Clarence Thomas's Constitution





Mr. Kyvig is Presidential Research Professor and Professor History at Northern Illinois University. He is the author of Explicit and Authentic Acts: Amending the U.S. Constitution, 1776-1995.

Justice Clarence Thomas is now fully out of the closet as an admirer of the Articles of Confederation. His decision in the case of Federal Maritime Commission v. South Carolina State Ports Authority demonstrates a preference for a pre-1787 concept of federalism that favors state autonomy at the expense of functional national government. His opinion also demonstrates a disregard for the history of the Eleventh Amendment around which his ruling revolved.

In a case involving the right of state authorities to be free of federal review -- the officials denied docking privileges to a cruising casino boat -- South Carolina argued against the right of appeal to the federal agency charged with maritime regulation. In this case South Carolina was continuing to advocate the same constricted view of central government authority that led the state into the disastrous nullification doctrine of 1830, the shelling of Fort Sumter in 1861, and a leading role in opposing school desegregation in Brown V. Board of Education in the 1950s. Unfortunately, in this week's decision Justice Thomas agreed with South Carolina by offering a contorted reading of the Eleventh Amendment and ignoring the clear original constitutional intent that he usually worships. He was joined in his dubious position by his four usual allies, Justices William Rehnquist, Antonin Scalia, Sandra Day O'Connor, and Anthony Kennedy. Thomas and his colleagues have resurrected a view of federalism embodied in the Articles of Confederation, a view that crippled and nearly destroyed the possibility of cohesive national government for the United States of America.

Placing effective power squarely in the hands of the states and severely limiting the authority of the national government, the Articles of Confederation made sense to the revolutionaries of 1776 who feared the distant and unresponsive administration of Great Britain. America's founders quickly discovered, however, that their confederation was disastrously ineffective. They did not abandon altogether the notion of national-state power sharing known as federalism, but they moved to alter its original configuration with the much stronger national authority of the 1787 Constitution.

The Eleventh Amendment was intended to make a very slight adjustment in this revised constitutional arrangement rather than restore the version of federalism that Justice Thomas and his colleagues have now conjured up. Others have shared Justice Thomas's view--the name of South Carolina's John C. Calhoun leaps immediately to mind. In so doing they, like Thomas, have had to employ the same dubious tactic of quoting out-of-context phrases from the useful but not infallible Federalist Papers rather than acknowledging the history and formal language of the Eleventh Amendment. A properly adopted amendment to the Constitution should override earlier informal interpretations, not to mention the questionable constructions of ideologically-driven justices over two centuries later.

The Eleventh Amendment was adopted in 1795 when a belief arose that the not-yet-hallowed founders had committed an oversight in one detail of their drafting the 1787 Constitution. The founders created a constitutional loophole by failing to preserve completely the longstanding British concept of sovereign immunity. This was the principle that to avoid the paralysis of government the state could not be sued in its own courts without its permission. The Supreme Court (whose five members had all sat in the Philadelphia convention or state ratifying conventions) ruled in 1793 in the case of Chisholm v. Georgia that nothing in the Constitution forbade a citizen of one state from using the federal court to sue a state other than his own.

Chisholm v. Georgia arose when the Georgia legislature hid behind its presumed sovereign immunity to avoid paying a legitimate revolutionary war debt to a citizen of South Carolina. Alexander Chisholm sought and obtained justice in the federal courts. Georgia exploded in anger, its lower legislative house declaring that anyone attempting to collect on the Chisholm claim would "be guilty of felony, and shall suffer death without the benefit of clergy by being hanged." Georgia's somewhat more temperate governor called for constitutional reform. Several other states, upset about plaintiffs in Mr. Chisholm's situation being able to use federal courts to compel state debt payment, quickly won adoption of what was thought at the time to be a very narrowly drawn constitutional amendment.

Whatever one thinks of the wisdom of the Eleventh Amendment's denial of access to the federal courts (and I personally think it represents an unfortunate exercise of state self-interest against due process of law), it would not have been approved at all in 1794 if perceived as other than narrow in scope. At the time the amendment was adopted as well as for many decades thereafter, no federal agencies other than courts existed to intervene in state affairs. This changed after the Civil War confirmed the national government's authority. To now suggest that the Eleventh Amendment applied to federal agencies and tasks not even conceived of at the time is, to say the least, a tortured reading of both its text and context.

The Eleventh Amendment, adopted with little debate by Congress in March 1794 and ratified eleven months later, simply declares "The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State, or by citizens on subjects of a foreign State." Nothing in the record suggests that it was anything broader than a specific response to the Chisholm situation. There is certainly no credible evidence that it was intended to reverse the federal balance struck in the intense national debate of 1787-1788, only seven years earlier.
To claim, as has Thomas, that the Eleventh Amendment restricts the ability to appeal to federal government agencies for assistance against state authority is a truly radical reconstruction of the Constitution. Thomas's decision expands state sovereign immunity almost beyond recognition. It would deny not just individual suits by citizens of another state but virtually any federal response to arbitrary state action. It is a ruling based on historical ignorance of the circumstances in which the Eleventh Amendment was adopted.

Justice Thomas has paid no heed to other formal constitutional declarations of federal supremacy, such as the three post-Civil War amendments, that overruled retrograde Supreme Court judgments regarding federalism. Furthermore, Thomas ignores the need for effective and appropriate national authority in cases of state abuse of individual civil rights. The loss of citizen ability to appeal to the federal government for protection against states would be, to put it mildly, a misfortune. Perhaps the most positive lesson to be drawn from the interpretation of the Eleventh Amendment contained in Federal Maritime Commission v. South Carolina State Ports Authority decision is its reminder that the founders provided constitutional amendment in part as a means of restraining and, if necessary, overriding the Supreme Court.



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James Rothering - 5/12/2004

An interesting non sequitur, this article does raise valid points about twisting Constitutional interpretation. Justice Thomas, however, is nowhere shown to be "out of the closet as an admirer of the 'Articles of Confederation'." He, along with the other concurring justices appear to be attempting to bolster some measure of State Sovereignty against the massive, overwhelming onslaught of the Federal behemoth. Such a view hardly taints one with a preference for the Articles over the 1787 Constitution.

Indeed, as Mr. Kyvig notes, "others have shared Justice Thomas' view,"which he has "resurrected." The names that jump to my mind are Jefferson and Madison, rather than John C. Calhoun. And, furthermore, the "disastrous
nullification doctrine" was *originated* by these same two, in the Kentucky and Virginia Resolutions, which they personally penned. The "disaster" it portended was an elimination of the immoral and horrific rights-violations of the Alien and Sedition acts, among others. Clearly, this is far from a "twisting" of the Federalist Papers. The very word "Federal" was synonymous with "Confederal" throughout those papers.

But the most amazing assertion of all is the idea that the British concept of Sovereign immunity should have been imported into the Constitution. Perhaps if Hamilton's plan had been implemented, complete with an elected Sovereign, this would have been a consistent idea. But in the American conception of government as an agent (a servant, really) entrusted with delegated
powers, how can such an agent be held immune from legal redress? For a King, it makes sense that he is inviolate from his subjects. For the agents of the people, as John Jay noted in Chisolm v. Georgia, such inviolability is
anathema. It is setting them above the law, and making them our masters once again.

Of course, this is the sorry state we exist in today, ruled by a behemoth bureaucracy from D.C. But, I do concede, that it is a reprehensible usurpation (to use an old-fashioned and out-of-style word) for the Supreme
Court to twist the 11th amendment to the purpose of giving the State's some of the power they have lost. These tortured interpretations appear to be all over the place: otherwise, how can one understand the possibility of a "draft" when there is a clear prohibition against "involuntary servitude." Neither the conservatives nor the liberals are friends to the Constitution.


ann frank - 9/20/2002

i love me and me and me


LtdEdishn - 6/7/2002

In reviewing this decision written by Clarence Thomas, I noted that he found something in the Constitution that was not there. I further noted that "liberals" supposedly are guilty of this thought; yet this decision purely contradicted the thought. I never thought about connecting the decision to the Articles of Confederation. I thank this author for pointing out the connection!

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