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'The states had most of the authority': Clarence Thomas' issues POWERFUL reminder

Published in Blog on June 23, 2022 by Jakob Fay

In the recently released book Created Equal: Clarence Thomas in His Own Words, a companion to the film of the same name, the legendary Supreme Court justice shares his thoughts on the delicate balance between state and federal authority and issues a dire warning about the dangers of letting the national government step outside of its Constitutional bounds.

The following is an excerpt of Clarence Thomas’s words, as reported by The Federalist.

The very people who say they don’t want the government in their lives want this sort of expansive administrative state, which is in their lives, and then every aspect of their lives. And a lot of it comes at the expense of the very structure of the Constitution that is intended to prevent the government from coming in. The separation of powers, the enumerated powers, federalism. The whole point was to keep the government in this box. Justice Scalia and I often talked about that, that the structure was the main way to protect your liberty. The danger in the administrative state is seeing those powers all coalesce again in various agencies. If you think about your life today, there’s very little major legislation that comes from the legislature. The legislation comes in the form of regulations from agencies. They tend to have all three powers. They have the executive power, the enforcement power, they have administrative judges to adjudicate, so they have all three. And the question for us is, where do they fit in the constitutional structure?

When a private right is somehow intruded upon by one of these agencies, what is the role of the federal courts? If we simply defer to the agencies, which is what we do now, in many cases, aren’t we doing precisely what happened when it came to the royal courts of the pre-Revolutionary era? How does that make us any different? You’ve got this creation that sits over here outside the Constitution, or beyond the Constitution. How does it fit within our constitutional structure? How’s it limited and what is the risk that it will actually vitiate the constitutional protections that we have?

We have a form of government where we’ve limited the national government in what it can do. We’ve separated the powers. You’ve got enumerated powers. One of the ways that we’ve limited the national government is to divide the power. You said, “Here’s the legislative power, here’s the judicial power, here’s the executive power. That structure was very important to keeping the national government at bay. You also had federalism, in other words, that the states had most of the authority, and certainly the local authority, beyond what was in the Constitution and the rest remained with the individuals.

Justice Clarence Thomas has empirical experience with the dysfunction of Washington. As a faithful originalist, he knows the remedy is to put the government back inside its box.

In the Constitution, the Founders gave the states a mechanism by which the people could hold the federal government in check: Article V which gives states the power to call a Convention of States to propose amendments.

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