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Clarence Thomas and the Lost Constitution

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Clarence Thomas and the Lost Constitution

10 Blocks podcast May 8, 2019
Politics and law

Myron Magnet joins Brian Anderson to discuss his new book, Clarence Thomas and the Lost Constitution.

Magnet contends that Justice Thomas’s originalist jurisprudence offers a path forward for recovering our nation’s “lost Constitution” and restoring America as a free, self-governing nation made up of self-reliant citizens.

Author of The Founders at Home: The Building of America, 1735-1817 and other books, Magnet was City Journal’s editor from 1994 through 2006 and is now editor-at-large.

Audio Transcript

Brian Anderson: Welcome back to the 10 Blocks podcasts. This is Brian Anderson, the editor of City Journal. Joining me on the show today is Myron Magnet, my predecessor as editor of City Journal, which he ran from 1994 through 2006. Myron is the magazine's editor-at-large and a frequent contributor. He's here today though to talk about his sparkling new book, Clarence Thomas and the Lost Constitution, and we're excited to bring our listeners a conversation about the life and legacy of Justice Thomas. We'll take a quick break and we'll be back with Myron Magnet.

Brian Anderson: Hello again everyone. This is Brian Anderson, the editor of City Journal. Joining us in the studio is Myron Magnet. Myron's the magazine's editor-at-large these days is former editor and he's written a number of important books over the years, Dickens and the Social Order, in 1985. The Dream and the Nightmare: The 60's Legacy to the Underclass, in 1993. And in 2013, The Founders at Home. He's also the recipient of a National Humanities Medal awarded in 2008, but we're here today to talk about his new book: Clarence Thomas and the Lost Constitution. It's published by Encounter Books and you can find a link on our website or buy it on Amazon. Myron, thanks very much for joining us.

Myron Magnet: Such a pleasure to see you as always, Brian.

Brian Anderson: So let's start with the second part of the title of your book, "The Lost Constitution." What do you mean by the lost constitution and how was it lost? You describe in your opening chapter three waves, or stages, in the process going back to the 1870s.

Myron Magnet: Yeah, but let's remember that the Framers' constitution of 1787, let's remember what that was. The Framers thought of a very limited government that because they were afraid that their government could turn into an elective despotism. So they wanted to make sure that the people who ran the government, who had the same human nature as everybody else didn't turn from the servants of the people into their masters. So limits, limits, limits. They wanted to leave people free to do what Jefferson said, to pursue their own happiness in their own way in their families and communities. What has happened is that now it's become an unlimited constitution. And we have the living constitution as defined by first Woodrow Wilson in which the Supreme Court sits as a kind of permanent constitutional convention making up the law as it goes along in a kind of Darwinian fashion, said Woodrow Wilson, and we have the administrative state supersized by Franklin Roosevelt. So the anger with which Americans view each other across party lines today is based in very large measure on this dichotomy. Half of us believe in the Freedom Party, the original constitution, half of us believe in the fairness party, the living constitution. How did we get from one to the other? You properly ask. Three stages. One, the first overriding defect in the framers 1787 constitution was slavery. We fought a civil war over it and then the nation tried to make it right for our new black citizens through the 13th 14th and 15th amendments making blacks full citizens and clothing them in all the privileges and immunities all the rights of American citizens. Well, the whole country was waiting to say how the Supreme Court was going to construe this and in it's in two opinions in the 1870s, the Supreme Court said notice that the privileges and immunities of national citizenship are different from those of state citizenship. And national citizenship gives you the right of such things as freedom to sail the high seas and interstate waterways. State citizenship is everything having to do with the rights of life, liberty, and property. And so that was kind of the end of the privileges and immunities clause of the 14th Amendment and it allowed southerners to put blacks into serfdom and make a mockery of the death of 400,000 union soldiers, essentially. That's the first step. The second step was Franklin Roosevelt who decided that what he was going to do was set up an administrative state. He was going to set up a whole bunch of agencies that were going to be run by experts who were supposedly going to be nonpartisan. And the congress would make some broad general command such as markets are going to be fair and we'll have a securities and exchange commission who will set the rules for doing this. And even Franklin Roosevelt knew that, wait a minute, we've got these agencies that are making laws like a legislature carrying them out like an executive and adjudicating and punishing infractions like a judge. There is no separation of powers here. He said, this is not constitutional, but you know, it's okay. We'll live with it...

Brian Anderson: This is really the idea of rule by experts, which Woodrow Wilson had had embraced as well, and his view of the constitution, right?

Myron Magnet: This is really what progressivism was, is rule by experts. They really believed in a kind of Hegelian, benign despotism. They did not believe in democracy.

Brian Anderson: So those are the first two. What's the third stage of this movement away?

 Myron Magnet: The third is the Warren Court…

Brian Anderson: In the sixties and seventies....

Myron Magnet: In the sixties and seventies. And then everything that happened after it, because once Earl Warren oversaw Brown v Board of education in 1954 which meant with such huge acclaim, the judges thought, wow, we're like the saviors of the republic. Everybody is waiting for us to cut these thorny issues like the Gordian knot and we can do it. And off they went. But the fact of the matter is there is no basis either in something that the congress has said or the president has said that gave the courts any right to make up law out of thin air. But that's what's been going on since 1964. 1954, I beg your pardon.

Brian Anderson: Clarence Thomas, who's been on the court since his very controversial and fraught confirmation in 1991, has established an enormous body of judicial opinions since then that seek to push the court in the country back in a direction respectful of the "lost constitution" or the constitution as understood by the framers. This is his originalist approach to judging as it's called. I'd like to talk a bit about a few of the key areas where he has exposed the kind of hubristic jurisprudence you've just described, the jurisprudence of the "living constitution." So let's start with one of the areas in which he's written opinions, the Commerce Clause, and how to interpret it. How is Thomas viewed the use of that clause to allow what has been an enormous expansion of federal power?

Myron Magnet: Well, let's take one particular case, Gonzalez v Raich. You know, the most zany opinion that the new deal court passed was Wickard and Filburn. FDR wanted to get control of the whole economy. He had all these agricultural limits. Farmer Filburn grew grain to feed to his own animals, and the agricultural commission said, you can't do that. We're going to fine you. Um, because no, you're not growing it to sell it. No, it doesn't cross state lines. No, it's not involved in Congress, but it affects commerce because you would otherwise have to buy your grain. Well, Thomas in Gonzalez says, here's an analogous case just like Wickard v Filburn. We've got these two invalids in California who believed themselves protected by California's medical marijuana law. So they're growing marijuana to control their own pain for their own use. And Thomas says, this is not bought or sold. It does not cross state lines. It is not only not commerce, it's not even economic activity. And if you start down this line, you're going to be regulating potluck suppers next. So I would, it goes, anything could be construed as affecting the economy if that's how you're thinking about something so narrow. I mean the funniest case actually was the first one in which the idea was does carrying a gun in a school zone, substantially affect interstate commerce in that it makes it hard for students to learn. So therefore there'll be less productive. So in effect, with these loose interpretations of the commerce clause that there is no limit on federal power. No. And that's the thing that Madison was so worried about in framing the constitution that a, we should not turn a limited government into an unlimited government because that is tyranny. So Thomas has pushed back a little bit in some of his decisions on this, although those have been minority decisions, right? Almost all of them. Almost all of them. Yes. Either dissents or concurrences in his colleagues judgement but not their reasons usually because he rejects their precedents that they're relying on. Another, um, area where Thomas has made a signal contribution is warning about the growth of the administrative agencies, which you, you discussed earlier, which are unaccountable to the public in his view their massive and expanding power has rested on unconstitutional foundations. Why does he think that? And has his conception made any headway on the court? So Thomas views of the administrative state as flagrantly unconstitutional for a number of reasons. One is that the constitution delegates all legislative power to the congress, all judicial power to the courts and so on. And it is un-delagatable as Locke had said, you can, legislators can make laws, they can't make legislators. But that's what administrative agencies do. When Congress sets up an EPA and says make clean water. And an EPA administrator makes rules that bind citizens. These are laws. If the EPA then says you are you, this business are infringing our regulations and we're going to find you. Well they are, I mean they have such a thing called an administrative law judge who examines this case, but he's not accountable to the law of the constitution. He's accountable to the administrative agency. And so what we're doing here is mixing up legislative power and judicial power and of course executive power because it's the agencies that are doing the running of all of this. And this rides roughshod over the separation of powers that the framers thought as one of our principal protections against tyranny. And as Thomas says, it has no comfortable home in our constitutional structure. So it's both the non-delegation part and the absolute abolition of the checks and balances implied in the separation of powers that offends him so bitterly. Furthermore, of course, it's totally undemocratic who elected, these administrators?

Brian Anderson: And has his conception made headway on the court?

Myron Magnet: Yes, it has. The court is now beginning to look at some of the decisions such as the Chevron decision, on which the administrative state rests. And Justice Kavanaugh has been a very big questioner of the administrative state with him on the court. There is going to be now another stalwart anti administrative state justice. And by the way, replacing Kavanaugh on the second circuit is the astonishing Naomi Rao who was Donald Trump's deregulations czarina. And so she is the queen of anti-administration statism. So I think that the courts are going to be much more sensitive to the need to, to draw some of those stuff back.

Brian Anderson:One of the most important areas, obviously central to his concern, for Thomas is the constitutionality or lack there of racial preferences. How does he think about affirmative action and the court's approach to race in general?

Myron Magnet: Well, there's a series of cases on this topic which led Juan Williams of the Washington Post and Fox New and so on, to say that Justice Thomas is our nation's foremost thinker on race. And what Thomas, I mean, after a look at, here's Thomas who grew up in segregated Savannah. He says, Hey, I have a personal stake in this. I grew up under segregation as a poor black kid in the savanna slums. And a as a guy who after Holy Cross in the Yale law school couldn't get a real law job because he was tarred with the taint of affirmative action. And people assumed that, oh well Yale Law just let him in for a quota, not because he was talented. So he says in a variety of cases, there is no such a thing as benign discrimination by race. Who's to decide if it's benign or not? That's thing one. He says, you know, actually he goes back to Brown v Board. 1954, that's where the Warren Court got started. And he says, Brown v Board, even though we agree with the idea that schools shouldn't be segregated by law was wrongly decided, the courts have no business making this huge policy decision. And furthermore, they made it on totally specious grounds of social science, so that it had to do with the feelings of black kids who were supposedly made to feel inferior by this. He said, this is hocus pocus. It has nothing to do with law, nothing to do with the Constitution. And the important point is the point that the first justice John Marshall Harlan made in his dissent in Plessy v Ferguson at the end of the 19th century. Harlan said it is not okay to have separate but equal facilities for blacks and whites because our constitution is colorblind and makes no distinction between classes. So what Thomas says is that's the way the court should have. That's the way the court, that's the way the congress should have looked at the whole question of racial discrimination. And what we ended up doing in brown is this sort of push me, pull you decision where the court said, in this special case of education, racial discrimination is not acceptable, but it didn't actually overturn Plessy v Ferguson. Even though an awful lot of legal commentators believed that it did, we should have done that. Okay. So we're still discriminating by race. We are discriminating positively by race, supposedly in the case of affirmative action. But that ought to be illegal because the constitution shouldn't be considering race. And by the way, did anybody ever ask, did this have a good effect on the supposed beneficiaries of affirmative action? He never says, Hey, look at me. I couldn't get a job because I was branded as an affirmative action quota. But he says, you know, you take kids who are smart but unprepared and put them in situations where they're going to fail and they end up becoming sullen, angry. They fail, they drop out when otherwise they would have succeeded. So instead of advancing black Americans, you are retarding them. And instead of making for racial harmony, you're making for racial dissension. And the court's role in this has been toxic. And the justices ought to stop.

Brian Anderson: We can't talk about everything covered in your extremely lucid discussion of Thomas's thinking in the book. But I'd like to touch on one further one. And that's free speech. Thomas has been one of the courts strongest defenders of the First Amendment. He's really almost a first amendment absolutist, right? He is. So could you just sketch out some of the areas in which he's written opinions that touched on free speech issues?

Myron Magnet: Sure. There there's, there's sort of two large areas that were thought to be distinct: commercial speech and political speech. And first he started with commercial speech. In a series of opinions he started out by saying, sure. Commercial speech is less important than noncommercial speech. Um, so we can be faster and looser with it. But then he came to say, wait a minute, we live in a free enterprise society and that's crucial to our identity as America. And in a free enterprise society, citizens need to have all possible information in order to make intelligent decisions and intelligent choices in the economic realm. So for instance, if a liquor store wants to advertise its prices that's of course protected by the First Amendment speech protection. Now he says the main First Amendment speech protection is political speech because in a free democratic society, there needs to be this lively, combative marketplace of ideas in which citizens can decide, do I want this vision for our country or do I want that vision? Well, the thing about campaign finance reform is that it is profoundly anti political free speech. He says, you know, it paints itself is something beatific, it's not, it's absolutely not. It's history is squalid. The first campaign finance bill was backed by a KKK murderer, Senator Tillman of South Carolina in 1907. The McCain-Feingold Act is basically tainted by Senator McCain's extreme embarrassment about being involved in a savings and loan, You know, being involved, helping a savings and loan fraudster. And what, what campaign finance says it can do is regulate speech by regulating the money that candidate's spend or that contributors whether individuals or corporations or unions can give to candidates. Well, this is all political speech. This is what the first amendment is principally about. And we should not be regulating it whatsoever. Not at all. So he would do away with all campaign finance limits. And he certainly is happy to get rid of McCain-Feingold and in Citizens United when, you know, he writes a concurrence in Citizens United says, absolutely, of course there should be... Well, let me go, let me go back one step. He said, you know, the trouble with these campaign finance with these campaign finance limitations is that you're pretty soon going to get to say that publishing companies and networks are corporations. While they are right, they are and so if they are giving interviews to John but not Hillary, that's a kind of campaign contribution and we can regulate them. And in the, in the oral argument, in one of these cases, one of the justices asked the solicitor general was arguing for the government. Are you saying that if in a 800 page book there were one sentence criticizing a candidate that the government could ban the book? And the Solicitor General said, yes, I am saying that. And the justice said, well that's pretty incredible. And that turned the Court against that idea of campaign finance. And so we get to Citizens United where sure there can be corporate contributions, there can be union contributions, there can be PAC contributions and, but, but Thomas concurs in Citizens United. But he goes on to make one further point and he says there should be no disclosure requirements. You know, that's supposed to be another purity provision. And he says, but the trouble with these disclosure requirements is just look what happened in California when California tried to make a law, tried to make a law saying that marriage was between a man and a woman. All the people who contributed to that campaign had their names put up on the Internet. Their addresses mapped on the Internet. People picketed, their houses, picketed their workplaces, guys got fired for it. Businesses got put out of business for it. So he said, you think that this doesn't have a chilling effect on speech? He said, just as the government cannot forbid speech, it cannot compel speech and to force a citizen to disclose his name, especially he says, and I love this because does he really knows his pre-revolutionary American history. He said in a country where the revolution started with anonymous pamphleteering, what is the court doing saying you have to make, you have to make political statements and attach your name to them. So he really is an absolutist on this topic.

Brian Anderson: And the court is moving in Thomas's direction on campaign finance..

Myron Magnet: For sure. And the further it moves, the better. Because here's the thing, one of the things that Tom has said is in one of these decisions is, you know, implicit in the reasoning behind some of the earlier pro campaign finance decisions is the idea that courts have the proper duty to equalize voices between the propertied and the unpropertied. Well, that's James Madison's nightmare. James Madison said that the tyranny of the majority will take the form of the unpropertied many getting ahold of the property of the few. So that the most important thing that you have to protect is the right of money to talk, at least to make a case for itself. So the idea that corporations, because they are profit making enterprises shouldn't be able to spend the money to say, Hey, what we're doing is good, is helping America by creating jobs, by creating wealth. Of course they ought to be allowed to do that. And Thomas is fervent in his belief in that.

Brian Anderson: This is a narrower question about Thomas's interpretive approach. How does he view precedent? One current of constitutional thought, including some in the conservative camp, says that judges need to be restrained in their dealing with precedent. That they have to respect precedent. Thomas isn't in that camp, right?

Myron Magnet: He's a real bomb thrower, Brian. This, there is a hallowed doctrine among the lawyers and law professors called stare decisis: respect precedent. And Thomas says, that's the wrong question. The right question is quo warranto: by what authority? So he says, we the supreme, you know, he says, of course, lower court judges have to respect precedent. They take an oath to do that. But we Supreme Court justices take an oath to uphold the Constitution and we do not hesitate to invalidate laws duly passed by the People's elected representatives and signed by the president of the United States. So if our predecessors have been wrong, as in the case of Plessy v. Ferguson for example, right? Or as in the case of Dred Scott, how can we have any higher respect for these or in the case of those early 14th amendment decisions, which were obscene, why should we respect them? Why should we do this dance around them as if they were sacrosanct. They are wrong, they're mistaken, we should say so. And the lawyers and law professors, they, oh my God, what will happen to settled law? Well, I mean we've managed to, the judges have overturned precedents in the past. The Congress has passed laws and had the repealed, we manage, there have been enormous changes in what Congress has done and what the courts have done. The country adjusts, it will adjust and Thomas is not worried about that. What he is worried about is the piling of error upon error upon error until we get to what looks like a legal order, but is an illegitimate order in which we do not have self-government. But in which we have government by men, not by laws.

Brian Anderson: A concluding question. Your book includes a short but moving narrative of Thomas' life and education, which the judge himself has famously chronicled in his memoir, "My Grandfather's Son." Can you talk a little bit about that and how it might've influenced Thomas's view of the world, his approach to the court?

Myron Magnet: I can talk about it for the rest of the day, Brian, because the book is wonderful. And one of the points that I make in this book is that it is essential for a free people to have a particular kind of self-reliant character, both national and individual. And we have to have a culture that breeds that character, which we don't do when we have all these snowflakes in colleges, or we have all these resentful, dependent people who are saying well, "I've been victimized by society. I can't make my own way." Thomas was sent by his divorced mother who couldn't make ends meet to live with his grandfather when he was a little boy. And so he went from this, this squalid Savannah slum, to a clean, well-run household. His mother's father and his mother's stepfather and his mother's stepmother, basically brought him and his younger brother up. And they brought him up with the strictest kind of child rearing that bred self-reliance and self-confidence, incidentally. And Thomas... his grandfather had this huge stock of maxims: "where there's a will, there's a way." "Old man can't is dead, I helped bury him." He put his business, he was a self-made if semi-literate businessman, he built this fuel, oil delivery business, modest, modest, but independent. He put the boys to work delivering oil when they were in third grade after school and on weekends. At the same time, the family owned 60 acres across from where the family had been enslaved. And he and the two boys, two grandsons built a house together on these acres, cleared and tilled the land. And they went there every summer and lived, as Thomas says, an "off-grid experience." Right? In which he learned to be dependent on nobody. They grew their own food. They raised their own livestock. They slaughtered it. They stored it for the winter. They lived off of what they grew themselves. It was like living and he says, and "this is what life is like." You're crossing the prairie of life on your own. You're on your own. And that's how it ought to be. You need to take responsibility for yourself. Make no excuses. The great problem with modern culture he believes is that instead of valuing heroes like his grandfather, he came to think, we now focus all the time on victims. The idea is that there are all these vast forces out there, which the individual can't surmount. He needs an immense government to protect him from those forces. And once you start thinking that way, once you start thinking that, "oh, I am not the person who forges by own fate, I'm going to leave the government to do it." When you start thinking, "I'm not the person who's responsible for my own community, for its order or for its beauty, for its enlightenment, the government is going to do that." You cease to be a free society and that is the great danger that he sees us facing, and that is the great danger that honestly faces us as a nation right now. How are we going to be free citizens who maintain a free country?

Brian Anderson: Don't forget to check out Myron Magnet's, new book, Clarence Thomas and the Lost Constitution. We'll link to it in the description and on our website. You can follow Myron on Twitter @MyronMagnet. You can also find City Journal on Twitter, @CityJournal, and now Instagram at @CityJournal_MI and always, if you like what you heard on the podcast, please show us some love and rate us on iTunes. Thanks for listening and thanks very much, Myron, for joining us.

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