06/20/19

Justice Thomas’s Credo

The Constitution, not precedent, is the law of the land.
Myron Magnet
June 19, 2019

One of the most striking aspects of Monday’s Supreme Court decision in Gamble v. United States was Clarence Thomas’s eloquent summary of the core precept of his judicial philosophy: that stare decisis—the venerable doctrine that courts should respect precedent—deserves but a minor place in Supreme Court jurisprudence. His 17-page concurrence in a case concerning double jeopardy, really a stand-alone essay, emphasizes that, in America’s system of government, the “Constitution, federal statutes, and treaties are the law.” That’s why justices and other governmental officers take an oath to “preserve, protect, and defend the Constitution of the United States”—not to safeguard judicial precedents. “That the Constitution outranks other sources of law is inherent in its nature,” he writes. The job of a Supreme Court justice, therefore, “is modest: We interpret and apply written law to the facts of particular cases.” Continue reading

05/27/19

How John Marshall Made the Supreme Court Supreme


Myron Magnet
Spring 2019

His brains and bonhomie forged a band of Federalist brethren.

Most serious American readers know National Review columnist and National Humanities Medal laureate Richard Brookhiser as the author of a shelf of elegantly crafted biographies of our nation’s Founding Fathers, from George Washington and Alexander Hamilton up to our re-founder, Abraham Lincoln. Those crisp, pleasurable volumes rest on the assumption that these were very great men who created (or re-created) something rare in human history: a self-governing republic whose growing freedom and prosperity validated the vision they strove so hard and sacrificed so much to make real. It’s fitting that the most recent of Brookhiser’s exemplary works is John Marshall: The Man Who Made the Supreme Court, for it was Marshall—a junior member of the Founding Fathers, so to speak—who made the Court a formidable bastion of the nation’s founding governmental principles, shielding them from attacks by demagogically inclined presidents from Jefferson to Jackson, until his death in 1835.

It takes all a biographer’s skills to write Marshall’s life, for he left no diaries and few letters or speeches. One must intuit the man’s character from bits and pieces of his own writings, his weighty but wooden biography of George Washington, his judicial opinions, and his contemporaries’ descriptions of him. From these gleanings, however, like Napoleon’s chef after the Battle of Marengo, Brookhiser concocts a rich and nourishing dish.

Born in backwoods Virginia in 1755, Marshall all his life kept a rural simplicity of manner and dress that once misled a Richmond citizen to think him a porter and ask him to carry a turkey home from the market, which the chief justice cheerfully did, refusing a tip for his efforts. Gregarious, athletic, and full of jokes, Marshall in his thirties was the life of the Quoits Club, a select Richmond group dedicated to weekly bibulous good fellowship and a horseshoe-like game played with metal rings, activities at which Marshall excelled. During one barroom game of inventing rhymes on assigned words, he drew “paradox” and, glancing at a knot of bourbon-drinking Kentuckians, promptly declaimed:

In the Blue Grass region,
A paradox was born.
The corn was full of kernels,
And the colonels full of corn.

“In his youth, he gamed, bet, and drank,” a temperate congressman grumbled; yet in old age, the legislator had to drive uphill in his gig, “while the old chief justice walks.”

Service in Washington’s army during the Revolution left Marshall with veneration for his commander in chief—“the greatest Man on earth,” he thought. Like most of his fellow officers, he came away from the war with the beliefs, born from the bone-chilling, stomach-gnawing privation of icy winter quarters, that became the core principles of Federalism once the Constitution was ratified—including by the Virginia ratifying convention, where Marshall played a key role. For its own preservation, the United States needed to be a real union, not a confederation of states, the Federalists held, with a central government powerful enough to fight a war and fund it, without inflicting superfluous suffering on its soldiers.
Continue reading

05/24/19

Clarence Thomas Boldly Saving the Constitution

This month, Clarence Thomas, now the longest-serving Supreme Court justice, wrote a 5-4 opinion overturning a 40-year precedent on states’ individual sovereignty, and stood against all his colleagues except Ruth Bader Ginsburg in favor of armed services members suing the government for medical malpractice.

Thomas goes wherever the Constitution and the law as written lead, ideology be damned. And history will judge him a giant for it.

In Franchise Tax Board of California v. Hyatt earlier this month, the Supreme Court ruled that a state cannot, without its own consent, be sued in another state’s courts, overruling the high court’s 1979 Nevada v. Hall decision. Justice Clarence Thomas, writing for the slim majority, stated that stare decisis, referring to the much-hyped practice of following well-grounded previous Supreme Court rulings, “does not compel continued adherence to this erroneous precedent.”

Liberal Justice Stephen Breyer wasted no time in his dissent, calling Thomas’s majority opinion “the absolute approach,” later asserting that “stare decisis requires us to follow Hall, not overrule it,.” Then the Clinton appointee slyly added: “See Planned Parenthood of Southeastern Pa. v. Casey” – Casey being the 1992 joint opinion of three Republican-appointed justices preserving the 1973 Roe v. Wade decision that legalized abortion on demand, nullifying all 50 states’ various abortion laws.

The Constitution Trumps Flawed Precedent

“Overruling a case always requires ‘special justification,’” Breyer went on to write. “What could that justification be in this case? The majority does not find one.”

Clarence Thomas finds the Constitution of the United States to be “special justification” enough, and in this case he quotes Madison and Hamilton on how immunity from private lawsuits was integral to sovereignty. But Breyer was sending a not-too-subtle signal that Roewould soon be on the chopping block.

The Supreme Court also, on Monday, refused, 7-to-2, to hear Daniel v. United States, in which the husband of a Navy lieutenant sought to sue the federal government after his wife bled to death after giving birth at a naval hospital. In this case, Justice Ginsburg was with Thomas, who wrote an individual dissent calling, not for the first time, for the striking down of the 1950 Feres v. United States decision, which holds that military personnel injured due to a federal employee’s negligence can’t sue the government under the 1946 Federal Tort Claims Act.

Thomas pointed out in 2013, when the court refused another attempt to reconsider Feres, that the actual law only allows the government immunity when the injury is the result of “combatant activities of the military or naval forces, or the Coast Guard, during time of war.” Feres thus “has the unfortunate consequence of depriving servicemen of any remedy when they are injured by the negligence of the Government or its employees,” Thomas wrote.

A case like that makes you wonder if Thomas is the only current Supreme Court justice who reads the actual words of enacted statutes.

A Trail Future Justices Can Follow

Myron Magnet, editor-at-large of the Manhattan Institute’s City Journal and author of one of the most important books of the last 30 years, The Dream and the Nightmare: the Sixties’ Legacy to the Underclass, has devoted his newest work to the senior associate justice. In Clarence Thomas and the Lost Constitution, published this month, Magnet argues that “in the hundreds of opinions he has written in more than a quarter century on the court,” Thomas “has questioned the constitutional underpinnings of the new order and has tried to restore the limited, self-governing original one, as more legitimate, more just, and more free than the one that grew up in its stead.”

While Thomas’s legacy may not be fully evident today, Magnet believes “Like such other great dissenters as the first John Marshall Harlan or Antonin Scalia, he has blazed a trail to liberty that future justices can follow.”

Stare decisis “in modern times has been a handmaiden of judicial policy-making: judges tinker with the precedents until ‘they get what they want, and then they start yelling stare decisis, as though that is supposed to stop you,’ Thomas said in 2016 … An iron-bound allegiance to stare decisis, as the court has demonstrated more than once, can result in generations of error piled upon error,” Magnet warns.

“’I trust the Constitution itself. The written document is the ultimate stare decisis,’ Thomas argues. ‘Instead of saying stare decisis,’ he explained recently, ‘we should say quo warranto – by what authority?’”

A Supreme Court That Kept Blacks Unarmed

Magnet then plays tour guide to some of Thomas’s most insightful opinions, like 1995’s United States v Lopez, in which he used a congressional overreach of the Constitution’s Commerce Clause to point out that even supposedly legitimate uses of that provision might eventually “give Congress a ‘police power’ over all aspects of American life,” pointing out that “when asked [in oral argument] if there were any limits to the Commerce Clause, the Government was at a loss for words.”

According to Magnet, “Thomas’s magnum opus so far” is his concurrence in the 2010 McDonald v. Chicago decision, in which Chicago’s handguns-within-the-home prohibition was struck down. Thomas “utterly repudiates the Supreme Court’s most tragically wrong and history-changing decisions of them all, the Slaughter-House Cases and United States v. Cruikshank, the two cases … that strangled Reconstruction in its cradle and licensed the generations-long grip of Jim Crow on black Southerners.”

White Southerners in the aftermath of the Civil War did not want freed blacks able to arm themselves, so only five years after the Fourteenth Amendment’s ratification the new amendment was falsely interpreted by the Supreme Court as not applying the Bill of Rights – including Second Amendment gun rights – to the states.

Cruikshank’s holding that blacks could look only to state governments for protection of their right to keep and bear arms enabled private forces, often with the assistance of local governments, to subjugate the newly freed slaves and their descendants through a wave of private violence designed to drive blacks from the voting booth and force them into peonage, an effective return to slavery,” Justice Thomas wrote. “Without federal enforcement of the inalienable right to keep and bear arms, these militias and mobs were tragically successful in waging a campaign of terror against the very people the Fourteenth Amendment had just made citizens.”

The Second Amendment suppressed for white supremacist purposes. Imagine.

The “substantive due process” doctrine used by the others in the McDonald majority, as venerable and oft-used over many years as it may be, repeatedly “applies rights against the States that are not mentioned in the Constitution at all, even without seriously arguing that the Clause was originally understood to protect such rights,” Thomas noted, citing Roe and 1905’s Lochner v. New York, a discredited ruling that held that laws limiting working hours violated the due process clause.

Thomas called the doctrine “a legal fiction” that “fails to account for both the text of the Fourteenth Amendment and the history that led to its adoption, filling that gap with a jurisprudence devoid of a guiding principle. I believe the original meaning of the Fourteenth Amendment offers a superior alternative, and that a return to that meaning would allow this Court to enforce the rights the Fourteenth Amendment is designed to protect with greater clarity and predictability than the substantive due process framework has so far managed.”

Thomas reminded his colleagues: “stare decisis is only an ‘adjunct’ of our duty as judges to decide by our best lights what the Constitution means.”

Experts Vs. The People Themselves

Clarence Thomas’s life experience was a near-perfect prelude to his becoming champion of the true, plain meaning of the Constitution. Growing up in poverty in segregated Savannah, Georgia, raised by a grandfather whose love for him manifested itself in harshly demanding responsibility of him, with no excuses allowed; “flirting with and rejecting black radicalism at college,” as Magnet notes, “and running one of the myriad administrative agencies that the Great Society had piled onto the New Deal’s batch – an agency that supposedly advanced equality – he doubted that unelected experts and justices really did understand the moral arc of the universe better than the people themselves. He had seen how the rules and rulings they issued too often made lives worse, not better.”

Justice Breyer apparently has the company of pro-life lawmakers in Alabama, Louisiana, Missouri and other states in believing stare decisis will not protect Roe v. Wade from the current composition of the court on which he sits. If they’re right, it won’t be “the absolute approach” that wins. It will be the unaccountable “permanent constitutional convention, continually making and remaking the law,” as Magnet calls it, that at long last loses.

05/24/19

Thomas and Breyer’s ‘Stare’ Contest

Their sharp disagreement about precedent reflects different worldviews that go far beyond abortion.

By

Myron Magnet

May 22, 2019 6:53 p.m. ET

Justice Clarence Thomas in Washington, Feb. 15, 2018. PHOTO: PABLO MARTINEZ MONSIVAIS/ASSOCIATED PRESS

Justice Stephen Breyer lamented last week that the Supreme Court had overturned “a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it.” Dissenting from Justice Clarence Thomas’s majority decision in Franchise Tax Board v. Hyatt, Justice Breyer added: “Today’s decision can only cause one to wonder which cases the Court will overrule next.”

Court watchers assumed the two justices were arguing about abortion, although the case had nothing to do with that issue. But the clash over stare decisis—the doctrine that courts must respect precedent as binding—runs far deeper. It is a manifestation of the crisis of legitimacy that has split Americans into two increasingly hostile camps.

On Justice Thomas’s side is the belief that the government’s authority rests on the written Constitution. This view regards a self-governing republic—designed to protect the individual’s right to pursue his own happiness in his own way, in his family and local community—as the most just and up-to-date form of government ever imagined, even 232 years after the Constitutional Convention.

Justice Breyer, by contrast, assumes America is rightly governed by a “living Constitution,” which evolves by judicial decree to meet modernity’s fast-changing conditions. Judges make up law “with boldness and a touch of audacity,” as Woodrow Wilson put it, rather than merely interpreting a Constitution he thought obsolete.

Wilson also established a corps of supposedly expert, nonpartisan administrators in such agencies as the Interstate Commerce Commission and the Federal Trade Commission, to make rules like a legislature, carry them out like an executive, and adjudicate and punish infractions of them like a judiciary. Wilson and Franklin D. Roosevelt, who supersized this system, considered it the cutting edge of modernity in the protection it afforded workers and the disadvantaged. Call it the Fairness Party, as distinct from Justice Thomas’s Freedom Party.

The Freedom Party does not view the rule by decrees of unelected officials, however enlightened, as an advance over democratic self-government. If the framers had wanted such a system, they could have stuck with the unwritten British constitution, which had governed the American colonists for 150 years and evolves by judicial precedent. They wanted a written constitution, strictly limiting federal authority, because they knew that human nature’s inborn selfishness and aggression not only make government necessary but also lead government officials to abuse their power if not restrained.

U.S. history justifies the framers’ caution, as Justice Thomas has argued in hundreds of opinions since joining the court in 1991. At crucial junctures, the Supreme Court has twisted the Constitution that guarantees liberty toward government oppression.

Start with The Slaughter-House Cases (1873) and U.S. v. Cruikshank(1876), which blew away the protection of the Bill of Rights with which the 14th Amendment’s framers and ratifiers thought they had clothed freed slaves against depredations by state governments. The result was 90 years of Jim Crow tyranny in the South. “I have a personal interest in this,” Justice Thomas once said. “I lived under segregation.” He grew up in 1950s Savannah, Ga., where the law forbade him to drink out of this fountain or walk across that park. If the Fairness Party thinks Supreme Court distortions can twist only to the left, it should think again. Far better to stick to the original meaning, as Justice Thomas urges.

Look what happened when the court allowed Congress and the president to proliferate administrative agencies with no political accountability. The justices have “overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure,” Justice Thomas wrote in a 2015 opinion, the first of a series that argued for reining in the administrative state.

Such lawless power ends in tyranny, as in the case of Joseph Robertson. As these pages recently reported, the Montana rancher dug two ponds fed by a trickle that ran down his mountain acres, only to be prosecuted and imprisoned for polluting “navigable waterways,” as absurdly defined by bureaucrats at the Environmental Protection Agency.

Beginning with the Warren Court in the 1950s, bold and audacious justices began making up law out of the Constitution’s “emanations, formed by penumbras”—literally, gas and shadows. As Justice Thomas has objected, the court invented rights that sharply curtailed the traditional order-keeping authority of police and teachers, making streets, schools, and housing projects in poor neighborhoods dangerous, and depriving mostly minority citizens of the first civil right—to be safe. The justices have even trampled the Bill of Rights, sanctioning campaign-finance laws that curtail the political speech at the core of First Amendment protections.

It’s as if the Court respects no limits. Thus the hallmark of Justice Thomas’s jurisprudence is his willingness to overturn prior decisions when he thinks his predecessors have construed the Constitution incorrectly. The justices readily overturn unconstitutional laws passed by a duly elected Congress. Why be more tender toward judicial errors?

“Stare decisis is not an inexorable command,” Justice Thomas observes in Hyatt. He has said elsewhere: “I think that the Constitution itself, the written document, is the ultimate stare decisis.” Justice Breyer asks which cases the court will overrule next. Justice Thomas’s reasonable answer: Whichever ones go against the Constitution.

Mr. Magnet is editor-at-large of the Manhattan Institute’s City Journal, a National Humanities Medal laureate and author of “Clarence Thomas and the Lost Constitution.”

 

 

05/19/19

C-SPAN Book Talk

Manhattan Institute Book Forum | May 8 2019, New York City

 

05/17/19

Book Looks At Constitution Through Opinions Of Clarence Thomas


Myron Magnet’s latest book, Clarence Thomas and the Lost Constitution, uses the framework of Justice Thomas’ life and opinions to look at an originalist interpretation of the nation’s founding document.

“The Framers gave us something in 1787 and later it was perfected by the Bill of Rights, by the Reconstruction amendments after the Civil War and by the 19th Amendment that gave women the vote,” said Magnet. “This Constitution is as up to date and even as avant-garde 230 years later as it was when it was first written.”

Thomas’ writings stand in contrast to the policy espoused by Woodrow Wilson.

“He was our first professor President,” said Magnet. “He thought that highly educated experts knew better than the American people themselves. He wanted to put in place something other than what the Framers had envisioned. He wanted the Supreme Court sitting as a permanent Constitutional convention, making up the laws as it went along to adjust to modern conditions.”

Thomas’ decisions want to take a clear eye to the document, not spin it one way or the other.

“If you look back over the history of our Constitutionalism, misreadings by Supreme Court justices can go in all directions,” said Magnet. “If Dianne Feinstein and Joe Biden and their ilk believe that the Supreme Court will only twist the Constitution to the left, believe me, for 100 years, it twisted it to the right. What we really want is a Court that doesn’t twist it at all.”

03/12/19

Clarence Thomas and the Lost Constitution

When Clarence Thomas joined the Supreme Court in 1991, he found with dismay that it was interpreting a very different Constitution from the one the framers had written―the one that had established a federal government manned by the people’s own elected representatives, charged with protecting citizens’ inborn rights while leaving them free to work out their individual happiness themselves, in their families, communities, and states. He found that his predecessors on the Court were complicit in the first step of this transformation, when in the 1870s they defanged the Civil War amendments intended to give full citizenship to his fellow black Americans. In the next generation, Woodrow Wilson, dismissing the framers and their work as obsolete, set out to replace laws made by the people’s representatives with rules made by highly educated, modern, supposedly nonpartisan “experts,” an idea Franklin Roosevelt supersized in the New Deal agencies that he acknowledged had no constitutional warrant. Then, under Chief Justice Earl Warren in the 1950s and 1960s, the Nine set about realizing Wilson’s dream of a Supreme Court sitting as a permanent constitutional convention, conjuring up laws out of smoke and mirrors and justifying them as expressions of the spirit of the age.

But Thomas, who joined the Court after eight years running one of the myriad administrative agencies that the Great Society had piled on top of FDR’s batch, had deep misgivings about the new governmental order. He shared the framers’ vision of free, self-governing citizens forging their own fate. And from his own experience growing up in segregated Savannah, flirting with and rejecting black radicalism at college, and running an agency that supposedly advanced equality, he doubted that unelected experts and justices really did understand the moral arc of the universe better than the people themselves, or that the rules and rulings they issued made lives better rather than worse. So in the hundreds of opinions he has written in more than a quarter century on the Court―the most important of them explained in these pages in clear, non-lawyerly language―he has questioned the constitutional underpinnings of the new order and tried to restore the limited, self-governing original one, as more legitimate, more just, and more free than the one that grew up in its stead. The Court now seems set to move down the trail he blazed.

A free, self-governing nation needs independent-minded, self-reliant citizens, and Thomas’s biography, vividly recounted here, produced just the kind of character that the founders assumed would always mark Americans. America’s future depends on the power of its culture and institutions to form ever more citizens of this stamp.

Critical Praise for Clarence Thomas and the Lost Constitution

“Myron Magnet has written a fascinating and provocative study of what he calls the ‘Lost Constitution,’ seen through the prism of Justice Clarence Thomas’s jurisprudence, which the author sees as a way to retrieve it. Written for the lay reader, this brief volume makes a compelling case for originalism. With the light it shines on culture, character, race, and liberty under law, though, the book is about more than just Clarence Thomas and originalism, in the same sense that Moby Dick is about more than just whaling. A great read.”

—Michael B. Mukasey, 81st Attorney General of the United States (2007–2009) and U.S. District Judge for the Southern District of New York (1988–2006)

“In Myron Magnet’s splendid account, sensational and learned by turns, the Framers join hands with a jurist from Pinpoint, Georgia, and the slums of Savannah. Riveting.”

—Richard Brookhiser, author of John Marshall: The Man Who Made the Supreme Court

“Myron Magnet captures the essence of Clarence Thomas through a thoughtful analysis of his work on the Court. Thomas says what he believes, does what is right, and harbors no concern about how he will be treated by the culture for the decisions he makes.”

—Leonard A. Leo, Executive Vice President, the Federalist Society for Law and Public Policy Studies

10/5/17

Books that transcend the divisiveness


by Jeff Minick, Smoky Mountain News, North Carolina

From Thanksgiving dinners to football games, from the floors of Congress to Joe’s Bar & Grill, from universities to kindergartens, from the Atlantic to the Pacific, Americans find themselves locked into political and cultural debates, shooting out tweets, screaming at rallies, shouting down speakers, and smearing their opponents. Civility and a sense of humor have been banished, replaced by identify politics pitting tribes of people against their neighbors whose skin color, religion, party, and gender preferences differ from their own. The abuse of language, reason, and argumentation, and the failure to define terms or to make clear what is said, only make more brutish this mix of hysteria and malevolence.

Had I a megaphone powerful enough to reach all 50 states, I would stand atop Mount Mitchell and yell, “Shut up, please! Everybody shut up!” Were I president, I would immediately issue an executive order commanding all red-faced politicos in the country to eat a chocolate chip cookie and drink a glass of milk every day at noon, and then sleep till two. Children need their naps.

I have no bullhorn, of course, and I hope never to be president of anything, but to those who, like me, are sick of all the shouting, shoving, screeching, and sham moralizing, I can offer this comfort: books.

First up on the line of defense against the Coocoo For Cocopuffs brigades is Myron Magnet’s The Founders At Home: The Building of America, 1735-1817 (W.W. Norton & Company, 2014, 472 pages). In this handsomely written history, Magnet, who is the editor-at-large of City Journal, gives us mini-biographies of many of the American Founders, a history of the times in which they lived and died, and a walk inside their homes, many of which are now historical sites.

The Founders At Home should appeal to readers unfamiliar with the era as well as those who have studied it. I knew quite a bit about Washington, Hamilton, and Jefferson, for example, but little about William Livingstone or John Jay. Reading of these men reminded me of the arduous tasks they faced, building a nation at a time when roads were often rutted paths and disease and fatal accidents common. Reading Magnet’s descriptions of the homes of these early patriots, which some of them designed to reflect a vision of liberty for their country, was equally captivating.

Magnet’s powers of description, his ear for tone in his writing, and his ability to unobtrusively include snippets and quotes from original manuscripts make the journey through The Founders At Home a great pleasure. Here, for example, Magnet describes George Washington’s resignation from the army and King George III’s reaction when he learns that Washington, the most powerful man in America, plans to return to his Virginia farm:

“When George III heard that he intended to return like Cincinnatus to his farm, he exclaimed with amazement, “If he does that, he will be the greatest man in the world!” On Christmas Eve 1783, private citizen Washington dismounted his horse at his beloved Mount Vernon’s welcoming door.”

Like any historian worth his salt, Magnet brings a critical eye to his subjects, but he also writes as one who clearly loves and treasures the government and the country these men and women established. If you feel lost in America these days, or if you feel America is lost, reading The Founders At Home may provide you some relief.

And if you are tired and worn from the abuse of language and the meaning of words, then I urge you to turn to Do I Make Myself Clear? Why Writing Well Matters (Little, Brown and Company, 2017, 417 pages). Sir Harold Evans, former editor of The Sunday Times and The Times of London, brings a lifetime of wisdom to this manual for novice and veteran writers. He writes with a fine wit — I several times burst out laughing at some of his comments — and provides readers with many examples of writing both good and bad. Evans stresses the importance of editing, contrasting, for example, Roosevelt’s speech asking for a declaration of war against the Japanese with its duller, earlier version. He introduces readers to a website, Readabilityforumulas.com, on which writers can paste passages and have the piece judged for readability and grade level of reading. (Fun, but I doubt I’ll return to it.)

The best chapter is “Ten Shortcuts to Making Yourself Clear,” which urges us to take steps like “Ration Adjectives, Raze Adverbs,” “Be Positive,” and “Cut The Fat, Check The Figures.” In Step 8, “Put People First,” for instance, Evans advises:

“Aim to make the sentences bear directly on the reader. People can recognize themselves in particulars. The abstract is another world. The writer must make it visible by concrete illustration. This means calling a spade and spade and not a factor of production. Eyes that glaze over at “a domestic accommodation energy-saving improvement program” will focus on “how to qualify for state money for insulating your house.”

One caveat regarding both books: Myron Magnet leans to the conservative side, Sir Harold Evans to the progressive. Does some of that prejudice slip into the writing of these two men? Of course, especially in Do I Make Myself Clear? where Evans makes no attempt to conceal his prejudices, especially his loathing of President Trump.

So who cares? Both The Founders At Home and Do I Make Myself Clear? are excellent books, the former reminding us of our roots, the latter reminding us of the importance of clarity in language.

(Jeff Minick is a writer and teacher.)

07/22/17

“Let Right Be Done!”

A classic film’s lesson in liberty

July 21, 2017

May I recommend one of my candidates for the Ten Greatest Movies list—The Winslow Boy? What the 1948 British film (not David Mamet’s 1999 remake) has going for it is a brilliant director, Anthony Asquith—who ranks with such luminaries as Carol Reed, Alfred Hitchcock, John Huston, or Jean Renoir—and a stellar cast, which includes some of the most skilled actors in movie history, from Cedric Hardwicke on down, all at the top of their form. But above all these advantages, the movie’s animating spirit is its script, by Terrance Rattigan and Anatole de Grunwald from Rattigan’s play, which grippingly dramatizes a principle at the very heart of Anglo-Saxon liberty—a principle that today’s America badly needs to relearn.

The Winslow Boy–and his father

The story, set in 1912—when director Asquith’s father, H. H. Asquith, was Britain’s Liberal prime minister, and World War I was brewing—is simple, and it won’t spoil the movie for you if I sketch its outline. Twelve-year-old Ronnie Winslow gets expelled from Osborne, the prestigious boarding school for cadets headed for Royal Navy commissions, for allegedly stealing five shillings. Though the sum is trivial, the alleged breach of the code of officers and gentlemen is not. His father, Arthur, a newly retired Wimbledon bank manager played by Hardwicke, solemnly asks him if he is guilty—twice—and when the boy twice asserts his innocence, his father, who raised him to tell the truth, vows to vindicate the boy’s honor, whatever the cost.It proves immense. In his quest, which lasts until after Ronnie turns 14, Arthur sacrifices his health, much of his savings, and the happiness and future of his solidly respectable and eminently likable upper-middle-class family. He meets obstacles at every point. The school’s commandant tells him that, as he had no doubt of Ronnie’s guilt after hearing the details of the theft, he has no second thoughts about summarily expelling the boy, without any formal procedure or even someone to advise Ronnie or speak in his defense. He won’t reconsider the evidence or say what it was. A visit to the Admiralty Commission to threaten a lawsuit gains Arthur only a haughty declaration that he needn’t bother: a subject of the king can’t sue the king’s representatives, for the law holds that the king can do no wrong.

True enough, his solicitor tells him; but nevertheless Magna Carta, the thirteenth-century charter of English liberties, declares that “no subject of the King may be condemned without a trial,” so perhaps Arthur should ask his MP to denounce the wrong done to Ronnie in Parliament. Good advice: for the MP, seeing a chance to win favorable press as a defender of justice, is glad to oblige. Reporters readily take the bait and make the Winslow case a national cause célèbre.

The uproar catches the interest of Sir Robert Morton, England’s most eminent—and expensive—barrister, masterfully played by Robert Donat as a complex mix of eloquence, cold hauteur, ruthless intelligence, and deep but hidden feeling, a legal version of Jane Eyre’s Mr. Rochester. Morton drops in at the Winslows’ house on his way to dinner with a duchess, politely introduces himself, and mercilessly cross-examines Ronnie, until the boy stammers with confusion and his family (along with the audience) wonders if he’s been telling the truth. But after such browbeating, the great man abruptly announces that he’ll take the case, for he thinks Ronnie is innocent. Continue reading

07/23/16

Why Are Voters So Angry?

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Summer 2016

They want self-government back.

Haunting this year’s presidential contest is the sense that the U.S. government no longer belongs to the people and no longer represents them. And this uneasy feeling is not misplaced. It reflects the real state of affairs.

We have lost the government we learned about in civics class, with its democratic election of representatives to do the voters’ will in framing laws, which the president vows to execute faithfully, unless the Supreme Court rules them unconstitutional. That small government of limited powers that the Founders designed, hedged with checks and balances, hasn’t operated for a century. All its parts still have their old names and appear to be carrying out their old functions. But in fact, a new kind of government has grown up inside the old structure, like those parasites hatched in another organism that grow by eating up their host from within, until the adult creature bursts out of the host’s carcass. This transformation is not an evolution but a usurpation.

What has now largely displaced the Founders’ government is what’s called the Administrative State—a transformation premeditated by its main architect, Woodrow Wilson. The thin-skinned, self-righteous college-professor president, who thought himself enlightened far beyond the citizenry, dismissed the Declaration of Independence’s inalienable rights as so much outmoded “nonsense,” and he rejected the Founders’ clunky constitutional machinery as obsolete. (See “It’s Not Your Founding Fathers’ Republic Any More,” Summer 2014.) What a modern country needed, he said, was a “living constitution” that would keep pace with the fast-changing times by continual, Darwinian adaptation, as he called it, effected by federal courts acting as a permanent constitutional convention. Continue reading

04/25/16

The End of Democracy in America

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Tocqueville foresaw how it would come.
Myron Magnet
Spring 2016

Alexis de Tocqueville was a more prophetic observer of American democracy than even his most ardent admirers appreciate. True, readers have seen clearly what makes his account of American exceptionalism so luminously accurate, and they have grasped the profundity of his critique of American democracy’s shortcomings. What they have missed is his startling clairvoyance about how democracy in America could evolve into what he called “democratic despotism.” That transformation has been in process for decades now, and reversing it is the principal political challenge of our own moment in history. It is implicitly, and should be explicitly, at the center of our upcoming presidential election.
Readers don’t fully credit Tocqueville with being the seer he was for the same reason that, though volume 1 of Democracy in America set cash registers jingling as merrily as Santa’s sleigh bells at its 1835 publication, volume 2, five years later, met a much cooler reception. The falloff, I think, stems from the author’s failure to make plain a key step in his argument between the two tomes—an omission he righted two decades later with the publication of The Old Regime and the French Revolution in 1856. Reading the two books together makes Tocqueville’s argument—and its urgent timeliness—snap into focus with the clarity of revelation.

Alexis de Tocqueville

Alexis de Tocqueville in 1850

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02/21/16

Liberty—If You Can Keep It

 

 

Yes, it does demand eternal vigilance.

MYRON MAGNET
Winter 2016
auschwitz

 

The gates of Auschwitz—with their demonic jeer, “Work Makes You Free”—led to history’s vilest demonstration of everything freedom isn’t.

Isn’t a sexual revolution a kind of revolution?” a Soviet dissident, the grandson of one of Stalin’s henchmen, asked me rhetorically in the mid-1970s. Recently released from five years’ Siberian exile, he certainly knew what slavery and tyranny were. But now, he wondered, couldn’t the waning of Russia’s sexual constraints be the harbinger of wider liberty? After all, he asked hopefully, “Isn’t sexual freedom, freedom?”

It didn’t turn out that way. So impoverished was the Soviet empire that it couldn’t give its subjects the bread and circuses that pacified imperial Rome’s populace; so, to the cheap vodka drastically shortening Russian life spans, it added lascivious license. Drunken stupor; moments of voluptuous rapture: that’s escape, not liberty. Continue reading

11/15/15

CITY JOURNAL AT 25, WITH MYRON MAGNET

The Manhattan Institute’s City Journal is celebrating its twenty-fifth anniversary. The table of contents for the twenty-fifth anniversary issue is posted here.

City Journal is a fantastic and fantastically influential quarterly magazine that I have read regularly over the years (subscribe here).To salute the magazine’s milestone, and bring the magazine to the attention of readers who might not be familiar with it, I submitted a set of questions to long-time editor Myron Magnet (now retired) and his current editor Brian Anderson, his successor.

Below is my exchange with Mr. Magnet. Let me say myself right here at the top, it is worth reading.

Power Line: What has City Journal wrought? What do you think have been your biggest accomplishments of the past 25 years?

Myron Magnet: These first two questions are really one, so let me answer them together. First, because of the seriousness of our arguments, and the rigor, intellectual honesty, and talent of our writers, we made conservatism respectable in New York City–Moscow on the Hudson, it used to be called. We were in effect Rudy Giuliani’s ideas factory–he once held up a copy of City Journal during a speech and said, “I don’t know if it’s possible to plagiarize policies, but if it is, then this is where I plagiarize mine from.” And the truth is, that we would make suggestions–about quality-of-life policing, say, or how to deal with the homeless, or how to reform welfare–and, amazingly, he often would try them out. Equally amazing, they would work. So it was very exhilarating to run a quarterly magazine with that kind of influence, and very moving to have played a role in the breathtaking rebirth of New York.

Remember that when we started, New York was crumbling. People and companies were fleeing what they saw as a dying and ungovernable city; Times Square was a monument to degradation and squalor; the parks were dustbowls populated by muggers and dope dealers; the streets and subways swarmed with madmen, sometimes threatening and sometimes merely pitiable; and, with one murder every four hours every day, we all lived in fear, so no one wanted to go out at night to restaurants and theaters, which were withering away. People from out of town, or New Yorkers too young to remember the bad old days of just over two decades ago, see the glittering metropolis of today and have no idea of the immensity of effort it took on the part of so many to create that urban wonderland out of such threat and decay. To give you a sense of the magnitude of the change: The now-trendy Lower East Side, as well as hip Williamsburg (and much of Brooklyn), were abject slums in those days, very squalid and very, very dangerous. On the Upper East Side and the Upper West Side, houses and apartments that command millions today sold for under $100,000. No one wanted them.

When the planes hit the towers on 9/11, our Fall issue was just ready to go to the printer. We tore it up and started over, on the view that this was our city and we needed to address the question of how to rebuild it and keep its economy vibrant immediately, so we even got some architect friends of ours to redesign the street grid at the World Trade Center site, and we asked our friend the great Scottish sculptor, Alexander Stoddart, to design a memorial to the victims, infinitely more fitting and moving than the vacuous hole-in-the-ground, void of meaning, that ultimately took form there. We also needed to learn and explain who our enemies were and how to protect ourselves from them, so we were early to examine the nature of Islamism and to understand that, while we must protect the rights of Moslem-Americans, we must carefully screen future Moslem applicants for immigration for Islamist sympathies.

Power Line: Where does City Journal fit in the conservative intellectual universe?

Myron Magnet: Though we are true free marketers, we are not libertarians, because we share the Founding Fathers’ belief that men are reasoning rather than reasonable creatures, with complex motives that ensure that even in business, men don’t always pursue their rational self-interest, and certainly not the long-term rational interest of their city or nation. Though we are full-throated fans of business, we hate crony capitalism, which in our state, with its two legislative leaders currently on trial for bribery and corruption, is a way of life. While we believe in free trade and the free movement of capital, we are more skeptical about the free movement of labor, since we believe that one pair of hands is not interchangeable with another, for those hands are attached to a head, a heart, a skill set, and a culture. Especially now that we have a giant welfare state and little agreement about what kind of culture we’d like immigrants to assimilate to, we’d like to choose our immigrants based on how they and their children can add to the wealth and well-being of the nation, to become creators of prosperity rather than dependents. And since we are not based in Washington, we are willing to examine and question every orthodoxy and consider every new policy idea, whether or not it has a realistic chance of passing into law now. Moreover, some of us belong to the “question authority” generation, and started out to the left of center. So we know that experience has changed our views–which makes us take nothing for granted and question everything, even our own assumptions.

Power Line: I love the magazine’s cultural coverage. Conservatives seem to be on the losing end of the culture wars. What have you sought to do with your cultural coverage?

Myron Magnet: We believe that culture–ideas, beliefs, ideals, loyalties, and mores–shape a nation more powerfully than political or social policies, which are themselves originally shaped by culture. So we have devoted a lot of attention to how to strengthen families, how to raise and educate children to succeed, how sexual mores are changing both for good and for ill. Literature, television, journalism, entertainment, of the past as well as the present–all these are transmitters and shapers of culture, so we examine them seriously, if sometimes a little lightheartedly. And sometimes censoriously: does gangsta rap do anything to uplift the urban underclass, or does it degrade it? We’d prefer a culture that nurtures every imaginable variety of human excellence. That’s what the ideal city, a theater of talent and ambition, is for.
As we are at base an urban-policy magazine, we take very seriously Winston Churchill’s profound observation, which has everything to do with cities: “We shape our buildings, and then our buildings shape us.” So we are passionate about architecture, resolutely opposed to those modernist and postmodernist starchitects who believe that buildings are machines for living rather than enhancements of humanity. For them, people are interchangeable cogs or ants in an ant colony, not humans with souls.

Our belief in the primacy of culture made us perhaps the first conservative magazine to express deep skepticism of the Bush administration’s “freedom agenda” in Iraq, much as we supported President Bush and the war. You can’t make democratic republicans out of tribal people with fanatical religious hatreds against one another and the rest of the world. America’s democratic liberty is an immense cultural achievement, centuries in the making.

Power Line: I can’t go without asking about Heather Mac Donald. She has been an inspiration to me and made herself something of a national resource on the subjects she writes about. I’m sure I’m not alone. Can you say anything about Heather’s contributions?

Myron Magnet: When I took the helm of City Journal in 1994, we thought that, to save the city, we’d need to solve all its problems at once: crime, taxation, regulation, education, rent control, and so on. We discovered that, with such a rich inheritance from the past–museums, orchestras, opera companies, theaters, restaurants both fancy and homey, beautiful buildings, global banks, universities–all we needed to do was make people feel safe in the streets, their homes, and their hotels, and tourists would flock in, New Yorkers would go out, and the city would flourish.

Heather made herself City Journal’s–and the nation’s–Number One expert on policing, aside from Bill Bratton, Ray Kelly, and their top deputies. In the early days of the magazine, she was the principal explainer to the public of what Bratton and Giuliani were doing about crime, and enough people found her sufficiently persuasive to support the NYPD, let it do its job (despite constant carping from the academic criminologists and the New York Times), and appreciate the miracle it wrought. Now that police are under attack nationwide and what Heather dubbed the “Ferguson Effect” has made cops back off, with a resultant jump in crime, Heather is once again the nation’s most tireless and persuasive defender of activist policing. She knows everything there is to know about the subject, from how to train cops, deploy them, mange them, and assess their performance, so that they don’t solve crimes after they have occurred but instead prevent crimes from happening in the first place–something no one imagined could be done before City Journal and the Manhattan Institute, its publisher, suggested it could.

In my first years running the magazine, I’d spend hours every week on the phone with Heather, as she’d worry over every detail of her story, to make sure the logic had no holes, the argument was fair, her answers to possible objections persuasive, and so on. These were among the most intellectually stimulating conversations I dare say any editor ever had. And I know that, in addition to her scrupulous intellectual honesty and rigor, her amazing intelligence, her stringent perfectionism, Heather (a lapsed lawyer) is as curious as any scientist and as brave as Hercules, willing to go into any neighborhood in any city, ask any question of anybody, and get answers that illuminate. Intellectually courageous as well, I might add, for when we started, to suggest that criminals, not “society,” were responsible for crime was immediately to be shunned as racist. But of course the greatest beneficiaries of New York’s crime drop are residents of minority communities where crime was worst. Now that residents don’t have to be afraid to let their kids ride bikes outside or go to the corner store for bread, civic life can again flourish there.

Two final points. Heather can write about anything, from “Hip Hop 101″ at a “progressive” NYC public school to affirmative action and its fruits in the universities to classical music. Second, we have been blessed with a brigade of great writers, who made City Journal what it is.

Power Line: What would you like interested readers who are unfamiliar with the magazine to know about it?

Myron Magnet: Take a look at the website here — it’s free and unencumbered by any advertising, and judge for yourselves.

07/4/15

The Vision of the Founding Fathers

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What kind of nation did the Founders aim to create?
By Myron Magnet — July 3, 2015

Men, not vast, impersonal forces — economic, technological, class struggle, what have you — make history, and they make it out of the ideals that they cherish in their hearts and the ideas they have in their minds. So what were the ideas and ideals that drove the Founding Fathers to take up arms and fashion a new kind of government, one formed by reflection and choice, as Alexander Hamilton said, rather than by accident and force?

Signing of the Declaration of Independence, John Trumbull

Signing of the Declaration of Independence, John Trumbull

The worldview out of which America was born centered on three revolutionary ideas, of which the most powerful was a thirst for liberty. For the Founders, liberty was not some vague abstraction. They understood it concretely, as people do who have a keen knowledge of its opposite. They understood it in the same way as Eastern Europeans who have lived under Communist tyranny, for instance, or Jews who escaped the Holocaust. Continue reading

06/13/15

Free Speech in Peril

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Spring 2015

Trigger warning: may offend the illiberal or intolerant

Shut up or die. It’s hard to think of a more frontal assault on the basic values of Western freedom than al-Qaida’s January slaughter of French journalists for publishing cartoons they disliked. I disagree with what you say, and I’ll defend to the death my right to make you stop saying it: the battle cry of neo-medievalism. And it worked. The New York Times, in reporting the Charlie Hebdo massacre, flinched from printing the cartoons. The London Telegraph showed the magazine’s cover but pixelated the image of Muhammad. All honor to the Washington Post and the New York Post for the courage to show, as the latter so often does, the naked truth.

The Paris atrocity ought to make us rethink the harms we ourselves have been inflicting on the freedom to think our own thoughts and say and write them that is a prime glory of our Bill of Rights—and that its author, James Madison, shocked by Virginia’s jailing of Baptist preachers for publishing unorthodox religious views, entered politics to protect. Our First Amendment allows you to say whatever you like, except, a 1942 Supreme Court decision held, “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words—those which by their very utterances inflict injury or tend to incite an immediate breach of the peace,” though subsequent decisions have allowed obscene and profane speech. A 1992 judgment further refined the “fighting words” exemption, ruling that the First Amendment forbids government from discriminating among the ideas that the fighting words convey, banning anti-Catholic insults, for example, while permitting slurs against anti-Catholics. In other words, government can’t bar what we would now call “hate speech”—speech that will cause “anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.”
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This expansive freedom prevails nowhere else on earth. European countries, and even Canada, have passed hate-speech laws that criminalize casual racial slurs or insults to someone’s sexual habits. An Oxford student spent a night in jail for opining to a policeman that his horse seemed gay. France, which has recently fined citizens for antigay tweets and criminalized calls for jihad as an incitement to violence—a measure that our First Amendment would allow only if the calls presented a “clear and present danger”—also (most improperly) forbids the denial of crimes against humanity, especially the Holocaust. The pope has weighed in as well, with the platitude that no one should insult anyone’s religion—or his mother. Continue reading

05/30/15

Magnet School

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THE CORNER
THE ONE AND ONLY.
by JAY NORDLINGER May 27, 2015 2:36 PM
My Impromptus today is kind of unusual. (I know, no different from the norm.) What are the least overrated places you know? In other words, places about which the hype is true. And what are the most overrated? I brought up this topic a couple of weeks ago, and, today, I report reader responses. One of those responses is this: Least overrated: Mount Vernon. Warm, approachable, understandable. Most overrated: Monticello. As much as I love Jefferson, his home leaves me cold, especially when compared with Mount Vernon.
I brought this opinion — this pairing — to the attention of Myron Magnet. Why? Well, Myron knows about everything. But he is especially knowledgeable in this area, as the author of The Founders at Home: The Building of America, 1735-1817. He was good enough to write a comment, which I’m so pleased to share with you.
The “reader’s comparison surprised me,” he begins. “In truth, both houses are profoundly moving to visit, haunted as they are by spirits of the great statesmen and amateur architects who, as a lifetime hobby, spent years planning, building up, repairing, perfecting these outward embodiments of their inner vision of the kind of domestic life they were building a nation to make possible. By contrast with your correspondent, in politics I love Washington, while the only Jeffersonian political principle I agree with is that all men are created equal. So I like the Burkean approach Washington took to enlarging and improving Mount Vernon, not altering structures that worked fine as he added new and improved sections of the house. The result is a house that, for all its attempts to look classically symmetrical, is endearingly lopsided, with the rooftop lantern 18 inches off center, and a different number of windows under each half of the pediment over the entrance portico. Jefferson, by contrast, is a rationalist’s rationalist, with the plan of Monticello an endlessly interesting, complex, but always symmetrical puzzle of abstract geometrical shapes forming a brilliantly harmonious whole. Well, I like rationalism — in architecture, if not in politics, where it led Jefferson to his monstrous views on the French Revolution. There is however one truly disturbing thing about Monticello, and that’s the care and trouble Jefferson took to hide the economic reality of slavery that supported the whole operation, putting the service wings half-underground and devising ways to bring food and wine into the dining room without a human being having to carry it in. I suppose one should give him credit at least for being ashamed of slavery. As Dr. Johnson said of that proto-Darwinian, the Scotch judge Lord Monboddo, who believed that men were descended from monkeys, If one has a tail, one should take pains to conceal it; but Monboddo flaunts his with pride.”

Read more at: http://www.nationalreview.com/corner/418942/magnet-school-jay-nordlinger

02/19/15

What Must We Think About When We Think About Politics?

cj_headerWinter 2015
What Must We Think About When We Think About Politics?
Man is a political animal, but he is much more.
Hobbes
NATIONAL TRUST PHOTO LIBRARY/ART RESOURCE, NY
A headless body in a topless bar would not have surprised political philosopher Thomas Hobbes.

The late political scientist James Q. Wilson used to caution, with his elegant precision, that it’s not enough to have political opinions. You also need facts—which, for him and his brilliant colleagues at The Public Interest of the 1960s and 1970s, meant data. You think this policy will produce that outcome? Okay, try it—and then measure what happens. Did you reduce poverty? Raise test scores? And you had also better comb the data for consequences you neither expected nor intended, for all policies must stand or fall by the totality of their results. Remember, too, Wilson and his colleagues used to insist, that correlation is not causation: if two things alter more or less in tandem, that doesn’t by itself prove that one of the changes produced the other. They may be independent of each other, or some as-yet-unnoticed third force may have sparked both of them. Data don’t speak for themselves but require interpretation—which may or may not be correct. It’s art, not science.

This warning proved a powerful corrective to the liberal ideology about social policy that reigned in the 1960s—pious, unproved platitudes about “root causes” that gave birth to the War on Poverty, whose dire consequences, including an ever-more-deeply entrenched underclass, still bedevil America. But Wilson’s rigor tones up only one of the areas where political thought and discourse tend to be flabby. At least two more elements, well known to political philosophers since antiquity but often ignored today, are essential to intelligent political thinking. You have to have some understanding of psychology—of the minds and hearts that motivate the individuals who are the stuff of politics—and you have to know something about culture, the thick web of beliefs and customs that shape individuals and their social world at least as much as public policies do. Continue reading