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Author Topic: Clarence Thomas, Crotchety Old Man  (Read 629 times)

pastor of muppets

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Clarence Thomas, Crotchety Old Man
« on: June 25, 2007, 07:41:28 PM »
Here is an excerpt of Thomas' concurring opinion in Morse v. Frederick (Bong Hits 4 Jesus), released today:

Quote
During the colonial era, private schools and tutors offered the only educational opportunities for children, and teachers managed classrooms with an iron hand. R. Butts & L. Cremin, A History of Education in American Culture 121, 123 (1953) (hereinafter Butts). Public schooling arose, in part, as a way to educate those too poor to afford private schools. See Kaestle & Vinovskis, From Apron Strings to ABCs: Parents, Children, and Schooling in Nineteenth-Century Massachusetts, 84 Am. J. Sociology S39, S49 (Supp. 1978). Because public schools were initially created as substitutes for private schools, when States developed public education systems in the early 1800’s, no one doubted the government’s ability to educate and discipline children as private schools did. Like their private counterparts, early public schools were not places for freewheeling debates or exploration of competing ideas. Rather, teachers instilled “a core of common values” in students and taught them self-control. Reese 23; A. Potter & G. Emerson, The School and the Schoolmaster: A Manual 125 (1843) (“By its discipline it contributes, insensibly, to generate a spirit of subordination to lawful authority, a power of self-control, and a habit of postponing present indulgence to a greater future good …”); D. Parkerson & J. Parkerson, The Emergence of the Common School in the U. S. Countryside 6 (1998) (hereinafter Parkerson) (noting that early education activists, such as Benjamin Rush, believed public schools “help[ed] control the innate selfishness of the individual”).

    Teachers instilled these values not only by presenting ideas but also through strict discipline. Butts 274–275. Schools punished students for behavior the school considered disrespectful or wrong. Parkerson 65 (noting that children were punished for idleness, talking, profanity, and slovenliness). Rules of etiquette were enforced, and courteous behavior was demanded. Reese 40. To meet their educational objectives, schools required absolute obedience. C. Northend, The Teacher’s Assistant or Hints and Methods in School Discipline and Instruction 44, 52 (1865) (“I consider a school judiciously governed, where order prevails; where the strictest sense of propriety is manifested by the pupils towards the teacher, and towards each other . . .” (internal quotation marks omitted)).2

    In short, in the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed. Teachers did not rely solely on the power of ideas to persuade; they relied on discipline to maintain order.

There is a lot more of that in the rest of his opinion here:  http://www.law.cornell.edu/supct/html/06-278.ZC.html

Does anybody doubt that if he could, Thomas would build himself a time machine and immediately travel back to the 18th century?   :D

pastor of muppets

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Re: Clarence Thomas, Crotchety Old Man
« Reply #1 on: June 25, 2007, 10:45:57 PM »
Plus, Thomas was quite gung-ho about overruling precedent in favor of his view that students possess NO FIRST AMENDMENT RIGHTS AT ALL!

Quote
Tinker effected a sea change in students’ speech rights, extending them well beyond traditional bounds. The case arose when a school punished several students for wearing black armbands to school to protest the Vietnam War. Tinker, 393 U. S., at 504. Determining that the punishment infringed the students’ First Amendment rights, this Court created a new standard for students’ freedom of speech in public schools:

...

Accordingly, unless a student’s speech would disrupt the educational process, students had a fundamental right to speak their minds (or wear their armbands)—even on matters the school disagreed with or found objectionable. Ibid. (“[The school] must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint”).

...

In light of the history of American public education, it cannot seriously be suggested that the First Amendment “freedom of speech” encompasses a student’s right to speak in public schools. Early public schools gave total control to teachers, who expected obedience and respect from students. And courts routinely deferred to schools’ authority to make rules and to discipline students for violating those rules. Several points are clear: (1) under in loco parentis, speech rules and other school rules were treated identically; (2) the in loco parentis doctrine imposed almost no limits on the types of rules that a school could set while students were in school; and (3) schools and teachers had tremendous discretion in imposing punishments for violations of those rules.

...

I join the Court’s opinion because it erodes Tinker’s hold in the realm of student speech, even though it does so by adding to the patchwork of exceptions to the Tinker standard. I think the better approach is to dispense with Tinker altogether, and given the opportunity, I would do so.


The dude is loco.

philibusters

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Re: Clarence Thomas, Crotchety Old Man
« Reply #2 on: July 11, 2007, 11:26:51 PM »
I am a moderate liberal.  Thomas's opinions don't inflame me like Scalia's opinions do.

Thomas actually is being or at least attempting to be consistent with the conservative approach of looking to the framers original intent.  Thus the applicable time period by that standard would be the late 1800's.

I think that is a horrible approach, even if the framers didn't want to the 1st amendment to cover teenagers, the same could probably be said for women and African Americans, but no conservative judge would dare look to the framers intent to make that argument-at some point even the conservative realize political, social, and technological change have made the framers understanding of who the amendment covers obsolete.  Plus, using the word intent is a little screwy, there intent was to protect the freedom of the press mainly and also individual speech (though that was a newer notion at the time), it was not their intent for it to cover group x, but not group y.  They did ratify the amendment in the context of history, but they just accepted (ACCEPTED IS DIFFERENT THAN INTENDED) the status quo when applying the amendment.  For a hypothetical example, if I was congressman I would advocate reform  tax filing system, specifically the current option of married, filey jointly.  I would change it so that it only covered where one spouse worked and the other spouse did not work (in which case I would be wiling to slightly lower the marginal rate of the earner), thus if both husband and wife worked I would want to file separately.  Now if a court ever cited my bill to say gay partners should not have the same treatment, because when I passed the bill I was only thinking of husbands and wives I would be annoyed.  I support gay marriage, however, it may have been true that at the time of introducing the bill I was only thinking of husband and wives because I didn't link my bill with gay rights and I just accepted the world as it was when thinking out the implications of my bill.  Anyway, my point is that conservatives tend to confuse the times that the framers lived in with their specific intents and goals in drafting the amendments.  Same can be said for legislative intent as you can see from my example.

I actually think something can be said for Thomas's point.  Teaching children good behavior is as much a part of schooling as the three R's.   But his argument should have rested on that policy proposition (though conseratives don't think justices should rely on policy when making decisions), not antiquated notions of society.
2008 graduate of William and Mary Law School

Judgie Poo

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Re: Clarence Thomas, Crotchety Old Man
« Reply #3 on: July 12, 2007, 02:50:21 AM »
I am a 2L at William and Mary Law School.  Feel free to email any questions about school you have.

I love it when TTT future doc review monkeys express opinions on that which they don't understand.
Never gonna give you up, never gonna let you down.

philibusters

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Re: Clarence Thomas, Crotchety Old Man
« Reply #4 on: July 12, 2007, 08:33:10 AM »
I am a 2L at William and Mary Law School.  Feel free to email any questions about school you have.

I love it when TTT future doc review monkeys express opinions on that which they don't understand.

I understand what originalism is-its a judicial philosophy that emphasizes the limited role of the judiciary in policy making by having them focus on Congress or the drafters of the amendments understanding of what the piece of legislation or amendment did rather than try to adapt legislation and amendments to the changing world-which would often involve what is perceived as partisan decisions reflecting the justice's social and political ...as for this particular opinion by Justice Thomas I only read the provided excerpts, but I pretty sure he was making an origianlist argument, otherwise it makes no sense for him to be talking about the 1700's.

2008 graduate of William and Mary Law School