Excerpts from speech given by Myron Magnet at Hillsdale College 09/17/2019.
“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……
It takes a certain kind of character to be capable of liberty, and Clarence Thomas embodies that character……
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 cinder block house with porcelain plumbing, a full fridge, and a no-excuses child rearing 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 (official), 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.” To read the full article go to the following:
https://imprimis.hillsdale.edu/clarence-thomas-lost-constitution/
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.
