by Sheldon Richman, The Daily Bell:
Compared to Supreme Court Justice Antonin Scalia, his colleague Clarence Thomas is well regarded by at least some devotees of liberty. This is not totally unjustified. Thomas has demonstrated a familiarity with the philosophy and history of natural law and natural rights, which he (at times) sees rooted in individual persons. For this reason, in some areas he has opposed expansion of government power; for example in U.S. v. Lopez, he broke long precedent and held that the commerce clause of the Constitution is not a blank check to the government.
However, this background knowledge has not kept him from taking positions abhorrent by libertarian standards. For example, he voted with the minority in Lawrence v. Texas, in which the court struck down a law criminalizing intimate acts between gay and lesbian individuals. To be fair, Thomas said his objection to the majority opinion was constitutional not substantive: “I ‘can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy.'” (On the right to privacy and the Constitution, see my 1993 article “Dissolving the Inkblot: Privacy as Property Right.”) He called the particular law in question (quoting another case) “uncommonly silly,” adding, “If I were a member of the Texas Legislature, I would vote to repeal it.”
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