Now that Justice Sandra Day O'Connor has decided to retire, it is time for President Bush to exercise one of his most important responsibilities and appoint a successor. But even more important than the appointment of a particular person is the pressing need to validate a legal philosophy that will augment and enhance the Supreme Court's jurisprudence in general and its adherence to originalism and federalism in particular. To do so, the President would do well to look at the example set by another member of the Supreme Court -- one who will be around for quite a while longer.

Recently, the Supreme Court has handed down two particularly distressing decisions: Gonzales v. Raich (which I wrote about here) Kelo v. City of New London (which I wrote about here). If there is a bright spot in both cases, it is the intellectual courage, commitment to originalism and common sense approach to legal and policy issues displayed by Justice Clarence Thomas, who has emerged as perhaps the most emphatic champion for libertarian conservatives on the Court. It's high time he got some praise for it. It's also high time that his legal philosophy gained the respect it deserves.

In Raich, the Court ruled that the federal government could regulate the personal growing and cultivation of marijuana for medicinal purposes-even if the marijuana would not be introduced into the stream of commerce. For the majority, Justice Stevens wrote that despite precedent clearly limiting the reach of the federal government under the Commerce Clause, "Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product."

As is obvious, Justice Stevens's language allows the federal government to expand the reach of its regulatory power to alarming levels. Justice Thomas recognized the danger inherent in this substantial grant of power to the federal government and in his dissent, he wrote powerfully against it:

        . . . the Commerce Clause empowers Congress to regulate the buying and 
        selling of goods and services trafficked across state lines. ... The Clause's text, 
        structure, and history all indicate that, at the time of the founding, the 
        term "'commerce' consisted of selling, buying, and bartering, as well as 
        transporting for these purposes." ... Commerce, or trade, stood in contrast to 
        productive activities like manufacturing and agriculture. ... Throughout 
        founding-era dictionaries, Madison's notes from the Constitutional Convention, 
        The Federalist Papers, and the ratification debates, the term "commerce" is 
        consistently used to mean trade or exchange--not all economic or gainful activity 
        that has some attenuated connection to trade or exchange. ... The term 
        "commerce" commonly meant trade or exchange (and shipping for these purposes) 
        not simply to those involved in the drafting and ratification processes, but 
        also to the general public. ... Even the majority does not argue that respondents' 
        conduct is itself "Commerce among the several States." ... Monson and 
        Raich neither buy nor sell the marijuana that they consume. They cultivate their 
        cannabis entirely in the State of California -- it never crosses state lines, 
        much less as part of a commercial transaction. Certainly no evidence from 
        the founding suggests that "commerce" included the mere possession 
        of a good or some purely personal activity that did not involve trade or 
        exchange for value. In the early days of the Republic, it would have been 
        unthinkable that Congress could prohibit the local cultivation, possession, 
        and consumption of marijuana.

This originalist understanding of the meaning of "commerce" both grounds Justice Thomas' dissent firmly in the intended Constitutional tradition and interpretation of the Commerce Clause and allows for a more comprehensible and enforceable regulatory scheme for the federal government to follow. Instead of paying heed, however, to Justice Thomas's approach, the majority in Raich went ahead and allowed for the enactment of a far more ambitious and reaching regulatory scheme -- one that us with a policy that will lead to an administrative and enforcement nightmare for both the federal government and the citizenry.

In Kelo, the Court -- again led by Justice Stevens -- ruled that the city of New London had the power via eminent domain to take away the personal property of homeowners for an economic development scheme that was at best vague and unformed, Justice Stevens and the majority maintained that "[w]ithout exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field."

Now, I'm as ardent and enthusiastic a federalist as you will find, which means that normally, I am more than happy to defer to "legislative judgments." But as Justice Thomas points out, there is a place for "legislative judgments" and there is a place for court opinions. In Kelo the Court got the places mixed up:

        . . . To begin with, a court owes no deference to a legislature's judgment 
        concerning the quintessentially legal question of whether the government 
        owns, or the public has a legal right to use, the taken property. Even under 
        the "public purpose" interpretation, moreover, it is most implausible that 
        the Framers intended to defer to legislatures as to what satisfies the Public Use 
        Clause, uniquely among all the express provisions of the Bill of Rights. We 
        would not defer to a legislature's determination of the various circumstances 
        that establish, for example, when a search of a home would be reasonable, ... 
        or when a convicted double-murderer may be shackled during a sentencing 
        proceeding without on-the-record findings, ... or when state law creates a 
        property interest protected by the Due Process Clause. ...

        Still worse, it is backwards to adopt a searching standard of constitutional 
        review for nontraditional property interests, such as welfare benefits, ... 
        while deferring to the legislature's determination as to what constitutes a 
        public use when it exercises the power of eminent domain, and thereby invades 
        individuals' traditional rights in real property. The Court has elsewhere 
        recognized "the overriding respect for the sanctity of the home that has 
        been embedded in our traditions since the origins of the Republic," ... 
        when the issue is only whether the government may search a home. Yet 
        today the Court tells us that we are not to "second-guess the City's 
        considered judgments," ... when the issue is, instead, whether the government 
        may take the infinitely more intrusive step of tearing down petitioners' 
        homes. Something has gone seriously awry with this Court's interpretation 
        of the Constitution. Though citizens are safe from the government in their homes, 
        the homes themselves are not. Once one accepts, as the Court at least 
        nominally does, ... that the Public Use Clause is a limit on the eminent domain 
        power of the Federal Government and the States, there is no justification 
        for the almost complete deference it grants to legislatures as to what 
        satisfies it.

It should be emphasized that Justice Thomas is not arguing against allowing localities to make decisions or saying that political power should pass from their hands. He is saying that they cannot judge "the quintessentially legal question of whether the government owns, or the public has a legal right to use, the taken property." That is entirely within the province of the courts, and it does no violence to the principles of federalism to say so.

The tragedy is that the Court, in these two decisions, has thoroughly mixed up the concept of federalism. In Kelo, the Court is giving states and localities a power never intended for them, while in Raich it took away a power that was entirely theirs (the power to decide whether state and local citizens could grow marijuana in their own homes, for their own use and for medicinal purposes without having the marijuana enter the stream of commerce). If only the granting and grabbing of power have been reversed, libertarian conservatives like me would have had great cause to rejoice.

Those who -- like me -- are disheartened by the decisions in Raich and Kelo may potentially take heart in the hope that Justice Thomas's powerful dissents will have sown the seeds for the emergence of a Court majority in the future that will reflect Justice Thomas's thinking. Perhaps that new majority will be crafted via help from Justice O'Connor's successor -- who could do worse than to adopt Justice Thomas's approach to the law and to intellectual issues. As law professor Orin Kerr puts it, "The next time someone insists that conservatives like Justice Thomas will do anything to defend corporate interests against the powerless -- and particularly against powerless racial minorities -- feel free to point them to Justice Thomas's eloquent dissenting opinion in Kelo. So much for that idea."

Quite so.

The author is a lawyer and frequent TCS contributor. Find more of his writing here.