Wednesday, February 28, 2018

Justice Thomas Stands Alone on Principle (Part II)

The Commerce Clause and Necessary and Proper Clause

Thomas believed the Court should adhere to the original meaning of the Interstate Commerce Clause: Trade amongst the States. However, during the FDR era the Commerce Clause was expanded to cover anything that is economic including intrastate commerce (Wickard v. Filburn, 1941). In United States v. Lopez (1995), Printz v. United States (1997), United State v. Morrison (2000), and Sabri v. United States (2004) the Court placed limits on the Commerce Clause: any law that was outside of being economic nature was not covered under the Commerce Clause. In Gonzalez v. Raich (2005) the Court held a federal law that prohibited limited medical marijuana growth for personal consumption was unconstitutional. Scalia sided with the majority citing Wickard and the Necessary and Proper Clause saying very limited marijuana growth was still economic in nature. Thomas, disagreed and did not hold back his disgust towards the majority.

The Dormant (Negative) Commerce Clause

Usually the Supreme Court has the final say regarding the legal aspect of laws. That is not true for Dormant Commerce Clause cases. Congress can veto the Court’s ruling with legislation if it wishes to do so. This is exactly what happened in United States v. SE Underwriters Association (1944) where the Court held insurance could be regulated by the Commerce Clause (this overruled Paul v. Virginia, 1869). In 1945, Congress passed the McCarran-Ferguson Act to negate the Courts decision. In Hillside Dairy v. Lyons (2003) Thomas stated that “the negative Commerce Clause has no basis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application.” Thomas made similar claims in Pharmaceutical Research of America v. Walsh (2003)

Other First Amendment Issues: Campaign Finance

Thomas urges overruling of Buckley v. Valeo, (1976), and Austin v. Michigan Chamber of Commerce, (1990) in McConnell v. Federal Election Commission (2003) and again in McCutcheon v. Federal Election Commission (2014), to permit unlimited corporate and union political contributions. Thomas believes much of the campaign finance regulatory system violates the First Amendment. Thomas (with Scalia) also urged overruling Buckley in Nixon v. Shrink Missouri Government PAC, (2000). Of course Thomas got his wish when in Citizens United (2010) the Court held unlimited corporate and union political contributions where the law of the land.


In Johnson v. Texas (1993), Graham v. Collins (1993) and Trennard v. Dretke (2004) Thomas supports reconsideration of Penry v. Lynaugh, (1989) where the Court held that consideration of mental deficiencies were allowed when imposing criminal sentence. In Farmer v. Brennan (1994) and Ewing v. California (2003) Thomas wants to revisit Eight Amendment precedent including Solem v. Helm (1983), which applied a proportionality test to the Cruel and Unusual Punishments Clause and Estelle v. Gamble, (1976), which held that the Eighth Amendment regulates prison conditions not imposed as part of a sentence. In Cooper Industry v. Leatherman Tool Groups (2001) Thomas urged overruling BMW of North America, Inc. v. Gore (1996) which limits the size of punitive damage awards. In Grutter v. Bollinger (2003) the Court held that race can be used as a factor to determine admittance into Michigan Law School. Justice Thomas quoted a Fredrick Douglass’s speech: What the Negro Wants in his dissent saying race has no place in the educational system as Justice Harlan said “the constitution is color blind.” In Obergefell v. Hodges (2010) the Court held gay marriage was a fundamental right. In his dissent Thomas points out that Liberty is being free from government restriction or action and gay people’s freedom is not being encroached because being gay is not a crime. Furthermore, Thomas points out that Liberty does not include a “government entitlement or benefits” that marriage may provide. In American Trucker v. Whitman (2001) Thomas urges to revisit the Courts jurisprudence over the Separation of Powers. In Mitchell v. United States (2001) Thomas urges overruling Griffin v. California (1965) and Carter v. Kentucky (1981), which prohibited inferences based on a defendant’s silence in criminal cases.

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