It Ain’t My History and Tradition

The longer you are involved in the law, the more you realize that what the law says is a what the Supreme Court says it says. The guys who wrote the Constitution, in their social far-sightedness, drafted it in general terms. They understood that while they were sitting in a steamy room in Philadelphia in the late eighteenth century, they couldn’t possibly envision what the country of hundreds of years later would be like. Nor, they knew, could they imagine what people in that future would think. So rather than make specific rules for the times to come, they just drew an outline and left it to the following generations to fill in the blanks in their own terms. 

They kept the Constitution short. Only 4 pages. They perceived that when you are writing rules for the future, short is best. To the contrary, Mein Kampf is 720 pages.

The majority of our Supreme Court does not share the mind-set of the Founders, even though they claim to. They interpret our basic law – the Constitution – not by allowing it to be adapted to the present time and place, but, instead, by how its words were understood in the world when those hot guys in Philly wrote them. They call this an “originalist” perspective.

As part of this, they look to the “history and tradition” of the country to interpret the law. In other words, what the words used to mean is what they should mean now. This is how they figured that, because militias needed muskets in 1791, people should be able to have AR-15’s now. This is how they decided that because abortion was disallowed in the past, it should be disallowed now.

It is not unusual that the Justices who take this view to also view their religions in much the same way. They lean toward more conservative, historical readings of scripture. Samuel Alito’s wife teaches Catechism. Amy Coney Barrett is a member of “People of Praise,” a secret conservative Christian group. And then there is Clarence Thomas, who once aspired to become a priest.  

Of course, there is nothing wrong with holding these religious views. What gets things off kilter is when that style of thinking seeps into a Justice’s job. It’s a problem when they think they can interpret the Constitution based on what the Patriots of two hundred years ago thought just like they can interpret the Bible based on what the Disciples thought.

That brings us to the present controversy over one of those Justices who think they can divine the thought process of the Patriots – Clarence “Give Me a Free Vacation or Give Me Death” Thomas. It seems that he has a really good friend who has bestowed upon he and his wife many gifts. So many that if Santa Claus had been asked to make them, Saintly Santa would have told him to go fuck himself. 

You probably know it all – the private jets and the luxury vacations and the free house to his mother. People are complaining about all of that and more. Clarence, though, doesn’t think that there is anything wrong with his accepting all of this largesse. He thinks it’s all O.K. Why? Because somebody once told him that. Could that advice have come from one of the Founders? No. From the Bible? Not likely. Who told him? Some guy he ran into in the hallway? He won’t say. 

And there is a problem with the anonymous advice that Clarence is relying on. See, those hot Philly guys, even in their little four-pager, saw the need to include at Article III, Section 1 that federal judges, like Clarence, could be removed from office if they did not perform their duties “upon good behavior.” 

That “upon good behavior” standard is, as is most of the Constitution, general and vague. If Clarence was serious about figuring out what it means as applied to him, he would use his “history and tradition” philosophy and look to what it was interpreted to mean in the past. He can do that if he wants to. He can look to the case of Judge Robert W. Archbald.

It seems that over a hundred years ago it was alleged that Judge Archbald had bought coal lands at cheap prices. This was really valuable stuff at that time. The thing was that he had received these great real estate deals from railroad and real estate companies that had interests then before him. Sound familiar. Stay with me. Judge Archibald also received foreign trips that were paid for by frequent Supreme Court litigants. 

Get it now? 

What happened to him? He was impeached.

Why, Clarence, does this “history and tradition not apply to you? Isn’t your situation much the same as Judge Archbald’s? Certainly, it is more similar than the history and tradition of militias that you used to spread more guns all over the place. If the Archbald case evidences how people thought over 100 years ago, isn’t that the “history and tradition” that originalists like you say we should follow?

Sure, you can do whatever you want to do. You make the rules. I call to your attention, though, to a quote from one of your predecessors on the Court. Justice Potter Stewart said, “Ethics is knowing the difference between what you have a right to do and what is right to do.” 

I’m not a lunatic (at least, most of the time). But it appears to me that no rational person who is familiar with Clarence’s confirmation hearing would expect him to tell the truth. However, my soul requires me to hope that someone in his position – the position to say what the law says – would have some fundamental appreciation for veracity. If Clarence did, he would resign.

I’m not holding my breath.