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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsThe Most Baffling Argument a Supreme Court Justice Has Ever Made
An opinion from Justice Clarence Thomas exposed the limits of originalism.
By Adam Serwer
Midway through his concurrence with the Supreme Courts decision to strike down affirmative action, Justice Clarence Thomas deploys one of the most absurd and baffling arguments ever put to paper by a justice.
In order to argue that the Framers of the Fourteenth Amendment did not intend to authorize racially specific efforts to alleviate inequality, Thomas finds himself forced to explain the existence of the Freedmens Bureau, which was reauthorized in 1866 by the same Congress that approved the Fourteenth Amendment. To square this circle, Thomas insists that the term freedmen was a formally race-neutral category and a decidedly underinclusive proxy for race.
The 1866 Freedmens Bureau Act then expanded upon the prior years law, authorizing the Bureau to care for all loyal refugees and freedmen
Importantly, however, the Acts applied to freedmen (and refugees), a formally race-neutral category, not blacks writ large. And, because not all blacks in the United States were former slaves, freedman was a decidedly underinclusive proxy for race.
If freedmen were a formally race-neutral category, then the Fourteenth Amendment does not authorize race-conscious efforts to remedy racial discrimination, and affirmative action cannot be constitutional. As an originalist, Thomas is supposed to interpret the Fourteenth Amendment as it was understood at the time it was written. He is attempting to reconcile his philosophy of judicial interpretation with what the history actually says; the other originalist justices do not really try, perhaps aware of the awkwardness of doing so. The problem, though, is that Thomass interpretation is obviously incorrect. His efforts at reconciliation ultimately illustrate the extent to which originalism is merely a process of exploiting history to justify conservative policy preferences, and not a neutral philosophical framework.
https://www.theatlantic.com/ideas/archive/2023/07/freedmen-race-neutral-supreme-court-affirmative-action-clarence-thomas/674641/?utm_campaign=the-atlantic&utm_content=true-anthem&utm_medium=social&utm_source=twitter
( Despicable man on numerous levels. )
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(54,028 posts)BeckyDem
(8,361 posts)I posted the other link in the Editorials section...I have too many windows open. lol
2naSalit
(91,672 posts)BeckyDem
(8,361 posts)brush
(56,905 posts)Even his fellow nutcase wife won't be able to unwind his limbs from the pretzel shapes he's gotten himself into with these ridiculous bloviations.
Come on Clarence, it's easier just ditching the honorary white mantle and just admit that originalism works for sexists, racists, anti-LGBTQ+ crusaders and others of like ilk, but not for just a hard scrabble black man who got to where he is from some merit, but more luck at being in the right place for replacement when Justice Thurgood Marshall passed (and please put the ladder you climbed up on back behind you).
BeckyDem
(8,361 posts)Kid Berwyn
(17,548 posts)bluesbassman
(19,753 posts)Is that some day when the dust settles, his writings will be used in Constitutional Law course as examples how NOT to interpret the document.
BeckyDem
(8,361 posts)His legacy which includes self corruption will be written about for decades, I imagine.