By straying from the text of the Constitution, substantive due process exalts judges at the expense of the People from whom they derive their authority. Petitioners argue that by enshrining the traditional definition of marriage in their State Constitutions through voter-approved amendments, the States have put the issue 'beyond the reach of the normal democratic process'. But the result petitioners seek is far less democratic. They ask nine judges on this Court to enshrine their definition of marriage in the Federal Constitution and thus put it beyond the reach of the normal democratic process for the entire Nation. That a 'bare majority' of this Court is able to grant this wish, wiping out with a stroke of the keyboard the results of the political process in over 30 States, based on a provision that guarantees only 'due process' is but further evidence of the danger of substantive due process.
Associate Justice of the Supreme Court of the United States since 1991
Clarence Thomas (born 23 June 1948) is an American judge who serves as an Associate Justice of the Supreme Court of the United States. He is the second African American to serve on the nation's highest court.
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In the final weeks of my seminary days, shortly after Dr. King's death, I found myself becoming consumed by feelings of animosity and anger. I was disenchanted with my church and my country. I was tired of being in the minority, and I was tired of turning the other cheek. I, along with many blacks, found ways to protest and try to change the treatment we received in this country. Perhaps my passion for Richard Wright novels was affecting me. Perhaps it was listening too intently to Nina Simone. Perhaps, like Bigger Thomas, I was being consumed by the circumstances in which I found myself, circumstances that I saw as responding only to race.
I began to suspect that Daddy had been right all along: The only hope I had of changing the world was to change myself first. I thought of the many times that he and I had delivered fresh-picked farm produce to one of our elderly relatives. On such occasions he never failed to remind me that if we hadn’t worked so hard to grow it, we wouldn’t be able to give it to those who needed help.
The Court's decision today is at odds not only with the constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The framers created our constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a 'liberty' that the framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it.
As Ralph Ellison wrote more than 35 years ago, 'Why is it so often true that when critics confront the American as Negro, they suddenly drop their advanced critical armament and revert with an air of confident superiority to quite primitive modes of analysis?' Those matters accomplished by whites are routinely subjected to sophisticated modes of analysis. But the when the selfsame matters are accomplished by blacks, the opaque racial prism of analysis precludes such sophistication, and all is seen in black and white. And some who would not venture onto the more sophisticated analytical turf are quite content to play in the minor leagues of primitive harping. The more things change, the more they remain the same.
There's a rush today to prescribe who is black, to prescribe what our differences, or to ignore what our differences, are. Of course, those of us who came from the rural South were different from the blacks who came from the large northern cities, such as Philadelphia and New York. We were all black. But that similarity did not mask the richness of our differences. Indeed, one of the advantages of growing up in a black neighborhood was that we were richly blessed with the ability to see the individuality of each black person with all its fullness and complexity. We saw those differences at school, at home, at church, and definitely at the barbershop on Saturday morning.
As for the matter of my judicial philosophy, I didn't have one- and didn't want one. A philosophy that is imposed from without instead of arising organically from day-to-day engagement with the law isn't worth having. Such a philosophy runs the risk of becoming an ideology, and I'd spent much of my adult life shying away from abstract ideological theories that served only to obscure the reality of life as it's lived.
As such, I think that it would be in derogation of our respective oaths and our institutional obligations to our country to engage in uncivil behavior. It would also be demeaning to any of us who engages in such conduct. Having worn the robe, we have a lifetime obligation to conduct ourselves as having deserved to wear the robe in the first instance.
I was also upset to hear of a black conservative in Virginia named Jay Parker. How could a black man call himself a conservative? In a twist of fate, they both are dear friends today, and the youthful wrath I visited upon them is now being visited upon me, though without the youth. What goes around does indeed come around.
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