Freedom Line Blog

Any reader familiar with Supreme Court Justice Antonin Scalia knows his professional reputation is etched with the cuts of (seemingly) a thousand harshly worded dissents.  In fact, they are so clear and compelling there’s a book called Scalia Dissents that catalogues some of his most pointed opinions.

Justice Clarence Thomas takes a different approach.  His most intriguing opinions usually come in the form of concurrences, agreeing with the conservative majority’s result, but not its process.  The most recent example was his unchallenged concurrence to the Chicago gun rights case (McDonald v. City of Chicago).  In it, the Court’s clearest thinking – and best writing – justice observed that “due process” of the 14^th Amendment guarantees nothing more than the process due a person before taking his life, liberty or property.

In other words, the government can deprive a person of any one or all three, it just needs to establish a scheme for doing so.

Thus, if it’s true that there are certain fundamental rights – like the 2^nd Amendment’s guarantee to carry a weapon for self-defense – that cannot be infringed by states and localities, conservatives and liberals will have to look somewhere other than the due process clause to protect them. Justice Thomas found the mechanism in the 14 Amendment’s privileges or immunities clause.  Not only does it fit with the intent of the amendment’s framers, it boasts the honor of not confusing the process of depriving rights with the substance of those rights.

All lawyers should strive to be so helpful.

These days, it seems like war is only the extension of politics by other means; except that even the means are political.

Last week, President Barack Obama minimized conservative harrumphing after firing General Stanley McChrystal by appointing General David Petraeus as his replacement.  Though politically savvy, CFIF Senior Fellow Troy Senik correctly notes that reassigning Petraeus may be a pyrrhic victory since most of the conditions for successfully implementing his counterinsurgency strategy are missing.  When he gets in country, Petraeus’ biggest enemy won’t be the Taliban or a corrupt Karzai government; it’ll be trying to deliver a victory conservatives can stomach on a timetable and troop count demanded by liberals.

Heading back to Washington the war on rationality gets even rougher.  This morning four out of five Supreme Court right-of-center justices voted to extend the Second Amendment’s guarantee of an individual’s right to own a gun to the several states.  The result produces two effects.  First, complete government bans on gun possession are unconstitutional.  Second, eight of the current justices are now on record supporting a liberal theory of constitutional jurisprudence: Substantive Due Process.  Only Justice Clarence Thomas opted for a textually supported, historically rooted commonsense reading of the Fourteenth Amendment.  Since no one tried to dispute his reasoning, it can be assumed that everyone accepted his conclusion – they just didn’t like his premises.

The only element these storylines have in common is one man bearing quiet witness to the power of clear thinking.  While the political class may be unable to sustain a coherent framework for addressing pressing issues, it is a comfort knowing that at least some of those they appoint are capable – and willing – to tackle important matters with precision and daring.