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 Montpelier Magazine

Supreme Court Justice Clarence Thomas

With separation of powers, James Madison deliberately 'struck the balance on the balance on the side of liberty'

At times the Constitution might seem like "an anachronistic hindrance," Associate Supreme Court Justice Clarence Thomas told an overflow Wilson Hall audience at the James Madison Day Convocation in March. That hindrance was deliberately contrived. James Madison created the "separation of powers not because it would lead to strong government, but because it would lead to inefficient government.

"By creating an inefficient central government," Thomas explained, "Madison meant to protect society. … He deliberately struck the balance on the side of liberty."

In so doing, Thomas said, James Madison created "a constitution that is admired the world over."

Thomas gave the keynote address to five standing ovations at the James Madison Day Convocation, the central event of the weeklong JMU 250th anniversary celebration of James Madison's birth on March 16, 1751. He also answered questions submitted by students in the audience and after the program had lunch with a group of 25 students.

In 1991 Thomas became the second African-American named to the Supreme Court. At 53, he is the youngest Supreme Court justice and has carved out a prominent role as one of the court's most conservative. A leading critic of civil rights orthodoxy, he has also led the revival of the natural law approach to original intent jurisprudence. Thomas specifically looks to the nation's other founding documents, most notably the Declaration of Indepenence, for guidance in interpreting the Constitution.

Thomas is the first sitting Supreme Court justice to speak at JMU and drew media coverage from C-SPAN, the Atlanta Constitution, the Associated Press and Virginia news outlets. In addition to the full house in Wilson Hall, several hundred more students and professors watched Thomas' address via closed-circuit television at five campus locations.

By recognizing "universal principles" in the Constitution - including "that men by nature become tyrannical, so government must be limited" - Thomas said Madison has enabled the United States "to enjoy unprecedented political stability and economic and social prosperity for more than two centuries.

"Madison and the other framers made a significant advance in politics and political theory," the Supreme Court justice explained, "an advance that allowed them to create a government strong enough to defend itself and the liberties of its people, but limited enough that it would itself not become the destroyer of those self-same liberties."

Madison "found safety for freedom in a multiplicity of forces," including federalism, which Thomas called "another safeguard" of liberty. Although federalism allowed both slavery and segregation to flourish, Thomas conceded, federalism acts as a check on national government and, as a subsidiary effect, protects states' rights.

Federalism "didn't just de-centralize decision making or diffuse power," he added. It "created independent sovereigns that can't be commandeered or taxed by another" and "creates organizations of resistance against unjust use of [national] power."

The Supreme Court justice said, "This is a theme that has gone unnoticed but which underlies the court's current federalism jurisprudence."

The thinking behind "this resurrection of federalism" is that "local or state government is more responsive because it is closer to the people," Thomas explained. States can tailor legislation to local conditions and needs, protecting and creating new rights. "At a broader level, the existence of numerous states, each making certain decisions concerning the allocation of resources and the balance between public power and private rights creates a beneficial marketplace of policies."

The jurisprudence of federalism is reflected in court rulings, Thomas said, since "the Supreme Court answers cases. We don't respond on broad principles. All of these mechanisms protect liberties and a private ordering of life," he said. "… Some see all these constitutional checks and balances as bothersome or cumbersome or inconvenient im-pediments to majority rule.

"Every age has its important policies that some people believe must be enacted at any cost to the constitutional structure," he continued. "Far from being a vise, though, these checks and balances - the double security, as Madison called them, double security for our liberties - are the genius of our system of government. And, I might add, the genius of James Madison. For what is an impediment to the majority will is equally an impediment to governmental tyranny.

"For our liberties, designed by our James Madison and the other founders, should be in working order so that, in the words of Abraham Lincoln, 'government of the people, by the people and for the people shall not perish from the face of the this Earth,'" Thomas concluded.

"That, my friends, would be a worthy birthday present for Mr. Madison."

By Pam Brock