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Pierce writes: "In his career as a Supreme Court justice, Clarence Thomas, an African American from rural Georgia, presents us with a staggering political and historical contradiction."

Supreme Court Justice Clarence Thomas. (photo: AP)
Supreme Court Justice Clarence Thomas. (photo: AP)

The Last Confederate Is Clarence Thomas

By Charles Pierce, Esquire

08 May 14


n Monday, the Supreme Court handed down its decision in the case of Town of Greece v. Galloway. In its 5-4 decision, the Court determined that the town could open its public meetings with a prayer. Writing for the majority, Justice Anthony Kennedy said the prayers did not violate the Establishment clause of the First Amendment because there is a long-standing tradition of such prayer, and because, in Kennedy's opinion, the prayers were not coercive in regards to the people at the meeting who might not share the religion in which the prayers are based. Justice Clarence Thomas voted with the majority. In his concurring opinion, however, he went much further.

Thomas stated, flatly, that the Establishment clause never was meant to apply to the states (or to local governments) at all. In Thomas's stated view, the Establishment Clause "is best understood as a federalism provision - it protects state establishments from federal interference but does not protect any individual right." In short, Thomas is saying that the separation of church and state is meant to apply only to the federal government. This was such a radical re-interpretation of the existing law that not even Antonin Scalia was willing to go as far off the diving board as Thomas did. But it is of a piece with Thomas's general view of the relationship between the federal government and the states, and it is of a piece with the fact that Thomas has allied himself for his entire career on the bench with what has proven to be the most fundamentally dangerous constitutional heresy. That there is an obvious historical irony to this can't be lost on anyone. To see this more clearly, it's necessary to go back almost 20 years to another case, one on which Thomas was on the losing side, but one in which he stated most directly the philosophy that led him to write his dissent this week.

On May 25, 1993, in a 5-4 decision, the Supreme Court ruled that, absent an amendment to the Constitution, the states could not limit the terms of their representatives in Congress. At issue was a term limits law that had been passed in Arkansas, term limits being a front-burner issue at the time thanks to the efforts of Newt Gingrich and his Contract With America. The majority decided that, because the Constitution was a pact between all the people of the United States, and not a compact between states, only the people themselves could change the process by which they elected their representatives to the Congress. Writing for the minority, Thomas disagreed, strongly.

Emphasizing that "the Federal Government's powers are limited and enumerated," Justice Thomas said that "the ultimate source of the Constitution's authority is the consent of the people of each individual state, not the consent of the undifferentiated people of the nation as a whole." Consequently, he said, the states retained the right to define the qualifications for membership in Congress beyond the age and residency requirements specified in the Constitution. Noting that the Constitution was "simply silent" on the question of the states' power to set eligibility requirements for membership in Congress, Justice Thomas said the power fell to the states by default. The Federal Government and the states "face different default rules," Justice Thomas said. "Where the Constitution is silent about the exercise of a particular power -- that is, where the Constitution does not speak either expressly or by necessary implication -- the Federal Government lacks that power and the states enjoy it."

That has been the basic argument since the Constitutional Convention began, and every time that it has been litigated -- in the debates over ratificaton of the Constitution, in the battle over the tariff with South Carolina, when Webster stood up to Hayne, when John C. Calhoun fashioned his doctrine of nullification out of it, when the nation tore out its own guts between 1860 and 1865, and, most recently, when "massive resistance" became the strategy through which white supremacy sought to break the civil rights movement -- it has failed. It was the basis for the Reconstruction amendments, especially the 14th, which Thomas curiously elides in both his term-limits dissent and his government-prayer concurrence.

Nonetheless, it persists, as we've seen most recently in the rhetoric of Tea Party politicians, and on the broken hills around the Bundy Ranch. It persists because there always are forces that seek power by denying the basic fact that of a United States of America, and that the reason for that is that the Constitution is an agreement between the citizens of that country, not between 50 independent republics. That is the reason for the first three words of the Constitution, and the basis for the American political commonwealth. In the nullification crises of the mid-1800's, President Andrew Jackson called James Madison himself out of retirement. Madison's work on the Virginia and Kentucky resolves of 1798 was being used to justify nullification, and Madison responded with a ringing endorsement of the view that the Constitution was a compact between all of the American people, and not an agreement between states. In a letter to Edward Everett that he knew would be circulated widely, Madison wrote:

It was formed, not by the Governments of the component States, as the Federal Govt. for which it was substituted was formed; nor was it formed by a majority of the people of the U. S. as a single community in the manner of a consolidated Government. It was formed by the States - that is by the people in each of the States, acting in their highest sovereign capacity; and formed, consequently by the same authority which formed the State Constitutions.Being thus derived from the same source as the Constitutions of the States, it has within each State, the same authority as the Constitution of the State; and is as much a Constitution, in the strict sense of the term, within its prescribed sphere, as the Constitutions of the States are within their respective spheres; but with this obvious & essential difference, that being a compact among the States in their highest sovereign capacity, and constituting the people thereof one people for certain purposes, it cannot be altered or annulled at the will of the States individually, as the Constitution of a State may be at its individual will.

That brings us back to Clarence Thomas. Long-distance psychoanalysis is almost always worthless, so I will leave that to the savants of the Beltway press corps. I only will point out that, in his career as a Supreme Court justice, Clarence Thomas, an African American from rural Georgia, presents us with a staggering political and historical contradiction. He is the last, and the truest, descendant of John C. Calhoun. your social media marketing partner


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+37 # MEBrowning 2014-05-08 08:55
If there is anything we DON'T need on the United States Supreme Court, it is a contradiction.
+79 # fredboy 2014-05-08 09:03
I never understood the appointment of Clarence Thomas. There are so many magnificent attorneys of color in our nation, brilliant and magnificent thinkers.

So many SC appointments seem but caulk applied to shore up an ideological crack as perceived by each president.

Wouldn't it be amazing to one day witness the appointment of a magnificent, objective legal thinker to the court?

I know, I know--I apologize for my naivete.
+76 # motamanx 2014-05-08 10:31
Fredboy: George H.W. Bush selected an individual he could count on for voting for anything he wanted. Thurgood Marshall, the brilliant jurist had died, and Bush wanted another black man to fill the vacancy. Thomas' resume was less than stellar, and he had significant social shortcomings as well, but the spineless Democratic Congress approved the appointment because they thought they might look bad by voting against a black jurist, seriously flawed though he was.
+51 # Anarchist 23 2014-05-08 15:11
Thurgood Marshall, before his death on hearing about Thomas' nomination said "A black snake will bite you just as bad as a white one"...yes, I am sure he appreciated the idea of one justice being a man of color, but by that remark, he certainly stated his opinion of Thomas.
+25 # Cassandra2012 2014-05-08 17:11
And the Dems {all males} on the Judicial committee were as morally bankrupt as the repugs [all males] when it came to giving respect to Anita Hill's honest and revealing testimony about Clarence T,'s repulsive misogynist proclivities.
The Repugs, as always, were only interested in winning — at all costs; and as you say, the Dems were spineless, useless finks when it came to opposing a black nominee's appt., like many of my undereducated undergraduate black MALE students who wanted to see a black guy on the court, no matter what, even though their professors, black and white, male and female TRIED to explain why Thomas was definitely no Thurgood Marshall, and they would be buying / settling for an inferior quality of goods... . The women students were wiser, and so were the women, black and white on a prospective jury that did their best NOT to serve on that jury, letting the judge and lawyers pry the reasons from us, while we looked on in scorn of a judicial system that clearly didn't give a rat's ass about women.
+24 # AndreM5 2014-05-08 10:32
Why does it need to be an attorney at all? We are long overdue to expand SCOTUS to include NON-Lawyers with deep historical understanding of the USofA and intimate knowledge of the "real world" away from DC.
+14 # Nominae 2014-05-08 17:11
Quoting AndreM5:
Why does it need to be an attorney at all? We are long overdue to expand SCOTUS to include NON-Lawyers ....

Uh..... when your job involves *nothing* other than understanding the history, precedence, formulation, purpose, intent and function of THE LAW, then it's a damned good idea to empanel people who have a BACKGROUND in the Law.

Do you want to fly on a plane in which the Pilot has no background or flight training ?

How about reporting for brain surgery under the hand of someone who has never before even worked for the local butcher ?

Get a root canal from a CPA ?

Staff the Supreme Court with auto mechanics who watch the History Channel ?

The inane idea perpetrated by our Public Education System during the last three decades that "everyone deserves a trophy" just for showing up is just that.

An inane idea.

The very establishment of a Supreme Court was to serve as a *BUFFER* against members of a Congress that WRITE the laws, even when *they* may have NO legal background whatsoever.

Members of Congress, many of whom who ARE the very "NON-Lawyers" that you recommend.

So, who is going to watch the watchers if we likewise water down the Supreme Court?

The Supreme Court of today is an embarrassing joke.

But if we restored the Court to it's original function - interpreting laws written by the amateurs in Congress and elsewhere - we *do* need experienced lawyers deciding questions of LAW.
+73 # ganymede 2014-05-08 11:14
Thomas is a very scary guy, probably the least qualified Justice in the past 100 years. How he got there is a big black mark on the already totally discredited Washington apparatus.

I remember a former Republican senator, John Danforth of Missouri, a scion of the Quaker Oats family and the main backer of Thomas referring to him as the most qualified Black jurist in the country and the idiot Democrats went along with this!

We're a crazy, irresponsible people letting low-lifes like Thomas, Scalia, Alito, Roberts and Kennedy get to such a high position, and then there's Bush junior! We have no one to blame but ourselves for the downfall of our country. Do we have the fortitude and courage to do something, once and for all, about this, or are we going to let this small minority of reactionaries dictate our future. I'm beginning to wonder...and I, too, apologize for my naivete.
+49 # MEBrowning 2014-05-08 11:53
@ganymede: Not every Democrat went along. Certainly not the Judiciary Committee's chairman, our current vice president. He warned the committee about Thomas in unequivocal terms, but they didn't listen.
+5 # Cassandra2012 2014-05-08 17:13
Quoting MEBrowning:
@ganymede: Not every Democrat went along. Certainly not the Judiciary Committee's chairman, our current vice president. He warned the committee about Thomas in unequivocal terms, but they didn't listen.

Leahy, and Kennedy too went along!
+9 # Rain 2014-05-09 17:07
I still can't get over the Supreme Court choosing our president. I encountered the butterfly ballot and thought I was voting for Gore, but then realized I had voted for Bush accidentally. I immediately tore up the ballot and started over. I never had that problem with a ballot, before or after again. Can you imagine how different things would be if Bush was never appointed by the Supreme Court?
+33 # MEBrowning 2014-05-08 11:41
The Chairman of the Judiciary Committee charged with confirming Clarence Thomas's nomination was then-Senator Joe Biden. His remarks at the outset of the hearings are well worth reading. Google and download: GPO-CHRG-THOMAS-1.pdf

Biden's remarks begin on p. 6. They are disturbingly prescient.
+30 # davidr 2014-05-08 09:26
While it is historically strange that Thomas, of all people, should expound nullification, the issue is baked deeply into our system.

It is in the smallest jurisdictions that the most extreme politics can be practiced. So states' rights, home rule, and posse commitatus are invariably the rallying cry for extremists.

In a small electorate, an even smaller, highly motivated, even delusional, "base" can win. Climate deniers, 2nd Amendment & right to life absolutists, young earthers — all of these use state & local political strategies. 10% of registered voters can easily determine a school board election, for example.

Any political system with highly articulated layers of government and levels of authority will tend to sift its cranks down into the smallest precincts.
+36 # WestWinds 2014-05-08 09:32
This SCOTUS decision is an attempt to establish a state religion when America has clearly had a long standing policy of separation of church and state because to not do so becomes a precipitous factor in civil unrest and unnecessary infighting when certain groups try to assert some leverage to justify their aberrant behavior as supreme to all others and then turn around an overtly abuse both We the People and any power they have garnered by their assertions.

This is another really poor decision by this so-called SCOTUS. And it underscores the need to eliminate political appointees and open up the seats on the Supreme Court's bench to term limits and a regular voting process such that We the People, who are directly impacted by such capricious law making must be bound, have the right to vote out of office buffoons and political shills alike.
+12 # skipb48 2014-05-08 11:07
Yeah, right. That has worked out so well with Congress! Not.
+22 # tm7devils 2014-05-08 11:50
That's because the average voter, thanks to the MSM(and lying political ads), doesn't know what a buffoon or political shill looks like.
+39 # reiverpacific 2014-05-08 09:46
One of the few times during his term that this super-fink opens his mouth, it's a mass of pseudo-legal gobbledygook and as the article states, contradictions -or more realistically termed, manipulations.
He is exacerbating an already blatantly unconstitutiona l situation by conforming to the dictates of his real boss, the elitist Theocratic Catholic cult, Opus Dei.
And there's that 5-4 decision again!
Scalia, Thomas, Roberts, Ailito and Kennedy are all heavy-duty holy rollers (or at least play the part) who are also seemingly required to put the theological morés of their respective churches before doing the true work of their be-robed exulted status which is serving the common good.
If their various allegedly Christian beliefs hold true, they must know that there's a very special place in some eternal, very hot furnace for those who corrupt their high office in appointed human form, just like the Sanhedrin who howled even against Pilate's ruling of innocence, for the crucifixion of the founder of their faith.
And we're stuck with 'em short of an "Act of God"!
-20 # BostonPundit 2014-05-08 10:04
While I disagree strongly with the court's decision and believe that it starts us down a slippery slope, I think Pierce is way off the mark here.

Let me also state that Thomas often takes what I think are wacky positions.

In this instance, however, his opinion is not as devoid of logic as Pierce says.

Here is the issue. The First Amendment says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...."

The first part is the establishment clause. Thomas asks how a provision directed to Congress can apply to the states? It is not an idle argument.

The ONLY rationale on which the argument proceeds is that the 14th Amendment, by its equal protection clause, and privileges and immunities clause, incorporates the entire bill of rights, i.e., all ten amendments (or at least nine of them, see below) and makes them applicable to the states.

Thomas asks a simple question. Since the tenth amendment says all powers not delegated to Congress are reserved to the states, if you say the 10th is also incorporated, you have rendered it meaningless. So incorporation must be less than total.

He says incorporating the establishment clause is likewise illogical.

The problem is that Thomas goes against precedent. But in his support, the states have their own equivalent of the first amendment in their own constitutions.

Pierce is on thin ice.
+3 # tingletlc 2014-05-08 11:51
I gave BostonPundit a thumbs-up for his cogency (and maybe for his implied agreement with me on the squalid condition of the right's jurisprudence).

But I have to be impressed by the intellectual integrity that Thomas evinces as he faithfully shoots himself and the rest of us in the foot, season after season. This suggests that he looks in the mirror each morning and doesn't see race. Is that possible? If so, it's an admirable suspension of a powerful human tendency to identify oneself as a sheep or a goat, and to moralize accordingly.
+3 # BostonPundit 2014-05-09 13:10

Thanks. I don't know your position, but certainly, the jurisprudence emanating from Alito, Scalia, Thomas, Roberts and Kennedy is often squalid and wacko.

I find it curious that people put negatives on what I posted. Obviously, one cannot help ignorant people.

Each state has an anti-establishm ent clause, so in a sense, the first amendment clause is not necessary as an injunction against the states. But if a state were to amend its constitution to establish a religion, that would probably violate the First Amendment and the 14th Amendment. That is the weakness in Thomas' argument.

It will be interesting to see if plaintiffs challenge the legislative prayer sessions in the state courts of New York under the state constitution. If the NY Court of Appeal finds such prayer unconstitutiona l under the NY Constitution, the Supreme Court of the U.S. has no further say about it because it has no authority to rule on the NY Constitution except when one of its provisions violates the US Constitution or other supreme law of the land (e.g. federal laws or a treaty).
+19 # davidr 2014-05-08 12:00
Good question. Is Thomas "devoid of logic"?. Here is his reading of the First Amendment: "[The states, but not Congress, may make any] law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or [curtailing] the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

His is the logic of a nullifier (and as you point out, a 14th Amendment rejectionist). Amendments, hell, Thomas isn't even sold on Article I (commerce clause). By his logic, any state can prevent its citizens from speaking on matters of public interest, including national matters, or forbid them from assembling or forming associations, even in regard to national business. If this is logic at all, it is from the farthest fringe of cloud-cuckoo land.
+1 # Nick Reynolds 2014-05-09 09:07
Quoting davidr:
Here is his reading of the First Amendment: "[The states, but not Congress, may make any] law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press:"

No. that isn't his reading or the Constitution's. The First Amendment says, and used to mean, Congress shall make no law . . . ." That leave it up to the states, which created the federal government, to decide according to the respective state's constitution. To decide the issue, we should look at the First Amendment in the New York Constitution. Freedom of worship is right up there near the beginning, between trial by jury and habeas corpus, both of which are ignored by the federal government when convenient.

New York's Constitution says, "§3. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all humankind; and no person shall be rendered incompetent to be a witness on account of his or her opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state. (Amended by vote of the people November 6, 2001.)
0 # davidr 2014-05-09 10:15
What the 1st Amendment "used to mean" is right at the heart of whether Thomas is or is not devoid of logic.

Thomas holds that it is not a violation of the US Constitution if the NY Constitution should establish a state church (or prohibit church membership, or collect tithes, etc.).

Even among the Framers, this was not the preponderant view, and it is certainly inapplicable now, after passage of the 14th Amendment and volumes of 1st and 14th Amendment jurisprudence.

Thomas' logic is tortured and his view extreme. He is having an argument in his own head that was already lost in the 18th century.
-1 # Nick Reynolds 2014-05-10 08:59
It was the preponderant view of the Framers that states, not the federal government, should decide matters of religion and speech.

For example, at the time of the writing of the Constitution, the Massachusetts Constitution required support for the preachers of Massachusetts, (but not for the teachers as Thoreau pointed out in Walden).

As for the "Incorporation Doctrine," the idea that the 14th Amendment "incorporated" the First Amendment to apply to the states, answer this question. Why did the Supreme Court wait 60 years after the passage of the 14th Amendment to decide that the First now applies to the states? It did that in the 1920's.

The Tennessee v Scopes trial, the famous Monkey Trial case, shows that even in 1925 the Court viewed the First Amendment as not applying to the states. When Scopes was found guilty, the ACLU appealed to the Tennessee Supreme Court, not a federal court. Now, of course, the ACLU would appeal to the nearest federal district court, and win, based on "settled jurisprudence" of the Incorporation Doctrine.

It's a smokescreen for taking power from the people and the states and giving it to the federal government. Power has been concentrating in the federal government for a long time, including the First Amendment.

We are now reaping the rewards of letting that happen. We'll continue, and things will get worse, unless more people like Thomas speak up.
Decentralizatio n, not centralization, is the way to go, if you're for the people.
-4 # 2014-05-08 10:40
Wow. I find myself in AGREEMENT with Clarence Thomas on the term limits thing. All the 'liberals' voted against. This was probably because Democrats had the majority in both houses in 1993, I guess and it might have opened up a few seats that Democrats held for 50 years...

States determine residency and other requirements, why couldn't they determine term limits?

I guess it all depends on who had an advantage at the time. Too bad nobody ever thinks of the General Welfare of the people.
+15 # Terrapin 2014-05-08 12:04
How about a Constitutional Amendment limiting Supreme Court Justices to ONE 25 YEAR TERM!

Given the deplorable partisan nature of this disfunctional court, this country cannot endure these judicial trolls sitting on this court for LIFE.
+21 # MJnevetS 2014-05-08 12:19
25 Years is way too long!
+3 # Salus Populi 2014-05-08 20:13
This and the previous post throw out the baby with the bathwater. Thurgood Marshall, William O. Douglas, Hugo Black and William Brennan all served prolonged terms on the Court, and collectively put together some of the most profound and progressive interpretations of Constitutional law in modern history.

If the present crew, none of which [including Clinton's and Obama's appointments] are even as far left as the centrist Potter Stewart was on the Warren [more accurately, the Brennan] Court, and if a clear majority of them are demonstrably corrupt [Gore v. Bush exemplifying their political activism, although that was before Roberts and Alito joined the Blackrobes], in some cases egregiously so, part of the problem is that both parties are pretty much happier that way.

When giants served, there was always the chance that some particularly irrational and vindictive law, like the Rap Brown law or the Intelligence Identity Protections Act, might be struck down in language that verged on the intemperate.

With incompetent, bald-faced reactionaries firmly in control, everyone can agree to eviscerate the tired relic of a Constitution that nominally prevents a slide into full-fledged fascism.

+4 # Salus Populi 2014-05-08 20:24
[Continued from previous post]

Scalia, the Opus Deist and narrow-eyed bigot, was confirmed in 1986 [iirc] by a vote of 98 to 0. Not a single DemocRat could be found to vote against him, since "the president has the right to appoint justices he is comfortable with." Likewise, Anthony Kennedy was approved with just one dissenting vote, and Clarence Thomas, who should have been indicted for perjury as well as corruption [he decided a case in favor of the Quaker Company that enriched his sponsor, mentor and marshaller through the hearings, Sen. John Danforth, by several million dollars], got considerable though not unanimous DemocRatic support.

By contrast, when Clinton took office, he vetted both his appointments by the arch-reactionar y head of the Judiciary Committee, Sen. Orrin Hatch [R.-UT], before announcing them.

Ginsberg professed to be a close friend of Robert Bork [who in "Slouching Toward Babylon" suggested that liberals ought to share the brutal fate of Guy Fawkes], with whom she was then lunching weekly, while Stephen Breyer had been the aide to Ted Kennedy during the Carter presidency, and had masterminded the deregulation of the trucking and airlines industries as a sort of prelude to the wholesale abandonment of regulation by Ronald Reagan. Both were deemed acceptable; neither was as progressive as the justices they replaced, so the Court continued to move farther to the Right under a nominally Democratic president.
+24 # stevewarren 2014-05-08 12:20
the man is clearly impeachable for lying, repeatedly and for, what? a decade or more was it?, on his annual financial statements about his wife's income.
if only the Obama administration had the gonads to get it done and do right by the Constitution and the country.
+12 # dbrize 2014-05-08 13:47
While I am of the opinion that an impeachment every two or three years across the board would do more good than any election of the past 50 years or so, I fear your standard is too broad.

If mere "lying" were all it takes, who would be left to govern?

Hmmm, on second thought, maybe you are on to something...
0 # Ebony1911 2014-05-11 00:18
Thomas' votes are imminently explainable. Since he as been on the Supreme Court his wife's lobbying for conservative causes business has netted more than $!,000,000 a year, a fact that he has often "forgot" to disclose on his assets forms. As long as he votes right the extra million will continue to come in and probably will adjust itself as the cost of living rises. So please do not attribute Thomas' opinions as matters of intellectual scrutiny. They are for his personal profit.
+24 # angelfish 2014-05-08 14:12
Whatever. His incompetence and lack of critical, legal thought or opinion, will define him as the "token" he was when appointed and the non-entity to which he has sunk since. If I were a person of color, I'd be mortified that HE was the best and brightest they had to offer. He couldn't shine Thurgood Marshall's shoes!
+2 # ericlipps 2014-05-08 18:23
The Establishment Clause is best understood in the context of Article Six of the Constitution, which says in part, "no religious test shall ever be required as a Qualification to any office or public trust under the United States," and the supremacy clause, also in Article Six: "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding."

Thomas may say what he likes, but those sections of the Constitution make it perfectly clear that the Framers meant to deny both the federal government and the states the right to establish a religion.

If Thomas wants a GENUINE religious controversy, he should consider the case of Utah, whose Mormon government was ordered not merely go disestablish the Church of Latter-Day Saints but actually to change the church's theology to outlaw polygamy as the price of statehood. But I'm betting he won't touch that one.
-2 # 2014-05-08 18:53
I think he is wrong as the US Dollar says "We Pay" ~ "In God We Trust" (meaning the rest of you must pay). and then they reinforce power of the Masonic, the church of the Knights of Malta etc "Birth of a New Nation" the States didn't join a looser club or commonwealth, or even Association of Independent States.

Rubbish"Thomas stated, flatly, that the Establishment clause never was meant to apply to the states (or to local governments) at all. In Thomas's stated view, the Establishment Clause "is best understood as a federalism provision - it protects state establishments from federal interference but does not protect any individual right." In short, Thomas is saying that the separation of church and state is meant to apply only to the federal government. "

How about of a few states decide to become Comminist Marx/Leninist Religions, or agnostics, or Athiest, or worse still like Waco Texas was famed for Satanic religion?
+13 # Seadog 2014-05-08 19:37
Thomas is the very embodiment of UNCLE TOM. I bet GHBV$H gets a laugh when the Dems. allowed this imposter on the court for life. Look at the result in 5/4 case after case. Between him and his son his family have all but destroyed the Republic.
+1 # Nick Reynolds 2014-05-09 09:18
I'm not a Confederate, a Republican or a Democrat. I do take somewhat seriously my oath to preserve, protect, and defend the Constitution. But I know the Republic's practically dead. We've become an empire.

Simply, Charles Pierce is full of s--t when it comes to the First Amendment. Plus, it's obvious from his writings that he doesn't like religion, especially Christianity. So he's as biased and as untruthful as the MSM.

We all want freedom to worship as we see fit and freedom from others' religious impositions. Which would you rather have: one law for all, or fifty laws? At least with fifty, you can move to a state with more congenial laws. Look at the drug laws. Would you rather states decide or the federal government? The feds aren't particularly enlightened. States are leading the way here, as they are in the area of monetary reform, and stopping the NSA spying. If there's any hope it will come from the states.
+4 # JSRaleigh 2014-05-09 13:52
If it's always "Christian" clergy who are invited to prey, it DOES violate the Establishment Clause

... and yes, I did mean "prey"!
0 # cordleycoit 2014-05-10 04:36
I will defer to Dr. ?Thompson's strange correspondence on that subject.
0 # tarantilla 2014-05-11 23:01
so does this mean that states can have a "state religion" like a state flower, etc., and conduct prayers accordingly? for all state business, state run entities (public schools, welfare agencies, etc.). Can states then pass laws legislating prayers in the state religion before/after any assembly, meeting, conference, or school day? If not prohibited by the US constitution than why not?
0 # Nick Reynolds 2014-05-12 07:58
Quoting tarantilla:
Can states then pass laws legislating prayers in the state religion before/after any assembly, meeting, conference, or school day? If not prohibited by the US constitution than why not?

The answer to your question is Yes, states can - as long as it doesn't violate that state's constitution, which it probably would.
Don't forget, every state has a Constitution and a supreme court. Some of their First Amendment-type provisions are very good.

It's the old argument between Hamilton and Jefferson, with Hamilton winning all the way. The Republic's done. Hail to the emperor president,no matter who it is, for as long as the empire lasts.

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