Althouse: "Today there is much focus on our rights. Indeed, I think there is a proliferation of rights."

April 13, 2009

"Today there is much focus on our rights. Indeed, I think there is a proliferation of rights."

"I am often surprised by the virtual nobility that seems to be accorded those with grievances. Shouldn’t there at least be equal time for our Bill of Obligations and our Bill of Responsibilities?"

Said Justice Clarence Thomas, who admits to being "morose sometimes," who retreats to his basement to rewatch "Saving Private Ryan" when things get "particularly routine," and who gets down on his knees and prays for strength, wisdom, and courage — but not the right answer — to decide difficult cases.

The linked article is by Adam Liptak, who curiously fails to see the humor in Thomas's mention of the dormant commerce clause.

69 comments:

I'm Full of Soup said...: This is true and explains why lefthanded pitching is so highly valued.; 4/13/09, 4:59 PM
blake said...: Basic rights make more sense when we're looking for freedom.

When entitlements become rights, there are no obligations or responsibilities.; 4/13/09, 5:12 PM
Joe M. said...: Now I may be spending too much time on the blogs, but my overly-developed bias-detector was quite alarmed by this article.

Liptak's obtuseness with regard to the dormant commerce clause did provide its own humor, however.; 4/13/09, 5:18 PM
David said...: It would be interesting to read the entire transcript of Justice Thomas' remarks, or see a video if there is one. The newspaper of record provides no link in their online version. The newspaper of record as we write it.; 4/13/09, 5:18 PM
PWS said...: It's curious that Ann only chose to notice the reporter's comment--but failed to comment on Judge Thomas' statement about "The Bill of Obligations" and "The Bill of Responsibilities." Funny, I don't recall those in the Constitution.

Oh, but the NYT is so biased and lefty they probably took him out of context or made Thomas say those things.

If someone on the left made such an overt complaint, how would that sit with folks here?; 4/13/09, 5:18 PM
rhhardin said...: Edmond Jabes

Freedom awakens gradually as we become conscious of our ties, like the sleeper of his senses. Then, finally, our actions have a name.; 4/13/09, 5:22 PM
Revenant said...: Shouldn’t there at least be equal time for our Bill of Obligations and our Bill of Responsibilities?

No.

I have no "obligations" or "responsibilities" to the United States government. It has obligations and responsibilities to me. Government of the people, by the people, and for the people, remember? Not "people for the government".; 4/13/09, 5:23 PM
Buford Gooch said...: I'm beginning to think Revenant's name is way too descriptive.; 4/13/09, 5:26 PM
Bissage said...: [The scene is the grave of Captain Miller]

JAMES RYAN: (struggling to hold back tears) Tell me I have led a good life.
MRS. RYAN: What?
JAMES RYAN: Tell me I'm a good man.
MRS. RYAN: You are.; 4/13/09, 5:27 PM
Revenant said...: I'm beginning to think Revenant's name is way too descriptive.

Which dead person were you thinking I was the reanimation of?; 4/13/09, 5:29 PM
X said...: It's curious that Ann only chose to notice the reporter's comment--but failed to comment on Judge Thomas' statement about "The Bill of Obligations" and "The Bill of Responsibilities." Funny, I don't recall those in the Constitution.

I think CT was riffing on folks who claim a right to health care or a right to housing, rights that imply something is owed to you and logically that means it must come from someone, therefore creating an obligation or responsibility. And I don't recall any of those in the Constitution either. Where Ruth Bader Gindberg finds applying foreign law to the U.S. in the constitution I don't know either.; 4/13/09, 5:45 PM
Palladian said...: "Which dead person were you thinking I was the reanimation of?"

I'm thinking Thomas Paine.; 4/13/09, 5:46 PM
Trooper York said...: I always thought that Justice Thomas's favorite movie was "Saving Ryan's Privates."; 4/13/09, 5:46 PM
Chip Ahoy said...: PWS is right. No consideration is given to Bill of Obligations or to the Bill of Responsibilities because those things do not exist.

Of course, that was the point Thomas was making, that they perhaps should exist given the overemphasis he sees on ever expanding sense of rights and grievances.

"... especially if they hold the title, law professor."

Ouch.

* snap* Oh, no he di'int!; 4/13/09, 5:54 PM
Ann Althouse said...: Shaving.

Must I correct Trooper bon mots?; 4/13/09, 5:55 PM
Ann Althouse said...: I'm trying to do my taxes.; 4/13/09, 5:55 PM
Laura(southernxyl) said...: I don't think Thomas wants a Bill of Obligations in the same way we have a Bill of Rights. But I'd like it if we got back to a mindset of "you are obligated to pay back any debts you take on". I read Bruce Williams' column occasionally on Jewish World Review. It sometimes happens that people write to him wanting to know how to get out from under, for example, credit card debt that they have run up. He advises them to pay it off. And actually scolds people sometimes for thinking that they ought to be helped out of doing that sort of thing. I suspect that's the kind of thing Thomas is thinking of.; 4/13/09, 5:58 PM
blake said...: I would've corrected him, had you not been so speedy, Althouse.

But you are procrastinating in a greater cause.; 4/13/09, 6:01 PM
ricpic said...: After 18 years on the Supreme Court Thomas admits to being "a little tired." Those of us not part of the snarky Left appreciate the understatement and are grateful for his long and often thankless service.; 4/13/09, 6:07 PM
AlphaLiberal said...: Well, that displays a personal bias that is, surprisingly, often reflected in his decisions. Some strict constructionist!

Is this, though, a strain of Eliminationist ideology?; 4/13/09, 6:09 PM
Ann Althouse said...: Why is it that people who don't like Justice Thomas have so much trouble understanding him? Is it deliberate misreading, emotional static, or dumbness?; 4/13/09, 6:09 PM
Ann Althouse said...: "Well, that displays a personal bias that is, surprisingly, often reflected in his decisions. Some strict constructionist!"

What is the antecedent of "that"?; 4/13/09, 6:10 PM
blake said...: Is it deliberate misreading, emotional static, or dumbness? Yes.; 4/13/09, 6:12 PM
blake said...: This just in:

Blogger + Chrome = funky post formatting

(I have this issue trying to use it post at my blog, too.); 4/13/09, 6:13 PM
AlphaLiberal said...: Ann, antecedent = Justice Thomas' stated dislike for the "proliferation of rights."

Ann A:
Why is it that people who don't like Justice Thomas have so much trouble understanding him? Is it deliberate misreading, emotional static, or dumbness?Substitute "liberals" for "Justice Thomas" and you should be able to provide the answer.

The problem is not that he's poorly understood but that he has some real bad ideas.; 4/13/09, 6:18 PM
AlphaLiberal said...: Glenn Reynolds wins the coveted "Wanker of the Day" award.

Why? For shovelling the teabagging propanganda and lying to his readers.; 4/13/09, 6:21 PM
traditionalguy said...: Remember that the man in Thomas was raised by a male parent figure, and he was educated in a no-nonsense Catholic School he was priviledged to attend. The need to balance ones responsibilties with ones freedoms was normal indoctrination in schools in Georgia 45 years ago.The point made was that freedom is given to responsible men, while extreme and guarded restrictions, and even prison, are given to irresponsible men. Do any of you remember walking into the airport and straight onto your flight with no hassles at all. We were considered responsible enough to have that kind of freedom 45 years ago.; 4/13/09, 6:25 PM
Trooper York said...: Sorry professor. I was not referring to the wimpy cable TV parody with the gay dudes. I was referring to the Triple X porno staring Val Venus,Ryan Shamrock, Raven and Gloria Leonard as the Beaver.

I leave the judicial citations to you, please leave the porno citations to me.; 4/13/09, 6:26 PM
The Dude said...: You are right - liberals do have bad ideas.

Keep paying your taxes, you drones, I need more medical care and more government money.; 4/13/09, 6:27 PM
Trooper York said...: Hey does making out with Meade qualify as a charitable contribution?; 4/13/09, 6:27 PM
Trooper York said...: Just kidding, just kidding, put down the skillet.; 4/13/09, 6:28 PM
Revenant said...: Of course, that was the point Thomas was making, that they perhaps should exist given the overemphasis he sees on ever expanding sense of rights and grievances.I understand, and agree with, the concern that too many entitlements are being cast as "rights". But his phrasing paints "obligations" and "responsibilities" as the opposite of, and answer to, an excess of entitlements. The opposite of the kind of entitlements he's talking about is "self-reliance" or "self-determination". Responsibility could enter into it in the sense of "personal responsibility", i.e. responsibility for one's own behavior and well-being. But you wouldn't refer to that as a "Bill of Responsibilities" because personal responsibility is, well, personal -- it doesn't involve the government or your fellow citizens.

Thomas' "Bill of" phrasing also (accidentally?) paints those obligations and responsibilities as being ones which apply to all Americans. The Bill of Rights is a set of limitations on the federal government to protect the rights of American citizens. A Bill of Obligations would, presumably, be a set of duties owed by Americans TO the federal government. That's creepy and socialistic, like Joe Biden's remark about how paying taxes is patriotic.

Perhaps Thomas didn't mean it that way, but that kind of talk is still worth slapping down before it gets out of hand.; 4/13/09, 6:30 PM
Trooper York said...: I do know that Clarence Thomas likes ice cream. I bet he likes ice cream cones best.; 4/13/09, 6:33 PM
Revenant said...: Glenn Reynolds wins the coveted "Wanker of the Day" award. Why? For shovelling the teabagging propanganda and lying to his readers.The left's starting to get afraid, I see. :)

The really funny thing is that a lot of them appear to actually *believe* that the Tea Party phenomenon isn't a real grass-roots movement. That's what comes of not actually knowing anyone left of center.; 4/13/09, 6:37 PM
Peter V. Bella said...: Why is it that people who don't like Justice Thomas have so much trouble understanding him? Is it deliberate misreading, emotional static, or dumbness?It is dumbness. They cannot get past their dislike so anything he says, does, deliberates, or decides is automatically misunderstood or worse, demonized. Hatred does that to people. Then of course there is liberal racism.; 4/13/09, 6:40 PM
Big Mike said...: Can one of you lawyers on the thread explain in plain English what the dormant commerce clause is all about for the benefit of us mere mortals who chose to eschew law school in favor of a technical advanced degree?

Hmmm. lawyer ... explain in plain Engllish. I may be asking for the impossible! But please try your best.; 4/13/09, 6:42 PM
Beth said...: Wouldn't the Founders have come up with Bills of Obligations and Responsibilities is they'd wanted us to have those? And weren't the rights in the Bill of Rights at least in part a response to their grievances?; 4/13/09, 6:47 PM
Kirk Parker said...: "I'm trying to do my taxes."

Whatever for? It's not the 15th yet, is it?

But by "trying to do" perhaps you merely mean "procrastinating". In that case, no problem; it's never too early to start procrastinating.; 4/13/09, 6:48 PM
The Dude said...: We need commenter Dylan to tell us why he or she is so full of hatred towards Justice Thomas and how that isn't racism, but any criticism of Blessed Obama is racism. It's a marvel...; 4/13/09, 6:50 PM
Laura(southernxyl) said...: Beth, yes. I suspect you are reading Thomas too literally. I think he's saying that if you concern yourself with what you're supposed to get out of the system, you should give some consideration to what you're supposed to put in.

"He gave examples: “It seems that many have come to think that each of us is owed prosperity and a certain standard of living. They’re owed air conditioning, cars, telephones, televisions.”

Those are luxuries, Justice Thomas said."; 4/13/09, 6:52 PM
Henry said...: This comment has been removed by the author.; 4/13/09, 7:19 PM
Bart Hall (Kansas, USA) said...: Let's distill this thing down to essentials -- with the exception of my right to a trial by jury, not one of my Constitutional rights demands anyone else to do any thing else, other than leave me alone.

Any putative "right" requiring me, directly or indirectly, to do anything for someone else is not some kind of "right" they possess, but a form of self-centered exploitation and parasitism.; 4/13/09, 7:20 PM
Henry said...: The manner in which Thomas describes the burden of judgment makes me think that he doesn't object to rights so much as rights-based arguments.

This is when law is turned into an op-ed argument. A right is claimed to close off debate. Maybe Thomas knows that judical review -- even when it involves actual Constitutionally-defined rights -- is never that easy.; 4/13/09, 7:22 PM
Anonymous said...: The Dormant Commerce Clause is a Roosevelt era invention by activist judges seeking to allow the federal government to make any law it wants to whatsoever.

Who wishes to challenge my definition?; 4/13/09, 7:28 PM
Revenant said...: The dormant commerce clause is the (implied) Constitutional ban on states interfering with interstate commerce.; 4/13/09, 7:42 PM
jaed said...: Grumble. The Dormant Commerce Clause is the idea that since the Commerce Clause gives Congress the power to regulate interstate commerce, that power is (by implication) taken away from the states. In other words, the DCC doctrine says that state laws that regulate interstate commerce are unconstitutional. So states may not enact tariffs or special taxes on out-of-state goods, prohibit import of certain items from out of state, etc. (They can sometimes do it for health and safety reasons, e.g. California restricting import of plants for fear of insects, but not for economic or protectionist reasons.)

I must admit that although I know both Scalia and Thomas are kind of exercised in their disdain for this doctrine, I'm not sure why. Possibly simply because it's not explicit in the text of the constitution.; 4/13/09, 7:42 PM
Frodo Potter said...: Beth said “Wouldn't the Founders have come up with Bills of Obligations and Responsibilities is they'd wanted us to have those?”

Beth, you can do better than that. What if someone were to say: “Wouldn't the Founders have come up with giving women the right to vote if they'd wanted us to have that?” How about this: “Wouldn't the Founders have come up with giving people of color the right to vote if they'd wanted us to have that?”

The Constitution gets amended. It has in the past and it will again in the future. The amendments need to be considered VERY carefully, but they have come and they will again. Perhaps Justice Thomas was less in jest than people think. Perhaps he was mulling over the possibility of a series of amendments which would be known as the “Bill of Obligations.” As traditionalguy pointed out, this would not have been needed in the past, but perhaps it is now.

I found Revenant’s arguments against the idea far more compelling than yours.

I think it is worth asking the question why Clarence Thomas is a nutcase for mulling over amending the Constitution, but Ruth Bader Ginsberg is hailed as a genius for adopting foreign law. Anybody see a double standard here?; 4/13/09, 7:42 PM
AlphaLiberal said...: Fox host: ‘It’s now my great duty to promote the tea parties. Here we go!’

In response to Revenant...
The really funny thing is that a lot of them appear to actually *believe* that the Tea Party phenomenon isn't a real grass-roots movement.Add to that money being ponied up by all the usual billionaires. Grassroots billionaires, no doubt.; 4/13/09, 7:52 PM
Big Mike said...: @Seven, Revenant, and jaed. Thanks. And in plain English! I appreciate.; 4/13/09, 7:52 PM
The Dude said...: Dear God in heaven - is a Soros puppet carrying on about something? Jesus Christ - stop the hypocracy.; 4/13/09, 8:03 PM
Palladian said...: "Dear God in heaven - is a Soros puppet carrying on about something? Jesus Christ - stop the hypocracy."

No, AlphaLiberal is just a rogue DKos/ThinkProgress/Atrios blog feed script that seems to have developed a rudimentary semblance of sentience. It litters the comments here with irrelevant links to "progressive" websites but hasn't yet developed the ability to form coherent ideas of its own. Thank God.; 4/13/09, 8:09 PM
Revenant said...: Add to that money being ponied up by all the usual billionaires. Grassroots billionaires, no doubt.The hundreds of thousands of people who have thus far shown up to these tea parties aren't showing up because "billionaires" are paying them to do it. They're showing up because they hate the spendthrift policies of the last year. That's a grassroots movement.

Now, if you want to say that it isn't a legitimate, grass-roots, people-driven protest movement unless there are no rich folks or paid professionals involved then that's fine. Of course, by that standard there hasn't been a legitimate left-wing political movement since the 19th century. :); 4/13/09, 8:10 PM
JAL said...: Oh AL. You guys are so obtuse.

Asheville has been planning a tea party for many weeks. There is no SOROS type money coming in here. There is no money except what some citizens in North Carolina Appalachia kick in.

Nobody is pre-printing thousands of dollars of signs.

You have to fanatsize that this is some big scheme. But you really wouldbe more braodly educated if you had been paying attention to those stupid crass little seedy fringe whacko blogs that are so disdained.

You might even go back to February on Instapundit and look at the photographic history and progressive developement of the tea parties.

We are tired of watching people throw trillions of dollars away with no realistic plan of generating new sources of wealth, and thus revenue.

The goose that lays golden eggs is being taken to the shed with an ax, and we want it to stop.; 4/13/09, 8:17 PM
Derek Kite said...: alphaliberal: you mean you like trillion dollar deficits?

Derek; 4/13/09, 8:18 PM
rhhardin said...: An always-claimed effect on interstate commerce gives license for the Federal government to regulate anything at all, as the court has interpreted it.; 4/13/09, 8:20 PM
traditionalguy said...: Don't be so morose about A Bill of Responsabilities phrase that Clarence Thomas used as a metaphor only. No need to fear a Draft anymore either. We can still hire men to do responsable things for us while we live, love and laugh. The commerce clause remains safe too, and may soon arise from the Dormancy in Wisconsin. Thomas only meant to express that safe people also protect the rights of others by at least trying to give as much as they take from the social group they live among. He only gets to examine case after case of complainers demanding changes in Law to favor their interests, always in the name of perfectly Equal everything.; 4/13/09, 8:22 PM
garage mahal said...: I for one can't wait to see all the Bircher/Birther/Freeper/One World Order/UFO Fanatic/Conspirationalist signs on the 15th.; 4/13/09, 8:36 PM
JSF said...: You mean like "No taxation without representation,"?; 4/13/09, 8:37 PM
blake said...: Or, my personal favorite, "Queers for Palestine".

Wait, wrong fringe.; 4/13/09, 8:40 PM
Methadras said...: blake said...

Basic rights make more sense when we're looking for freedom.

When entitlements become rights, there are no obligations or responsibilities.Explain that to the 55% federal entitlement budget recipients.; 4/13/09, 8:41 PM
Revenant said...: Explain that to the 55% federal entitlement budget recipients..

Yeah, we might be past the point of no return. When over half the population pays no income tax and over half the population receives government benefits, it is hard to set things right again. That would require the majority voting to reduce their effective short-term incomes for the sake of the long-term health of the country. It is much more likely that the majority will vote to keep picking their neighbors' pockets -- that's the historical precedent.

I suspect the whole mess will just have to keep getting worse and worse until it ultimately collapses. But who knows, I could be wrong. If it really gets bad, well, I hear Australia is a lot like California. :); 4/13/09, 8:56 PM
Paul said...: This comment has been removed by the author.; 4/13/09, 9:45 PM
Paul said...: It would be helpful if the difference between negative and positive rights was introduced early on in the thread. It's odd that with all the legal eagles and other braniacs posting here that it takes a guitar player to point out this fundamental distinction .; 4/13/09, 9:47 PM
blake said...: Explain that to the 55% federal entitlement budget recipients. They seem to understand that pretty well.

One problem with entitlement-type-rights is that they seem to be irrevocable. If you're convicted of a felony, you can lose the right to carry a gun. Your responsibility, if you want the right to carry a gun, is to not use it in criminal acts.

When do you lose a "right" for the state to take care of you and to give you money and health care?; 4/13/09, 9:47 PM
Brian said...: The Commerce Clause permits Congress to regulate interstate commerce. In combination with the Supremacy Clause, Congressional laws enacted pursuant to the Commerce Clause trump and therefore void inconsistent State laws regulating of commerce.

The Dormant or Negative Commerce Clause is a court-created doctrine, which voids State laws regulating commerce, in the absence of any conflicting Federal Congressional enactment. It is a kind of judicial activism in favor of a free interstate market or national marketplace, because the doctrine strikes down State laws which discriminate against out-of-state goods, or burden interstate commerce.

(Thus, it assumes a kind of free-market federal philosophy, and strikes down state laws inconsistent with that philosophy. Theoretically, one could have a anti-trade or protectionist Dormant Commerce Clause, striking down State laws which facilitate the free flow of goods across State lines. But that would be wacky and ahistorical.)

And now I leave it to Miss Althouse to explain how I got this all wrong.; 4/13/09, 10:34 PM
former law student said...: Justice Thomas and I both started each day with the Pledge of Allegiance. But we said it inside the classroom with the flag and the crucifix (and the statue of the BVM), because three months out of the year we would have been little kidsicles.

Prof. A has more reason than most lawprofs to know the Dormant Commerce Clause, because one of the seminal cases was Dean Milk Co. v. City of Madison, Wisconsin
340 U.S. 349 (1951). For milk to be sold in Madison, it had to have been pasteurized within five miles of the city. This kept milk from all other states from being sold in Madison, as well.

The Court held that this requirement placed an undue burden on interstate commerce, because Madison's concern for the health and safety of its milk-drinking residents could reasonably be be met alternatively (the milk in question had been pasteurized in accordance with the Model Milk Ordinance).; 4/13/09, 11:10 PM
Beth said...: Fair enough, Frodo, but there's still something to be gleaned from the fact that the Founders focused on enshrining rights, not obligations. Revenant does argue it very well.; 4/13/09, 11:33 PM
Xmas said...: I thought the Dormant Commerce Clause throw-away was more a reference to the Thomas's view on the overuse of the "Commerce Clause" by the Federal Government to justify things that have nothing to do with "Commerce" (such as drug laws, the Violence Against Women act, etc.)

To feed the troll: Apparently AlphaLiberal is happy that Goldman Sachs made record profits last quarter. "...from trading activity" my ass, it's the billions in dollars funneled through the AIG bail-out.; 4/14/09, 5:44 AM
Ann Althouse said...: No, the dormant commerce clause is about what the states are not allowed to do.

Thomas has written some interesting opinions that are very critical of the doctrine.

But it's obvious that he was joking.; 4/14/09, 7:49 AM