In my coverage of the recent Supreme Court decision on the Pledge of Allegiance, I noted how Justice Clarence Thomas adopted the rather extreme view that the Establishment Clause only applied to the federal government and that, therefore, individual states should be free to establish their own churches and religions. Apparently, he regularly adopts an 18th century view of things.

David G. Savage writes in the Los Angeles Times:

Thomas has argued that the word "commerce" in the Constitution should be understood as it was in the 18th century: the movement of goods across state lines. Under this view, the states could not erect tariffs or other barriers to the free flow of goods. ... If his colleagues ever agree, many of today's workplace laws [minimum wages, prohibited discrimination in the workplace, protected the environment or regulated the manufacture of products] would be struck down.

Thomas wrote that the word "punishment" in the Constitution restricted only "judges, not jailers." The high court had adopted a broader view of the ban on "cruel and unusual punishment" in the 1970s and protected prisoners from being subjected to needlessly cruel treatment. When Thomas denounced this view as flatly mistaken, Justice Harry A. Blackmun pointed out that his opinion would permit the torture of inmates by prison guards.

Thomas' distinctive views are likely to figure in a pending struggle over police interrogations and the Miranda warnings. Under the famous 1966 Miranda vs. Arizona ruling, the court said the Constitution's protection against self-incrimination required officers to warn suspects of their rights to remain silent and to have a lawyer. Last year, however, Thomas set out a much narrower view of the 5th Amendment, which says a person shall not "be compelled in any criminal case to be a witness against himself." The word "witness" refers to a court trial, not a police station, Thomas said. At the time, three others agreed with him: Rehnquist and Justices Sandra Day O'Connor and Antonin Scalia. With only one more, the court could undercut the basis for the Miranda warnings, which restrict police questioning.

Just to be clear: if the views of Justice Clarence Thomas were to prevail, the federal government would not be allowed to set minimum wages, prohibit workplace discrimination, or regulate the environment. Torture and abuse of prisoners would not violate the Constitution. Police interrogations could not violate the 5th amendment. This is the sort of jurisprudence that George W. Bush would like to see more of and this is the sort of judge he would appoint to the Supreme Court if given the chance.

Read More:

• Fundamentalism
• Religious Right