Frodo Succeeds, Remember?

Walter Russell Mead’s take on Jeffrey Toobin’s Clarence Thomas article in The New Yorker is just outstanding.

Here’s a few snips –

Remember, Frodo and the rest of the nasty hobbiteses save the world from evil.

In fact, Toobin suggests, Clarence Thomas may be the Frodo Baggins of the right; his lonely and obscure struggle has led him to the point from which he may be able to overthrow the entire edifice of the modern progressive state.

Justice Thomas is the greatest thinker on the Court, despite what the media and the loony left want you to believe.

oobin, who disagrees strongly with Thomas about most matters constitutional, political and cultural, does a good job of showing why Thomas is a formidable judicial thinker. The interpretative concept of “originalism” is sometimes confounded with a simplistic literal interpretation of the words of the Constitution. Thomas argues that to understand what the Constitution meant to the framers, one needs to do more than read the words on the page and look to see how Samuel Johnson and perhaps Noah Webster defined them in their dictionaries.

Thomas is not a fundamentalist reading the Constitution au pied de la lettre; the original intent of the founders can be established only after research and reflection. The Eighth Amendment ban on “cruel and unusual punishment” can only be understood if one understands the thought of the period, the types of punishment then widely used, and the political and cultural traditions that shaped the thinking of the founders on questions of justice and punishment. One then takes that understanding, however tentative, and applies it to the circumstances of a given case today.

It is not the only possible way to read the Constitution, but it is a very interesting one and it may be the only politically sustainable way for the Court to read it in a contentious and divided country. Without some rule of interpretation that the average person can understand and accept as legitimate, the Court gradually loses legitimacy in the public eye. The originalist interpretation, whatever objections can be made to it intellectually and historically, is politically compelling. It resonates with the American propensity for commonsense reasoning. To say that the Founders meant what they meant and that the first job of a judge is to be faithful to their intent is something that strikes many Americans as sensible, practical and fair.

Wonder why regular ol’ Americans are interested in biographies of Jefferson and Madison and Jackson? Turns out we’re not the only ones hoping for guidance.

Nevertheless, the Jacksonian populism behind the Tea Party and associated movements connects with some deep seated American preferences. The public is suspicious of clever legal theories that run counter to ‘obvious’ ideas about what the Constitution means. Just as populists like mandatory sentencing rules that reduce the discretion of judges in criminal matters, they like ways of interpreting the Constitution that reduce the ability of judges to base their decisions on anything beyond the clear meaning of the text. Andrew Jackson’s populism drew energy from his opposition to the (elite backed, constitutionally questionable) Bank of the United States and his firm stance against John Marshall and his usurping Court. Governor Perry’s attacks on Fed Chairman Bernanke are not unlike Jackson’s attacks on Nicholas Biddle; the platform being hammered out in Texas has a distinctly Jacksonian feel.

Read the whole thing. We may survive this Obamanation yet.

1 Comment

  1. Dad said,

    August 30, 2011 at 12:09 pm

    You know, I read that piece after getting a Twitter from @LisaBloom commenting how “disturbing” it was. I read it, and did not get “disturbed” at all, considering the source (Toobin and NYT). Why, likely dozens of people read it! Just more un-Tolerance effluence from the Great Washed Tolerant. Uh, face it, ye “special ones”. He’s “off the reservation” and he draws a paycheck doing his duty for as long as he draws air!


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