09/11/19

Clarence Thomas, the Repairer of Our Constitution

SEPTEMBER 10, 2019|
Justice Clarence Thomas, Myron Magnet

Clarence Thomas, the Repairer of Our Constitution
by RALPH ROSSUM|

During the 28 years that Clarence Thomas has served as an associate justice of the United States Supreme Court, he has written approximately 560 majority, concurring, and dissenting opinions. Myron Magnet has undertaken an insightful analysis of Thomas’s major opinions and his many speeches and addresses. The historian and editor-at-large of City Journal convincingly demonstrates that in those opinions and speeches, Thomas has articulated a clear and consistent jurisprudence of constitutional restoration that seeks to retrieve the original meaning of the Constitution—what the author calls “the lost Constitution.”

Pursuing an originalist approach to constitutional interpretation, Thomas has been unswayed by the claims of precedent—by the gradual build-up of interpretations that, over time, can obscure the original meaning of the constitutional provision in question and encourage activist justices to reach results-oriented and consequentialist decisions. As with too many layers of paint on a delicately carved piece of furniture, precedent based on precedent—focusing on what the Court has, in past cases, said the Constitution means as opposed to focusing on what the 1787 document actually means—hides the constitutional nuance and detail that Thomas would restore.

He is unquestionably the justice who is most willing to reject this build-up, this excrescence, and to call on his colleagues to join him in scraping away past precedent and getting back to bare wood: to what the Constitution originally meant. Just how willing Thomas is to toss precedent aside is apparent in Eastern Enterprises v. Apfel (1998), in which he indicated that the 200-year-old precedent of Calder v. Bull (1798) incorrectly interpreted the ex post facto clauses of Article I, Sections 9 and 10 to apply only to criminal matters and not civil matters.

His Grandfather’s Son

Magnet describes himself as “not a constitutional law professor but a writer.” And a fine writer he is! Moreover, his knowledge of the political thought of the Founding generation and his clear grasp of case law rival that of the best constitutional law professors. He has written “a life-and-works book in which life and works mutually illuminate each other to a greater than usual degree.” Thus he offers a thorough biographical sketch of his subject, one that concisely summarizes Thomas’s 2007 memoir, My Grandfather’s Son.

The biographical chapter will prompt many to want to read the memoir in its entirety (or listen to the audio book that Thomas himself narrates). In it Magnet brings out how the justice’s hardscrabble early life in Pinpoint, Georgia; his upbringing by his stern but loving grandfather in segregated Savannah, Georgia; his seminary, Holy Cross, and Yale Law experiences; his public service in the Missouri Attorney General’s office and federal agencies (the Department of Education and the Equal Employment Opportunity Commission); and, his bruising Senate confirmation, all contributed to his views once on the Court, on such matters as equality and race, affirmative action, property rights, the right to keep and bear arms, and freedom of speech and the press.

The book then turns to how the Constitution came to be “lost.” Magnet calls this chapter “Who Killed the Constitution?” but here he overstates the matter. For he will later describe the Constitution as not dead but “vandali[zed],” and he has no doubt that “it is vandalism” that Thomas and other originalist justices following his lead can repair.

For Magnet, the original Constitution established a “small government of limited and enumerated powers” that has been lost to us for “nearly a century” because of 1) the post-Civil War Supreme Court’s “subversion” of the Privileges or Immunities Clause of the Fourteenth Amendment, 2) the late-New Deal Supreme Court’s Commerce Clause jurisprudence and its acceptance of the administrative state with independent agencies “acting as a fourth branch of government,” and 3) the Warren Court’s embrace of the doctrine of the “living constitution,” making it, in effect, “a permanent constitutional convention, continually making and remaking the law, to adapt, in a kind of Darwinian evolution to changing circumstances.”

Originalism in Action

Next comes “Originalism in Action,” and with that, we enter the “works” part of the “life-and-works” structure of Clarence Thomas and the Lost Constitution. Here we read of Thomas’ major opinions (mostly concurrences and dissents) and get an idea of what he has done to save what was lost and repair what has been vandalized. With admirable concision and clarity, this 47-page chapter keeps the justice’s arguments front and center.

Magnet addresses, at considerable length, Thomas’ attempt to overturn the post-Civil War Court’s evisceration of the Privileges or Immunities Clause in the 1873 Slaughter-House Cases. In McDonald v. City of Chicago (2010), a five-member majority incorporated the Second Amendment, which secures an individual right to keep and bear arms, to apply to the states.

In a rather mechanistic application of substantive due process, Justice Samuel Alito held for four justices that the right to keep and bear arms was a liberty interest protected from state interference by the Due Process Clause of the Fourteenth Amendment. Thomas supplied the fifth vote, but as a son of the segregated American South, he relied instead on the Privileges or Immunities Clause, arguing that the right to keep and bear arms secured by the Second Amendment was a privilege and immunity of citizens of the United States that no state can abridge.

The majority in Slaughter-House had argued to the contrary; it claimed that the “Privileges or Immunities of citizens of the United States” were few in number and limited to such matters as free access to the nation’s seaports, protection on the high seas, and use of the navigable waters of the United States. Most assuredly, they did not include those rights spelled out in the Bill of Rights.

Slaughter-House led inexorably to United States v. Cruikshank (1876), in which the Court failed to vindicate the rights of the freedmen of the state of Louisiana.

On Easter Sunday 1873, approximately 150 black Republicans were killed in Colfax, Louisiana, for exercising their First Amendment right “peaceably to assemble” in what Eric Foner has called “the bloodiest single instance of racial carnage in the Reconstruction Era.” When the state failed to prosecute the perpetrators, federal authorities indicted their leaders for violating the 1870 Enforcement Act making it a crime for individuals to interfere with U.S. citizens exercising their privileges and immunities under the Fourteenth Amendment.

In Cruikshank, however, a unanimous Court, relying on Slaughter-House, denied that First Amendment rights were privileges and immunities of citizens of the United States and concluded that the Enforcement Act could not be used to prosecute those responsible for what came to be known as the Colfax Massacre. If First Amendment rights were not privileges and immunities of citizens of the United States, neither was the right to keep and bear arms secured by the Second Amendment. Without federal enforcement of the freedmen’s right to keep and bear arms, Thomas observed, the Ku Klux Klan was able to “subjugate these 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.”

For Justice Thomas, Cruikshank was “not a precedent entitled to any respect,” and neither was Slaughter-House.

Magnet calls Thomas’s concurrence in McDonald his “magnum opus to date,” a “textbook demonstration of his method of judging. Here, with characteristic skepticism toward stare decisis, he utterly repudiates the Supreme Court’s most tragically wrong and history-changing decisions of all that strangled Reconstruction in its cradle and licensed the generations-long grip of Jim Crow on black Southerners.”

It should be noted that McDonald was Thomas’s first opportunity after his elevation to the Supreme Court to vote on the incorporation of a Bill of Rights provision to apply to the states. He had a second occasion earlier this year, when he voted in Timbs v. Indiana to incorporate the excessive fines provision of the Constitution’s Eighth Amendment to apply to the states. Even though the issue had nothing to do with race or the right to keep and bear arms, Thomas again wrote separately to indicate that the provision should be incorporated not because of substantive due process but because the protection against excessive fines is a privilege and immunity of citizens of the United States. (The case goes unmentioned by Magnet because his book was already in production when it was decided.)

Magnet also takes up how Thomas has gone to work repairing the constitutional vandalism inflicted, this time, by the late-New Deal Supreme Court in its Commerce Clause jurisprudence. Thomas, he argues, has consistently sought to overturn the Court’s longstanding “substantial effect on commerce” test, for two reasons.

First, as Thomas declared in his concurring opinion in United States v. Lopez (1995), the test renders “wholly superfluous” many of “Congress’ other enumerated powers under Article I, Section 8.” As he pointed out, the powers to tax and borrow, coin money, establish post offices and post roads, grant copyrights and patents, enact bankruptcy laws, declare war, and raise and support an army and navy—all have a substantial effect on commerce and are therefore rendered superfluous. In his mind, any interpretation of the Commerce Clause that does so “cannot be correct.”

Second, Thomas argues that the “substantial effects” test strikes a serious blow at federalism by giving Congress a police power over all aspects of American life. Since it effectively converts the federal government from one of delegated powers to one of reserved powers, it makes the rise of the administrative state even more pernicious and threatening to liberty. Congress delegates to independent agencies the power to enact, enforce, and adjudicate rules (itself a major violation of the Constitution’s separation of powers) on matters only reachable by the federal government because of the “substantial effects” test.

Thomas has sought to overturn Court precedents that require courts to defer to an executive branch agency’s reasonable interpretation of ambiguous language in a statute it is charged with executing, and even to an agency’s reasonable interpretation of ambiguous regulations that it has itself promulgated.

Magnet carefully takes the reader through Thomas’s concurring opinions in two relevant cases from 2015: Perez v. Mortgage Bankers Association and Michigan v. EPA. He quotes from Thomas in Michigan: Deference forces judges “to abandon what they believe is the ‘best reading of an ambiguous statute’ in favor of an agency’s construction. It thus wrests from Courts the ultimate interpretive authority to ‘say what the law is.’”

Roberts Challenges His Colleagues

Finally, Magnet takes up what Thomas has done to challenge the doctrine of the living Constitution. Examples abound. One is Justice Sandra Day O’Connor’s contention in Grutter v. Bolinger (2003) that diversity is a compelling state interest for the University of Michigan Law School to accept students on the basis of race—but that, 25 years hence, it will not be. Thomas dissented, declaring that “the Law School’s current use of race violates the Equal Protection Clause” and insisting “that the Constitution means the same thing as it will in 300 months.”

Then there was Justice John Paul Stevens’ opinion in Kelo v. New London (2005), which had the effect of reading “public use” out of the Takings Clause, prompting Thomas to declare: “Though citizens are safe from the government in their homes, the homes themselves are not. I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution.”

Still another example is Chief Justice John Roberts’ claim in Carpenter v. United States (2018) that the Court-invented notion (from a concurring opinion by Justice Harlan in the 1968 case of Katz v. United States) of a “reasonable expectation of privacy” required the FBI to obtain a search warrant before it obtained cell-tower location information from cell phone companies’ business records. As Thomas pointed out, the Fourth Amendment protects individuals’ right to be secure in their “persons, homes, properties, and effects,” which means that individuals do not “have Fourth Amendment rights in someone else’s property.” Additionally, he noted, the “Fourth Amendment cannot be translated into a general constitutional ‘right to privacy.’”

Other instances mentioned by Magnet of Thomas’s rejection of the “living Constitution” include the Court’s abortion jurisprudence and its early campaign-finance reform decisions. His summation: “These opinions, Thomas’s best, add up to a sweeping critique of what the Court, sitting as a permanent constitutional convention and legislating from the bench with ample audacity, over seven decades, has wrought.”

The book’s concluding chapter is somewhat of a disappointment. It recapitulates neither Thomas’s life nor his works, offering instead a summary of Alexis de Tocqueville’s concern in Democracy of America about what we call today the administrative state. While Thomas would no doubt agree with the great French thinker, Magnet provides no supporting quotations from him. Then, too, the concluding comparison of the individual responsibility themes of My Grandfather’s Son to the victimology themes of Barack Obama’s The Audacity of Hope does not add much to what is, over all, a splendid book about Clarence Thomas, an inspiring man and inspiring jurist.

Ralph Rossum
Ralph Rossum is the Salvatori Professor of Political Philosophy & American Constitutionalism at Claremont McKenna College. He is the author of Antonin Scalia’s Jurisprudence: Text and Tradition (University Press of Kansas, 2006).

08/25/19

Life, liberty and Justice Thomas

by Michael Goodwin, New York Post, August 25, 2019

There is no shortage of smart books about the rise of the administrative state. But it’s hard to imagine a more creative approach than juxtaposing this disturbing development against the life and judicial opinions of Supreme Court Justice Clarence Thomas.

In “Clarence Thomas and the Lost Constitution,” author Myron Magnet weaves together two distinct worlds. One is Thomas’ coming of age in segregated Georgia and the hard-knock lessons he learned from his grandfather.

We also see Thomas’ brief descent into youthful rage and his evolving embrace of the patriotic liberty enshrined in America’s founding documents.

The other world is the vast expansion of the liberty-crushing federal agencies that effectively make laws without the bother of legislation and enforce them without the bother of federal courts. The progressive visions of Presidents Woodrow Wilson and FDR claim center stage, aided by a Congress that even now cedes too much power to unaccountable bureaucrats.

These two worlds collide when Thomas joins the court. In an efficient 168 hardcover pages, Magnet, a friend, demonstrates how Thomas, through his opinions, speeches and writings, wages war against this unholy power grab with the aim of restoring the Founders’ idea of limited government.

My first impression was that the book was too ambitious, but Magnet is in complete command of his material and has produced a very readable gem.

The feat is all the more remarkable because he did not interview Thomas. Instead, Magnet uses available biographical material to show how Thomas arrived at his understanding of the Constitution, one shaped by the unique abuses inflicted on African-Americans by excessive government power.

With Thomas now one of five conservative justices on the court, there is a chance to limit the bureaucrats’ reach. Whatever the outcome, this book is a brilliant road map

08/25/19

The Education of Clarence Thomas

by Peter Wood

Clarence Thomas graduated cum laude from the College of Holy Cross in Massachusetts in 1971 and received a J.D. from Yale University in 1974. His memoir, My Grandfather’s Son (2007), testifies to a much deeper educational journey—one that began under the determined watch of his maternal grandfather in Jim Crow Savannah and that culminated in his ordeal during the 1991 Senate confirmation hearings. In between came his appointments as head of the Office for Civil Rights in the Department of Education, chairman of the Equal Employment Opportunity Commission, and member of the U.S. Court of Appeals for the District of Columbia Circuit.

What he learned in those positions was significant, but not transformational. The transformational moment, we learn in Myron Magnet’s new book, Clarence Thomas and the Lost Constitution, came in 1980, “after he read through [Thomas] Sowell’s works, registered as a Republican, and voted for Ronald Reagan.” He was drawn by Reagan’s “promise to end racial social engineering.” Thomas had had a bellyful of that at Yale and had concluded that “blacks would be better off if they were left alone” instead of being conscripted into the utopian schemes of liberal politicians.

Needless to say, this wasn’t an idea he picked up from his teachers at Holy Cross or Yale, though it did owe something to his grandfather. Moreover, it prepared him for the opportunity he had at the EEOC when “he hired as special assistants Ken Masugi and John Marini, students of political philosopher Harry Jaffa.” Masugi and Marini introduced Thomas to texts that deepened his knowledge of the American founding.

Magnet’s book devotes a chapter to “The Making of a Justice,” which rightly reaches its climax with the attack led by Senator Joe Biden that riveted the nation during the October 1991 confirmation hearings. It was, of course, a trial by ordeal. How much vitriol and character assassination can a man stand? What had happened to the civility and decorum of the world’s greatest deliberative body?

Part of what Thomas took from the Anita Hill accusation-fest was a new determination to uphold the real Constitution of the republic, rather than the patchwork of extra-Constitutional shortcuts, “emanations,” inventions, and betrayals that progressives had cobbled together over the years. This haystack of judicial law-making is ferociously defended, and not just by the progressives who built it. Americans have become accustomed to rule by a high Court of unelected judges who can have what amounts to the final say on any issue they choose.

Thomas reached his seat on that Court with a disposition to dispute what most regarded as “settled law”—settled in the sense that the Court had spoken in cases that had become “binding precedents.” How binding a precedent might actually be, however, was always an open question. The Supreme Court now and then overturned previous decisions, though it usually tried to explain this by citing still other precedents.

Asignificant stretch of Magnet’s short book is a chapter—“Who Killed the Constitution?”—that provides deep background on how the U.S. Supreme Court, step by step, shifted from interpreting the Constitution to what we laymen might call making stuff up. No doubt it is more complicated than that. Making stuff up usually involves a lot of dignified chin pulling and circumnavigation of common sense. And making stuff up isn’t some newly discovered human faculty that emerged on Woodrow Wilson’s birthday or when Justice Owen Roberts weighed FDR’s Court-packing plan and decided he liked the extra-Constitutional New Deal just fine. Making stuff up is what powerful, self-interested people always do when they can. Absent a strict division of legislative, executive, and judicial powers and a system of checks and balances, rule by fiat is inevitable.

Magnet takes us back to the post-Civil War era during which the Supreme Court eviscerated the Fourteenth Amendment in its Slaughter-House Cases (1873) and Cruikshank decision (1876). The Slaughter-House Cases stripped Southern blacks of most of the civil rights guaranteed by the Fourteenth Amendment. It did so by “interpreting” their rights as citizens to be only their rights under federal law, and excluding their rights under state law. The individuals who brought the case lived in New Orleans, which allowed Louisiana to return its black citizens to a position of peonage. In the Cruikshank case the Supreme Court allowed the perpetrators of a racial mass murder (the Colfax Massacre) to walk away scot free because the Court interpreted the Bill of Rights as only guaranteeing that the U.S. Congress wouldn’t abridge those rights. But if Louisiana wished to abridge them, so be it.

Step by step, the Supreme Court created the tools that allowed the South to unwind the Constitutional protections created by the Fourteenth and Fifteenth Amendments, thus bringing Reconstruction to an end. Magnet doesn’t allow indignation to get in the way of his building out the story of the Court’s transgressions. His prose is mercifully free of the muse of crankdom that dooms so many attempts to explain the errant ways of the Court from the New Deal through the Warren years. A cool head makes this chapter a perfect set-up to explain Thomas’s unusual jurisprudence.

How unusual is underscored by the efforts of the liberal media to paint Thomas as “wacky”—that’s the word Nina Totenberg on NPR used in her report on Thomas entering his twenty-ninth term in fall 2019. She is echoing Yale professor Akhil Reed Amar. A professor of political science at Brooklyn College, Corey Robin, who specializes in explaining to the left what he thinks conservatives are all about, depicts Thomas in his forthcoming The Enigma of Clarence Thomas as a “black nationalist.” University of Baltimore law professor Garrett Eppsdepicts Thomas as a “megalomaniac.” Epps tells Totenberg, “Thomas alone knows the original meaning of these provisions and even Madison who wrote them can be disregarded. Now that takes a level of confidence or megalomania that I find really breathtaking.”

Such caricatures float on Thomas’s unflinching willingness to dissent from both the jurisprudence of let-sleeping-dogs-lie on the “rights” the court has invented in the past variety and also with that of the let’s-venture-where-no-law-has gone-before variety. As for the latter, when Justice Anthony Kennedy wrote in his gay-marriage opinion (Obergefell, 2015) that the Constitution is “a charter protecting the right of all persons to enjoy liberty as we learn its meaning” [emphasis added], he opened the door to “we-the-Supreme-Court” reading whatever it wants into the Constitution. Thomas dissented: “The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built … [T]he majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect.”

NPR follows in the tracks of the New York Times, which has for years on end run stories derogating Thomas, often in the spirit of satirizing him. A recent article by Adam Liptak ran under the headline “Precedent, Meet Clarence Thomas. You May Not Get Along.” Thomas has for close to three decades been the target of liberal ire. Most observers back in 1991 generally concluded that Anita Hill perjured herself in her attacks on Thomas, but in the course of time incessant repetition of Hill’s accusations without mention of the evidence that she lied has turned Hill into a liberal monument of truthfulness and Thomas into a sexist scoundrel for those unwilling to consult the historical facts.

Magnet makes brisk work of the false accusations. His real quarry in this book is his chapter, “Originalism in Action,” in which he paces out Thomas’s opinions over the years showing the Justice’s growing readiness to cast precedent aside in favor of the literal meaning of the Constitution. Magnet touches down for instance on a Thomas dissent in 1999 in the case Chicago v. Morales, in which the Court “struck down a democratically enacted city ordinance imposing small fines or short jail terms on criminal street gang members loitering in public places.” The Court decided this was a “vague and arbitrary” restriction on the personal liberties of thugs. In Supreme Court–speak this was a matter of “substantive due process,” but as Thomas saw it, “police power” is meant to maintain order and prevent crime. The Court’s action rested on a precedent, for sure, but an awful one (Papchristou v. City of Jackson, 1972) in which the court rescued some thieves and drug dealers from loitering charges. Thomas will have none of this. His dissent in Morales hit hard at the Court’s willingness to abandon “our most vulnerable citizens” to the depredations of street criminals. And it was one more step towards Thomas’s disenchantment with the Court’s reliance on precedent.

Magnet’s account of how Thomas’s disenchantment matured is a tour-de-force and in some ways a prediction for what lies ahead. Thomas’s intellectual authority is growing not just with the public but with his colleagues on the Court. It is little wonder that he causes such ire among progressives. He threatens the very core of their larger project, which has always depended on judge-made and administrative-agency–made law. In a final chapter, “A Free Man,” Magnet recounts Thomas’s rejection by the Civil Rights establishment and his reciprocating disdain for those who elevate victimhood as their perpetual calling. “A free man” is an apt label. Thomas may be one of the freest men in America, a man free to pursue justice, unencumbered by the ideological straitjackets that others cheerfully squeeze themselves into.

The education of Clarence Thomas is not just the education he received but the education he now gives Americans on what our freedom should look like and how we can rescue it from those who are determined to take it away. What Thomas teaches is the rule of law as our Founders conceived it—laws that we make for ourselves through our representatives, rather than those imposed by our black-robed judicial betters.

Peter Wood is president of the National Association of Scholars.

05/24/19

Clarence Thomas Boldly Saving the Constitution

Thomas McArdle

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.

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

“Magnet is in complete command of his material and has produced a very readable gem. . . . [T]his book is a brilliant road map.”

—Michael Goodwin, New York Post (Read the review HERE.)

“Magnet’s account . . . is a tour-de-force and in some ways a prediction for what lies ahead.”

—Peter Wood, The University Bookman (Read the review HERE.)

“Magnet describes himself as ‘not a constitutional law professor but a writer.’ And a fine writer he is! Moreover, his knowledge of the political thought of the Founding generation and his clear grasp of case law rival that of the best constitutional law professors. . . . A splendid book about Clarence Thomas, an inspiring man and inspiring jurist.”

—Ralph Rossum, Law and Liberty (Read the review HERE.)

07/20/13

The Founders at Home: The Building of America, 1735-1817

The Founders at Home by Myron Magnet

Through the Founders’ own voices — and in the homes they designed and built to embody the ideal of domestic happiness they fought to achieve — we come to understand why the American Revolution, of all great revolutions, was the only enduring success.

The Founders were vivid, energetic men, with sophisticated worldviews, and this magnificent reckoning of their successes draws liberally from their own eloquent writings on their actions and well-considered intentions. Richly illustrated with America’s historical and architectural treasures, this volume also considers the houses the Founders built with so much care and money, for they are revealing embodiments of the ideal of life they strove to bring into being. That so many great thinkers — Washington, Madison, Hamilton, Jefferson, John Jay, the Lees of Stratford Hall, and polemicist William Livingston — came together to accomplish what rightly seemed to them almost a miracle is a standing historical mystery, best understood by pondering the men themselves and their profound and world-changing ideas.

Through impressive research and an intimate understanding of these iconic patriots, award-winning author Myron Magnet offers fresh insight on why the American experiment resulted in over two centuries of unexampled freedom and prosperity.

Praise for The Founders

“The Founders at Home is rich in insight, wit, and wisdom about the men who created America. It’s superb — a pleasure to read on every page.” — Thomas Fleming, author of The Intimate Lives of the Founding Fathers

“The Founders at Home is a fascinating exploration of America’s founding fathers at the most intimate level. Highly original and intensely absorbing — Myron Magnet has produced an outstanding work of historical research.” — Amanda Foreman, author of Georgiana, Duchess of Devonshire

“Myron Magnet has produced an excellent book from this excellent idea: We can better understand the Founders, who shaped how we live, if we better understand how they lived in the homes they designed and social circles that radiated from those homes. The American Revolution, he argues, was a success because of its moderation, and this virtue suffused the Founders’ lives.” — George F. Will, author of One Man’s America: The Pleasures and Provocations of Our Singular Nation

“Americans have long admired our Founders from a respectful distance. Now author Myron Magnet pulls us closer, into the framers’ homes and minds, so that we suddenly see not only what drove them but also how very much we share with those first Americans. Accurate, skillful, and utterly charming.” — Amity Shlaes, author of The Forgotten Man

“The Founders of the American Revolution avoided the excesses of other major revolutions, not just because of their seminal ideas but also because they were practical, good men, both at work and at home. Myron Magnet, in this strikingly original thesis, shows how the protection of liberty and property were natural extensions of the way the Founders organized their families and homes. We owe him thanks for this timely reminder that how we live and what we think should not be antithetical, but properly complementary.” — Victor Davis Hanson, author of A War Like No Other

“This is a beautiful, entertaining, and inspiring book.” — Richard Brookhiser, author of James Madison

Reviews of The Founders

“His exceedingly well-written and richly documented narrative builds excitement like the best of tales told around a campfire. . . . Magnet masterfully conveys the often halting steps the founders took as they moved toward the creation of our democracy by tapping lavishly into their own recorded words, a reminder both of what very good writers some of them were, and how lucky we were as a nation to have been born in the high noon of the Enlightenment. . . . With “The Founders at Home,” he has deepened our understanding of the worldview of our most esteemed political ancestors.” — Rosemary Michaud, Charleston Post and Courier

“An excellent and fluid writer, Magnet succeeds in proving his point that these were more than residences; they were an expression of the personalities of their remarkable owners. The Founders at Home provides an interesting, entertaining, and informative way of looking at their lives and their world.” — John Steele Gordon, Commentary

“This is a volume that will be right at home on the bookshelf of any reader fascinated by the Founders, their lives and their world.” — Alan Wallace, Pittsburgh Tribune-Review

“He only recently visited Mount Vernon and Monticello for the first time. That visit and others have had a happy result, his book The Founders at Home: The Building of America, 1735–1817 .” — Michael Barone, The New Criterion

“Entertaining and illuminating. . . . Myron Magnet has done an exemplary job of portraying our fascinating founders both as remarkable individuals and as members of a flawed and quarrelsome team that still somehow managed to give life and meaning to the America we are blessed with today.” — Aram Bakshian, Jr., The American Spectator

“The “more a man drinketh of the world,” Francis Bacon wrote, “the more it intoxicateth.” Of all the worldly pleasures, power may be the most intoxicating, not least because it can command so many other felicities. Yet Magnet’s founders, deep as they drank of power, stayed sober. It helped, certainly, that, so far from looking on politics as a road to perfection, the founders regarded it as a necessary evil. Magnet illuminates the predicament of John Jay, who found the moral compromises of politics peculiarly painful, with an apposite quotation from Max Weber’s essay “Politics as a Vocation”: “he who lets himself in for politics, that is, for power and force as means, contracts with diabolical powers.”

Magnet’s book is full of such apercus; it is the work of a scholar who, trained in the old Western tradition of humane letters, has brought not only a lifetime of learning but also a rich fund of general experience to bear on the meaning and significance of the founding of the American Republic.” — Michael Knox Beran, The Claremont Review of Books

“America’s first chapter as a nation was written by many statesmen, and usually all we read are their letters, but Myron Magnet reads their houses in ‘The Founders at Home.’ As someone who has lived in two historic residences, the Texas Governor’s Mansion and the White House, I am fascinated by how the Founders’ ideas were represented through architecture, by what was preserved for posterity and what was disturbed.” — Laura Bush, The Wall Street Journal

Strict Constructions

Washington died land-rich but cash-poor. Hamilton apologized to his creditors for the paucity of his estate.

Book Review: The Founders at Home

By Myron Magnet
Norton, 472 pages, $35

By James Grant

Nov. 9, 2013

Does the world need yet another book on the American Founders? Yes, indeed: this one.

To the familiar story of protest, revolution and constitution-making, Myron Magnet adds hearth and home. He blends political theory and historical narrative with guided tours of William Livingston’s Liberty Hall, George Washington’s Mount Vernon, Thomas Jefferson’s Monticello, John Jay’s Homestead and James Madison’s Montpelier, among other patriot residences. We are reminded that the inventors of America had mortgages, too.

Mr. Magnet is an accomplished member of the cast of amateurs who have picked up the popular-history franchise that the American academic community tossed away. The great historians of yesteryear—John C. Miller, Samuel Eliot Morison, Robert H. Ferrell, Perry Miller—were scholars who wrote for all of us. Their books afford as much pleasure as instruction. Making proper allowances for a few shining exceptions, today’s tenured faculty members write mainly for one another.

Mr. Magnet is himself a kind of recovering Ph.D. Seeing the light some years ago, he went to work for Fortune magazine and later edited the Manhattan Institute’s City Journal, where he is now editor-at-large. His book is a labor of love.

In these pages, love of city vies with love of country. Mr. Magnet is the kind of New Yorker who regards his hometown as the one suitable place for the finalists in life’s competition to shine. Long before the Statue of Liberty rose in New York Harbor, Manhattan welcomed brains and beauty. Religion was no sticking point; talent was what mattered.

Mr. Magnet roots for the Founders who were prepared to lay down a national version of the New York welcome mat—”Opportunity America,” he calls it. He wags a finger at the Tories, Francophiles or slave drivers who opposed that meritocratic ideal. Between Federalists like Washington and Hamilton, on the one hand, and Republicans like Jefferson and Madison, on the other, he’s all for the former. He prefers British constitutionalism to the French guillotine, as—we tend to forget—not every American did in 1798.

“The Founders at Home” tells its story chronologically. The narrative begins in 1735 with William Livingston, a New York firebrand who broadcast the libertarian ideas of John Locke. It ends in 1817 with the post-presidential twilight of James Madison and his captivating wife, Dolley. In between come the Lees of Virginia—including “Light Horse Harry” and Arthur Lee, the first a dashing cavalryman, the second a key American agent in Europe—as well as Washington, Jay, Hamilton and Jefferson.

The narrative tissue connecting architecture and political theory is the oft-told story of the American Founding. Washington’s winter at Valley Forge, Hamilton’s affair with Maria Reynolds and Madison’s flight from the White House during the War of 1812 are among the familiar tales that Mr. Magnet tells all over again.

At first you wonder if he wasn’t being paid by the word. Generally, a mob is poorly behaved. There has never been a civil one. But Mr. Magnet’s mobs are, redundantly, “obstreperous” or “unruly.” Similarly, conquest is “blood-drenched,” and the enemy is “vengeful.” But either the Magnet style grew on me or the author found his better voice. By and by he writes of Hamilton, tautly: “He saw complex things at a glance, saw them whole and saw their consequences.” And he gets off this sentence: “One of the silliest things ever said about a land settled by immigrants making a new start across the sea is that there are no second acts in American lives.”

Though Hamilton, the rags-to-renown financier, lawyer and progenitor of the New York Post, appears to be Mr. Magnet’s favorite, he is not the Founder who best ticks the author’s architectural boxes. It’s rather Jefferson, Hamilton’s sparring partner during the first administration of George Washington, whose dwelling place seems to typify both its owner and the times in which he lived. The “implacable spirit of Enlightenment inquiry pervades Monticello in a way that dawns on you only gradually as you walk through the rooms,” writes Mr. Magnet. “The house seems to be saying, as Goethe supposedly cried on his deathbed, More light!”

The author finds another message behind the gorgeous Monticello bricks. Jefferson was forever building, thinking better of what he had built, razing what he had put up and starting over again. Putting up and tearing down was also Jefferson’s approach to revolutionary France. Never mind the rubble, he said in so many words—and never mind the corpses, he did say in almost those words. The ancien régime must go, no matter what the cost or who should succeed it; long live the Revolution!

The author’s biographical sketches make a group portrait that is bigger and better than the sum of its parts. Individually, the Founders seem financially ill-starred. Collectively, they present a case study in the perils of leverage. Thus Washington died land-rich but cash-poor. Hamilton died apologizing to his creditors for the paucity of his estate. Jefferson and Madison, each once a member of the Southern slave oligarchy, died virtually broke. Many of the Founders left a country behind and little else.

Mr. Magnet chooses to wall off between parentheses the arresting fact that even the New Yorker John Jay owned slaves. Otherwise he meets head-on the contradiction between the words and deeds of the slave-owning Founders. He can barely stand to quote Madison’s attempt to justify the Grand Compromise of the Constitutional Convention that resulted in counting a slave as three-fifths of a human being for the purpose of apportioning congressional seats and taxes. And he positively gags at describing Madison’s attack on the free-wage system—what a cruel and dehumanizing way to organize production, insisted the slave-driving Father of the Constitution.

But as the Constitution lives and breathes, so does Mr. Magnet honor its father, drawing a felicitous architectural analogy. Madison’s ancestral home, Piedmont, had 22 rooms during the ex-president’s day. Successive owners tastelessly enlarged it to 55. Madison would have hardly recognized the place before a 21st-century restoration team got to work. “I couldn’t help thinking of the whole project as a metaphor for the restoration that Madison’s Constitution needs,” Mr. Magnet writes, “—a clearing away of some of the more vainglorious excrescences added on by twentieth-century modernizers, defacing the simple, classical restraint and balance of the original, which every stage of Madison’s alterations had preserved.”

This is one of the few explicit comparisons that Mr. Magnet makes between what the Founders’ intended and what posterity has wrought. To a man, the architects of the new republic put a premium on civic virtue. No constitution—”no mound of parchment”—could save a debauched people from itself, Washington said. Jay warned against “political mountebanks” and, citing Cicero, added a warning against the demagogue’s “kind of liberality which involves robbing one man to give to another.” Madison, in Federalist Paper 57, reminded the legislature not to carve out exceptions for itself in the laws it enacted for everybody. Hamilton took it “as a fundamental maxim, in the system of public credit of the United States, that the creation of debt should always be accompanied with the means of extinguishment.”

Mr. Magnet seems to have chosen not to draw lessons about 21st-century politics but rather to write history for its own sake. If so, he must have been tempted to backslide. What would Madison have to say about the infamous opt-out that members of Congress and their staffs enjoy from the Affordable Care Act? The reader is left to imagine.

Perhaps each Founder would have his own opinion about life in America today. Franklin might thrill to Google, while Washington might not thrill to the hit reality-TV show “Here Comes Honey Boo Boo.” Alexander Hamilton would very likely cringe at the public debt, disconnected from anything resembling the “means of extinguishment,” as well as at the post-Nixon paper dollar, so similar in format to the worthless Continental.

Among all the Founders in Mr. Magnet’s gallery, I would be most interested in hearing from John Jay, who, along with Franklin and John Adams, negotiated the peace that ended the Revolutionary War. Jay served as president of the Continental Congress, as governor of New York (in which capacity, in 1799, he signed a bill to effect the gradual abolition of slavery in the Empire State) and as plenipotentiary to the Spanish court. After the war, he negotiated the eponymous Jay Treaty with Britain that cleared up a number of sensitive issues with the former mother country. He became the first chief justice of the United States. Declining President Adams’s offer of a second term as chief justice, he retired to his 600 acres in Bedford, N.Y., a distant New York City suburb. There he planted trees and looked after crops, cider presses, saw mills and—a moneymaker, it says here—a dairy operation.

Today at the Jay Homestead, according to Mr. Magnet, “all his furniture, still in the house, breathes the same republican gentleman’s solid simplicity.” The author relates that Jay was “the most devout of the Founders,” though he doesn’t say how he came to know that fact. What he does say is that the pious Jay worshiped at a jewel box of a church near his farm in the company of his dog, Bob. He must have been some kind of dog. Certainly, in Mr. Magnet’s happy telling, John Jay was some kind of man.

—Mr. Grant, the editor of Grant’s Interest Rate Observer, is the author
of “John Adams: Party of One.”

Founding Fathers’ Warnings Powerful Reminder Amid Government Crisis
By Michael Goodwin October 12, 2013

In his masterful new book on early America, author Myron Magnet uses concise biographies of George Washington and other Founders to illustrate why our revolution unleashed more than two centuries of freedom and prosperity. “The Founders at Home” is a work of scholarship and a labor of love, and offers vivid reminders of the courage of extraordinary individuals who birthed a new idea on Earth.
Take, for instance, the back-stabbing rivals trying to oust Washington as head of the Continental Army. Even as soldiers were leaving bloody footprints in the snow at Valley Forge, their commander had to defend himself against a vicious campaign by supposed comrades. Imagine if they had succeeded.
Or consider the unsentimental wisdom of John Jay, the diplomat who negotiated the treaty for independence with Great Britain and later became the first chief justice. Jay warned against the false “nostrums and prescriptions” of the ambitious and greedy, and urged his countrymen to “take men and things as they are.” Otherwise, he wrote, “the knaves and fools in this world are forever in alliance,” and self-government was doomed.
Magnet’s warts-and-all tour is so seductive in part because of our current troubles. Despite the success of the Founders’ grand experiment, events in Washington and around the world have many Americans fearing we are headed for a crack-up.
The fear provokes a wish we had a Washington or a Jefferson to guide us now. But the genius of Magnet’s book is that the “home” in the title refers not only to the actual homes the Founders built, many of which still stand, but also to the profound personal responsibility they felt to their new nation.
At enormous risk and cost, they created a model of patriotism that is not reserved for great men with lofty responsibilities. Their examples still matter because American exceptionalism ultimately is about ordinary people doing extraordinary things.
It is not enough to complain about our leaders and declare a pox on both their houses. We the people are sovereign and get the government we deserve. If bums are running the country, look in the mirror.
As I have said, my vote for Barack Obama in 2008 was a terrible mistake. I erred in hoping he would be what he promised to be instead of, as John Jay warned 200 years ago, what he actually was. Sadly, the rampant corruption and incompetence of his administration reveals the real Barack Obama, no matter what he says or whom he blames.
Others probably feel ashamed of their votes for Speaker John Boehner or Majority Leader Harry Reid. Their behavior also reminds us that voting carries consequences.
This does not mean that political strife is the problem. In fact, the system of checks and balances is based on the Founders’ assumption that human nature would be guided by self-interest, and that the clash of interests would produce a result that fairly represents the will of the people and the common good of the country.
But, obviously, something is broken. The balance between rights and responsibilities has been shattered and the nation’s character diminished.
The same sense of self-gratification and entitlement that infects our culture rules our politics. Elements of our government are as vulgar as the worst of our entertainment.
As Magnet shows, the Founders predicted the peril we now face. Washington saw the Constitution as but a piece of parchment that depended upon “virtue in the body of the people.”
If that virtue was eroded, he warned, by a “corruption of morals, profligacy of manners and listlessness for the preservation of the natural and unalienable rights of mankind,” America would degenerate into tyranny.
No, we are not there yet, but ask yourself this: Where on the spectrum of our history are we?
Are the founding virtues still intact, or has their spirit been eroded by the “corruption of morals”?
Are we closer today to the ideals of liberty, or to the tyranny the Founders warned would follow the death of those ideals?
Each of us should answer those questions and act accordingly. After all, accepting individual responsibility is the foundation of American exceptionalism.

DECEMBER 31, 2013, ISSUE
Built to Last
The Founders at Home: The Building of America, 1735–1817, by Myron Magnet (Norton, 481 pp., $35)
By Richard Brookhiser
Monticello

Has the Founders’ revival peaked? The big bios of the big names, now in big paperback editions, still sit on bookstore shelves, like Pleistocene megafauna, yet the subject stimulates feelings of both satiety and constriction. We have read a lot about the most famous Founders — the first four presidents (Washington to Madison) plus the two others who made it into our wallets (Hamilton, Franklin). The rest, however, struggle in their backwash; although there have been good recent books about Sam Adams, John Dickinson, Nathanael Greene, and others, they never seem to make 18th-Century Page Six.
Myron Magnet has found a delightful way out of this cul-de-sac. The Founders at Home is subtitled “The Building of America, 1735–1817.” “Building” is a pun: All the men he writes about left homes that, centuries later, are still intact and visitable. But, by a shrewd selection of subjects, Magnet also covers the construction of a country, from first thoughts to finishing touches — from the Zenger trial to the Battle of New Orleans. His cast of characters allows him to erase the dichotomy between overexposure and obscurity. The heavyweights are well represented: Washington, Hamilton, Jefferson, Madison. But joining them are Founders most of us have barely or never heard of: William Livingston, the Lees of Stratford Hall, sober John Jay. The Founders at Home gives the pleasures of biography, while putting us back in the texture and complexity of a world.

Begin with the little-knowns. William Livingston, born in 1723, was a sprig of a wealthy Colonial New York clan. The Livingstons jockeyed for position in the elected assembly while baiting Crown-appointed governors. Much of their tussling was conducted in print: The Livingstons backed John Peter Zenger, the printer whose 1735 acquittal on a charge of seditious libel would unshackle Colonial American newspapers. In 1752, young William Livingston, a successful lawyer, launched a journal of his own, The Independent Reflector, to comment on a proposal to found a taxpayer-supported Anglican college in New York City. New York was religiously diverse even then, with all sorts of Protestants and a handful of Jews. Livingston hated the scheme. A “tax ought to be considered as the voluntary Gift of the People,” he wrote. “The civil Power hath no Jurisdiction over the Sentiments or Opinions of the Subject, till such Opinions break out into Actions prejudicial to the Community.” The college — King’s College, now Columbia — got founded, but Livingston had injected a dose of applied Locke into the American bloodstream.

The Lees were a brood of proud, eccentric gentry reared at Stratford Hall, 70 miles down the Potomac from Alexandria. In the musical about the Continental Congress, 1776, Richard Henry Lee is depicted as a genial boob, Jethro Bodine with manners. Magnet gives us the real deal. R.H., as he was known to his family, was hunting swans one winter day in 1768 “when his gun blew up, blowing the four fingers off his left hand. Ever after, he wore a specially made black silk glove to cover his disfigurement.” But it made him so cool. “In time, he practiced gesturing dramatically with it, which, with his Roman nose, high forehead, tall, gaunt frame, [and] aristocratic bearing . . . added to his command as an orator.” R.H.’s great gesture was to move, in June 1776, “that these United Colonies are, and of right ought to be, free and independent States.”
R.H.’s younger brother Arthur, studying medicine and law in Britain, became a friend of James Boswell and John Wilkes and a propagandist for the American cause, then moved on to diplomacy in Paris, where he annoyed Benjamin Franklin by complaining that the American mission there had been penetrated by spies (he was right). The brothers had a cousin, Henry, one of Washington’s dashing cavalry officers. In peacetime he made up for the thrill of battle with an orgy of land speculation that sent him to debtor’s prison. (His son, Robert E., would become famous in a later war.)
Stratford Hall, as befits such a family, looks odd. Its lines strike me as rather East German, as if it were a factory for making surveillance equipment. But the bricks of which it is built give it a warm, rich glow.
Of the prima donnas in The Founders at Home, perhaps the two most striking are Alexander Hamilton and Thomas Jefferson, in part because of their homes. Magnet is a partisan: He admires the young colonel from St. Croix, and he seems rather suspicious of Mr. Jefferson. But when their houses face off, Monticello wins — though it is a near-run thing.
Hamilton, whom Magnet calls “the upwardly mobile young immigrant of dubious parentage,” sought security as well as fame in his adopted country. After retiring from his post as the United States’ first Treasury secretary, he felt his private career as a lawyer had prospered enough to allow him to build a summer house, which he called the Grange, on the northern heights of Manhattan (then countryside). Hamilton enjoyed it for only a few years before dying in his duel with Aaron Burr. As the land was developed, the Grange was moved, and it sat for over a century wedged between a church and an apartment building. In 2008, the National Park Service moved it to a nearby park, restoring its original colors and mirrored doors: “A perfect embodiment,” writes Magnet, “of his elegant, logical, complicated Enlightenment mind.”
The premier Enlightenment house of the Founding, though, has to be Monticello. It “seems to be saying,” Magnet writes, “as Goethe supposedly cried on his deathbed, More light! It’s not just that there are few dark corners in a house made up of so many demi-octagons, but that Jefferson has designed it so that light pours in from everywhere — through oversized, triple-hung windows and lots of them, through glass doors, through multiple skylights made up of glass louvers . . . all reflected and bounced back across the lofty rooms by mirrors everywhere.”
But even Monticello has its darkness. Two wings connect the main house to flanking pavilions; but the wings “are in fact covered passages that lead out of the cellar of the house and contain the semi-subterranean kitchen, dairy, and other rooms for those who waited on Jefferson. Since those latter were slaves, it’s hard not to [think] of H. G. Wells’s The Time Machine, with its airy, playful creatures of light enjoying the surface of the earth, while the dark Morlocks toil hidden.”
Magnet rubs Jefferson’s nose in this, but ends, as he must, by giving him his due, for it was to Jefferson that Lincoln would turn to explain what the Civil War was about. Writes Magnet: “The abstraction, not the history, was at that moment our true national identity. And in the ever-growing consciousness of man’s freedom that is the true meaning of history . . . so it became.”
Perhaps the best of Magnet’s portraits is that of his man in the middle, John Jay. There he is, on the cover of your college paperback of The Federalist Papers. Yet when you open it, as you surely do, you notice that he wrote only five of the 85 essays (he fell sick early on, then was knocked unconscious in a New York City riot). You may remember that he negotiated a treaty that bears his name, and for which half the country execrated him. What does this man have to offer us?
A lot that needed doing and that was not pretty. Jay’s hardest service came during the Revolution. Son of a family of New York Huguenot merchants, he ran the ominously named Committee for Detecting Conspiracies. New York was split between patriots and loyalists, and each side had guerrilla enforcers (Skinners and Cow-boys, respectively). “Punishments must of course become certain,” Jay wrote, “and Mercy dormant, a harsh System repugnant to my Feelings, but nevertheless necessary.” He also ran a Hudson Valley spy ring, whose adventures he later recounted to a young family friend, James Fenimore Cooper, who turned them into his first bestseller, The Spy.
Later in the war, Jay served as a diplomat in Spain and France. There he learned that allies can be as bad as enemies. When it came time to negotiate the Treaty of Paris, he encouraged Britain to give the United States a good deal, to keep it independent of France. Treaties, he explained, “had never signified any thing since the World began.” The former colonies and former mother country should base a new relationship on common interest.
He directed the same clear gaze on the lacrimae rerum. The letter he wrote Hamilton’s father-in-law after his friend was shot is saved from bitterness only by grace. “The philosophic topics of consolation are familiar to you, and we all know from experience how little relief is to be derived from them. May the Author and only Giver of consolation be and remain with you.”
The pictures in Magnet’s book are splendid, 32 pages in full color. Read about these houses, and their owners — you will find a mix of men who did their country proud.

Book Details

November 11, 2013, W. W. Norton & Company
Hardcover, 448 pages, with 32 pages of color illustrations
ISBN 9780393240214
Also available in e-book and audiobook editions.

02/28/93

The Dream and the Nightmare: The Sixties’ Legacy to the Underclass

The Dream and the Nightmare by Myron Magnet
Myron Magnet’s The Dream and the Nightmare argues that the radical transformation of American culture that took place in the 1960s brought today’s underclass — overwhelmingly urban, dismayingly minority — into existence. Lifestyle experimentation among the white middle class produced often catastrophic changes in attitudes toward marriage and parenting, the work ethic and dependency in those at the bottom of the social ladder, and closed down their exits to the middle class. Continue reading →

05/31/85

Dickens and the Social Order

"One of the most stimulating studies of Dickens to have appeared in recent years." — New York Times — “One of the most stimulating studies of Dickens to have appeared in recent years.” — New York Times

Myron Magnet’s groundbreaking study of Charles Dickens’s early novels shows that the liberal reformism for which Dickens is so well known rested on a surprisingly traditional view of society.

Magnet writes, “The four great but relatively neglected works I discuss in Dickens and the Social Order … add up to what for another writer would constitute a magnificent life’s work in itself, a tour de force that is like a university education in psychology, political theory, comparative political science, cultural anthropology, sociology, history, philosophy, and more — all transfigured and illuminated by the genius of the writer rightly said to be Inimitable, so that the reader can hardly believe that anything so full of pleasure can also be so full of wisdom.” Continue reading →

Myron Magnet

Author of Clarence Thomas and the Lost Constitution

Category: Books