Clarence Thomas, Affirmative Action and the Constitution

By Rich Kozlovich

 

Over the course of my 76 years I've seen a lot of Supreme Court Justices come and go, and most of them I found seriously wanting when it came to understanding what the Constitution said and meant.  Did they really not know? No, they knew, but they needed to find a way to social engineer from the bench so they created what's called Penumbras and Emanations of the Constitution. Neither of which anyone can find in the Constitution.  

 

 "In United States constitutional law, the penumbra includes a group of rights derived, by implication, from other rights explicitly protected in the Bill of Rights. These rights have been identified through a process of "reasoning-by-interpolation", (Interpolation - the insertion of something of a different nature into something else) where specific principles are recognized from "general idea" that are explicitly expressed in other constitutional provisions......." 

 

"In Griswold, Justice William O. Douglas explained that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance".

 

What a bunch of gobbledygook to justify their creation of a system of judicial overreach and abuse, abetted by cowardly Congresses that never put a stop to it.  The Constitution gives the Congress the authority to determine the jurisdiction of the federal judiciary,  not the Supreme Court, and it's long past time they started doing so.  They can start by passing a 28th Amendment.  More here on that.

 

The word penumbra originally was a scientific term "created to describe the shadows that occur during eclipses." And I think the word shadows is more than appropriate when its used in relationship with the Constitution.  

 

As for "emanations", that's even more intangible, as it means either:  the act of emitting; causing to flow forth; a theological concept of the origination of the Holy Spirit at Pentecost. 

 

Well, I think the last one is the one SCOTUS embraced giving them a divine mission to alter society to their liking, because I don't see penumbras and emanations as anything except an excuse for outrageous judicial abuses of the Constitution and the separation of powers.  Nothing short of inappropriate rationalizations that seem more like mysticism than jurisprudence to me.

 

It was thought Justice Scalia was the real conservative brain and Constitutional scholar of the court, and  Clearance Thomas was merely his cats paw.  I knew better.  I read his book, My Grandfather's Son: A Memoir.  I can honestly say I think Clearance Thomas is the most  illustrious Supreme Court Justice in my lifetime.  The reason why is he's so illustrious?   He adheres to the basic concept of definition.  Definition leads to clarity.  Clarity leads to understanding.  Understanding leads to good decision making.  

 

By defining the issue clearly he avoids convoluted thinking and twisted rationalizations that force more twisted rationalizations down the road.  In short, the Constitution is what is says, not what political hacks in black robes want it to say.

 

Mark Levine's book, Men in Black: How the Supreme Court Is Destroying America, does an excellent job outlining these excesses and twisted reasonings and the problems they cause.

In the article, Clarence Thomas: I’ve Heard Similar Arguments for Affirmative Action in Favor of Segregation, asks for a definition for diversity in college admissions, and the benefits, as Asians are being restricted in admissions at Harvard University and the University of North Carolina at Chapel Hill over Affirmative Action, only they don't call it that any longer, but that's what it is.  The answers aren't impressive, definitive or provable.

There was a reader's comment worth reviewing by an Unknown Author.

Most people don't know it but the road to discriminating against whites began 60 years ago, with President Kennedy's Affirmative Action. I am retired, but was a VP (worked my way up from the bottom) in a billion dollar mainstream Company for 30 years and was constantly told by HR that if the applicants I interviewed were "equally qualified"; hire the Black, the Woman, the Minority candidate, etc., etc.

Then shortly before I retired a dozen years ago the Company hired a Diversity "officer" at the VP level. I was shocked. It usually took people ten to fifteen years to get to that level. Now every Company has one. The Democratic mantra of DEI; Diversity (anti-white), Equity (Socialism) and Inclusion (Trans rights) has become Affirmative Action on steroids and is destroying the whole idea of achievement and advancement through merit. In fact, the whole idea of "Meritocracy" is now considered "racist" and DEI is leading to actual written policies hiring whites last and firing whites first.

Of course it's blatantly illegal and unconstitutional but nobody seems to care. Now they are talking about admissions to college or even medical school being based on race and sexual identity, not standardized test scores. Ditto for hiring Pilots, EMT's, Firefighters, etc., etc. That should work out well. The Supreme Court needs to stop this insanity or our country will become totally run by incompetent bureaucratic ideologues (picked for race, sex, sexual preference or sexual identity) like those that now populate the entire Biden administration.

It appears Clearance Thomas is finally being recognized for the brilliant jurist he is, and is being supported by justices such as Justices Alito and Kavanaugh, who like him actually believe the Constitution is the law of the land and not these mystical indefinable concepts of penumbras and emanations created by people who have no right to do so.