10/1/19

Imprimis


Clarence Thomas and the Lost Constitution
September 2019 • Volume 48, Number 9 • Myron Magnet
Myron Magnet
Author, Clarence Thomas and the Lost Constitution

The following is adapted from a speech delivered on September 17, 2019, at Hillsdale College’s Constitution Day Celebration in Washington, D.C.

Clarence Thomas is our era’s most consequential jurist, as radical as he is brave. During his almost three decades on the bench, he has been laying out a blueprint for remaking Supreme Court jurisprudence. His template is the Constitution as the Framers wrote it during that hot summer in Philadelphia 232 years ago, when they aimed to design “good government from reflection and choice,” as Alexander Hamilton put it in the first Federalist, rather than settle for a regime formed, as are most in history, by “accident and force.” In Thomas’s view, what the Framers achieved remains as modern and up-to-date—as avant-garde, even—as it was in 1787.

What the Framers envisioned was a self-governing republic. Citizens would no longer be ruled. Under laws made by their elected representatives, they would be free to work out their own happiness in their own way, in their families and local communities. But since those elected representatives are born with the same selfish impulses as everyone else—the same all-too-human nature that makes government necessary in the first place—the Framers took care to limit their powers and to hedge them with checks and balances, to prevent the servants of the sovereign people from becoming their masters. The Framers strove to avoid at all costs what they called an “elective despotism,” understanding that elections alone don’t ensure liberty.

Did they achieve their goal perfectly, even with the first ten amendments that form the Bill of Rights? No—and they recognized that. It took the Thirteenth, Fourteenth, and Fifteenth Amendments—following a fearsome war—to end the evil of slavery that marred the Framers’ creation, but that they couldn’t abolish summarily if they wanted to get the document adopted. Thereafter, it took the Nineteenth Amendment to give women the vote, a measure that followed inexorably from the principles of the American Revolution.

During the ratification debates, one gloomy critic prophesied that if citizens ratified the Constitution, “the forms of republican government” would soon exist “in appearance only” in America, as had occurred in ancient Rome. American republicanism would indeed eventually decline, but the decline took a century to begin and unfolded with much less malice than it did at the end of the Roman Republic. Nor was it due to some defect in the Constitution, but rather to repeated undermining by the Supreme Court, the president, and the Congress.

The result today is a crisis of legitimacy, fueling the anger with which Americans now glare at one another. Half of us believe we live under the old Constitution, with its guarantee of liberty and its expectation of self-reliance. The other half believe in a “living constitution”—a regime that empowers the Supreme Court to sit as a permanent constitutional convention, issuing decrees that keep our government evolving with modernity’s changing conditions. The living constitution also permits countless supposedly expert administrative agencies, like the SEC and the EPA, to make rules like a legislature, administer them like an executive, and adjudicate and punish infractions of them like a judiciary.

To the Old Constitutionalists, this government of decrees issued by bureaucrats and judges is not democratic self-government but something more like tyranny—hard or soft, depending on whether or not you are caught in the unelected rulers’ clutches. To the Living Constitutionalists, on the other hand, government by agency experts and Ivy League-trained judges—making rules for a progressive society (to use their language) and guided by enlightened principles of social justice that favor the “disadvantaged” and other victim groups—constitutes real democracy. So today we have the Freedom Party versus the Fairness Party, with unelected bureaucrats and judges saying what fairness is.

This is the constitutional deformation that Justice Thomas, an Old Constitutionalist in capital letters, has striven to repair. If the Framers had wanted a constitution that evolved by judicial ruling, Thomas says, they could have stuck with the unwritten British constitution that governed the American colonists in just that way for 150 years before the Revolution. But Americans chose a written constitution, whose meaning, as the Framers and the state ratifying conventions understood it, does not change—and whose purpose remains, as the Preamble states, to “secure the Blessings of Liberty to ourselves and our Posterity.”

In Thomas’s view, there is no nobler or more just purpose for any government. If the Framers failed to realize that ideal fully because of slavery, the Civil War amendments proved that their design was, in Thomas’s word, “perfectible.” Similarly, if later developments fell away from that ideal, it is still perfectible, and Thomas takes it as his job—his calling, he says—to perfect it. And that can mean that where earlier Supreme Court decisions have deviated from what the document and its amendments say, it is the duty of today’s justices to overrule them. Consequently, while the hallowed doctrine of stare decisis—the rule that judges are bound to respect precedent—certainly applies to the lower courts, Supreme Court justices owe fidelity to the Constitution alone, and if their predecessors have construed it erroneously, today’s justices must say so and overturn their decisions. Continue reading

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

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

 

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.)