An article by Clark Neily and Robert McNamara in the Las Vegas Review-Journal rightly applauds the basis for Supreme Court Justice Clarence Thomas' deciding vote in McDonald v. City of Chicago:
Justice Thomas noted that, for all the disagreement between the two groups of four justices, neither side even pretended to base their arguments on what the 14th Amendment was actually understood to mean when it was adopted. Thomas agreed that the gun ban should be struck down, but it should be done under the 14th Amendment's "Privileges and Immunities Clause."
Neily and McNamara conclude that "far from being just a case about guns, McDonald is a first step toward meaningful and principled protection of our essential, natural rights." Even a cursory reading of Justice Thomas' thorough and well-documented discussion bears out this conclusion. Its implications are literally "revolutionary." This in part because his presentation in this case reminds us of the sense of that word the founding generation would have associated with Great Britain's "Glorious Revolution" in 1688 (the political event that was the context in which John Locke articulated the fundamental logic of self-government critical to the establishment of the American republic). Corrupted by its use in the context of Marxist historicism, the term now mostly conveys the overturning and destruction of an existing order in the dialectical process through which a new order emerges. In the Lockean context, however, it refers to an event that leads to the restoration of the original, just institution of government overturned by a consistently tyrannical abuse of power.
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In his concurring opinion, Justice Thomas provides an example for the Supreme Court's return to the original, justly disciplined jurisprudence abandoned in the last century for abuse of the power of judicial review that departed from the respect for the Constitution's language and principles. The power of judicial review was originally asserted in the context of respect for the superior authority of the Constitution as embodying the more permanent will of the people (cf. Hamilton's lucid discussion in the Federalist No. 78). But the concept of greater permanence relies on several prerequisites of stability, including 1) respect for the language of the Constitution in its entirety; 2) respectful preservation of the meaning of the Constitution's words understood in the context in which they were originally ratified by the people; and 3) respect for the discipline of reason in articulating the connection between the language of the Constitution and the conclusive opinion of the judiciary in any given case.
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As he develops his concurring opinion in McDonald, Thomas carefully satisfies these prerequisites, while criticizing in a number of instances the court's previous failures to do so. This is particularly true in the arguments he presents in deference to the requirements of stare decisis, or the due respect it is appropriate for the court to show for decisions previously taken by the court. He justifies his departure from the court's precedent treatment of the "Privileges and Immunities Clause" with reasoning carefully argued and documented to satisfy the prerequisites for asserting the superior authority of the Constitution, on which assertion the court's right to exercise the power of judicial review wholly depends.
In this respect, he reasserts the logical discipline without which the court risks undermining its proper authority by abusing its review power in a fashion that invalidates the reasoning from which that power is derived. In the process, he uses arguments that draw attention to the fact that the "Privileges and Immunities Clause" of the 14th Amendment, by protecting each citizen's unalienable rights, makes more explicit the U.S. government's responsibility to prevent state governments from similarly self-discrediting behavior. (By denying unalienable rights, a state government destroys the legitimacy of the powers it exercises. For, on account of the security all government is instituted to provide for their unalienable rights, the just powers of government are derived from the consent of the governed.)
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Justice Thomas' opinion in the McDonald case is therefore not just the decisive contribution to the outcome of the case. It is not just a substantial contribution to the jurisprudence of the 14th amendment. It is an act of statesmanship that by its form and substance exemplifies the self-discipline that at one stroke restores the integrity of the court's jurisprudence and preserves the strength and independence of its just constitutional power.
Justice Thomas' example does for the constitutional power of the judicial branch of government what America's political leadership needs in general to do for the sovereign power of the American people as a whole. To preserve their rightful power of self-government the people, too, must respect the prerequisites for asserting their superior authority over the Constitution, and indeed the institution of any human government whatsoever. Obviously, that superior authority cannot be derived from the Constitution ordained and established by it. Rather it derives from the authority invoked in the Declaration of Independence and expressed in "the laws of nature and of nature's God" referred to in that fundamental statement of republican principle. This is the superior permanent will on which all the just claims of human government depend.
This means, of course, that the "original intent" in light of which the U.S. Constitution must ultimately be judged is not just the intent of the people at the time its language was ratified. It is the intent of the Creator, the original source of the principles of right which make government of, by and for the people the standard of governmental legitimacy and justice. This is the intent that people in every time and place are called upon to revere. It is the common ground constituted by the one who is, in the Declaration's words, the Supreme Judge of the world, before whom the people of every generation must justify, by reason and truth, their use of the sovereignty endowed by His creation to their care.
[For more on the profound implications of Justice Thomas' 14th Amendment statesmanship, read the latest post at Loyal to Liberty.]
