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Way too scary

AP reports that a forthcoming book indicates Clarence Thomas has been interviewed by White House lawyers as a possible choice for the next chief justice of the US Supreme Court. I won’t completely examine where Thomas is on the issues. Let’s just look at his approach toward the “pledge case” last term.

The issue that generated public interest was whether a public school policy requiring teachers to lead students in reciting the Pledge of Allegiance violates the Establishment Clause of the First Amendment because of the words “under God.” In its entirety, the Establishment Clause states, “Congress shall make no law respecting an establishment of religion.” Although it refers only to Congress, more than 50 years ago the Supreme Court said the clause applies to the states because of its “incorporation” into the 14th Amendment. (Virtually all provisions of the Bill of Rights have been applied to the states through this “incorporation” process.)

Thomas agreed with the ultimate opinion of the Court that the parent who brought the pledge lawsuit did not have “standing” to do so. However, he wrote a separate concurring opinion in which he basically urges overturning 50+ years of jurisprudence. After first admitting that under existing law “the Pledge policy is unconstitutional,” he argued existing law is wrong. In an analysis I can only describe as frightening, Thomas reasoned:

Quite simply, the Establishment Clause is best understood as a federalism provision — it protects state establishments from federal interference but does not protect any individual rights. . . . .

[E]ven assuming that the Establishment Clause precludes the Federal Government from establishing a national religion, it does not follow that the Clause created or protects any individual right. . . . it is more likely that States and only States were the direct beneficiaries. Moreover, incorporation of this putative individual right leads to a particular outcome: It would prohibit precisely what the Establishment Clause was intended to protect — state establishments of religion. . . . .

. . . . As strange as it sounds, an incorporated Establishment Clause prohibits exactly what the Establishment Clause protected — state practices that pertain to an “establishment of religion.”

(Italics in original; underlining added).

I quote Thomas in detail to show my concern is not a figment of my imagination. The guy admits that established jurisprudence renders a policy unconstitutional. So, to avoid the result, he advocates overturning that precedent. (What’s that the right keeps saying about “activist judges”?) Not only that, he wants to truly turn the law on his head, saying the Establishment Clause was designed to protect states in establishing religion. Thus, according to Thomas, as long as it does not use coercion against individuals, each state can adopt or establish an “official” religion free from any interference, intervention or review by the federal government.

It’s beyond me how anyone can imagine the framers of the Constitution envisioned a country consisting of wholly sectarian states, let alone that such a union could survive. It’s bad enough a guy like this is on the Supreme Court. It’s downright frightening he could be considered a candidate for chief justice.

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