12/27/22

The House of Morgenthau

   January 2023

The House of Morgenthau

by 

On Morgenthau: Power, Privilege, and the Rise of an American Dynasty, by Andrew Meier.

Afamily sagas go, the tale of the high-flying Morgenthaus is hard to top. How many American clans can boast an ambassador in one generation, a Treasury secretary in the next, and, in the third, a legendary prosecutor of four decades’ tenure? Their story, as Andrew Meier tells it in Morgenthau: Power, Privilege, and the Rise of an American Dynasty, offers a rarefied vista of a century’s worth of U.S. history, with family members rubbing shoulders with Woodrow Wilson, Franklin Roosevelt, and the Kennedys. Meier toiled for twelve years to make his thousand-page epic definitive, interviewing all the surviving characters and digesting countless pages of the letters and journals of these compulsive diarists dating back to 1842. At its best, the narrative is fast-paced and utterly absorbing. But too often the focus blurs, the narrative line tangles, punch lines don’t track, and the authorial judgment is merely conventional, its shopworn Democratic Party assumptions unexamined. The tale is great—but greater than the teller.

So let me summarize it for you.

A failure in Germany set the family’s American success story going. Ensconced in his Mannheim mansion, the self-made cigar magnate Lazarus Morgenthau viewed with dismay President Abraham Lincoln’s push for tariffs to protect U.S. tobacco growers, effectively closing the market Morgenthau’s costly stogies had won in California. One last giant shipment scheduled to beat the new levy landed a day late in 1862, turning an expected profit into a crushing loss. Nearly broke, Lazarus and his young family sailed for New York in 1866.

As one after another of his entrepreneurial schemes flopped in Gotham, Lazarus grew more grandiose and less sane, triggering a separation from his long-suffering wife and spells in an asylum. But while he floundered, his ten-year-old son Heinrich, now Henry, began to push upward, mastering English, shining in school, and starting New York’s City College at fourteen in 1870 before having to quit to help support his big family.

He scrambled as an errand boy, a bookkeeper, and a law-firm gofer, improving his mind with library books, his muscles with weight lifting, and his character with Ben Franklin’s Autobiography and a weekly relay of trendy Protestant preachers, all in the same self-help vein as his own “avant-garde Judaism.” He became a model self-made American, whose credo was “Be your own engineer,” forging your own fate. By 1874, clerking for a top lawyer and teaching English at an immigrant night-school, he could afford tuition at Columbia Law, graduating in 1877 and opening a law firm two years later. In 1883, this embodiment of self-reliance married a rich clothier’s daughter he’d met at an “Emersonian evening,” as a group of friends called their philosophical soirées—as much a career move as an affair of the heart.

Henry made his first real-estate investment even before his marriage, pocketing a quick profit in 1880 that set his course. He saw that Gilded Age New York, so charged with opportunity that any industrious man “can rise to as high a position as he chooses,” was expanding unstoppably into undeveloped areas. Seizing the moment, he bought a Harlem square block in 1887 and, four years later, four square blocks of Washington Heights for $1 million with a group of partners—land auctioned off two months later for a half-million-dollar profit in what the press dubbed “the great Morgenthau sale.”

This was a moment when a thousand hard-working immigrants a week were pouring into Gotham, all needing housing. Subway construction was supercharging the city’s outward expansion, and the steel frame and electric safety elevator were propelling it upward. Henry quit his law firm and founded the Central Realty, Bond & Trust Company, whose stock price doubled within three months of its listing in 1899. By 1904, having spanned Manhattan and covered the Bronx with elevator apartment buildings, Henry, at forty-eight, was one of New York’s biggest taxpayers and a member of half a dozen corporate boards, including Thomas Edison’s. Now rich enough to attend to status and meaning, he bought his way onto the Metropolitan Opera board and was the founding president of the new Free Synagogue, which preached a truly avant-garde Judaism in “progressive” sermons and lectures by the muckraker Jacob Riis and the settlement-house founder Lillian Wald.

That mix of progressivism and Judaism made the Free Synagogue an ideal venue for New Jersey Governor Woodrow Wilson, the speaker at a gala dinner in April 1911. With Henry presiding, Wilson emphasized his radical “progressivism,” as he called his top-down statism, stressing the moral obligations of businessmen to serve the common good, under government regulation and the threat of being shut down—or jailed. In December, now campaigning for the presidency and mindful of the new electoral power of America’s ethnic and religious minorities, to whom he was one of the first candidates to make a direct identity-politics appeal, Wilson accentuated the Judaism. Addressing some 3,300 leaders of New York’s seven hundred thousand Jews on “The Rights of the Jews,” he electrified his hearers by asserting his shared identity with them as citizens “who have become part of the very stuff of America” and by praising the Jewish “men of genius in every walk of our varied life” who have played “a particularly conspicuous part in building up [our] prosperity.” If you wonder why Jews have been Democrats for more than a century, here’s one reason.

Smitten, Henry offered Wilson a huge contribution and became his campaign finance chief. When the long-shot candidate won, Henry expected a cabinet seat—as Treasury secretary, he hoped—and he bridled at the lesser offer of the ambassadorship to Constantinople, considered a Jewish post out of respect for Ottoman anti-Christian bigotry. He accepted grudgingly and arrived in late 1913, in time to watch the unfolding of a tragedy within a tragedy.

Steaming across the Ionian Sea to meet him in August 1914, his second daughter and her family—including his two-year-old granddaughter, the future historian Barbara Tuchman—had passed a skirmish between British and German naval vessels, exchanging the first salvoes of those guns of August that marked the opening of World War I. In late October, when Turkey joined the war on the German side and the allied ambassadors decamped, Henry, representing neutral America, was left in charge of the affairs of the European nations.

In that capacity, he delivered a scathing note in May 1915 from Britain, France, and Russia to the grand vizier, condemning Turkey’s “crimes against humanity” in its ongoing massacres of its Armenian subjects. A month earlier, having heard rumors of intensifying outrages, Henry had questioned Talaat Pasha, one of the Young Turk trio that really ruled the country, over after-dinner cigars at the embassy. Talaat purred that the Armenians were merely being moved—on the very night that the massacres began. But as ever-more-graphic reports of torture, starvation, rape, and murder of people tied together and shot, burned, or drowned came to Henry, he grasped that “a campaign of race extermination is in progress under a pretext of reprisal against rebellion,” the Muslim Turks only half believing that the talented and long-oppressed Christian Armenians were rising against them in the war.

From afar, Henry had organized an American committee to rescue the Armenians and resettle them in the Western states, ultimately raising $10 million, and he made the genocide front-page news. But as Theodore Roosevelt wrote, the mass meetings and newspaper headlines were “sentimental but ineffective”; only military force would work. Henry knew this was true and that neutral America would not intervene. Nor would Turkey let the Armenians go. Of the perhaps 1.5 million Armenians who lived in the Ottoman Empire, more than half—and perhaps many more—were slaughtered. Dispirited, Henry came home in early 1916 and resigned soon after.

Though the ambassador’s son ultimately won the Treasury post his father had once coveted—and held it for twelve years—Henry Morgenthau Jr. had none of his father’s Emersonian self-sufficiency. He always seemed to anchor himself to someone else, as if otherwise he’d be adrift in his own life. Meier thinks he suffered from dyslexia before that condition had a name. Certainly that would explain why he floundered at prep school and, though he enrolled at Cornell twice, was a college as well as a high-school dropout. In his youth, he anxiously hung on the approval of his loving but hard-to-please father. As an adult, he was Dr. Watson to Franklin Delano Roosevelt’s Sherlock Holmes.

Machiavelli counsels us to prepare dikes and ditches to direct fortune’s streams should they flood upon us, but more often—like Henry Jr.—we are the playthings, not the masters, of chance. Yet luck favored Henry. To recuperate from an illness, his father sent him to a friend’s vast Texas ranch, where the twenty-year-old Jew from West Eighty-first Street fell in love with . . . farming. Accordingly, this child of privilege set off on a ten-thousand-mile cross-country odyssey to study farm methods and conditions, with an assistant to the secretary of agriculture for a guide. This was his real education.

At twenty-two, with money from his father, he bought a thousand-acre Hudson Valley farm and began planting orchards. A neighboring gentleman-farmer soon became, as Henry said, his “best friend.”

That was Franklin Roosevelt. What was chance for Henry was calculation on FDR’s part. The assistant secretary of the Navy, nearly nine years the young man’s senior, well knew Henry’s father as a lavish Democratic donor, and he immediately began wondering what use he could make of the son, a new recruit to the thin ranks of Dutchess County Democrats. Run him for sheriff? Make him a county committeeman? FDR was a tireless political operator, his Hyde Park house always bustling with cronies, and Henry Jr. became a regular.

So did the bride Henry brought home to the Fishkill farmhouse in 1916—Elinor Fatman, a granddaughter of one of the founding Lehman brothers. The two couples became inseparable—so close that when FDR struggled through his recovery from the polio he contracted in 1921, hidden from the public eye, his Morgenthau neighbors became almost a second family, sharing dinners, birthdays, and holidays. FDR trusted Henry to help carry him up the front stairs of Fishkill Farms, the paralyzed man joking as best he could to dispel the humiliation. Over six years, Roosevelt remade himself, coming out of the ordeal, Henry judged, “a completely new person,” stronger, braver, more compassionate.

Only just recovered, FDR ran for New York governor in 1928, with Henry handling his upstate campaign. Surprised to win, Roosevelt named his friend head of the Agricultural Commission and promoted him, after his 1930 reelection, to conservation commissioner. With the Great Depression weighing heavily, Henry started a work-relief program both figuratively and literally groundbreaking: he bused jobless young men from Gotham to Bear Mountain and paid them to build roads and plant trees—the rough draft of the New Deal’s Civilian Conservation Corps.

FDR began eying the White House almost as soon as he became governor, and, upon his 1932 presidential victory, he named his friend head of the Farm Credit Board. With a swift efficiency the self-doubting Henry didn’t realize he possessed, he reorganized the nation’s credit system for capital-starved farmers. His old closeness with the president remained: the two had a standing Monday lunch, the envy of the cabinet, and FDR used Henry as a back-channel go-between in matters ranging from mistress management to the off-the-record negotiations that led to U.S. recognition of the Soviet Union, over the State Department’s protests. The two Eleanors—Eleanor Roosevelt and Elinor Morgenthau—remained inseparable, too, riding their horses in Rock Creek Park and crisscrossing the country on social-justice tours of schools, prisons, and even mines.

After FDR took America off the gold standard early in his presidency, Henry pressed him to try the crackpot Depression cure of the Cornell agronomist George Warren, who held that Washington could raise battered commodity prices by daily gold purchases that would steadily boost the metal’s price, a confusion of cause and effect. Every morning as the president ate his eggs, Henry and Warren would stand by his bed and set the price of gold with him, picking numbers at random—and once, famously, raising the price by twenty-one cents because FDR thought three times seven a doubly lucky number.

Convinced of Henry’s financial and administrative skill, the president, to his insecure friend’s astonishment, named him Treasury secretary at the end of 1933. He came to that office with two conflicting core beliefs. He swore by the New Deal’s myriad relief programs, yet he also favored a balanced budget and wasn’t sure America could spend its way out of the Depression. One tool he devised to help finance the New Deal was the U.S. Savings Bond, “baby bonds,” which let Washington borrow billions of dollars from ordinary citizens. But later, looking back over the whole New Deal enterprise, he ruefully concluded,

We have tried spending money. We are spending more than we have ever spent before and it does not work. . . . I say after eight years of this Administration we have just as much unemployment as when we started. . . . And an enormous debt to boot.

Tellingly, Meier’s nine hundred pages of text omit this most famous of Henry’s statements.

FDR’s first inaugural address had blamed the Depression on the “money changers”—on capitalists in general—and in that vengeful spirit, Henry gladly used the IRS to punish those who weren’t paying their rightful share of the New Deal’s cost. Less attractively, in his role as FDR’s cat’s-paw, he weaponized the IRS against the president’s political enemies, pursuing Senator Huey Long, an FDR ally turned foe, with the fervor of Inspector Javert, and carrying out Roosevelt’s order to “ ‘get’ Moe Annenberg,” the Philadelphia Inquirer publisher, by sending him to prison for three years. Still nastier was his persecution of Andrew Mellon, a Treasury secretary under three former presidents, whose crime seems to have been being a rich, anti–New Deal Republican and who was posthumously exonerated. But the author Meier sees all this as “a defense of American democracy, against the rising tide of fascism and the attacks on the New Deal as no more than a vehicle for the personal fiat of Roosevelt”—as if these were the same, and as if the New Deal succeeded in curing the Depression any better than Secretary Morgenthau thought it did.

It’s worth noting that the IRS weaponization that Henry started—which continued through the Obama IRS official Lois Lerner’s harassment of conservative think-tanks and now promises to intensify with President Biden’s perhaps eighty-seven thousand new T-Men—suggests that the turning of free Americans into a nation of sheep, with government as their shepherd, could come to pass less benignly than Alexis de Tocqueville imagined. It’s possible to take away unalienable rights, not by forbidding their exercise but by making citizens afraid to assert them—a soft tyranny, but tyranny still.

Iwas the rise of hard fascism in Germany after Hitler became absolute ruler in August 1934 that increasingly gripped Henry’s attention and led to his finest hour. He had never forgotten his tour of the smoking trenches of Gallipoli when his father was ambassador during World War I or his shudder at the militaristic triumphalism he’d seen visiting the German commander’s headquarters there. Nor had FDR ever lost the distaste for “Kaiserism” and “Prussianism” that he’d developed during his six childhood summers in Germany. Contrary to the isolationist mood of the era, both men foresaw, as the president prophetically put it to the Treasury secretary as early as December 1934, that “If the Nazi inhuman policy should be extended to England because her back was to the wall, . . . the U.S. would, of course, go in and help England.”

After the isolationist Congress began passing a series of Neutrality Acts in 1935, forbidding the export of war matériel to belligerents, Roosevelt charged Henry with figuring out how to circumvent the statutes and the “appeasers” in the State Department to arm Britain and France. By the end of 1938, having learned to transship through Canada or label arms as surplus, he was negotiating with the French over the purchase of a thousand planes. When Congress dropped the prohibition against arms sales in 1939 but required payment in cash, Henry drafted the Lend-Lease statute, premised on the fiction that America was loaning near-bankrupt Britain billions of dollars worth of ships and matériel to be returned . . . someday.

Ahe was arming the European allies and retooling the nation’s slump-idled factories for war production—which FDR liked for the economic boost it was giving the country, the actual cure for the Depression—Henry also brooded over the plight of Europe’s Jews, especially after the Kristallnacht pogroms in November 1938 made the Nazi menace undeniable. But those few prominent American Jews who tried to persuade the president to relax the ultra-strict immigration quotas to allow a flood of impoverished refugees into unemployment-ravaged America made no headway. Though the flagship New York Times was receiving correspondents’ dispatches about Hitler’s planned extermination of the Jews from early 1940 on, the paper’s proprietors, fearful of being labeled too Jewish, cravenly printed no story until two crabbed paragraphs on Page Five in June 1942 reported the “greatest mass slaughter in history,” with seven hundred thousand Polish Jews killed by “machine-gun bullets, hand grenades, gas chambers, concentration camps, whipping, torture instruments and starvation.” But then came regular stories on the German “campaign to exterminate all Jews.”

Under Henry’s aegis, four intense young Treasury lawyers pursued a scheme throughout 1943 to save a remnant of European Jewry from Nazi extermination. Meier recounts their electrifying saga so badly as to make it almost incomprehensible, but its gist is this: In August 1942, Gerhart Riegner, a representative of the small but grandly named World Jewish Congress, asked American and British diplomats in Geneva to pass on to Washington information he had received from a top German industrialist about Hitler’s plan, fleshed out at the Wannsee Conference at the start of the year, for the “Final Solution to the Jewish question,” and indicating that Europe’s Jews were already being transported to Poland for mass slaughter. That part of the message got through, via the British, and by December, the broadcaster Edward R. Murrow told his radio listeners of Jews “being gathered up with ruthless efficiency and murdered . . . in extermination camps.”

But Riegner had a further message: that he could save the remaining Jews of Romania and France and thousands of Jewish kids elsewhere in Europe by paying bribes and ransoms, if only he could get the funds. The Treasury lawyers labored to set up the necessary machinery but found themselves stymied. After much sleuthing, they discovered that anti-Semites in the State Department were purposely stonewalling them, with the assistant secretary of state Breckenridge Long falsifying cables and lying to Congress. Secretary Morgenthau finally confronted Long and got FDR’s permission to act—but not until January 1944, when there were only two hundred thousand saved, compared to the more than six million who perished. Even less successful were the efforts of one of the young Treasury lawyers to get the Pentagon to bomb five key rail lines to halt the transport of Jews from Hungary to the Auschwitz death camp. That would divert resources from decisive operations, replied the assistant secretary of war John McCloy.

As the war ground toward an end, Henry began planning for the new world order. In July 1944, he hosted the Bretton Woods Conference to help shape the post-war economy. It hammered out a new gold-based exchange-rate system, anchored to the dollar, and it created the International Monetary Fund and the World Bank. As Henry was the Treasury secretary, the reader might expect a few pages of economic analysis, especially given the dramatic policy clash between John Maynard Keynes, the head of the British delegation, and the assistant U.S. Treasury secretary Harry Dexter White. But Meier trivializes the conflict as a personality confrontation between the anti-Semitic Keynes and the “blunt and brazen” White, the son of Lithuanian-Jewish immigrants, originally named Weit and later notoriously and accurately charged with secretly aiding the Communists.

On the future of Germany, Secretary Morgenthau had sharp and vengeful views that sparked a forceful reaction that ended his career in government. The goal of a peace settlement, he thought, should be to “prevent Germany from imposing devastation and terror on a helpless Europe for the third time in a single century.” It wasn’t just the Nazi leaders who were guilty, though perhaps 2,500 of them should be summarily executed. Beyond that, as FDR once put it, “the whole nation has been engaged in a lawless conspiracy against the decencies of modern civilization,” thanks to the culture of militarism and Prussianism that both he and Henry Morgenthau had found so shocking when young. The task, as Henry saw it, was to change the German character, indeed to transform German culture so as not to “raise another generation of Germans who will want to wage war,” he said. And the way to do that, and also to ensure that Germany lacked the physical means of war-making, was to deindustrialize Germany: to close down its factories and mines, move its machinery to nations whose industries the Nazis had destroyed, and turn Germany into a humbled nation of farmers. “People who lived close to the land tended to be tranquil and peace-loving,” Henry wrote.

Opposition to the Morgenthau Plan was ferocious. Winston Churchill, Henry recalled, “turned loose on me the full flood of his rhetoric, sarcasm and violence,” dismissing the plan as “unnatural, unchristian, and unnecessary.” Secretary of War Henry Stimson deemed the plan “Semitism gone wild for vengeance” and warned that it “would arouse sympathy for Germany all over the world.” The Republican opposition seized on it as an issue, with New York Governor Thomas Dewey saying that it would “terrify the Germans into fanatical resistance” and supercharge their “fighting with the frenzy of despair,” at the cost of still more American lives. In confirmation, the Nazi war criminal Albert Speer later wrote from prison in Germany that “the Morgenthau Plan was made to order for Hitler and the Party.” FDR, exhausted by his final illness, backed away from it, and his successor, Harry Truman, rejected it, quickly maneuvering Henry into resignation in July 1945.

Fittingly, in 1947, Henry opened the final act of his public career by becoming the chairman of the United Jewish Appeal, raising money to help the 1.5 million Holocaust survivors in Europe and funding Zionists, who were settling refugees in Palestine and establishing a Jewish homeland there. As adept a fundraiser as he had proved an administrator, he was also just as realistic about force. When his UJA colleagues squeamishly resisted the pleas of the envoy of the future state, Golda Meyerson (later Golda Meir), for money for weapons, Henry minced no words. “The United Jewish Appeal is here for the purpose of saving the Jewish people,” he said, “and we can’t save the Jewish people unless the Jews in Palestine are able to defend themselves.” He sent Meyerson home with $50 million for arms, twice what she had requested.

With such celebrated forebears bestriding not just the national but also the world stage, it’s no wonder that Secretary Morgenthau’s second son, Robert, the U.S. attorney for the Southern District of New York from 1962 to 1970 and then the Manhattan district attorney from 1975 to 2009, should have thought that his prosecutorial mandate stretched far beyond Gotham’s borders. This expansiveness is both the strength and the weakness of what Meier judges “a career without precedent in the history of American law enforcement.”

Morgy, as Attorney General Robert Kennedy nicknamed him, may have been born with a silver spoon in his mouth, but he also had steel in his spine and patriot’s blood in his veins. Foreseeing, as his third year at Amherst ended in 1940, that America would enter the war in Europe, he rushed to sign up for a new Navy officer-training program open to college juniors. Commissioned in September 1941, just after his college graduation, he reported to a Boston-based destroyer in time to hear the loudspeakers crackle on December 7 that Pearl Harbor had been bombed. He served as an executive officer on destroyers in three seas, with one craft sunk by a torpedo in the Mediterranean and another speared first by a torpedo in the Pacific and then by an armor-piercing bomb dropped by a kamikaze off Okinawa, neither of which detonated. Morgy won a Bronze and then a Gold Star and left the Navy a lieutenant commander. In his later career, he hired veterans. “The military,” one of his deputies explained, “takes the whine out of you.”

Morgy had known the Kennedys since childhood summer vacations on Cape Cod, and he gladly left the high-powered firm he’d joined after Yale Law to work on John F. Kennedy’s 1960 campaign for the White House. The new president named him the chief federal prosecutor for the Southern District of New York, where he oversaw banner-headline investigations, starting with the Italian Connection case, which brought down a giant, Mafia-run heroin-smuggling ring. His anti-Mafia campaign also swept up New York City politicians, with the water commissioner James Marcus and the ex–Tammany chief Carmine De Sapio jailed for kickbacks for steering city contracts to a Mafia-connected construction company.

Following the advice of his father to “make sure you get those thieves on Park Avenue—anybody can get the others,” Morgy trained his sights on white-collar crime. Crooked wheeler-dealers and promoters, he believed, were “as dangerous to society, if not more so, than the guys on the street with a gun or a knife.” Accordingly, he began investigating one of the 1960s’ top corporate raiders, Louis Wolfson. In 1966, he indicted and ultimately convicted Wolfson of selling unregistered stock.

Morgy’s investigators had pricked up their ears when Wolfson’s finance chief snapped during questioning that he didn’t understand why the feds were bothering, since Mr. F. would fix the case. And who was Mr. F.? It took three years and the help of a Life magazine reporter to get a full answer: he was Lyndon Johnson’s crony and fixer, the Supreme Court Justice Abe Fortas—who had become Wolfson’s “consultant” for $20,000 a year and had discussed the securities case with Wolfson. Morgy warned Attorney General Ramsey Clark of a looming Life story on the Fortas–Wolfson connection, but it was the new Nixon Justice Department that dug the details out of Morgenthau’s files. Attorney General John Mitchell quietly conveyed them to Chief Justice Earl Warren, and Fortas resigned from the Court a week later.

Perhaps Nixon had gotten wind of Morgy’s investigation into whether and why the president himself had a numbered Swiss bank account—the prosecutor allegedly had the number—but Republican White House pressure on the Democratic U.S. attorney to resign grew too strong to resist, and Morgy left at the start of 1970. He became the drug czar in New York Mayor John V. Lindsay’s administration, but, as Meier reports, he was “distracted—more eager to play muckraker than bury himself in the drug-policy minutiae.” He jumped at the chance to run for Manhattan district attorney in 1974 and won handily.

Looking back on the whole of Morgy’s thirty-four years as DA, as Meier’s account allows us to do, we can see the signal weakness that dilutes the celebrated success. The emphasis on crime in the suites, as opposed to crime in the streets, is just another face of the DA’s distraction from the gritty reality of the ordinary crimes that were exploding in Morgy’s city—and destroying it, more than any white-collar crime could possibly do—in precisely the years of his “unprecedented” tenure.

Meier gives us the grim numbers. Murders, which had totaled 390 in 1960, skyrocketed 60 percent between 1970 and 1980—from 1,117 a year to 1,787—while a million New Yorkers fled the mayhem, disproportionately perpetrated by blacks. A decade later, annual killings hit their high of 2,245, while all crimes of violence averaged 226 instances a day. The DA’s first Page One case, the Washington Square Riot, provides a disturbing window into just what was happening.

On the evening of September 8, 1976, a gang of neighborhood teenagers, mostly white, poured into Greenwich Village’s Washington Square, wielding baseball bats, pipes, and chains. Shouting “Niggers out of the park!” they attacked any black person they met, leaving thirty-five injured and one dead. An ordinary lynching, you’d think. Yes, it was—but with a twist. For many months, the neighbors had been complaining that drug dealers and addicts, mostly black, had taken over the park and turned it into a place threatening to the Villagers accustomed to playing chess, walking their dogs, and taking their kids there. Locals had begged the police to clean up the intimidating disorder, with no effect. So when cops arrested nine local youths for the riot, their parents and neighbors marched on the station house with signs reading curb your junkies and shouting, “Don’t arrest our kids for doing your job!”

When the trial opened in January 1978, the prosecutor conceded that some rioters had participated “for what they thought was the legitimate purpose of driving the dealers out.” After all, the flood of drugs and its attendant disorder, which hadn’t held Morgy’s interest, was supercharging the era’s epidemic of violent crime. Nevertheless, said the judge rightly, as he sentenced the six rioters found guilty to prison, “There can never be justification for vigilantes.” But there can be explanation—in this case, the failure of law enforcement to do its basic job of protecting the social order, just as is happening today. In such a climate, it’s also understandable why, when Bernhard Goetz calmly shot four black teens who tried to mug him on the subway in 1984, New Yorkers acclaimed him as a hero out of Dirty Harry or Death Wish—an ordinary citizen with the guts to defend himself in a failed polity that forbids citizens to protect themselves against criminals that government refuses to lock up. A disgusted Morgy could convince a jury to convict Goetz only of carrying an unlicensed gun.

True, the social scientists James Q. Wilson and George Kelling had not yet been lauded for their now-famed “broken windows” articles, nor had John DiIulio yet argued that jailing the limited number of “superpredators” who committed the lion’s share of violent crime would make cities much safer. But Wilson and Kelling’s central insight—that policing to preserve public order discourages potential criminals from major lawbreaking, because they see that the authorities are vigilant—had been policing’s first principle ever since the 1829 founding of London’s Metropolitan Police. Gotham’s police manuals of the nineteenth and early twentieth century likewise emphasized the point that the function of the NYPD is to prevent crime by keeping order.

Moreover, Morgy’s predecessor as DA, Richard Kuh, had lobbied the state legislature to let cops use “stop and frisk”—the tactic of questioning and searching suspicious-looking characters to see if they were carrying guns or had outstanding warrants, later a key crime-prevention tool. So if Morgenthau had listened to the loud public clamor for safety and turned his intelligence and innovative zeal to new ways of fighting crime in the streets based on existing principles, he might have sparked two decades earlier the law-enforcement revolution that Mayor Rudy Giuliani and Police Commissioner William Bratton accomplished in the 1990s. But first he would have had to realize his error in thinking that jailing street drug-pushers is a waste of resources. Rather, it is at least as important as busting such wholesalers as the Italian Connection.

Instead of dealing creatively with what was under his nose, the DA went looking for cases that would let him to clean out criminals from whole industries in one grand swoop. He zeroed in on the trucking companies that served New York’s garment industry, moving cloth from the cutters to the Chinatown sweatshops where immigrant seamstresses would sew the shaped pieces together, and then bringing the finished goods to wholesalers. A cartel of Mafia firms forced all manufacturers to use their trucks, at inflated rates. So cowed were the victims that none would talk.

Eliot Spitzer, the assistant DA in charge of the case and later New York’s disgraced governor, bought a sweatshop out of bankruptcy with city funds and sent a cop named Ronnie Rivera, posing as its “Jewish Hispanic” owner, to staff and run it. Before long, an enforcer for the Gambinos, one of Gotham’s five Mafia families, showed up to explain the trucking rules—and the harsh penalties for breaking them. Spitzer sent operatives to bug the Gambinos’ office—a film-worthy caper—and the DA had the evidence to indict. The Gambinos’ canny lawyer managed to confuse the “Jewish Hispanic” on the stand so that the case ended in a deal. The Gambinos avoided jail but left the business and partly reimbursed the sweatshop owners for their extortion, to Morgy’s entire satisfaction, since he correctly foresaw that no one would take their place now that law enforcement had targeted the racket. With the Mob Tax ended, trucking competition took off and costs fell, and so did wholesale prices.

Reading Meier’s account of the 1992–93 Bank of Credit and Commerce International case—“the most ambitious and far-reaching investigation of [Morgy’s] career,” says the author—you might agree with the DA’s critics that “at a time of unchecked violent crime, [he] was merely wasting tax dollars.” You might resist the DA’s claim that his “jurisdiction is set by any dollar that crosses any bank in New York County” and wonder why he sent investigators to Pakistan, Abu Dhabi, and Saudi Arabia to scrutinize a bank with branches in seventy-three countries, a big presence in Washington, and only three offices in Manhattan. You might join critics in thinking that the case was “a global labyrinth of financial legerdemain so complex—of double- and triple-dealing—no judge or jury could ever make sense of it.”

Certainly a Manhattan jury couldn’t. They heard that the Pakistani-owned bank was a giant corrupt enterprise, a money-laundering operation for Colombian drug cartels, tyrants, terrorists, even the CIA. They heard of bribes to bank regulators and finance ministers across the globe. They heard of fraud in concealing BCCI’s illegal ownership of Washington’s big First American Bankshares and of charges that First American’s chairman, the Washington grandee Clark Clifford—a former secretary of defense, presidential advisor, and superlawyer—and his young law partner, Robert Altman, had facilitated the fraud and made millions off First American over fourteen years. Yet, after all this drama, the jurors acquitted. And readers might find Meier’s account as baffling as jurors found the case.

Finally, as fear of seemingly unchecked violent crime sharpened, a savage rape and near-murder that embodied Gotham’s worst nightmare filled the headlines, riveted New Yorkers, and led to a spectacular error that has shadowed not just the DA’s reputation, but that of the city’s entire law-enforcement establishment ever since. At 1:30 on the morning of April 20, 1989, a cop came upon a nearly naked twenty-eight-year-old woman, bound, gagged, and battered, smeared with mud and blood, writhing in a wet hollow in Central Park. With a fractured skull, a temperature of eighty, and three-quarters of her blood drained out, she had lain there near death for some time. A Wall Streeter named Trisha Meili, she became known as the Central Park Jogger. She later made a miraculous, though not a full, recovery.

Between 9 and 10 on the night of the assault, at least seven other people were attacked in the same part of the park by a gang of minority teens, with two victims knocked unconscious. Cops had started rounding up the gang by 10:30, and at dawn on April 20 they began questioning the five main suspects. With the video recorder running early the next morning, the boys, aged from fourteen to sixteen, began confessing that they’d gone “wilding” in the park. They’d robbed and beaten up people, and each claimed to have been an accomplice in the rape, though none admitted to being the rapist.

The newspapers also went wild about the “wolf pack”: “RAPE SUSPECT; ‘IT WAS FUN,’  ” said the Post; it was “like something out of A Clockwork Orange.” The Times countered that it was a “Lord of the Flies rape.” The trials, in two batches in the last six months of 1990, were tabloid material, too, with a prosecutor recounting how the boys, after their arrest, were whistling, screaming, and laughing raucously at the police station, “as though a party was going on.” The accused themselves admitted to kicking, beating, and having sex with the jogger. Jurors convicted all five defendants of the other park attacks, four of them of raping the jogger, and one of sexual assault. All five went to prison. “Justice has been done,” the DA pronounced.

Except that the prosecutors’ timeline of the night’s events out didn’t quite add up, and the semen found in the jogger and on her clothes didn’t match any of the defendants’ DNA. Toward the end of 2001—eleven years after the trial—one of the five got transferred to Auburn State Prison. The sight of him shocked a longtime inmate, Matias Reyes, who told a guard that, while he knew that the recent arrival had been convicted of raping the Central Park Jogger, that man didn’t do it: “That was me.” Indeed, it was. Reyes, the notorious East Side Slasher, had pled guilty to assaulting five women a few weeks after the jogger rape in a psychopathic spree of beating, stabbing, rape, and one murder, all near where the jogger had been attacked. As the DA’s investigators probed Reyes’s claim, they found that he had even committed a sexual assault two days before raping the jogger, with telling similarities between the two crimes. In the earlier attack, for which no one had been arrested, he had lost a cap at the crime scene that the cops still had—with strands of his hair, with his DNA, still on it.

Had jurors known of the earlier incident, the DA concluded, they would not have convicted. So he did not oppose the motion of lawyers for the so-called Central Park Five to set aside their convictions, which the judge agreed to do in December 2002. Still, in light of their confessions, their courtroom testimony, and their clear guilt in the other assaults, not to mention the damage to the reputations of the assistant DAs in the case and the cops connected to the earlier, unsolved assault, many close to the case still wonder if any or all of the five had somehow interfered with and harmed the jogger, either before, during, or after Reyes’s rape of Trisha Meili.

This denouement left a bad odor in the DA’s office, made only more noxious by Morgy’s choice of a successor when he decided to retire, at eighty-nine, in 2009. Instead of endorsing his widely respected deputy, he gave the nod to the outsider Cyrus Vance Jr., partly for the good old Morgenthau reason, said Morgy, that he knew Vance’s famous father, the former secretary of state. In the event, Vance proved a poor choice, one of those permissive DAs unwilling to enforce the law, especially against political rioters. Today, with Alvin Bragg in charge, it’s hard to imagine that the Manhattan DA’s office ever seemed august, as it did when Morgy was in charge.

These Morgenthaus were indeed powerful, privileged men—all that Meier’s title claims. But greatness is quite another thing.


  1.   Morgenthau: Power, Privilege, and the Rise of an American Dynasty, by Andrew Meier; Random House, 1,072 pages, $45.

 

This article originally appeared in The New Criterion, Volume 41 Number 5, on page 25
Copyright © 2022 The New Criterion | www.newcriterion.com
https://newcriterion.com/issues/2023/1/the-house-of-morgenthau

10/14/21

The Making of the Administrative State

 

The 1787 Constitutional Convention, Benjamin Franklin famously said, gave America “a republic—if you can keep it.” We couldn’t. It’s not that the framers’ wonderful structure of self-government slipped away by carelessness. Rather, single-minded men purposely usurped it, and Ronald J. Pestritto’s America Transformed tells the tragic tale of how the Progressives, as they called themselves, deformed and abolished one of the greatest triumphs of the Western Enlightenment, in the name of Hegel, Darwin, modernity, and efficiency, all under the magician’s scarf of hocus-pocus fake democracy. The end result of this sleight-of-hand, though Pestritto’s gripping book is too polite to say so baldly, is that we now live under a regime without legitimacy.

We could not ask for a better debunker of Progressive trickery. The graduate dean and a professor of politics at Hillsdale College, Pestritto has been among the leading pioneers in the revisionist study of this era, notably with his earlier, groundbreaking Woodrow Wilson and the Roots of Modern Liberalism (2005). Indeed, the chief magus of this drama is Wilson, our first professor-president, who formulated the Progressive creed in his academic works of the 1880s, before he assumed Princeton’s presidency, with embellishments from ivory-tower colleagues Frank Goodnow, president of Johns Hopkins and founding president of the American Political Science Association, and the much younger Harvard law professor (and later dean) James Landis, who as a New Deal bureaucrat helped transform Progressive theory into a gargantuan governmental reality. Earlier in the political arena came pungent, energetic contributions from Theodore Roosevelt, and Progressivism transformed the messages that came from the elite pulpits and schools, as well. Continue reading

04/23/21

Defounding America

 

May 2021
Features May 2021

Defounding America
On the erosion of American freedoms.
by Myron Magnet

President Franklin Delano Roosevelt signs the Social Security Bill, August 14, 1935. Photo: Library of Congress.

 

To gauge how unbridgeable the gulf is that divides the American Left from the Right, rewind to February 19, 2009, when those who eventually elected Donald Trump first made their voices heard. As Washington jury-rigged fixes for the Great Financial Crisis, the CNBC broadcaster Rick Santelli shouted across the Chicago Mercantile Exchange floor, “How many of you people want to pay for your neighbor’s mortgage that has an extra bathroom and can’t pay their bills?” The Merc traders roared their televised veto across the land.

Their cry was more visceral than a policy disagreement. The traders, self-made men, had worked hard for what they had and scorned having their taxes hiked to save homebuyers with imprudently high mortgages from foreclosure. “This is America!” Santelli urged, and what the new Obama administration was doing was un-American. Didn’t the Founding Fathers establish the federal government to guarantee one’s freedom to better one’s condition, and to protect the property one industriously earns—not to redistribute it?

That’s why Santelli added that he was planning a Chicago Tea Party, an update of Boston’s 1773 event. He and the traders felt the same outrage George Washington had felt about the Stamp Act and the tea tax: it was as lawless as Parliament picking his pocket. To the new-era Tea Partiers, taxation for redistribution, rather than for common purposes, is tyranny, not government by consent.

But, though the traders and Tea Partiers didn’t quite understand it, the federal government long ago had turned from the shield of individual liberty into a vast engine of redistribution. That transformation could occur because the Framers’ Constitution was body-snatched by the doctrine of the “living constitution,” which—as Woodrow Wilson first formulated it—saw the Supreme Court sitting as a permanent Constitutional Convention, making up laws as it went along, heedless of the 1787 scheme’s checks. Franklin Roosevelt’s New Deal used Wilson’s doctrine as a license to remake America’s economy and society. Once the Supreme Court buckled to FDR’s threat to pack it and started voting his way, the justices allowed an utterly foreign governmental structure to devour the Framers’ republic from within, until it broke out of the shell as something altogether different. Continue reading

10/22/20

The Founders’ priceless legacy

 

 

   November 2020
The New Criterion’s Visiting Critic delivers the second annual Circle Lecture.

Editors’ note: The following is an edited version of remarks delivered for The New Criterion’s second annual Circle Lecture on September 30, 2020.

However unfashionable to say so at the moment, the American Founding is one of the noblest achievements of the Western Enlightenment. It created something breathtakingly new in history: a self-governing republic that protects the right of individuals—not serfs, not subjects, but equal citizens before the law—to pursue their own happiness in their own way. Who could have imagined that such a triumph would come under the violent attack that now seeks to deny and besmirch it? Whether it flies the banner of The 1619 Project, Black Lives Matter, or Critical Race Theory, the new anti-Americanism condemns the Founding Fathers’ project as conceived in slavery, not liberty, and dedicated to the proposition that we can never be equal citizens with equal rights.

It is a militant anti-Americanism, too. Like the iconoclasm of the most violent English Puritans, who smashed the faces off the carved saints and angels in one sublime medieval church after another, or of the French sans-culottes, who dug up and desecrated nine centuries of royal bodies from their tombs in the Abbey of Saint-Denis, defacing for good measure the statues of the Old Testament kings on the façade of this first great Gothic building, today’s anti-Americanism seeks to pulverize and obliterate our national past as something too offensive and obscene to have existed.

The current upheaval is the latest paroxysm of a cultural revolution that has gained momentum for half a century or more, and its trajectory from the universities to popular culture is too well known to need repeating. What I want to discuss here is the precious value of our inheritance from the Founding Fathers that today’s vandals want to destroy. If they succeed—since history, even our own, doesn’t always go forward and upward, despite the claims of the so-called “progressives”—we will find ourselves in a new Dark Age of constraint and superstition.

At the heart of the Founding was a thirst for liberty. In announcing our national freedom from imperial domination, the Declaration of Independence began by asserting our right to individual liberty. For the Founders, that liberty was not some vague abstraction. They understood it concretely, as people do who’ve suffered its opposite. They grasped it like those Eastern Europeans who once lived under Communist tyranny, for instance, or like Jews who survived the Holocaust.

Continue reading

10/14/20

Poverty Won

 

 
07/10/20

On Thomas Jefferson


He trusted to the advance of the Enlightenment to end
slavery
JULY 27, 2020, ISSUE

Nobody embodies the paradox at the heart of the American
founding more vividly than Thomas Jefferson, the slave
owner who penned the American creed of liberty in the
Declaration of Independence and who, with a slave as his
concubine, would “dream of freedom in his bondsmaid’s arms,”
as Irish poet Tom Moore jeered during Jefferson’s second
presidential term. As young vandals torch our national heritage,
in an infectious delusion that America was conceived in slavery,
not in liberty, take a good look at our third president, warts and
all. You’ll find, despite his undeniable flaws, one of history’s
great men who helped build history’s greatest nation. He is
especially relevant now, when the qualities he placed at the
center of our culture are at once so beleaguered and so
essential. Continue reading

04/11/20

Keep Coronavirus in Human Perspective

Death tolls don’t capture the scale of the suffering.
By
Myron Magnet
April 10, 2020

I have claustrophobia, a trait I share with George Washington. The former president was so afraid of being buried alive, he insisted on lying in state at Mount Vernon for three days before being entombed. A sailing man, I’ve pictured myself tripping overboard unseen and sinking after a fruitless struggle. I am not at all like Melville’s shipwrecked seamen, resolutely facing the inevitable by swimming down to their watery graves.
Nobody wants to die, but I sure don’t want to die of Wuhan coronavirus. I don’t want to drown as fluid builds up in my lungs. I don’t want the air sacs in my lungs to turn to stone, leaving them unable to inflate and me, therefore, unable to breathe.
Looking only at the numbers, weighing various national death rates against “normal” rates and calculating whether the cost of mitigation is worth the benefit, it’s possible to miss this simple human reality: Covid-19 is a horrible disease. That’s true for those who survive it as well as for those it kills. Continue reading

03/16/20

About Those Self-Evident Truths. . . .

What are we without them?
Winter 2020

America’s unique gift to the world is the idea of a democratic republic, in which citizens live under laws that they themselves have made through their elected representatives. We are not ruled. Our 1787 Constitution, perfected by the Bill of Rights, the Reconstruction Amendments, and the Nineteenth Amendment giving women the vote, details the mechanism for such a republic, but it is inert machinery until animated by a culture of independence, a spirit of liberty, that brings it to life. George Washington, who presided over the Constitutional Convention, made this point repeatedly. No constitution, however wisely designed, he warned—prophetically, it now seems—can protect a people against tyranny or conquest if it weakens itself by unchecked “corruption of morals, profligacy of manners, and listlessness for the preservation of the natural and unalienable rights of mankind.”

Manners, morals, and beliefs: you couldn’t find a more succinct definition of “culture” than this. It is our inherited reservoir of assumptions about what is good and bad, right and wrong, proper and improper—our largely unexamined ideas and habits, absorbed from our families and communities, that we so take for granted that they seem to come to us by instinct or intuition. They spring from the accumulated wisdom and experience of the human race, refined in America by the Western tradition and by our own exceptional history. This inherited cluster of beliefs and feelings, this moral imagination, forms the glue of society, the oil that smooths the friction of the social machinery, the rules of the road for self-government at the individual level, essential to a self-governing nation.

Washington, a quirky and unorthodox believer in a Providence that specially protected him, thought religion indispensable to the culture of liberty, if only for the utilitarian reason that people will do such improper things as tell lies in court if they don’t fear divine retribution. As the Revolutionary War loomed, the English philosopher-statesman Edmund Burke, Washington’s contemporary, stressed the deep historical link between the colonists’ religion and the fact that the “fierce spirit of Liberty is stronger in the English Colonies probably than in any other people of the earth.” Americans are mostly Protestants, he said in Parliament, and, especially in the northern colonies, Protestants from sects that broke away from the established Church of England. “All protestantism,” he noted, warning his fellow legislators not to push America into revolt, “is a sort of dissent. But the religion most prevalent in our Northern Colonies is a refinement on the principle of resistance: it is the dissidence of dissent and the protestantism of the protestant religion.” Its various sects agree in “nothing but in the communion of the spirit of liberty,” a spirit “adverse to all implicit submission of mind and opinion.”

Today, when only half those polled belong to a church or synagogue, nearly half don’t believe in God, a mere 35 percent consider themselves Protestants, and three-quarters think that religion is losing its influence in American life, where do the rest of us get our ideas of right and wrong, good and bad? And what has become of the spirit of liberty? Continue reading

03/5/20

Mr. Sammler’s City


Saul Bellow’s prophetic 1970 novel captured New York’s unraveling and remains a cautionary tale.
Myron Magnet
Spring 2008

Fear was a New Yorker’s constant companion in the 1970s and ’80s. We lived behind doors with triple locks, some like engines of medieval ironmongery. We barred our ground-floor and fire-escape windows with steel grates that made us feel imprisoned. I was thankful for mine, though, when a hatchet turned up on my fire escape, origin unknown. Nearing our building entrances, we held our keys at the ready and looked over our shoulders, as police and street-smart lore advised; our hearts pounded as we tried to shove the heavy doors open and slam them shut before some mugger could push in behind us, standard mugging procedure. Only once was I too slow and lost my money. A neighbor, who worked at a midtown bank, lost his life.
So to read Saul Bellow’s Mr. Sammler’s Planet when it came out in 1970 was like a jolt of electricity. Just when New York had begun to spin out of control—steadily worsening for over two decades until murders numbered over 2,200 a year, one every four hours—Bellow’s novel described the unraveling with brilliant precision and explained unflinchingly why it was happening. His account shocked readers: some thought it racist and reactionary; others feared it was true but too offensive for a decent person to say. In those days, I felt I should cover my copy with a plain brown wrapper on the subway to veil the obscenity of its political incorrectness.
The book was true, prophetically so. And now that we live in New York’s second golden age—the age of reborn neighborhoods in every borough, of safe streets bustling with tourists, of $40 million apartments, of filled-to-overflowing private schools and colleges, of urban glamour; the age when the New York Times runs stories that explain how once upon a time there was THE AGE OF THE MUGGER and that ask, IS NEW YORK LOSING ITS STREET SMARTS?—it’s important to recall that today’s peace and prosperity mustn’t be taken for granted. Hip young residents of the revived Lower East Side or Williamsburg need to know that it’s possible to kill a city, that the streets they walk daily were once no-go zones, that within living memory residents and companies were fleeing Gotham, that newsweeklies heralded the rotting of the Big Apple and movies like Taxi Driver and Midnight Cowboy plausibly depicted New York as a nightmare peopled by freaks. That’s why it’s worth looking back at Mr. Sammler to understand why that decline occurred: we need to make sure it doesn’t happen again. Continue reading

02/7/20

Drain the Swamp of Ugly Architecture

Drain the Swamp of Ugly Architecture
Trump plans a welcome executive order requiring federal buildings to be built in the classical style.
By Myron Magnet
Feb. 6, 2020

“Making Federal Buildings Beautiful Again,” a new executive order planned by the Trump administration, would thrill lifelong amateur architects George Washington and Thomas Jefferson. These Founders—who designed Mount Vernon, Monticello and the Virginia State Capitol—wanted the new nation’s public buildings to embody its ideals of self-governance, rooted in Greek democracy and Roman republicanism. They would surely applaud President Trump’s proposed order to build new federal buildings in the classical style.

Architectural classicism is a living language, not an antiquarian straitjacket. Its grammar of columns and capitals, pediments and proportions allows a wide range of expression. Just look at the original genius with which Michelangelo marshaled that language in his era or Christopher Wren in his. It’s a language that constantly updated itself in America’s federal city, from the handsome 1790s White House to John Russell Pope’s sublime 1940s Jefferson Memorial and National Gallery of Art. In the language of classicism, buildings relate civilly to each other, forming harmonious cities—Venice or pre-World War II London—in which the whole adds up to more than the sum of its parts, however beautiful some may be. A bad classical building may be awkward or uninspired; it is never hideous. And all is based on human proportions and human scale.

Not so for the modernism that the proposed executive order discourages. Though modernism is an odd word for a style that’s now almost a century old, it began with an explicit European rejection of American architecture and a thoroughly 20th-century impulse toward central planning and state control. Modernism brought housing projects so bare and standardized that no worker wanted to live in them.

Even when you look at a supposed masterpiece of that style—Mies van der Rohe’s Seagram Building on Park Avenue in New York, say—you see one identical office piled on top of another, with the same curtains and furniture arrangement, as if every inmate were an interchangeable cog in some vast machine that utterly dwarfs him. It is an architecture that belittles rather than exalts the individual, exactly the opposite sensation of the exhilaration you feel in the Capitol rotunda or Grand Central Terminal. Modernist buildings, the expression of a mechanical, anonymous vision of a social leviathan that individuals are born to serve, might as well be designed by machines. In this computer age, they largely are.

What’s more, they are ugly. The Pritzker Prize in architecture, like the Nobel Peace Prize, almost guarantees the honoree will be the Yasser Arafat of architecture, the very opposite of what the prize claims to honor. Consider Pritzker winner Thom Mayne’s contribution to America’s national patrimony. His Orwellian San Francisco Federal Building resembles a cyclops mated with a prison. The building is so hideously antisocial that, like Boston’s brutalist concrete City Hall, the homeless camp there permanently.

Of course the modernist establishment has already slammed the proposed executive order, which overturns the General Services Administration’s design excellence program, long a full-employment scheme for modernist architects. The debate now, says an arts critic in the Guardian, is between “those who trust architects and professionals to design whatever they think is best, and those who seek to control what they do.”

That’s precisely right. Most Americans don’t like the buildings that architecture’s mandarins have crammed down their throats. Ordinary people choose traditional values over the wisdom of self-proclaimed experts every time. In fact, that is Trumpism’s hallmark.

02/1/20

Clarence Thomas: the Movie

Clarence Thomas: the Movie
Don’t miss this new documentary.
Myron Magnet
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

01/17/20

What City Journal Wrought

What City Journal Wrought

An editor looks back

Autumn 2015

 

The “Lights Out Club” used to meet for monthly lunches in the early 1990s, my late friend Lorian Marlantes, then chief of Rockefeller Center, told me. Why the name? Because Marlantes’s fellow members—the CEOs of Consolidated Edison, a couple of big Gotham banks, and a few other firms whose core business chained them to New York—thought that soon one of them would be the man who’d turn the lights out forever on a city that was dying before their eyes, killing their companies along with it.

In those days, you didn’t need to be Nostradamus to make such a dire prediction. The evidence was everywhere—on the graffiti-scrawled buildings and mailboxes, the potholed streets, the squalor of the panhandlers, the dustbowl that had been Olmsted and Vaux’s sublime Central Park, and the pervasive stench of urine, thanks to the bums who were turning the capital of the twentieth century into a giant pissoir, with the carriage drive of Grand Central Station the urinal of the universe.

In 1983, the Mobil Oil Corporation, to show Mayor Edward Koch why it was contemplating leaving New York, videotaped the sordidness around its 42nd Street headquarters, near Grand Central. The camera caught the rotting trash, the pee-filled potholes, the degradation of the homeless hordes—some crazy and some shiftless—through which Mobil employees had to pick their way into the then-shabby, billboard-plastered station to catch trains home to their orderly suburbs, fragrant with new-mown grass. After shots of corporate headquarters located in similarly bucolic suburbs, the wordless video closed with the written question: “What do we tell our employees?”

Mobil’s answer, in 1987, was to move to Fairfax, Virginia. More than 100 of some 140 Fortune 500 companies headquartered in Gotham in the 1950s asked the same question and reached the same conclusion, pulling out their tax dollars and leading their well-paid workers into greener pastures in those pre–Rudolph Giuliani decades. They were among the million New Yorkers, many of them the elderly rich and the well-educated young, who fled Gotham in the 1970s and 1980s.

The squalor was only one problem. Another was crime. Of course, much of the disorder—the open dope-dealing, the public drinking, the streetwalkers serving every almost-unthinkable taste, the three-card-monte cardsharpers and their pickpocket confederates preying on the crowds they drew, the window-rattling boombox radios—was itself against the law. But these minor crimes deepened as a coastal shelf into burglary, car theft, armed robbery, assault, rape, and murder—one killing every four hours every day of the annus horribilis 1990.

Those New Yorkers who could afford it tried to insulate themselves with doormen and limo services, as in Tom Wolfe’s 1987 bestseller The Bonfire of the Vanities; those who couldn’t, like the protagonist of Saul Bellow’s 1970 Mr. Sammler’s Planet, envied the guarded doors, the trustworthy drivers, the hushed private clubs—islands of civility in a sea of chaos—as they held on to the strap of the lurching, graffiti-fouled bus, watching the pickpocket ply his craft, or walked down their own dark streets, adrenaline rushing at the sound of every footfall.

Just as the crack of a jungle twig cocks every ear, tenses every muscle, and sends birds screaming indignantly into the sky, apprehension was as characteristic a New York feeling as was ambition in those days. If we didn’t quite live in “continuall feare, and danger of violent death,” as in Thomas Hobbes’s state of nature, “where every man is Enemy to every man,” we were sufficiently on edge. And no wonder. One friend, robbed at gunpoint on Broadway of his wallet, which the thief searched for his address, was then marched to his apartment, forced to unlock it, and tied up, while the gunman coolly stuffed everything of value into my friend’s bedsheets and carted it off. For the sheer thrill, a gang of teen girls swarming up from Morningside Park stomped the girlfriend of a fellow graduate student unconscious and blood-drenched in front of the Columbia University president’s mansion one afternoon. A neighbor, pushed into his lobby as he unlocked his building’s unattended front door after a very long day’s work—the typical thief’s M.O. in that era—was not only robbed but also killed. Another friend, raped at knifepoint on a filthy hallway floor in a neighborhood where she had gone for a purpose she never mentioned, had her satisfied assailant ask her for another “date,” a proposal she declined. But in a way, on the street, in the subway, in the parks, we all felt continually violated and continually asked to go through it again. That people were leaving town all around us came as no surprise.

What to do? A Manhattan Institute seminar on Gotham school reform I attended in the late 1980s, as Koch’s 12-year mayoralty drew to a sadly sordid close, caught the temper of the times. Its chairmen were wily national teachers’ union chief Albert Shanker and New York Board of Education president Robert F. Wagner III, a long-valued friend. Maybe we could try X, a panelist suggested. No: union work rules forbade. How about Y? No: the state legislature . . . the budget. . . . And so on for two hours. The profoundly depressing expert consensus: the more you knew about New York, the more you knew that there was nothing nothing nothing we could do to fix a calamitous mess. After all, wasn’t this the “ungovernable city”? Continue reading

01/6/20

‘Hate Crime’ Is Only a Step Away From Thoughtcrime


Punishing people, even criminals, for ideas is inimical to the American tradition of free speech.
By
Myron Magnet
Jan. 1, 2020

Does it make sense that a person can burn an American flag with impunity but not a gay-pride flag? Earlier this month, a judge in Story County, Iowa, sentenced Adolfo Martinez to a preposterous 16 years in prison for swiping the rainbow flag from a nearby church and burning it in front of a strip club.
Mr. Martinez, 30, has a long criminal history, which partly explains the long sentence. He had two felony convictions, and Iowa law deems any three-time felon an “habitual offender,” subject to enhanced sentencing. But a jury convicted Mr. Martinez of three misdemeanors—third-degree arson, for which the maximum penalty is two years in prison, along with third-degree harassment and the reckless use of fire, each subject to a maximum one-year term.
Mr. Martinez complicated his own defense by telling a local TV station that he had torched the flag because he didn’t like gay people and had “burned down their pride, plain and simple.” In response, the judge increased the misdemeanor arson charge to a hate-crime charge—a felony, normally carrying a maximum of five years in prison. So what seemed on its face to be a minor infraction suddenly became Mr. Martinez’s strike three, inflating his five-year maximum to 15, plus an extra year for the reckless use of fire.
The absurdity of the sentence points up the larger absurdity of hate crimes as a class of criminal offense. Burning an American flag, the Supreme Court says, is free speech. The First Amendment allows you to register disapproval of the government in whatever expressive way you choose, though watch out for the arson laws. Calling the cops “pigs” or singing “F— da Police”? Also no problem, legally speaking. Unlike Canada, Europe and American colleges, the U.S. doesn’t have “hate speech” laws.
The idea that free speech means free speech is a jewel of American exceptionalism. It’s odious and moronic to deny the Holocaust, but it isn’t—and shouldn’t be—a crime. The New York Times didn’t clutch its pearls when Hillary Clinton dismissed Donald Trump’s supporters as a “deplorables” who are “irredeemable” and “not America.” Nor did the guardians of correct opinion blanch when Barack Obama disparaged a large number of Americans as troglodytes clinging to their guns and religion. Rep. Ilhan Omar is entirely at liberty to explain away support for Israel as being “all about the Benjamins, baby.” Robert De Niro is similarly free to give the finger to Mr. Trump and his supporters. All this is as American as apple pie, if less appetizing.
Designating an offense as a hate crime criminalizes not the action but the idea that supposedly impelled it. Here we are but a step away from the “thoughtcrime” George Orwell described in “1984.”
Properly, the law should ask only two questions about your state of mind. First, do you have the faculty of reason that allows you to distinguish right from wrong? Second, did you intend to do the crime you committed? Beyond that, as James Madison repeatedly insisted, you have freedom of conscience. You can believe whatever you want, however politically incorrect—especially since today’s political correctness may be deemed tyranny in retrospect. In a far-flung republic composed of various subgroups, multiple viewpoints and interests are bound to proliferate. Under such circumstances, toleration is required.
The New York area has experienced a rash of what Gov. Andrew Cuomo denounces as “hate crimes.” Swastikas have been scrawled in largely Orthodox Jewish neighborhoods. Adolescent thugs have assaulted Hasidim on the streets. In mid-December three customers and a cop were murdered in an attack on a Jersey City, N.J., kosher market. On Saturday, a madman stabbed five people at the home of a rabbi in Monsey, N.Y., north of the city.
I abhor these offenses, but I don’t see what is gained by Mr. Cuomo’s apoplectic imprecations. These outrages don’t presage pogroms, and it seems a fair bet that the perpetrators don’t know what the Holocaust was. Did it matter to the victims whether their assailants attacked them to steal their money, express their hostility, or take advantage of their vulnerability? Surely the solution isn’t relabeling but rather energetic and activist policing of the kind that discouraged violent acts by ill-socialized adolescents and street-dwelling crazies in New York for 20 golden years. Proactive policing also largely rid the streets of graffiti, offensive symbols included.
Let cops vigorously enforce existing laws against assault, harassment, vandalism, arson and the like. If the harassment amounts to an organized campaign of repression rather than random acts of delinquents or lunatics, then it’s time to dust off the Reconstruction Era’s antiterrorism laws. No group, whether Klansmen or members of an antifa mob, should be allowed to threaten or brutalize people.
It’s a sad reflection on the failure of New York’s current political culture, with its recent soft-on-crime legislation and abhorrence of common-sense policing, that ordinary people must think hard about the less appealing alternative of pressing for more teeth in the Supreme Court’s Heller decision, upholding citizens’ Second Amendment right to keep and bear arms for self-defense.

10/1/19

Imprimis


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

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

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

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

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

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

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

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

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

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

09/30/19

Misjudging Clarence Thomas

Misjudging Clarence Thomas
Corey Robin’s assessment of the Supreme Court justice is lost in left field.
Myron Magnet
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

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.