Clarence Thomas

Clarence Thomas

Thomas Allen

Mark Paoletta writes an excellent article about Supreme Court Justice Clarence Thomas: “What Makes Clarence Thomas Great,”  Chronicles: A Magazine of American Culture,  June 2026, pages 12–15 (https://chroniclesmagazine.org/view/what-makes-clarence-thomas-great/#comment-63457). He presents Thomas as a strict constructionist, i.e., he interprets the Constitution literally and narrowly, limits the federal government’s powers to those explicitly and clearly granted in the text, and declares that all powers not expressly enumerated in the Constitution are reserved to the States or the people unless the Constitution expressly denies such powers.

According to the article, Thomas claims that the Constitution is color-blind. He errs; it is not. White men wrote it for Whites and only for Whites. The Preamble tells us so.  (“We the People of the United States . . . to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” Who are “ourselves” and “our posterity”? They are the people who wrote and ratified the Constitution and their descendants, all of whom are Whites.) Also, the author, Charles Pinckney, of Article IV, Section 2, Paragraph 1 of the US Constitution (“the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States”),  said, “At the time I drew that Constitution, I perfectly knew that there did not then exist such a thing in the Union as a black or colored citizen, nor could I then have conceived it possible such a thing could ever have existed. . . .” (For proof that the Constitution was written for Whites, see “For Whom Is the Constitution Written?,” “Addendum to ‘For Whom Is the Constitution Written?’,” and “The Constitution of 1788 Was Only for White People” by Thomas Allen.)

If the Constitution were color blind, the Fourteenth Amendment, which was illegally and unlawfully ratified, would not be needed except to disenfranchise Southerners. Moreover, the Congress that drafted the Fourteenth Amendment also adopted a segregated school system for the District of Columbia. Obviously, this amendment was not intended to require school integration. That is why the Supreme Court based its school desegregation decision more on sociology and foreign policy than on the Constitution. (For more on the Fourteenth Amendment, see “Founding Principles of the Governance of the United States,” “Addendum to ‘For Whom Is the Constitution Written?’,” and “Before and After” by Thomas Allen.)  The constitutional rulings in Plessy v. Ferguson (separate but equal) and Brown v. Board of Education (school desegregation) should have held that education is a State matter; the Constitution grants the federal government no authority over public education, except in the District of Columbia and the territories.

Moreover, if Thomas were a strict constructionist, he would not apply the first nine amendments, the Bill of Rights, of the Constitution to the States. Through the incorporation doctrine, the Supreme Court applies most of the Bill of Rights to the States via the Due Process Clause of the Fourteenth Amendment. Since the incorporation doctrine was not discovered until about a generation and a half after the ratification of the Fourteenth Amendment, obviously, the drafters and ratifiers of this amendment did not intend for it to be used to apply the Bill of Rights to the States. (The constitutions of each State have their own bill of rights.) Since Thomas applies the incorporation doctrine, he is an inconsistent strict constructionist. 

In District of Columbia v. Heller (the Second Amendment confers an individual right),  Thomas, who supported the ruling, acted as a strict constructionist because the ruling applied to an agency of Congress but not to the States. However, in New York State Rifle and Pistol Association v. Bruen, Thomas, who supported the ruling, applied the Second Amendment to the States, which was contrary to strict construction. These rulings illustrate Thomas’ inconsistency as a strict constructionist.

Furthermore, when he rules against federal laws that discriminate against Whites, he is a strict constructionist. When he rules against State laws on segregation, integration, or discrimination, he is not a strict constructionist. Such issues are reserved for the States or the people thereof under the Tenth Amendment. For the most part, Thomas, unlike most other Supreme Court Justices, is a strict constructionist.

Copyright © 2026 by Thomas Coley Allen. 

More political articles.

Gutzman on the Constitution

 Gutzman on the Constitution

Thomas Allen

In The Politically Incorrect Guide™ to the Constitution (2007), Kevin Gutzman provides some interesting information related to the US Constitution. Some of this information follows.

High Crimes and Misdemeanors. The phrase “high crimes and misdemeanors” appears in Article II, Section 4 of the Constitution: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

Most people believe that this phrase means various types of homicides and thefts and other indictable crimes. It does mean these things, but it also means more than these.

When the States ratified the Constitution, this phrase was understood to cover physical disability and mental and psychological impairment. However, the complete meaning of this phrase was forgotten, and it became limited to indictable crimes and petty corruption. Consequently, the impeachment process has become a highly ineffective means to remove judges and other civil officers from office. (The twenty-fifth amendment establishes a procedure for removing the president, but not other civil officers or judges, from office because of physical disability and mental impairment.)

Vetoing State Laws. The Constitutional Convention rejected giving Congress the power to veto State laws, which implied that the judiciary, which is the least responsible institution of the federal government, also lacks such power. However, the US Supreme Court soon usurped this power. 

First, it used the Contract Clause (Article I, Section 10: “No State shall . . . pass any . . . Law impairing the Obligation of Contracts. . . .”). The purpose of the Contract Clause was to prohibit States from adopting laws preventing lenders from collecting debts for a stated period. This clause was not intended to prohibit States from enacting economic regulations. However, federal courts have used it to veto State laws that regulated the economy.

About 130 years later, the Supreme Court replaced the Contract Clause with the Interstate Commerce Clause (Article I, Section 8: “The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”) to veto State laws that the Supreme Court did not like.

After World War II, the Supreme Court began using the Incorporation Doctrine (applying the first nine amendments, the Bill of Rights, to the States) to veto State laws that it did not like.

(Federal courts seldom veto State laws because they are unconstitutional; most are constitutional under the original intent of the Constitution. Federal judges veto State laws because they do not like them; they conflict with the personal prejudices, preferences, and biases of the judge.)

Eleventh Amendment. The purpose of the eleventh amendment is to reassert the independence, sovereignty, and supremacy of the States. Specifically, it denies federal courts jurisdiction over lawsuits initiated against a State by a citizen of another State or country.

Its original intent was to limit the jurisdiction of federal courts to those specifically named Article III. The Supreme Court has circumvented the intent of the eleventh amendment by allowing people to sue State officials who carry out the policies of the State in lieu of the State itself.

Two Views of the Nature of the Law. Gutzman describes two views of the nature of the law: Thomas Jefferson’s and John Marshall’s, Chief Justice of the Supreme Court (1801–1835). “For Jefferson, law was the framework of rules by which the people agreed to be governed; a judge's role was simply to apply the clear meaning and original understanding of the Constitution (or other legal document)” (p. 98). Jefferson’s view is republican in nature.

However, Marshall believed “that law required judges who could see beyond the written law to the ‘natural law’ that was superior to it” (p.98). (Abolitionists also claimed that natural law as they interpreted it was superior to the Constitution and all other laws.) Marshall’s view is aristocratic and clerical in nature. The fatal flow of Marshall’s view is that “no two men agreed about the particulars of the ‘natural law’; instead, they tended to use ‘natural law’ as a justification for their own policy preferences” (pp. 98-99).

Two Types of Due Process. The Supreme Court has created two types of due process: “procedural due process” and “substantive due process.” Due process appears twice in the Constitution: once in the fifth amendment and once in the fourteenth amendment. Due process as used in the Constitution is procedural due process (according to pre-established procedures). Substantive due process is used as an excuse for judicial usurpation. (Substantive due process is the doctrine that legislation is needed to carry out fairly due process in the fifth and fourteenth amendments.) When the Supreme Court legislates under the banner of due process, it is using substantive due process.

Gutzman’s The Politically Incorrect Guide™ to the Constitution is an excellent book on the Constitution. He focuses on how the Supreme Court has subverted the original intent of the Constitution, has usurped the legislative authority of Congress and the States, and has prohibited authorities of the States that the Constitution allows.

Copyright © 2021 by Thomas Coley Allen

More political articles.