In the Introduction, Paoletta rightly calls Thomas an American hero and our greatest Supreme Court Justice, and these pages detail the experience and thinking that formed so remarkable a judge. Remarkable, but also exemplary—both because Thomas believes that the Constitution’s central guarantee of liberty depends on the citizenry’s personal qualities of self-reliance and self-restraint, traits for which he is a poster child, and also because his own rise from poverty in the segregated Deep South to the High Bench illustrates the opportunity for self-development that liberty makes possible for Americans, both black and white. In particular, as he emphasizes in this volume, his story suggests what a different fate black America might have had if bad cultural developments and bad social policy, abetted by the Court, had not proved destructive to so many and led them to self-sabotage. Continue reading
Will the Real Justice Gorsuch Please Stand Up?
Has a great judge been body-snatched?
June 21, 2020
The logic of Justice Neil Gorsuch’s mid-June majority opinion for the Supreme Court in Bostock v. Clayton County, outlawing employment discrimination against homosexuals and transgendered individuals, is so at odds with his previous jurisprudence and his character that the editors of the Wall Street Journal wonder if he’s been body-snatched by aliens. Or perhaps the noxious emanations and penumbras of Warren Court activism have seeped up from the Supreme Court’s crypt and addled what was once the most judicious of judges. Before hazarding a tentative diagnosis, though, let’s recall who the justice was before this seizure occurred. Continue reading
Clarence Thomas: the Movie
Don’t miss this new documentary.
January 31, 2020
From a kerosene-lit shanty in a Georgia swamp to the Supreme Court bench is almost as meteoric a rise as from a log cabin to the White House, and if you add in overcoming segregation in the days when the KKK marched openly down Savannah’s main street, it’s closer still. Michael Pack’s riveting documentary on Justice Clarence Thomas, Created Equal—opening in theaters this week and airing on PBS in May—movingly captures the uncompromising ethic that propelled the justice’s career past so many obstacles as it distills 30 hours of interviews with Thomas and his wife, Virginia, into what feels not only like the exemplary life story of an underappreciated hero but also like a laser-focused, two-hour account of our nation’s race relations over the last 70 years. Yes, we overcame, but at a cost—of which Justice Thomas paid more than his fair share.
The film is purely biographical—Thomas’s brilliant jurisprudence plays no role here—and the justice’s somberly eloquent, slightly melancholy recounting of his saga as he faces the camera directly, dark-suited, with starched white shirt and monochromatic necktie, closely follows the style of his bestselling memoir, My Grandfather’s Son. But as Thomas tells his story, Pack shows us haunting images, over a nostalgically evocative American musical score—bluegrass guitars and banjos, jazz, and Louis Armstrong longingly singing “Moon River” (with lyrics by Savannah-born Johnny Mercer, Thomas reminds us)—that bring it all even more vividly to life than the excellent memoir does. The film clips of the mazy creeks around Thomas’s birthplace, the coastal Georgia hamlet of Pin Point—founded by freed slaves just after the Civil War—sometimes seen from above, as in the iconic shot toward the end of The African Queen, and sometimes seen as we travel along them in one of the little “bateaux” that the oystermen and crab fishers of that lush and remote outpost on the very edge of America still use, bring home how “far removed in time and space” it was from modern, urban America, as Thomas puts it.
It was a completely different world—a tiny, poor, all black community of jumbled shacks around the cinderblock workshop where the women picked the crabs and shucked the oysters that the men caught and raked. The still photos Pack found from the 1940s show you a preindustrial world so vanished that it could just as easily be the nineteenth century as the twentieth. Descended from West Africans, Thomas and his neighbors spoke a dialect called Gullah or Geechee, incomprehensible to outsiders; but when Pack shows us a film clip of a woman singing that patois as she feeds her chickens, we grasp viscerally from the creole lilt how this corner of America was a link in Britain’s triangle trade, with ships bringing enslaved Africans to the Caribbean and southern colonies, carrying the sugar north for distillation into rum, and returning to Britain to sell it.
For Thomas and his playfellows, this was a Mark Twain world of improvised games in the woods and swamps, with no such thing as a store-bought toy—until the heartbreakingly tiny, jerrybuilt shack where he lived with his mother, older sister, and little brother burned down. He came home to “just ashes and twisted tin,” he says. “Everything that you ever knew in life is just there—I mean, it’s smoldering.” Continue reading
The Court Moves Right
But judges have a lot of unlearning to do.
Less than a decade ago, surveying the shambles that half a century’s judicial activism and judicial abdication had made of the Framers’ original Constitution, such insightful commentators as Philip Howard and Mark Levin feared that only a new constitutional convention could fix the mess. Not a full replay of the 1787 drama, but something almost as drastic—the amending convention that the Constitution’s Article V outlines. Its terms allow two-thirds of state legislatures to name a council empowered to frame a balanced-budget or income-tax-limit amendment, say, or—most important—to repeal unconstitutional laws, regulations, and Supreme Court decisions. Three-quarters of the legislatures would then need to ratify such measures.
Now, though, the advent of Justices Neil Gorsuch and Brett Kavanaugh has reshaped the Supreme Court enough to stop such despondent talk. While the decisions announced at the end of the Court’s term in June, marking the first year with both new justices on the bench, don’t amount to a stampede toward the Right, they display a wholesome focus on what the Constitution and statutes actually say. The Nine are “redirecting the judge’s interpretive task back to its roots, away from open-ended policy appeals and speculation about legislative intentions and toward the traditional tools of interpretation that judges have employed for centuries to elucidate the law’s original public meaning,” Gorsuch explained in a June opinion. “Today, it is even said that we judges are, to one degree or another, ‘all textualists now.’ ” And that’s already a quiet revolution. Continue reading
Clarence Thomas and the Lost Constitution
September 2019 • Volume 48, Number 9 • 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
Misjudging Clarence Thomas
Corey Robin’s assessment of the Supreme Court justice is lost in left field.
September 29, 2019 Arts and CulturePolitics and law
The Enigma of Clarence Thomas, by Corey Robin (Metropolitan Books, 320 pp., $27)
What deliciously ironic wit the New Yorker’s first art editor, Rea Irvin, deployed in his iconic drawing of Eustace Tilley, the Regency dandy quizzically inspecting a butterfly through a monocle on the magazine’s inaugural cover nearly a century ago. Ah yes, we Gotham cosmopolites view the rest of America as exotic insects worth a moment’s gaze as they hatch from the basket of deplorables and flit by for their 24 hours in the sun. But, Irvin hinted, what an affected fop is Eustace himself—as showy as the bright creature catching his glance but oh, how much more contrived in his top hat and impossibly high neckcloth. I can’t help wishing that Corey Robin, a Brooklyn College professor who has made a career of turning a supercilious monocle on conservatives and explaining their curious, “reactionary” ideas to his fellow enlightened “progressives,” had shown a scintilla of Irvin’s wry self-knowledge in his new book, The Enigma of Clarence Thomas, an excerpt of which the New Yorker coincidentally has just published. But since Robin’s assessment of the Supreme Court justice lacks a single self-questioning moment, let’s look back at him through his monocle and take our own measure of the author before we consider his account of our era’s greatest jurist.
How fashions have changed! Despite a modish dash of race, class, and gender, today’s New Yorker of refined sensibility, if Robin is a representative specimen, presents himself in his book as a conventional socialist, an admirer of the French rather than the American Revolution, and still mooning with nostalgia for that imaginary 1960s “revolution” that Bernie Sanders has dreamt of since his long-ago youth. In Robin’s vision, politics centers on the “power the state will have to involve itself in the affairs of the citizens,” making “rules for a more just and humane economy.” It is a realm of “democratic transformation, where men and women act deliberatively and collectively to alter their estate,” led by the “heroic action of an elite few,” masters of “the arts of persuasion, the mobilization and transformation of popular belief”—though Robin’s evocation of the Robespierres and Lenins of the world is bound to make one wonder just how democratic his vision of the popular will really is. What were the editors of the publication for which he writes a column thinking when they called it Jacobin, after a political elite that wrought its social transformation by removing the heads of those of the wrong class or opinion?
For Robin, capitalism is a system of “overwhelming, anti-democratic constraint” that takes “the great questions of society—justice, equality, freedom, distribution—off the table of public deliberation,” shielding them from “the conscious and collective interference of citizens acting through their government.” In this collectivist vein, he casts a cold eye on Madison’s classic formulation of American constitutionalism in Federalist 10. The Constitution protects life, liberty, and property, Madison writes, and since individual citizens have a boundless variety of talents, ambitions, and energies, the liberty the Constitution safeguards will result in different and unequal outcomes, including economic inequality. The danger in the democratic republic that the Constitution frames, Madison wrote, is that the unpropertied majority could use their voting numbers to expropriate the wealth of the rich few, trampling the Constitution’s protection of property. Such an expropriation is what Madison meant by the tyranny of the majority, and a key goal of the Constitution’s checks and balances is to forestall just that. When Robin holds up Justice Thomas’s citation of Madison’s argument as a mere ploy “to moralize moneymaking, to lend the market a legitimacy it had been denied by New Deal liberalism, to shield money and the market from political critique,” he seems to be looking at the Constitution through the wrong end of a telescope, seeing FDR and the New Deal’s tyranny of the majority, rather than James Madison and the protection of individual liberty, as the nation’s real Founding Father. Of the individual citizen whose liberty the Constitution is meant to shield, we hear nary a word until a third of the way through the book, and then only once or twice thereafter. Everyone is simply an atom dissolved in the mass of race, class, or gender.
The lens through which Robin views Thomas is even more distorting—not surprising, given that he “reject[s] virtually all of Thomas’s views” and moreover believes that the justice, during his confirmation hearings, “lied to the Judiciary Committee when he stated that he never sexually harassed Anita Hill,” an allegation that’s now the stock, and thus increasingly incredible, gambit for opponents of conservative judicial nominees. In the justice’s opinions, what Robin sees, as anyone who spends even an hour or two reading them must see, is Thomas’s striking concern with race, a subject that he raises repeatedly, even in cases seemingly far from the question. Upon this observation, Robin erects a wildly far-fetched account of the justice’s worldview and jurisprudence, one that imperiously sweeps away Thomas’s own careful exposition of his intellectual journey in his speeches and memoir as if he must be incapable of understanding his own mind and heart. But of course, this concern springs not just from Thomas’s personal history but also from the belief, central to his jurisprudence, that it’s precisely on race matters that the Court has made so many fateful wrong turns that need correction. Continue reading
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 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).
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.
The Constitution, not precedent, is the law of the land.
June 19, 2019
One of the most striking aspects of Monday’s Supreme Court decision in Gamble v. United States was Clarence Thomas’s eloquent summary of the core precept of his judicial philosophy: that stare decisis—the venerable doctrine that courts should respect precedent—deserves but a minor place in Supreme Court jurisprudence. His 17-page concurrence in a case concerning double jeopardy, really a stand-alone essay, emphasizes that, in America’s system of government, the “Constitution, federal statutes, and treaties are the law.” That’s why justices and other governmental officers take an oath to “preserve, protect, and defend the Constitution of the United States”—not to safeguard judicial precedents. “That the Constitution outranks other sources of law is inherent in its nature,” he writes. The job of a Supreme Court justice, therefore, “is modest: We interpret and apply written law to the facts of particular cases.” Continue reading
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.
Their sharp disagreement about precedent reflects different worldviews that go far beyond abortion.
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.”
Manhattan Institute Book Forum | May 8 2019, New York City
Myron Magnet’s latest book, Clarence Thomas and the Lost Constitution, uses the framework of Justice Thomas’ life and opinions to look at an originalist interpretation of the nation’s founding document.
“The Framers gave us something in 1787 and later it was perfected by the Bill of Rights, by the Reconstruction amendments after the Civil War and by the 19th Amendment that gave women the vote,” said Magnet. “This Constitution is as up to date and even as avant-garde 230 years later as it was when it was first written.”
Thomas’ writings stand in contrast to the policy espoused by Woodrow Wilson.
“He was our first professor President,” said Magnet. “He thought that highly educated experts knew better than the American people themselves. He wanted to put in place something other than what the Framers had envisioned. He wanted the Supreme Court sitting as a permanent Constitutional convention, making up the laws as it went along to adjust to modern conditions.”
Thomas’ decisions want to take a clear eye to the document, not spin it one way or the other.
“If you look back over the history of our Constitutionalism, misreadings by Supreme Court justices can go in all directions,” said Magnet. “If Dianne Feinstein and Joe Biden and their ilk believe that the Supreme Court will only twist the Constitution to the left, believe me, for 100 years, it twisted it to the right. What we really want is a Court that doesn’t twist it at all.”