Theophobia and Justice Thomas--an Aristotelian view
Atrios is stirring up a small storm over a quotation attributed to Justice Thomas:
An Alabama SC justice claims, according to a Birmingham News reporter, that Clarence Thomas told him:
[A] judge should be evaluated by whether he faithfully upholds his oath to God, not to the people, to the state or to the Constitution.
The link originally came from a lawblog by Sam Heldman. Heldman, Atrios, et al, seem to think that that quotation, if accurate, proves that Justice Thomas is a theocrat.
1. Justice Thomas, in his confirmation hearings, made it clear that he is not a strict constructionist: rather he is a natural law theorist working within the Aristotelian/Thomistic tradition.
2. For strict constructionists, Brown vs Board of Education is a problem because banning segregation was clearly not a part of the original intent of the authors of the 14th amendment. For Thomas as a natural law theorist, segregation violates universal principles of human rights; hence the court was right to strike it down in the Brown ruling--regardless of the original intent of the framers.
3. Although I am not aware of any place where Justice Thomas draws out this conclusion, the logic of Thomas' understanding of natural law would have allowed the Supreme Court to strike down slavery even prior to its abolition under the 13th amendment on the grounds that slavery was contrary to natural law.
4. Without questioning him in detail, it is impossible to know what exactly Justice Thomas meant by saying that a judge's first duty is to God, but in light of his known affirmation of natural law theory, it is highly probable that things like #2,3 are what he has in mind. One may agree or disagree with this approach to the constitution, but it is scarcely theocracy.
5. In any case, the notion that one's first duty is to God is scarcely proof that one is a theocrat: one might well believe with Jefferson that one's duty to God requires the separation of Church and State: "Can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God?" (Jefferson, Notes on Virginia 1782). For Jefferson, the very fact that human rights were a gift from God required the wall of separation between Church and State. This point is not merely antiquarian: in the case of Justice Thomas, said to be a practicing Catholic, I presume he thinks himself bound by Dignitatis Humanae (1965), which requires Catholics to uphold "THE RIGHT OF THE PERSON AND OF COMMUNITIES TO SOCIAL AND CIVIL FREEDOM IN MATTERS RELIGIOUS" (available at www.vatican.va).
6. The passion with which Atrios and 300 or so of his posters have leaped into this as possible proof that Justice Thomas is a theocrat is...sad. a) There was a time when you couldn't graduate with a liberal arts degree without having read extensively in Aristotle and St Thomas--the key architects of natural law theory. But that was before the decline of the academy into postmodern political correctness masquerading as education. Sigh. b) Whatever else one finds in the posts at Atrios, one won't find much tolerance: one finds instead all too much of the theophobia that helped lose the Democrats the last election. My liberal friends have been agonizing since 2 Nov 2004 over why they lost the election. The posts over at Atrios would be a good place to start.