Lord of the Rings aficionados know that the evil lord Sauron paid little attention to the danger posed by two hobbits slowly struggling across the mountains and deserts of Mordor until he suddenly realized that the ring on which all his power depended was about to be hurled into the pits of Mount Doom. All at once the enemy plan became clear; what looked like stupidity was revealed as genius, and Sauron understood everything just when it was too late to act.Read the rest here.
Jeffrey Toobin’s gripping, must-read profile of Clarence and Virginia Thomas in the New Yorker gives readers new insight into what Sauron must have felt: Toobin argues that the only Black man in public life that liberals could safely mock and despise may be on the point of bringing the Blue Empire down.
In fact, Toobin suggests, Clarence Thomas may be the Frodo Baggins of the right; his lonely and obscure struggle has led him to the point from which he may be able to overthrow the entire edifice of the modern progressive state.
HT: Blog reader Michael
This is a fascinating read. I also recommend Toobin's article linked in the text.
5 comments:
Well, duh!
The 10th Amendment crusade and this article always forget to mention the equally originalist understanding of the implied powers of the federal government:
"The constitutional issue about the taxing power had deep roots running all the way back to the founders and to a dispute between Alexander Hamilton and James Madison. Although both Hamilton and Madison were Federalists who believed in a strong federal government, they disagreed over the interpretation of the Constitution's permission for the government to levy taxes and spend money to "provide for the general welfare." Hamilton thought this meant that government could levy new taxes and undertake new spending if doing so improved the general welfare in a broad sense. Madison thought the federal government could only expend money for purposes specifically enumerated in the Constitution.
The Madisonian view, also shared by Thomas Jefferson, came in time to be known as the strict construction doctrine while the Hamiltonian view is called the doctrine of implied powers.
The balance between these two philosophies went one way and then the other over the years, with Hamilton's view tending to prevail over the long run, but it was always possible that in uncharted waters the courts might retreat to a Madisonian conservatism..."
That is, until the New Deal (and since) when the Hamiltonian view prevailed.
"Justice Cardozo wrote the opinions in Helvering vs. Davis and Steward Machine. After giving the 1788 dictionary the consideration he thought it deserved, he made clear the Court's view on the scope of the government's spending authority: "There have been statesman in our history who have stood for other views. ...We will not resurrect the contest. It is now settled by decision. The conception of the spending power advocated by Hamilton ...has prevailed over that of Madison...""
To wish to go back to the "original originalism" is a form of something like a Campbellite sola Scriptura that seeks to ignore all intervening precedent so confident is it in its own ability to determine not only the original intent of the text but the original intent of the preferred Founding Fathers who were more right, originally, than others were, originally.
Of course, it's also possible the "implied powers" isn't as popular on a bumper sticker regardless of the obvious, old precedent set by the framers who specifically weakened the 10th Amendment so as to fix a problems stemming from more 'explicit powers' language in the Articles of Confederation.
"The Tenth Amendment is similar to an earlier provision of the Articles of Confederation: "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled." After the Constitution was ratified, some wanted to add a similar amendment limiting the federal government to powers "expressly" delegated, which would have denied implied powers. However, the word "expressly" ultimately did not appear in the Tenth Amendment as ratified, and therefore the Tenth Amendment did not amend the Necessary and Proper Clause."
And,
"The question is really whether delegated powers means only expressly delegated powers or also include some powers that are impliedly delegated. Marshall reasoned that the delegated powers included implied powers, based in part on the necessary and proper clause (Art. I, Sec. 8), and in the Articles of Confederation.
The Articles had language similar to the 10th Amendment, . . . powers not delegated to the United States are reserved to the states, in the Articles it said powers not expressly delegated.
When the framers of the 10th Amendment chose not to use that word "expressly", it was an implied recognition on their part that the authors of the 10th Amendment clearly meant that the federal government had implied powers as well as express."
Both the Articles of Confederation and the Confederacy failed.
To speak of the battle as only between the heirs of Hamilton and of Madison is to miss much of our history, especially the rise of the Progressives and the Progressive movement and how it has animated the political class and dominated the 20th century. TR, Woodrow Wilson, Hoover, FDR, JFK, Johnson, Nixon, Clinton, Bush and most clearly Obama are all in their vein, broadstrokes but still this was dominant. Early Progressives were quite open about how they thought the Constitution was a barrier to all that could do with the power of the federal government, and quite comfortable with saying that they the elite should run things for the rest of us, especially minorities. Now they are not so open as people have caught on to the price they pay for all the wars, corruption and inefficiency that comes from centralization, but this is the real battle.
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