Clarence Thomas: last defender of the Confederacy

6 posts

Bob Dylan Roof

In U.S. Term Limits, Inc. v. Thornton, the Supreme Court struck down an amendment to the Arkansas State Constitution prohibiting Congressional candidates from appearing on the ballot if the candidate had already served three terms in the House of Representatives. The majority reasoned that such a restriction violated the "fundamental principle of our representative democracy" in the Constitution, because it involved a state imposing limitations on a representative body that represented the people of the nation. In the dissent Thomas wrote:

It is ironic that the Court bases today's decision on the right of the people to "choose whom they please to govern them." Under our Constitution, there is only one State whose people have the right to "choose whom they please" to represent Arkansas in Congress.​

Nothing in the Constitution deprives the people of each State of the power to prescribe eligibility requirements for the candidates who seek to represent them in Congress. The Constitution is simply silent on this question. And where the Constitution is silent, it raises no bar to action by the States or the people...​

...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.​
President Camacho

I'd be interested to see Thomas' opinion on a state voting to nullify the Civil Rights Act and assorted Federal legislation like ECOA.

Bob Dylan Roof

If Thomas really does endorse the Jeffersonian / Calhounian compact theory of the Constitution (as he appears to) then it would seem to follow that he would regard nullification as a constitutionally sanctioned state power.

Interestingly, Prussian jurists advanced identical arguments in their dispute with Austria. I believe they even quoted Calhoun.


Calhoun's arguments need to be differentiated from States Rights (as were understood in New England as well). Calhoun did argue for an 'undifferentiated people' -- well not exactly. He likened the people of the whole country to a body, and the states to organs of that body, and his arguments proceeded from this postulated and likely indefensible organic unity.

Calhoun was, after all, a Whig, like Webster or Clay (or Lincoln, who pretended to model himself on Clay) and neither a Jeffersonian Republican nor a latter day Buchananite democrat, still less a 'Confederate'. A few Whigs did join the Confederate government when secession became inevitable, and 'consensus building' politics took hold in the new country -- one might say Providence arranged this just to provide sound bites for future Republicans.

The 'organic unity' argument has tie-ins to contemporary Romantic philosophy and thinking, which might have resonated with the Prussians in a later era, but are a foreign intrusion in Anglo-American politics. Calhoun was a political genius in his writing, rhetoric, and practical politics, but one without real-world reference. I would not recommend him as a political philosopher. The closest anyone has come to creating a state like Calhoun's ideal is Qaddafi, who in his Green Book mixed Socialism and Sufism to get a similar blend to Calhoun's mix of German Organic theory Mystical Presbyterian Compact theory. One must judge such things by their practical outcomes, and unlike Calhoun, Qaddafi has put his theories into practice, so we all can know.

The 19th century rebuilds the human body, by the way, inspired by the Aristotelian revival -- Linnaeus, the French Histological school [which classified tissue types for the first time, and refocused interest on cells], Organism, and of course the collective population theories of Marx and Darwin. The net result was a revival in process/functionalist thinking. However, this Socialist/Aristotelian/Encyclopedist current was, in the age of Hume, recognised as a deadly distortion of the Revolutionary agenda. Adam's program of creating at last the ideal Cromwellian republic, or Jefferson's three Revolutions, to make Virginia a little Revolutionary France before there was a Revolution in France, breathe nothing of this.

Bob Dylan Roof

I should have been more precise. Calhoun was a proponent of the now discredited "compact theory" of the Constitution that is often used by legal defenders of the Confederacy, but which does not necessarily entail a commitment to legal secession. Thomas has pointed out that, despite his endorsement of the compact theory, Clarence Thomas' opinions, concurrences and dissents suggest that he wouldn't countenance legal secession or nullification.

Do you believe that when the Articles of Confederation were written, the "perpetual union" referred to therein was already a Romantic intrusion into American political theory?


The founders (some of whom styled themselves anti-Tribonian) would certainly have been well informed on Roman Civil Law, and hold various opinions of its status relative to British (and soon to be American) Law. I don't think Romantic influence is plausible in large scale US politics before the 1830s. It's influence here is contemporaneous with the Know Nothings, the Anti-Masonic party, Mormonism, Christian Science, not to mention the large scale immigration from central Europe and Ireland that is characteristic of that period in the North.

The South tended to look to Britain for social leadership, and the Waverly novels (Scott -- addressing the topic of Passive Obedience in a Jacobite context), would be the earliest influence. Scott's position influencing Southern culture towards the Gothic and Romantic -- when it crystallised in the early Victorian era -- was secure and decisive -- along with his Humean neo-Tory subversion -- so much so that even in my childhood it was 'received tradition' in the south to read his novels. If you want to know why a southern boy would consider war noble and chivalric and equestrian, and how he might view his political rivals -- read Ivanhoe . The politics of the neo-Tory alliance, on both sides of the Atlantic, and its later Liberal vestiges, is written in those pages. There you will see Scots highlander loyalists and the Anglo-Norman squirearchy closing ranks, in the new world of the 1790s.

Weaver's 'Southern Tradition at Bay' is very reliable, by the way, and much better than 'Ideas Have Consequences' (a meme foist on him by his publisher and considered his most influential work by people who are prone to read titles and reviews in the NYT Literary supplement, but negligent of reading actual books).