In his farewell address, President Ronald Reagan recalled a Vietnamese refugee who upon leaving his leaky boat for the American rescue ship, yelled out, “Hello, American sailor. Hello, freedom man.”
That image of American military power in the cause of justice is replicated in the stormy seas raised by administrative state today: our “freedom man” is Supreme Court Justice Clarence Thomas.
Reagan appointed “freedom man” to his first executive branch positions back in 1981 and 1982, first to the Department of Education and then to the U.S. Equal Employment Opportunity Commission, where he was chairman. I had the honor to work for Thomas as a special assistant at the EEOC from 1986 to 1990, when President George H. W. Bush appointed him to the D.C. Circuit Court of Appeals. Bush subsequently nominated him for the Supreme Court, where he has served for 28 years. In each position Thomas expanded freedom to the extent his circumstances permitted him.
His latest Supreme Court opinions display his view of freedom in abundance. Out of a tangle of facts and precedent, Thomas has the genius to spot the principle that will allow him to protect and foster fundamental freedoms. Consider two of his February opinions in the area of free speech and basic constitutional protections, as well as the related area of freedom of religion.
The most noted of these opinions came in a Bill Cosby trial-related case and involved the scope of free speech: Specifically, Thomas raises the question how much free speech protection is available to persons accused of violating libel laws?
Right now, too much: almost anyone, such as a Bill Cosby accuser, could be regarded as a “public figure,” who must prove “actual malice” to sue for libel damages—Cosby’s lawyers therefore easily vilified the victim in this case as a liar. Thomas insists on a reconsideration, to provide non-public figures some real recourse against defamation.
Compiling impressive evidence, he rightly observes, “New York Times [v. Sullivan (1964)] and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law.” By virtually wiping out state libel laws, they placed an overwhelming burden on those who would sue for being libeled. “If the Constitution [in “the original understanding”] does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.”
Frequent critics of Thomas, such as Obama appointee and confidante Cass Sunstein, of Harvard Law School, praised his “public service” of reopening the case for stronger libel laws.
Sunstein adds, “New and creative thinking, designed to protect people from having their reputations shattered, is very much in order.” Of course Sunstein would use his creative reading of such laws to sue President Trump, when he disparages an opponent. Altogether, as Edward Erler has shown, Sunstein is actually an enemy of free speech, preferring Franklin Roosevelt’s “Economic Bill of Rights” to the original. Under Sunstein’s regime we would have reduced political free speech, less talk radio, and more dominance of progressive dogma.
Another Harvard Law professor, Noah Feldman, contends Thomas wrote “a fascinating and bizarre opinion” that contradicted itself. After all, Feldman desperately maintains, “An attack on the New York Times v. Sullivan case is . . . an attack on the media.” But there is no contradiction here at all: robust political speech suffers today not from Alien and Sedition Acts but from political correctness.
By denouncing the opinion as “medieval,” Feldman caricatures Thomas’s core principle in his jurisprudence: his rootedness in natural law, the natural rights teaching of the Declaration of Independence. Whether he is defending a baker’s free expression rights in designing and selling his wedding cakes or discouraging reckless, defamatory speech, Thomas is encouraging a freer and more just society.
In his concurring opinion on the constitutional prohibition on excessive fines and thus the issue of civil asset forfeiture, Thomas again demonstrated how his original understanding approach could protect freedom from both prosecutorial and judicial recklessness. Being free of an “excessive fine” was an explicitly protected “privilege or immunity” or right, with a distinct history and embedded in the Constitution, not an invention of the judiciary that distorted the concept of “due process of law.” He thus reaffirmed his critical McDonald case 2010 vote protecting gun ownership rights as a “privilege or immunity.”
Finally, while Justice Thomas maintained his typical silence in the oral argument of he hotly disputed Maryland Cross case, he will likely extend the reasoning of his concurring opinion in a previous case involving a monument with religious significance. The Maryland Cross case involves a 40-foot-high cross on public land, erected to commemorate fallen World War I veterans from the area. Oral argument indicated that the court would likely allow the cross, thus further backing away from its earlier claim that such religious monuments were a prohibited government “establishment of religion.”
The real issue was what reasoning the court ought to adopt. Was the cross acceptable as an instance of “civic deism”? As tradition and history? As a sign of respect at the time of its erection, 93 years ago? Thomas would reject all these weak arguments in favor of the original understanding of the First Amendment: government may not coerce religious belief or a rejection of it. That means religious freedom and therefore no established religion.
Just as free speech protects utterance of offensive opinions, religious symbols that may cause offense cannot for that reason alone be prohibited. This means that monuments with religious meaning may be erected on public land (as in Arlington National Cemetery) and prayers may begin city council meetings without accusation that a state religion is being propounded. More positively put, religion may flourish in the public square.
We will not hear a farewell address from Justice Thomas for a while. For he hasn’t yet spoken all of his piece yet.
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