But the fifth justice concurring in this decision -- the Hon. Clarence Thomas -- decided he wasn't playing this game any longer. He could read the Fourteenth Amendment and, however long its plain meaning had been ignored, he proposed to resurrect it. In whole -- including its most sweeping and vital provision: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...." And that includes not just the right to bear arms, as in this case, but the whole Bill of Rights and beyond.
Justice Thomas actually seems to believe that the Constitution means what it says. And is prepared to uphold it.
His 56-page concurrence in this case is also a sweeping history of the interpretation (and misinterpretation) of the Fourteenth Amendment through the years. He reviews the various conniptions of those legal scholars who, in the dubious tradition of the Slaughter-House cases, have sought to cut and trim the Fourteenth Amendment to fit their own passing prejudices. Looking over this history of legal legerdemain, Justice Thomas concludes, plainly, undeniably and courageously:
"All of this is a legal fiction. The notion that a constitutional provision that guarantees only 'process' before a person is deprived of life, liberty or property ... strains credulity for even the most casual user of words. Moreover, this fiction is a particularly dangerous one. The one theme that links the court's substantive due process precedents together is their lack of a guiding principle to distinguish 'fundamental' rights that warrant protection from nonfundamental rights that do not....
"I cannot accept a theory of constitutional interpretation that rests on such tenuous footing. This court's substantive due process framework fails to account for both the text of the Fourteenth Amendment and the history that led to its adoption, filling that gap with a jurisprudence devoid of a guiding principle. ... I believe this case presents an opportunity to re-examine, and begin the process of restoring, the meaning of the Fourteenth Amendment agreed upon by those who ratified it."
It's an opportunity Clarence Thomas has seized. With one concurring opinion, he has thrown open a whole, long unused wing of this spacious mansion that is the Fourteenth Amendment. You can almost see the air stir for the first time in more than a century, the dust scatter, and the lines of the clean, elegant beams that undergird our liberties revealed once again in their original simplicity. All because of one justice, one concurrence, one man's adherence to the clear meaning of the English language.
No wonder not a single other justice who made up the prevailing side in this case, on different and more diffuse grounds, offered any objection to the straight, undeviating route Clarence Thomas took to their common conclusion. While they were circumnavigating the issues, he cut right through them. And emerged into the light.
This not just a landmark legal opinion. It is a history lesson that should be read by every student of the continuing struggle to fulfill the Bill of Rights. Clarence Thomas sees that history through the revealing prism of the black man's struggle against both the legal sophistries of distinguished scholars and the outright terrorism of the Ku Klux Klan and such in post-Civil War America. In this opinion, he touches on some of the more notorious massacres and lynchings endured by a people deprived of the means to defend themselves. Which is the fate that awaits any unarmed people. But among the stories of persecution he relates, there is also the enduring hope of redemption:
"One man recalled the night during his childhood when his father stood armed at a jail until morning to ward off lynchers. ... The experience left him with a sense, 'not of powerlessness, but of the possibilities of salvation' that came from standing up to intimidation."
Of arms and the man Clarence Thomas now has sung anew. What the coming generation of legal scholars or just Americans with an historical consciousness will make of this landmark opinion of his, the one unexpected and literally refreshing part of this whole Supreme Court decision, will be up to them. For liberty always depends on what men will make of it. But the thrill his words engender is palpable. Here's hoping generations of law students to come will feel it, respond to it, and recognize what his words have wrought: The Fourteenth Amendment restored to its original meaning, glory and strength.