WASHINGTON — Justice Clarence Thomas may be silent in the Supreme Court during public arguments, but he is not shy about making bold pronouncements in written opinions.
His latest challenge to conventional wisdom came this week in the Pledge of Allegiance case, when he opined that the Constitution protected a state's right to recognize an official church.
Almost everyone has assumed that the opposite is true.
It is not the first time Thomas has tried to turn the standard thinking on its head when it comes to understanding key parts of the U.S. Constitution. He has done so by focusing on the words and history of the document as it was written in 1787.
"He likes to say we should look at this afresh. Our law is muddled, and we should rethink it," Yale Law School professor Akhil Amar said admiringly of Thomas.
But the consequences of his "rethinking" could be far-reaching.
For example, 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.
In the 20th century, however, the Supreme Court adopted a much broader view of commerce, relying on that definition to uphold federal laws that set minimum wages, prohibited discrimination in the workplace, protected the environment or regulated the manufacture of products, including autos and drugs.
In a separate 1995 opinion, Thomas said that this broad view conflicted with the Constitution and should be reconsidered. If his colleagues ever agree, many of today's workplace laws would be struck down.
Soon after joining the court in 1991, 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.
Two years ago, Thomas condemned the doctrine supporting the separation of church and state, saying it grew out of "anti-Catholic bigotry" during the 19th century. Then, Protestants controlled the public schools, and immigrant Catholics set up their own schools to escape the Protestant influence, he said.
