice Thomas concludes, plainly, undeniably and courageously:
"All of this is a legal fiction. The notion that a constitutional provision that guarantees only 'process' before a person is deprived of life, liberty or property ... strains credulity for even the most casual user of words. Moreover, this fiction is a particularly dangerous one. The one theme that links the court's substantive due process precedents together is their lack of a guiding principle to distinguish 'fundamental' rights that warrant protection from nonfundamental rights that do not....
"I cannot accept a theory of constitutional interpretation that rests on such tenuous footing. This court's substantive due process framework fails to account for both the text of the Fourteenth Amendment and the history that led to its adoption, filling that gap with a jurisprudence devoid of a guiding principle. ... I believe this case presents an opportunity to re-examine, and begin the process of restoring, the meaning of the Fourteenth Amendment agreed upon by those who ratified it."
It's an opportunity Clarence Thomas has seized. With one concurring opinion, he has thrown open a whole, long unused wing of this spacious mansion that is the Fourteenth Amendment. You can almost see the air stir for the first time in more than a century, the dust scatter, and the lines of the clean, elegant beams that undergird our liberties revealed once again in their original simplicity. All because of one justice, one concurrence, one man's adherence to the clear meaning of the English language.
No wonder not a single other justice who made up the prevailing side in this case, on different and more diffuse grounds, offered any objection to the straight, undeviating route Clarence Thomas took to their common conclusion. While they were circumnavigating the issues, he cut right through them. And emerged into the light.
This not just a landmark legal opinion. It is a history lesson that should be read by every student of the continuing struggle to fulfill the Bill of Rights. Clarence Thomas sees that history through the revealing prism of the black man's struggle against both the legal sophistries of distinguished scholars and the outright terrorism of the Ku Klux Klan and such in post-Civil War America. In this opinion, he touches on some of the more notorious massacres and lynchings endured by a people deprived of the means to defend themselves. Which is the fate that awaits any unarmed people. But among the stories of persecution he relates, there is also the enduring hope of redemption:
"One man recalled the night during his childhood when his father stood armed at a jail until morning to ward off lynchers. ... The experience left him with a sense, 'not of powerlessness, but of the possibilities of salvation' that came from standing up to intimidation."
Of arms and the man Clarence Thomas now has sung anew. What the coming generation of legal scholars or just Americans with an historical consciousness will make of this landmark opinion of his, the one unexpected and literally refreshing part of this whole Supreme Court decision, will be up to them. For liberty always depends on what men will make of it. But the thrill his words engender is palpable. Here's hoping generations of law students to come will feel it, respond to it, and recognize what his words have wrought: The Fourteenth Amendment restored to its original meaning, glory and strength.
Paul Greenberg Archives
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