05/24/19

Thomas and Breyer’s ‘Stare’ Contest

Their sharp disagreement about precedent reflects different worldviews that go far beyond abortion.

By

Myron Magnet

May 22, 2019 6:53 p.m. ET

Justice Clarence Thomas in Washington, Feb. 15, 2018. PHOTO: PABLO MARTINEZ MONSIVAIS/ASSOCIATED PRESS

Justice Stephen Breyer lamented last week that the Supreme Court had overturned “a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it.” Dissenting from Justice Clarence Thomas’s majority decision in Franchise Tax Board v. Hyatt, Justice Breyer added: “Today’s decision can only cause one to wonder which cases the Court will overrule next.”

Court watchers assumed the two justices were arguing about abortion, although the case had nothing to do with that issue. But the clash over stare decisis—the doctrine that courts must respect precedent as binding—runs far deeper. It is a manifestation of the crisis of legitimacy that has split Americans into two increasingly hostile camps.

On Justice Thomas’s side is the belief that the government’s authority rests on the written Constitution. This view regards a self-governing republic—designed to protect the individual’s right to pursue his own happiness in his own way, in his family and local community—as the most just and up-to-date form of government ever imagined, even 232 years after the Constitutional Convention.

Justice Breyer, by contrast, assumes America is rightly governed by a “living Constitution,” which evolves by judicial decree to meet modernity’s fast-changing conditions. Judges make up law “with boldness and a touch of audacity,” as Woodrow Wilson put it, rather than merely interpreting a Constitution he thought obsolete.

Wilson also established a corps of supposedly expert, nonpartisan administrators in such agencies as the Interstate Commerce Commission and the Federal Trade Commission, to make rules like a legislature, carry them out like an executive, and adjudicate and punish infractions of them like a judiciary. Wilson and Franklin D. Roosevelt, who supersized this system, considered it the cutting edge of modernity in the protection it afforded workers and the disadvantaged. Call it the Fairness Party, as distinct from Justice Thomas’s Freedom Party.

The Freedom Party does not view the rule by decrees of unelected officials, however enlightened, as an advance over democratic self-government. If the framers had wanted such a system, they could have stuck with the unwritten British constitution, which had governed the American colonists for 150 years and evolves by judicial precedent. They wanted a written constitution, strictly limiting federal authority, because they knew that human nature’s inborn selfishness and aggression not only make government necessary but also lead government officials to abuse their power if not restrained.

U.S. history justifies the framers’ caution, as Justice Thomas has argued in hundreds of opinions since joining the court in 1991. At crucial junctures, the Supreme Court has twisted the Constitution that guarantees liberty toward government oppression.

Start with The Slaughter-House Cases (1873) and U.S. v. Cruikshank(1876), which blew away the protection of the Bill of Rights with which the 14th Amendment’s framers and ratifiers thought they had clothed freed slaves against depredations by state governments. The result was 90 years of Jim Crow tyranny in the South. “I have a personal interest in this,” Justice Thomas once said. “I lived under segregation.” He grew up in 1950s Savannah, Ga., where the law forbade him to drink out of this fountain or walk across that park. If the Fairness Party thinks Supreme Court distortions can twist only to the left, it should think again. Far better to stick to the original meaning, as Justice Thomas urges.

Look what happened when the court allowed Congress and the president to proliferate administrative agencies with no political accountability. The justices have “overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure,” Justice Thomas wrote in a 2015 opinion, the first of a series that argued for reining in the administrative state.

Such lawless power ends in tyranny, as in the case of Joseph Robertson. As these pages recently reported, the Montana rancher dug two ponds fed by a trickle that ran down his mountain acres, only to be prosecuted and imprisoned for polluting “navigable waterways,” as absurdly defined by bureaucrats at the Environmental Protection Agency.

Beginning with the Warren Court in the 1950s, bold and audacious justices began making up law out of the Constitution’s “emanations, formed by penumbras”—literally, gas and shadows. As Justice Thomas has objected, the court invented rights that sharply curtailed the traditional order-keeping authority of police and teachers, making streets, schools, and housing projects in poor neighborhoods dangerous, and depriving mostly minority citizens of the first civil right—to be safe. The justices have even trampled the Bill of Rights, sanctioning campaign-finance laws that curtail the political speech at the core of First Amendment protections.

It’s as if the Court respects no limits. Thus the hallmark of Justice Thomas’s jurisprudence is his willingness to overturn prior decisions when he thinks his predecessors have construed the Constitution incorrectly. The justices readily overturn unconstitutional laws passed by a duly elected Congress. Why be more tender toward judicial errors?

“Stare decisis is not an inexorable command,” Justice Thomas observes in Hyatt. He has said elsewhere: “I think that the Constitution itself, the written document, is the ultimate stare decisis.” Justice Breyer asks which cases the court will overrule next. Justice Thomas’s reasonable answer: Whichever ones go against the Constitution.

Mr. Magnet is editor-at-large of the Manhattan Institute’s City Journal, a National Humanities Medal laureate and author of “Clarence Thomas and the Lost Constitution.”

 

 

11/28/13

Giving Thanks in the Land of the Free

Wall Street JournalOPINION

Americans have long treasured their right to worship as they choose.

By
MYRON MAGNET
Wall Street Journal, Nov. 26, 2013 7:18 p.m. ET

In the fall of 1621, some 50 of the Puritans who had left the Old World in search of religious freedom sat down in their tiny thatched hamlet of Plymouth with their Wampanoag neighbors to feast on turkey, venison, corn and cod. They also gave thanks for surviving their first terrible New England winter, whose cold and privation had carried off half their community.

Continual waves of pilgrims fleeing religious persecution would follow them across the sea. Their sense of providential escape from foreign oppression stayed vividly alive in the American memory, and ultimately helped guide the Founding Fathers to make a revolution and fashion a new kind of government.

WSJ illustrationGetty Images

Hard as it is to believe at this distance of time, British law once jailed non-Anglican Protestants like the Pilgrims for worshiping as they chose. The law also barred them from the universities and public office. Thousands of Congregationalists, Baptists, Quakers and others left their native land, bringing to the New World their Dissenting tradition of self-government, individualism and personal responsibility. They had long run their own congregations, hired and fired their own ministers, read the Bible and freely judged its meaning for themselves. They believed that each individual has a direct relation to God independent of, and higher than, any worldly authority.

As late as the 1750s, Constitution-signer William Livingston was still reminding readers of his influential magazine, The Independent Reflector, how “the countless Sufferings of your pious Predecessors for Liberty of Conscience, and the Right of private Judgment” drove them “to this country, then a dreary Waste and barren Desert.”

Decades later, Chief Justice John Jay wrote a gripping account of how his grandfather, a French Protestant, had returned home from a trading voyage abroad in 1685 to find his family and neighbors gone, their church destroyed. While he had been away, Louis XIV of France revoked the Edict of Nantes, which had extended religious toleration and civil rights to Protestants for almost a century. Jay’s grandfather was lucky to be able to sneak aboard one of his ships and, like many others, sail away to freedom in the New World.

With this long history, Americans have had an almost physical thirst for liberty, as people do who truly know its opposite, like Eastern Europeans who once lived under communist tyranny. Long before Emma Lazarus wrote her Statue of Liberty verses about the huddled masses yearning to breathe free, George Washington noted that for “the poor, the needy, & the oppressed of the Earth,” America was already “the second Land of promise”—the Promised Land. It offered, said James Madison, “an Asylum to the persecuted and oppressed of every Nation and Religion.”

That thirst for liberty led the Founders to revolt when they thought that George III was squeezing upon them the tyranny that had crushed their forebears. It also led them to hedge their new government with every safeguard to keep them free.

To protect life, liberty and property from what they called the depravity of human nature—from man’s innate capacity for inhumanity to others—the Founders knew they needed some kind of government armed with power. But since the officials who wield such power have the same fallen human nature as everyone else, who can be sure that they won’t use it to oppress others? Who can guarantee that imperfect men wouldn’t turn even the democratic republic the Founders were creating into what Continental Congressman Richard Henry Lee called an elective despotism?

The Constitution they wrote in the summer of 1787 explicitly limited government’s powers to what they deemed absolutely essential. They divided and subdivided power, and they made each branch of government a watchdog over the others. But they also recognized that constitutions are only what they called “parchment barriers,” easily breached if demagogues subvert the “spirit and letter” of the document.

In the first State of the Union address, George Washington stressed that the ultimate safeguard against such a danger is a special kind of culture, one that nurtures self-reliance and a love of liberty. “The security of a free Constitution,” he said, depends on “teaching the people themselves to know and to value their own rights; to discern and provide against invasions of them.”

If citizens start to take liberty for granted, he said, the spirit that gives life to the Constitution will flicker out, for “no mound of parchm[en]t can be so formed as to stand against the sweeping torrent of boundless ambition on the one side, aided by the sapping current of corrupted morals on the other.”

It’s that culture of liberty we nourish by recalling that our forebears came to these shores in search of freedom—and by giving thanks that they found it.

Mr. Magnet is editor-at-large of the Manhattan Institute’s City Journal. His new book is “The Founders at Home: The Building of America, 1735-1817” (Norton).

http://online.wsj.com/news/articles/SB10001424052702304655104579165800736157752?mod=WSJ_Opinion_LEFTTopOpinion

09/15/11
Wall Street Journal

Hamilton’s Shining House on a Hill

IT WAS BREATHTAKING to watch a team of practiced craftsmen coolly jack up Alexander Hamilton’s yellow villa in Harlem in June 2008, lift it over the neighboring church, and wheel it around the corner to a new site commanding an oak-clad hillside in St. Nicholas Park on West 141st Street, still on Hamilton’s original 35 acres. It was more breathtaking still to preview last week the National Park Service’s impeccable restoration, which opens to the public Saturday. Continue reading