Your Esteemed Jurist Dollars at Work

I was on vacay from Christmas Eve until New Year's Day and finally had the opportunity to catch up on the pile of "interesting reading" lying around my office. A "must read" from June 25, 2007: the U.S. Supreme Court's decision in Morse v. Frederick, 551 U.S. ___ (2007). The "Bong Hits for Jesus" case , for the uncongnoscenti among us.

I read the majority opinion when it came out and, while I still think it is a heap o' shit, I cannot argue with the analysis. Basically, because the student was making a goofy -- as opposed to political -- statement, if you accept the premise that the banner promoted drug use in a school setting (a stretch, but work with me here), then you have to conclude, as the majority does, that the speech is not protected. (I'm waiting patiently for Bong Hits II to hit the courts -- where a student displays "Bong Hits for Jesus" for the purpose of protesting the Supreme Court's decision and/or demonstrating a support for free speech rights in school. As a political statement, any attempt to curtail the speech would come under "strict scrutiny". And I've threatened Thing 2 that if she swipes my Bong Hits for Jesus shirt and wears it to school, she will suffer great pain and furious vengence...)

Anyway, that's not what this entry is about. This entry is about the concurring opinion of Justice Thomas. For the non-lawyers/Article III junkies among us, Justice Thomas believes that the United States should have been freeze-dried in 1789. He's what they call a "strict constructionist", and believes that if it ain't specifically written in the Constitution or expressly contemplated by the time-traveling drafters of the Constitution, then it ain't the law of the land.

And to prove his devotion to strict constructionism, on the first Tuesday after the first Monday of each November, he casts only 3/5 of a vote.

Justice Thomas concurs with the majority of Morse, but would have decided the case based on the state of the art in the 19th century. He writes:

"Although bongs and, by extension, bong hits, are commonplace in public education in the 21st century, at the time the States ratified the Fourteenth Amendment, bongs were decidedly absent. Opiates like cocaine were stored in powder form and dissolved into soft drinks, see From "The Hit that Saves the Day" to "High Sign of Friendship": Coke is It!, 34 Interdiction J. 553 (1993), and the odd sailor smoked opium he brought back from the Orient, see The Idiot's Guide to Buccaneering, (Idiot's Press 1998), but bongs are a 20th century animal, I Could Not Get Laid at Yale Law School, Thomas, Clarence (HarperCollins 2007), and, accordingly, enjoy no protection under the U.S. Constitution.

"In short, in the earliest public schools, teachers taught and students listened. Teachers commanded, and students obeyed. Students were not cutting gym and taking hits off bongs behind the portables, near the train tracks or at Willowbrook. In this historical framework, it is the role of the state legislatures, and not the federal courts, to determine whether high school students can advocate for Jesus to take for himself, or receive as offering, bong hits."

Truer words have never been written.