Clarence
Thomas and the Lost Constitution, by Myron Magnet, 9/17/19, Hillsdale.
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.
To contemporary
lawyers and law professors, this idea of annulling so-called settled law is
shockingly radical. It explains why most of Thomas’s opinions are either
dissents from the Court’s ruling or concurrences in the Court’s ruling but not
its reasoning, often because Thomas rejects the precedent on which the majority
relies.
Content with frequently being a minority of one, he points to Justice
John Marshall Harlan’s lone dissent in the 1896 Plessy v. Ferguson case
as his model. The majority held in Plessy that separate but
equal facilities for blacks in public accommodation were constitutional. Harlan
countered: “Our Constitution is color-blind and neither knows nor tolerates
classes among citizens. . . . The law regards man as man.” “Do we quote from the
majority or the dissent?” Thomas asks. Like Harlan, he is drawing a map for
future justices, and he will let history judge his achievement.
Thomas’s opinion in
the 2010 McDonald v. Chicago case takes us back to the first
of three acts in the drama of constitutional subversion. In that opinion,
Thomas agrees with the majority that Chicago’s ban on owning handguns violates
the Fourteenth Amendment, but disagrees on why. The Fourteenth Amendment deems
everybody born or naturalized in this country, and subject to its jurisdiction,
to be a citizen of the United States and of the state where he lives, and
declares that no state may “abridge the privileges or immunities of citizens of
the United States.” What the drafters meant by that language was that former
slaves were full American citizens, and that no state could interfere with
their federally-protected rights—including, said one senator in framing the
amendment, “the personal rights guaranteed and secured by the first eight
amendments of the Constitution.” The rights guaranteed by the Bill of Rights,
observed a typical commentator of the time, “which had been construed to apply
only to the national government, are thus imposed upon the States.” And the
feds, the amendment’s chief draftsman declared, have the power to enforce them.
Perfectly clear,
right? Well, no—not once the Supreme Court got hold of it. As Thomas recounts
in McDonald, the Court’s first pronouncement on the Fourteenth
Amendment came in its 1873 Slaughter-House Cases ruling, which
drew a distinction between the privileges and immunities conferred by state
citizenship and those conferred by national citizenship. The latter, the Court
held, include only such things as the right to travel on interstate waterways
and not to be subject to bills of attainder. All the rights having to do with
life, liberty, and property attach only to state citizenship, not national, so
they aren’t protected by the Fourteenth Amendment. One of the
four dissenting justices correctly noted that the majority opinion “turns . . .
what was meant for bread into a stone.”
The day before the
Court handed down its bizarre Slaughter-House decision, the
worst atrocity of the terrorist campaign in the South to nullify Reconstruction
had occurred. Black Louisianans, aiming to safeguard Republican victories in
contentious recent elections, occupied the courthouse in the county-seat hamlet
of Colfax. Mounted White Liners—an anti-black militia like the KKK—massed in the
surrounding woods, prompting more frightened blacks to crowd into the
courthouse. On Easter Sunday, the White Liners set the courthouse ablaze and
shot those who ran out the door or jumped out of the windows. That evening,
they shot the captive survivors.
No Louisiana district
attorney was going to charge the murderers, so a federal prosecutor convicted
three of them of violating a congressional enforcement act that made it a crime
to conspire to deprive someone of the privileges or immunities of U.S. citizenship.
But in its 1876 Cruikshank decision, the Supreme Court
overturned the convictions. The rights enumerated in the Bill of Rights aren’t
the privileges or immunities conferred by U.S. citizenship, the Court held,
citing Slaughter-House as precedent. They come from the
Creator, and the first eight amendments merely forbid Congress from
abridging them. Moreover, the murderers were individuals, and the Fourteenth
Amendment refers only to states. That was the end of the Fourteenth Amendment’s
Privileges or Immunities Clause.
In time, the Court
rigged a workaround. The Fourteenth Amendment forbids states from taking away a
citizen’s life, liberty, or property without “due process of law”—which really
means, the Supreme Court asserted out of the blue during the New Deal, that
some liberties are so basic that no state can invade them, a doctrine dubbed
“substantive due process.” Thomas calls this smoke and mirrors in his McDonald opinion.
Even worse, the “substantive due process” doctrine allows judges to conjure up
imaginary rights out of thin air, making law instead of
interpreting the Constitution. Why, Thomas asks, is the Court treating Slaughter-House and Cruikshank as
sacrosanct? It doesn’t hesitate to overturn laws passed by Congress and signed
by the president when it thinks the Constitution doesn’t allow them. Why should
it treat the errors of previous Courts with any more respect? Yes, the Chicago
handgun ban is unconstitutional, Thomas writes. But that’s because it abridges
citizens’ Second Amendment right to keep and bear arms as guaranteed by the
Privileges or Immunities Clause of the Fourteenth Amendment. Why not junk the
mumbo-jumbo of “substantive due process,” on which the majority of his
colleagues are relying in this case, and return to the original text?
Act Two of the great
constitutional subversion stars Franklin Roosevelt, who wrongly diagnosed the
cause of the Great Depression as a crisis of overproduction and thus wanted to
seize control of the whole U.S. economy to regulate output. For years the Court
resisted this power-grab, but it buckled under Roosevelt’s threat to enlarge
its membership and pack it with judges who would go along. The “Court’s
dramatic departure in the 1930s from a century and a half of precedent,” Thomas
says, was a fatal “wrong turn” that marks the start of illegitimate judicial
constitution-making.
In his 2005 dissent
in Gonzales v. Raich, Thomas cites the New Deal Court’s zaniest
decision: Wickard v. Filburn, a 1942 ruling in which the Court
abjectly capitulated to the federal government’s takeover of the economy under
the pretext of the Constitution’s commerce power. Wickard held
that Congress’s authority to regulate interstate commerce could even forbid a
farmer from growing grain only to feed to his own livestock. In his Gonzales dissent,
Thomas hints that the Court should overturn the whole tangle of Commerce Clause
cases related to Wickard.
The majority ruling
in Gonzales held that federal agents had the authority, under
the interstate commerce power—and despite California’s legalization of medical
marijuana—to punish two ill Californians who grew and used pot to control their
pain. Interstate commerce? Hardly, Thomas demurs. Like farmer Filburn’s grain,
the pot was never bought or sold, never crossed state lines, and did not affect
any national market. “Not only does this case not concern commerce,” Thomas
writes, “it doesn’t even concern economic activity.” Next thing you know, the
feds will be raiding potluck suppers.
Thomas understands
that the New Deal gave rise to an even more powerful device for constitutional
demolition than the engorged commerce power—a whole set of administrative
agencies like the NLRB and the SEC. The Supreme Court, Thomas grumbled in the
first of a series of 2015 administrative state opinions, has “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.”
For starters, the
Constitution vests all legislative powers in Congress, which means that they
cannot be delegated elsewhere. As the Framers’ tutelary philosopher John Locke
wrote, the legislature can make laws but it cannot make legislators—which is
what Congress does when it invests bureaucrats with the power to make rules
that bind citizens. Nor can the courts delegate judicial power to bureaucrats,
as the Supreme Court began doing in a World War II case when it ruled that courts
must defer to agencies’ interpretations of their own regulations. The Court’s
rationale was that agencies have technical expertise that judges lack. That’s
not the relevant issue, Thomas contends: “The proper question faced by courts
in interpreting a regulation is not what the best policy choice might be, but
what the regulation means.” And who better to interpret the meaning of words,
Thomas asks in Perez v. Mortgage Bankers Association, than a judge?
Worsening this
problem, Thomas argues in Michigan v. EPA, is the deference
doctrine that the Court hatched in Chevron v. Natural Resources Defense
Council in 1984. This doctrine requires courts to assume that Congress
intended that any ambiguity it left in a statute under which an agency operates
should be resolved by the agency, not by the courts. Consequently, Thomas
exasperatedly observes, not only do we have bureaucrats making rules like a
legislature and interpreting them like a judge, but also the interpretations
amount to a further lawmaking power, with no checks or balances whatever.
A not untypical result
of all this administrative might, to cite an example recently in the news, was
an EPA ruling that a Montana rancher polluted the navigable waterways of the
United States by digging two ponds to be filled by a tiny trickle on his land,
40 miles from anything resembling a navigable waterway. For providing
reservoirs to fight potential forest fires, the rancher was fined $130,000 and
sentenced to 18 months in prison. (The rancher served his time in prison but
continued his legal fight until he died at age 80. A month after his death, the
Supreme Court vacated the ruling against him. The Trump administration recently
revoked the regulation under which he was convicted.)
In a virtuoso dissent
last year in Carpenter v. U.S., Thomas takes on the third and last
act of the Court’s attack on the Framers’ Constitution—the license with which
the Court presumes to make up law out of whole cloth, with no prompting from
either Congress or the president. The best recognized example of this is the
1973 Roe v. Wade abortion decision. Carpenter is
less incendiary, but it is deliciously instructive.
A career armed robber,
Carpenter claimed that police use of cell phone location data in convicting him
violated his Fourth Amendment protection against unreasonable search and
seizure. The Framers, of course, had no cell phones. But, Thomas notes, Chief
Justice William Howard Taft had shown as early as 1928 how to adapt to new
circumstances, in a case concerning a telephone wiretap. The phone lines were
outside the convicted bootleggers’ premises, and conversations aren’t papers,
so federal agents had not invaded their Fourth Amendment-protected “persons,
houses, papers, [or] effects.” Thus, Taft held, no Fourth Amendment-banned
search had occurred.
But in a 1967
wiretapping case, the Supreme Court decreed that what the Fourth Amendment
really protects is a person’s “reasonable expectation of privacy.” With this
“reasonable expectation,” on which the Carpenter majority rests,
Thomas has a field day. Dictionaries from 1770 to 1828 define a “search” as a
looking into suspected places, he notes; transferring Fourth Amendment
protection from places to people reads that word out of the text. And “their .
. . papers,” he points out, can’t mean someone else’s records,
so what does the Fourth Amendment have to do with a subpoena for the phone
company’s files? And finally, Thomas asks, who’s to decide what a “reasonable”
expectation is? That is a policy determination, not a judicial one—so shouldn’t
Congress decide? Nevertheless, Chief Justice Roberts cast the deciding vote to
uphold this nonsense, in line with half a century of Court-created rights that
subverted the authority of the police to fight crime and of teachers and principals
to discipline disruptive students.
In conclusion, let me
shift my focus from constitutional law to ethics. It takes a certain kind of
character to be capable of liberty, and Clarence Thomas embodies that
character. Indeed, his character is bound up with his jurisprudence in an
exemplary way.
Born in a shanty in a
swampy Georgia hamlet founded by freed slaves, Thomas enjoyed a few Huck
Finn-like years, until his divorced mother moved him and his younger brother to
a Savannah slum tenement. On her meager maid’s wages, her children knew “hunger
without the prospect of eating and cold without the prospect of warmth,” the
Justice recalls. After a year of this, Thomas’s mother sent her two little boys
a few blocks away, to live with her father and step-mother, a magical, Oliver
Twist-like transformation.
Thomas’s grandfather,
Myers Anderson, the self-made if semi-literate proprietor of a modest fuel oil
business, lived in a sparkling clean cinderblock house with porcelain plumbing,
a full fridge, and a no-excuses childrearing code that bred self-discipline and
self-reliance. A convert to Catholicism, Anderson sent his grandsons to a
strict parochial school—segregated like everything else in mid-century
Savannah, but teaching that all men are created equal—and he put them to work
delivering oil after school and on weekends. Summer vacation was no holiday for
the boys: with their grandfather, they built a house on 60 rural acres.
Thereafter they tilled the fields every summer, harvested the crops, and butchered
livestock for winter food. Anderson urged them on with his rich stock of moral
maxims, including, “Where there’s a will, there’s a way.” There wasn’t a spare
minute in the year for the boys to fall into street culture, which Anderson
feared.
These lessons in
self-reliance formed the bedrock of Thomas’s worldview. He temporarily flouted
them, he recounts, during his student black-radical phase, when he and his
college comrades spouted off about how they were “oppressed and victimized” by
“a culture irretrievably tainted by racism.” Visits home became “quite
strained,” he recalls. “My grandfather was no victim, and he didn’t send me to
school to become one.”
By Thomas’s senior
year, he had snapped out of it. His old self-reliance expanded from a personal creed
to a political one, as he reflected upon how much his college stance of
victimhood had threatened to diminish and impede him, especially compared to
his grandfather’s heroic independence. He also pondered deeply the harms that
affirmative action—purportedly America’s atonement for its historic sins—had
done to his black classmates at Holy Cross and Yale Law. Thomas saw that it led
to failure and grievance by placing smart but ill-prepared kids in
out-of-their-league institutions and branding successes like him with the
imputation of inferiority. His nine years as a federal civil rights panjandrum,
running the civil rights division of President Reagan’s Department of Education
and then the Equal Employment Opportunity Commission, confirmed his impression
that “there is no governmental solution” to black America’s problems—a
conclusion underlying the anti-affirmative action opinions he has written on
the Court. In this equal opportunity nation, black citizens must forge their
own fate, like all other Americans. Where there’s a will, there’s a way.
Regardless of race,
everybody faces adversity and must choose whether to buckle down and surmount
it, shaping his own fate, or to blame the outcome on powerful forces that make
him ineluctably a victim—forces that only a mighty government can master. The
Framers’ Constitution presupposes citizens of the first kind. Without them, and
a culture that nurtures them, no free nation can long endure.
Myron
Magnet is editor-at-large of City Journal, where he
served as editor from 1994 to 2007. He earned an M.A. from Cambridge University
and a Ph.D. from Columbia University, where he also taught for several years. A
2008 recipient of the National Humanities Medal, he has written for numerous
publications, including Commentary, The Wall Street Journal,
and The New York Times.
He is the author of several books, including The Founders at Home: The Building of America, 1735-1817 and,
most recently, Clarence
Thomas and the Lost Constitution.
Norb
Leahy, Dunwoody GA Tea Party Leader
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