Professor Richard Albert, who sits on the Harlan Institute’s Board of Advisers, has a Symposium piece about Justice Thomas, wherein he asserts that Justice Thomas may be leading a constitutional revolution. Here is the abstract of The Next Constitutional Revolution:
In these brief reflections presented at the University of Detroit Mercy Law Review’s March 2011 Symposium on “Celebrating an Anniversary: A Twenty-Year Review of Justice Clarence Thomas’ Jurisprudence and Contributions as an Associate Justice on the United States Supreme Court,” I advance the view that the history of the United States is a series of constitutional revolutions that have defined and redefined the nation and its people. I illustrate how constitutional revolutions have shaped the United States using three different examples of revolution leadership: legislative, presidential, and judicial. My objective is to suggest that America may now find itself on the cusp of yet another constitutional revolution – a modern conservative constitutional revolution that could change much of what lies at the foundation of the United States Constitution.
The constitutional revolutionary leading this transformative movement is neither a president nor a legislator nor an amorphous aggregation of political interests. It is instead a single, and indeed singular, individual who currently sits on the Supreme Court of the United States: Clarence Thomas. His judgments have come to constitute the intellectual core of a persistent movement to return the United States to its founding confederate design. The battle pitting nation-centric federalism versus state-centric confederalism may be the next frontier in American constitutional law.
For years I have commented that it is Thomas, and not Scalia, who is carrying the banner of limited government and constitutional liberty. Albert writes that “Specifically, I will suggest that Clarence Thomas is a modern constitutionalrevolutionary whose vision for the United States is as transformative as had been in their daythose of Roosevelt, Lincoln and the Federalists.” Should we be so fortunate.
Albert writes further:
But amid these doubts about the future course of American constitutional law, two thingsremain certain. First, Justice Thomas will continue to interpret the United States Constitution inconfederalist terms, concerned first and above all with promoting state supremacy, protectingstate sovereignty, and neutralizing the concerns that give him and others reason to be suspiciousof the power-arrogating tendencies of the national government. Justice Thomas is a jurist ofprinciple who heeds only what he believes to be right, not what he regards as expedient. And forhim, what is right as a matter of constitutional law and founding history is to reclaim America’sconfederalist roots.
The second thing we can be sure of is the continuing influence of Justice Thomas. Even ifthe current conservative movement fails to consummate its revolutionary aspirations, there willnevertheless remain hope for the movement’s revival sometime in the future because JusticeThomas is not expected to retire anytime soon. He only recently entered his 60s.138 He couldvery well remain on the bench for the next two to three decades. We could see anotherconservative movement spring between now and then. And with Justice Thomas likely still to beon the bench when it does, the next conservative movement after the current one may very wellbe the one that becomes the next constitutional revolution.
I may quibble, and note that Thomas is much more libertarian than conservative, but this is a fascinating piece. Take a look.