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.

04/25/16

The End of Democracy in America

cj_header

Tocqueville foresaw how it would come.
Myron Magnet
Spring 2016

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

Alexis de Tocqueville

Alexis de Tocqueville in 1850

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11/15/15

CITY JOURNAL AT 25, WITH MYRON MAGNET

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

07/4/15

The Vision of the Founding Fathers

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

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

Signing of the Declaration of Independence, John Trumbull

Signing of the Declaration of Independence, John Trumbull

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

06/13/15

Free Speech in Peril

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Spring 2015

Trigger warning: may offend the illiberal or intolerant

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

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

02/19/15

What Must We Think About When We Think About Politics?

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

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

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

12/20/14

How Private Philanthropy Saved the Founders’ Homes

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Autumn 2014

How Private Philanthropy Saved the Founders’ Homes
Mount Vernon and Monticello nearly vanished.

Every day for the last 200 years, boats gliding along the wide Potomac have blown their horns or clanged their bells as they pass Mount Vernon, in festive tribute to the estate’s revered creator, George Washington. The tradition began, legend has it, when Admiral George Cockburn, sailing back from torching the city of Washington in the War of 1812, tolled his flagship’s bell as he passed Mount Vernon in 1814, though whether as a chivalrous salute to the memory of an officer of world-historical genius or as a sarcastic taunt after burning the city that bore the great general’s name legend doesn’t say.

What is certain is that one such foghorn blast on an autumn night in 1853 startled a South Carolina lady returning home by steamer from Philadelphia, and she came up on deck to see what the commotion was about. In the bright moonlight, she saw the cause all too plainly: Mount Vernon—but a Mount Vernon moldering into ruin, its veranda sagging, its untended lawns waist-high. “I was painfully distressed at the ruin and desolation of the home of Washington,” Louisa Cunningham wrote to her daughter. “It does seem such a blot on our country!”

That letter set in motion an extraordinary drama of historical preservation that will seem almost incredible to the 1.1 million visitors each year who see today’s superb Mount Vernon, sparkling with reverent care and bustling not just with tourism but with world-class scholarship. And the same is true of the 440,000 annual visitors to Thomas Jefferson’s Monticello, also designed, like Mount Vernon, by an amateur-architect Founding Father and embodying in concrete form its builder’s deepest longings and ideals. (See “Monticello’s Shadows,” Autumn 2007.) The home of the author of the Declaration of Independence—perhaps America’s most beautiful house—was once similarly falling into ruin, before being saved in the most unexpected, almost operatic, way and transformed, like Mount Vernon, into one of the nation’s premier private philanthropies.
mount vernon in ruins
It’s sagging porch propped up by poles, Mount Vernon was moldering into ruin before an all-women charity restored its original luster.COURTESY OF THE MOUNT VERNON LADIES’ ASSOCIATION Continue reading

10/18/14

The Last Founding Father

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Books and Culture
MYRON MAGNET
The Last Founding Father
Richard Brookhiser’s new biography of Lincoln is splendid.
17 October 2014

LIBRARY OF CONGRESS, RARE BOOK AND SPECIAL COLLECTIONS DIVISION, ALFRED WHITAL STERN COLLECTION OF LINCOLNIANA

LIBRARY OF CONGRESS, RARE BOOK AND SPECIAL COLLECTIONS DIVISION, ALFRED WHITAL STERN COLLECTION OF LINCOLNIANA

Founders’ Son: A Life of Abraham Lincoln, by Richard Brookhiser (Basic Books, 376 pp., $27.99)

Unlike those mega-biographies that bury their subject’s chief accomplishments under 900 pages of undigested detail, Richard Brookhiser’s compact, profound, and utterly absorbing new life of Abraham Lincoln, Founders’ Son, leaps straight to the heart of the matter. With searchlight intensity, it dazzlingly illuminates the great president’s evolving views of slavery and the extraordinary speeches in which he unfolded that vision, molding the American mind on the central conflict in American history and resolving, at heroic and tragic cost to the nation and himself, the contradiction that the Founding Fathers themselves could not resolve. Continue reading

08/7/14

It’s Not Your Founding Fathers’ Republic Any More

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Summer 2014

It’s Not Your Founding Fathers’ Republic Any More
Presidents, Congresses, and courts are creating an elective despotism.

How far have we distorted the Constitution that the Founders gave us, and how much does it matter? A phalanx of recent books warns that we have undermined our fundamental law so recklessly that Americans should worry that government of the people, by the people, and for the people really could perish from the earth. The tomes—Adam Freedman’s engaging The Naked Constitution, Mark R. Levin’s impassioned The Liberty Amendments, Richard A. Epstein’s masterful The Classical Liberal Constitution, and Philip K. Howard’s eloquent and levelheaded The Rule of Nobody (in order of publication)—look at the question from different angles and offer different fixes to it, but all agree that Americans need to take action right now.

Several benighted Supreme Court rulings subverted the Fourteenth Amendment and crushed President Lincoln’s dream of binding up the nation’s Civil War wounds with malice toward none and charity for all.

Several benighted Supreme Court rulings subverted the Fourteenth Amendment and crushed President Lincoln’s dream of binding up the nation’s Civil War wounds with malice toward none and charity for all.


THE GRANGER COLLECTION, NYC

Before we scramble, though, we had better understand just what happened. There’s no single villain. As these books show, all branches of government conspired over more than a century to turn the Constitution that the Framers wrote in 1787, plus the Bill of Rights that James Madison shepherded through the first Congress in 1789 and the Fourteenth Amendment ratified in 1868, into something their authors would neither recognize nor endorse. Continue reading

06/22/14

Liberty or Equality?

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Myron Magnet
Liberty or Equality?
The Founding Fathers knew that you can’t have both.
Spring 2014
With the fulminating on the left about inequality—“Fighting inequality is the mission of our times,” as New York’s new mayor, Bill de Blasio, summed up the theme of his postelection powwow with President Barack Obama—it’s worth pausing to admire anew the very different, and very realistic, modesty underlying Thomas Jefferson’s deathless declaration that all men are created equal. We are equal, he went on to explain, in having the same God-given rights that no one can legitimately take away from us. But Jefferson well knew that one of those rights—to pursue our own happiness in our own way—would yield wildly different outcomes for individuals. Even this most radical of the Founding Fathers knew that the equality of rights on which American independence rests would necessarily lead to inequality of condition. Indeed, he believed that something like an aristocracy would arise—springing from talent and virtue, he ardently hoped, not from inherited wealth or status.

In the greatest of the Federalist Papers, Number 10, James Madison explicitly pointed out the connection between liberty and inequality, and he explained why you can’t have the first without the second. Men formed governments, Madison believed (as did all the Founding Fathers), to safeguard rights that come from nature, not from government—rights to life, to liberty, and to the acquisition and ownership of property. Before we joined forces in society and chose an official cloaked with the authority to wield our collective power to restrain or punish violators of our natural rights, those rights were at constant risk of being trampled by someone stronger than we. Over time, though, those officials’ successors grew autocratic, and their governments overturned the very rights they were supposed to protect, creating a world as arbitrary as the inequality of the state of nature, in which the strongest took whatever he wanted, until someone still stronger came along.

In response, Americans—understanding that “kings are the servants, not the proprietors of the people,” as Jefferson snarled—fired their king and created a democratic republic. Under its safeguard of our equal right to liberty, each of us, Madison saw, will employ his different talents, drive, and energy, to follow his own individual dream of happiness, with a wide variety of successes and failures. Most notably, Federalist 10 pointed out, “From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results.” That inequality would be a sign of the new nation’s success, not failure. It would mean that people were really free. Continue reading

03/11/14

Montpelier Restored

I spent Presidents’ Weekend in Orange, Virginia, celebrating the inauguration of the restored Old Library at Montpelier, at which I was thrilled to be the speaker. With its breathtaking view out to the Blue Ridge 17 miles away (and uncharacteristically snow-covered that February Sunday), the serene, sun-filled, second-floor room is where James Madison began preparing throughout the spring and summer of 1786 for the Constitutional Convention that opened on May 25, 1787. Indefatigably, Madison pored over hundreds of books that his best friend and Piedmont neighbor, Thomas Jefferson (then U.S. minister in Paris), had sent him by the crateful from the shops of Europe—tomes on history and political philosophy in English, French, and Latin that Madison felt sure would provide him with clues as to why earlier democracies and confederations had failed, so that he could outline a plan for an unprecedented, and unprecedentedly successful, large-scale democratic republic. He summarized his conclusions in a handwritten pamphlet, which he consulted often during the Convention’s debates, before mining it for three of the 27 Federalist Papers that he wrote. We revere Madison, properly, as the Father of the Constitution; it’s in this room, a sacred shrine of American liberty, that the shape of that immortal document first came into focus.
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It was thrilling, too, to see the progress the Montpelier Foundation, now under the dynamic leadership of Kat Imhoff, has made on the restoration of Montpelier’s interior since the last time I saw the house in 2010. The entire project has been Herculean, given the mansion’s confusing evolution. Madison’s father, a rich, third-generation Virginia planter, had built the core of the house in the 1760s. A two-story, five-bay Georgian brick structure—that is, it had two windows on each side of its central front door—it was then Orange County’s biggest residence, commanding 5,000 acres of lush Piedmont farmland. When Madison married Dolley Payne Todd and temporarily retired from government in 1797, he added what was in effect an attached townhouse, three bays wide, to his parents’ residence. The result was a still-symmetrical eight-bay house, with three pairs of windows punctuated by two doorways. A new columned and pedimented portico embraced the two doorways and emphasized the house’s symmetry further.

Starting in 1809, during the first of his two presidential terms, Madison began building one-story wings on either side of the house, surmounted by roof terraces enclosed by Chinese Chippendale railings, all designed with advice from his friends Jefferson, Capitol architect William Thornton, and White House interior designer Benjamin Henry Latrobe. One wing housed a grand library; the other provided new quarters for his widowed mother, who lived with him and Dolley until she died at 97 in 1829. An imposing pedimented and fan-lit central doorway, with a new demi-lune window in the portico’s pediment directly above, provided a stately presidential focal point for the perfectly balanced mansion.

Montpelier's evolution from the 1760s to 1797 to 1810

Montpelier’s evolution from the 1760s to 1797 to 1810

Of course big changes took place in the interior as well over that half-century. Madison’s 1797 addition had a first floor entirely separate from his parents’, in order to give him and his little household—Dolley, Dolley’s young son from her first marriage, and Dolley’s youngest sister—some privacy, and perhaps to spare the elder Madisons some childhood commotion as well. The second floor, reached by separate staircases for each generation, was all interconnected, however. Madison’s presidential expansion of the house broke down the first-floor barrier, created a splendid drawing room suitable for presidential receptions, and added a sumptuous chimneypiece to the dining room. Adorning the dinner table, which could seat 18, was a service of Vieux Paris pocelain, bought from the Nast factory in 1806.
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This complex evolution is easy to relate, but it took years of painstaking effort by restorers to reconstruct it. Why? Because in 1901, gunpowder and chemical magnate William du Pont, Sr., bought the house, already repeatedly altered from the moment an impoverished and widowed Dolley had to sell it in 1844, and he swallowed up the remains of Madison’s mansion in a gargantuan enlargement from 22 rooms to 55, smashing through chimney-pieces, paneling, and other impediments in the process. His daughter Marion turned the house into the hub of a thoroughbred horse-breeding and horse-racing enterprise, installed an art-deco living room, more garish than stylish, in Mother Madison’s quarters, and dug out the cellar to build a gym for her husband, cowboy-movie-idol and Cary Grant’s longtime close friend and California housemate, Randolph Scott. The result was a hulking pink-stucco bunker with a metal roof. As a stab at comely proportion, the du Ponts lengthened the portico columns to the ground; they had originally sprung from the top of the stairs. It’s only justice to add that Mrs. Scott left money in her will, and instructions to her heirs, that helped put Montpelier right.

The du Ponts' mansion

The du Ponts’ mansion

I first saw the house in 2007, when restorers had demolished most of the du Pont additions, chipped off the stucco to reveal the warm rose-colored handmade brick of the original house, recreated the early-nineteenth-century presidential floor plan, and removed the waterlogged du Pont plaster from the interior, leaving only the original laths, hand-cut between the 1760s and 1810 or ’12, when Madison’s final renovation was complete. Walking through Montpelier then was an eerie experience, since I could see between the laths from room to room to room, as if I were in a ghost house. By then, restorers had moved Marion duPont Scott’s art deco extravaganza to a visitor center.

When I returned three years later, restoration chief John Jeanes showed me how his crew had plastered the interior with the original lime, sand, and horsehair formula, and re-roofed the house with 30,000 hand-carved old-growth cypress shingles, copied from some original cedar ones found in the attic—but so much tougher that the new roof, Jeanes predicted, would last 100 years. He showed me too how careful removal of layers of paint on the sides of the window frames had revealed the outlines of the original chair rails, so his team could reproduce them precisely. One of the second-rate old-master paintings that had adorned the drawing room hung in its original position, and copies of the others, along with portraits of Madison’s Founding Father colleagues, hung where the originals had been. Some pieces of the old house had turned up during the restoration—a hearthstone that had fallen into the basement, for instance, a doorway that the duPonts had relocated—but the few bits of furniture in the rooms only punctuated their emptiness, since Dolley’s wastrel son, a drunkard and gambler whom Madison once bailed out of debtors’ prison, had sold off most things of value after his stepfather’s death.

The intervening four years have produced a miraculous change. Furniture said to have belonged to the Madisons has poured in from eager donors, and many pieces, after rigorous vetting, have turned out to be genuine. Museums have loaned Montpelier items known to have come from the house. Every furnished room displays original Madison pieces, from the two sideboards in the dining room to a tea table in Mother Madison’s sitting room that she probably acquired even before she and her husband built Montpelier. An original Montpelier chimneypiece turned up in a nearby farmhouse and is now back where it belongs.

The enslaved Paul Jennings stands behind the Marquis de Lafayette in Montpelier's dining room.

The enslaved Paul Jennings stands behind the Marquis de Lafayette in Montpelier’s dining room.

From poring over documents, restorers had a fairly detailed idea of what was in the house during the Madisons’ period, and, in cases where original pieces had vanished completely, they often could replace them with almost identical ones. Madison had bought a square piano from a Philadelphia maker in 1794, for example, and Montpelier now has one made by the same firm that very year. The house displays an ivory chess set identical to the original one, of which only a few pawns turned up in a Montpelier rubbish heap, and a mahogany case of plaster portrait-medallions of philosophers, made by the same Italian craftsman who made the Madisons’ now-lost set, stands near it in the drawing room. The Madisons owned some painted Louis XVI drawing-room chairs that they had probably bought when George Washington auctioned off some of his presidential furniture on his retirement to Mount Vernon at the end of his second term. Washington had bought the originals, made by a Parisian cabinet maker named Lelarge, from a departing French ambassador, and he had a Philadelphia craftsman make copies to enlarge the set. Six of the Madisons’ chairs still exist in various collections, including one at Montpelier. Some are French, one complete with Lelarge’s stamp; some are President Washington’s American copies. The Montpelier Foundation has recently bought ten almost identical ones, stamped Lelarge, to adorn the drawing room.

Jefferson's portrait hangs above James and Dolley Madison's in the newly restored drawing room, with its Lelarge chairs.

Jefferson’s portrait hangs above James and Dolley Madison’s in the newly restored drawing room, with its Lelarge chairs.


One of Madison's old master paintings in the drawing room

One of Madison’s old master paintings in the drawing room

During the restoration, a workman on a tall ladder found a bit of red flocked wallpaper stuck to the top of a drawing-room window frame, though the thumbnail-sized scrap was too small for curators to make out what the original pattern was. Reasonably, they chose a red-flocked pattern popular in the early nineteenth century. A two-century-old mouse’s nest found inside one wall contained a scrap of a letter in Madison’s hand and some threads of crimson silk—evidence for restorers to surmise that this was most likely the crimson of the silk damask that Dolley had ordered from France in 1816 for the curtains and upholstery of Montpelier’s drawing room, now reproduced in fabric and color, if not in pattern. Tack holes in the drawing-room and dining-room window frames suggested how the curtains originally hung; but no shred of evidence remains for the pattern of the dining-room curtains or wallpaper, though it’s hard to imagine that the flamboyance the restorers chose would have displeased the exuberant Dolley.

Drawing Room Curtain

Drawing Room Curtains

And finally, the Old Library—the goal of my pilgrimage—has got some 900 of its 4,000-odd books back. They’re not Madison’s originals, but they are the same works, largely in the same editions he owned—from Cicero’s writings and Bacon’s essays to Locke’s Essay Concerning Human Understanding and Adam Smith’s The Wealth of Nations. “The past should enlighten us on the future,” Madison once wrote: “knowledge of history is no more than anticipated experience.” In these volumes is enshrined some of the knowledge that informed our Constitution. The ink splatters Madison made while taking notes on them—original splatters, not copies—still adorn the heart-pine floorboards of the hushed room, where Madison listened to such great effect to the eloquent voices of our civilization’s sages.
Old Library 1
Old Library 14
old library
Photographs courtesy of The Montpelier Foundation

12/16/13

Visiting Mount Vernon

I hope every American will get to see Mount Vernon, because it breathes the spirit of our greatest president and makes the Founding seem more alive and real than any history textbook can do. The Mount Vernon Ladies’ Association, which restored and maintains the estate, has done an extraordinary job of preservation—even down to buying up the land across the Potomac, so as to keep the pristine view George Washington saw—and its various exhibits and publications form one of the great treasure troves of American historical understanding. This wonderful philanthropy offers the following virtual tour of the house, to whet your appetite until you can see it in person. Just click on the photo to get started. If at any point you get stuck, just click on the “Mansion” tab, and you will be able to cybertransport yourself to any room in the house:

When you visit, leave time to make the short drive down the road to visit Gunston Hall, home of Washington’s friend and ally, George Mason, author of the Virginia Declaration of Rights. It is a perfect example of a republican gentleman’s rich but down-to-earth house. Click on the photo to begin the slide show:

Gunston Hall virtual tour cover

Incidentally, portions of the house that belonged to Washington’s English ancestors still exist in Sulgrave Manor, in Northamptonshire, built by Lawrence Washington, George Washington’s five times great grandfather, in the mid-1500s.

Sulgrave Manor in 1898
The entrance porch was completed soon after Queen Elizabeth’s accession to the throne and Lawrence Washington displayed his loyalty to the new Queen by depicting her coat of arms and initials in plaster-work upon its gable.
Just above the door you can find the Washington family’s own coat of arms carved in stone – the ‘mullets and bars’ depicted resemble ‘stars and stripes’ and are widely believed to have influenced the design of the American flag.

The Washington Crest over the door of Sulgrave Manor

If you visit the Lee family’s Stratford Hall in Virginia, stop in at George Washington’s idyllic birthplace, just up the road at Pope’s Creek. The original house is gone—there’s a slightly miniaturized 1930s’ version of Gunston Hall instead, for reasons obscure to me—but the site is breathtaking, with flocks of swans and geese in the heart-meltingly beautiful inlets of the Potomac, and you are likely to see a bald eagle overhead. The name of the National Park Service ticket-taker when I visited was Pocahontas, and you can’t get much more early-Virginia than that.
Pope's Creek

11/24/13

What would shock our Founding Fathers most about America in 2013

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By Myron Magnet
Published November 18, 2013
FoxNews.com
Fox News Illustration Library of Congress

Though the Founding Fathers made a revolution because they hated the idea of taxation without representation, soon after independence they recognized that taxation with representation could be tyranny too. That’s the whole point of James Madison’s famous warning about the tyranny of the majority in Federalist 10.

Yes, a democratic republic is the best form of government, he knew; but there’s always the danger that a democratic majority will illegitimately invade the natural and inalienable rights that government exists to protect — the right to life, liberty, and property.

The most likely form such an invasion of natural rights would take, Madison predicted, is the robbery of the propertied few by the unpropertied many, whether by unjust taxation, by debasement of the currency — which silently transfers wealth from creditors to debtors — or by a government-enforced abolition of debts or equal division of property, as the leaders of Shays’s Rebellion demanded in 1786 when they couldn’t pay their mortgages. The Continental Congress sent troops to put the rebels down by force.

That’s why, as the chief architect of the Constitution hammered out in Philadelphia the following year, Madison designed his mechanism of checks and balances. His main concern was to prevent the emergence of what Continental Congressman Richard Henry Lee had once called an “elective despotism.” (One sure sign you were living in one, Madison wrote, is if legislators ever dared pass laws from which they exempted themselves.)

In a genuinely free society, Madison observed in the Federalist, you will always have inequality. People have different talents, different ambitions, different levels of energy and willpower, different ideas of the happiness they are free to pursue. With liberty to exercise what skill and drive you have, some will grow richer than others. And liberty was all the American Revolution set out to achieve. It was the unsuccessful French and Russian Revolutions that promised equality and fraternity.

When the new government under the Constitution got under way, Treasury Secretary Alexander Hamilton immediately designed a financial system to make the most of that liberty. Given that people have different talents and ambitions, he aimed to create a highly diversified economy that would allow people to develop those talents to the fullest extent possible. Everyone would have a chance to find his own niche and make the most of whatever vision and special potentialities lay within him.

Such a free economy would create a wealthy society, to be sure. But it was also an instrument of soulcraft, allowing individuals to become everything that they had it within themselves to become — something you can’t do if being a farmer or a shop clerk or a cog in the state machine are the only choices open to you.

So what would the Founders say if they saw trillions of dollars being taxed away from society’s productive members to provide means-tested benefits to around a third of the population?

What would they say if a family of four — grandma, mom, and two kids, say — lived without working in subsidized housing on welfare, food stamps, Medicaid, and other benefits that cost taxpayers over $40,000 a year — more than a minimum-wage job pays?

And what would they say about a society that supported generation after generation of such families on income taxes that 10 percent of the population pays 70 percent of, and that nearly half the population doesn’t pay at all?

They would be horrified by the injustice of such tyranny of the majority, of course. But they would be no less horrified by the waste of lives that never even try to reach their full potential. This is what millions have done with the liberty that the Founders pledged their lives, their fortunes, and their sacred honor to win?

Myron Magnet is a recipient of the National Humanities Medal. He is editor-at-large for City Journal. His new book, The Founders at Home: The Building of America, 1735-1817 , is just out from W. W. Norton.

11/10/13

Jefferson the Architect

Jefferson was a passionate and highly informed amateur architect, who carefully studied the buildings of France, including the Roman Maison Carrée in Nîmes:

Virginia State House

He used the Roman building as his model when he drew up his plans for the Virginia State Capitol, designed in 1786, while he was serving as U.S. minister to France.

An early view of the Virginia State Capitol

It was completed in 1788, before he returned to America.

His first sketch of Monticello was much more Palladian than the version we have now.

Jefferson's first sketch for Monticello

Here is a floor plan of the perfected version. If you click on each room, you will see a photograph of it, with some commentary on its furnishings, from the estimable Thomas Jefferson Foundation.

Link to Monticello Virtual Tour.

Monticello'sClock

Among the many brilliant technological innovations he employed in the house, here is the amazing clock he designed, with one face visible outside, on the facade, and the other inside, above the hall doorway. The technological marvel: the works must make each hour hand (there was no minute hand on the outer face) move in the opposite direction.

But when Jefferson’s fame drew swarms of uninvited visitors to Monticello, sometimes he would retreat to his remote and barely accessible lodge, Poplar Forest, a masterpiece in it own right, built from 1806 until his death 20 years later, near what’s now Lynchburg:

Poplar Forest

And of course he was the architect, in both the literal and figuarative sense, of the University of Virginia in Charlottesville, where he intended each pavillion of the campus to be a concrete example of a different style of classical architecture. These are his original 1814 drawings for some of the buildings.

The centerpiece of his plan was a remarkable classical library, the Rotunda.

Rotunda

The University of Virginia's Rotunda and Pavilions IX & X, 1823

It was flanked by ten pavilions, and Pavilion IX is shown here to the left and Pavilion X to the right.

Pavilion and dormatories

Designed for economy but envisioning expansion as needed, the plan called for the pavilions to be flanked by identical dormitories on each side, situated around three sides of a square and all connected by covered walkways. A chinoiserie railing recalls the treatment of the wings at Monticello. Each pavilion was to serve as a concrete illustration of an architectural style. (University of Virginia Library)

Pavilion II

Pavilion II draws upon the Ionic order of the Roman Temple of Fortuna Virilis depicted in Andrea Palladio’s Four Books of Architecture.

Pavilion VI

Pavilion VI

Pavilion VII

Pavilion VII combined suggestions from architect William Thornton with Jefferson’s own ideas for the first pavilion, basing its order on the Doric of Palladio. Its cornerstone was laid on October 6, 1817.

Pavilion IX

Pavilion IX

(University of Virginia Library)

And here is an early view of The Lawn, as he called it:

University of Virginia

Finally, here is a plan of the University. If you click on the image below, you’ll find a virtual tour of Jefferson’s lawn today. Just click each pavilion for a photograph.

Click here for virtual tour of the University of Virginia lawn today