Clarence Thomas and the Lost Constitution
By Myron Magnet
Encounter Books 2019-05
$13.63 on Amazon.com 168 pages, hardcover; $12.95 eBook
Reviewed by Gila Hayes
United States Supreme Court Associate Justice Clarence Thomas’s opinions on the gun free school zone fight in United States v. Lopez, and whether the Second Amendment applies to laws passed by local and state governments in McDonald v. Chicago, endear him to the hearts of armed citizens, but the broader philosophical basis of his opinions explains why he is such a valuable member of the supreme court. Justice Thomas has a fine autobiography in print, but last month, I chose instead to read Clarence Thomas and the Lost Constitution for its insights into Thomas, whom author Magnet deems, “one heroically self-reliant man” and his thought processes as seen through the lens of the many supreme court cases he has influenced.
Magnet explains the founding fathers’ vision for the United States Supreme Court, writing about their fear of an all-powerful central government and the “delicate balance” of a government strong enough to, in the words of James Madison, “make people do their duty.” The founding fathers, he later explained, were determined to prevent the tyranny that comes from “concentration of the several powers in the same department,” so gave specific and limited powers to the executive, the legislative and the judicial branches of the new government. While the three branches of government still exist, he fears they are being destroyed by “a vast administrative state” in which “unelected, purportedly expert, bureaucrats make binding rules like a legislature, carry them out like an executive, and interpret and enforce them like a judiciary, all without a hint of separation of powers or checks and balances.”
Against this rather bleak setting, Magnet introduces Clarence Thomas who has written that, “The reason I became a lawyer was to make sure that individuals who did not have access to this society, gained access.” His story starts in the segregated South in the 1950s, where his self-made grandfather raised Clarence Thomas and his brother like they were his own sons. Reaching adulthood during the civil unrest of the late 1960s and early 70s, Thomas realized he could live in resentment and anger, but having seen radicalism from the inside, abandoned it.
Thomas led Reagan’s federal civil rights division for the education department, and later headed the Equal Employment Opportunity Commission in spite of his dislike for affirmative action. His focus was on protecting the individual, not classes or races of people. Actions in favor of one group inevitably harm another as he observed, “group favoritism violates the constitution, ‘which says you are to protect an individual’s rights no matter what.’”
Upon joining the USSC in late 1991, Thomas ran up against constitutional interpretations that were “a far cry” from the US Constitution and the Bill of Rights. Magnet expounds on the history of the court’s departure from strict constitutionalism, detailing the failures of post-civil war reconstruction and the court’s 1873 Slaughter-House cases, Cruikshank three years later, and in 1896 Plessy v. Ferguson, all setting monstrous precedents.
Clarence Thomas and the Lost Constitution is not exclusively about race and supreme court decisions, although a number of Thomas’s most important opinions address affirmative action. He also decries the all-powerful bureaucracy of unelected agency heads. Magnet asserts that the supreme court has forwarded the work of Woodrow Wilson who urged, “The period of constitution-making is passed now. We have reached a new territory in which we need new guides, the vast territory of administration.” Franklin D. Roosevelt carried the idea of powerful administrative agencies to fruition.
Later in the book, Magnet quotes, “The New Deal, Thomas argues, marked an inflection point in government’s subversion of personal responsibility. FDR’s promise of freedom from want, in particular, redefined freedom from ‘a right to self-provision and self-determination’ to ‘a right to make demands on government and society for one’s well-being and happiness,’ for housing, a minimum income, and other such benefits.”
Congress also bears responsibility Magnet continues, explaining that, “The constitution lodges all legislative power in congress, which therefore cannot delegate its lawmaking function elsewhere” to say nothing of empowering those independent agencies with legally-binding rule making, and agency-level tribunals with administrative judges acting like “real judges” (also in violation of the constitution) enforcing agency policy and overseen by the agency head. “Worst of all, the regulatory agencies may presume anyone they charge to be guilty unless he proves his innocence, and he has but limited standing and scope to appeal the agency’s decision to a real court,” Magnet writes, adding later, “Part of America’s current predicament” is a “permanent, unelected” government that is “unanswerable to the people.”
Magnet outlines supreme court decisions that, in the name of desegregation, also greatly exceeded the power assigned the court by the constitution. “Busing, affirmative action, and abortion are but the three most glaring areas in which the justices have made law from the bench, with no constitutional license to do so,” he writes. Compounding the errors, courts are loath to return decisions that disagree with those of earlier courts. According to Thomas, however, the justices “are obligated to think things through constantly, to re-examine ourselves, to go back over turf we’ve already plowed, to torment yourself to make sure you’re right.”
Magnet cites Thomas’s work on McDonald v. Chicago, as “a textbook demonstration of his method of judging. Here, with his characteristic skepticism toward stare decisis, he utterly repudiates the US Supreme Court’s most tragically wrong and history-changing decisions of them all, the Slaughter-House Cases and United States v. Cruikshank.”
“The right to keep arms is fundamental to our nation’s particular scheme of ordered liberty and system of justice, the court ruled, and therefore, through the venerable doctrine of ‘substantive due process,’ which holds that the fourteenth amendment’s due process clause goes beyond procedural safeguards and makes some rights so basic that no state can withdraw them, both the second and fourteenth amendments prohibit Chicago from banning residents from keeping handguns in their homes.” While Thomas in his concurrence was strongly supportive of the McDonald victory, Magnet explains that his opinion was that the court should instead “straightforwardly to apply the fourteenth amendment’s privileges or immunities clause as its framers meant it to be understood.”
Thomas is particularly critical of the “rights revolution,” through which authority figures ranging from teachers to police officers are not allowed to prevent disruptive or destructive behavior. This is the worst of judge-made law, Thomas exclaims. It subverts law enforcement, by expanding “reasonable” expectations of privacy, rights to free expression, and sends a message to lawbreakers as well as model citizens that there is no benefit to complying with the rules. Local communities are denied self-government through sweeping decisions restricting policing, schools and civil organizations by activist courts.
Thomas is unusual as “a certain kind of character to be capable of, and to cherish, the liberty that the constitution protects,” Magnet writes. Despite venomous opposition by civil rights leaders, Thomas insisted on “my right to think for myself, to refuse to have my ideas assigned to me as though I was an intellectual slave because I’m black...I will not be consigned the unquestioned opinions of others,” Magnet quotes, adding that he finds in Thomas’s words an echo of founding father James Madison, quoted as crying out against “making laws for the human mind.”
Thomas’s belief that with freedom comes responsibility for “the use he makes of his liberty and the consequences of his pursuit of happiness,” always present in his concurrences and dissents explains why many in the civil rights movement hate him. While Thomas has publicly acknowledged his identify as “a man, a black man, an American,” Magnet identifies him as “the independent citizen who thinks for himself, does for himself, relies on himself, and, not incidentally, fights for the right of others to enjoy the same liberties.”
Clarence Thomas and the Lost Constitution is not a long book and is written for the lay readers. Nonetheless, I found it demanding reading that challenged me to pay close attention. Magnet puts a lot of effort into explaining the background of USSC cases and underlying issues and sometimes, reading a few pages now and a few pages later as time allowed, I had difficulty separating Magnet’s background detail from Thomas’s words from speeches, interviews, concurrences or dissents.
I learned a lot from the history of fights in our US Supreme Court over free speech, property rights, abortion and state rights, and especially appreciated quotes detailed with summations from Thomas’s own writings. I have been guilty, I think, of celebrating favorable court decisions won through any reasoning. I now have a new appreciation for Justice Thomas’s insistence on doing right in the right way.
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