Myron Magnet uses the jurisprudence of Clarence Thomas to show the ways the Supreme Court has misinterpreted the Constitution and how Justice Thomas believes the errors should be rectified. Magnet identifies three specific items which endanger our republic: the misinterpretation of the 14th Amendment, the rise of the administrative state, and the doctrine of a "living" Constitution.
Magnet spends time on the iconic background of Thomas, recounting his chaotic childhood and his subsequent life with his grandparents. Thomas' grandfather, in particular, looms large. Although Thomas rebelled for a short time against his grandfathers strict structure of integrity and hard work, and fell, himself, into grievance politics, today Thomas reflects the basic standards of fairness and decency, the love for and protection of liberty, as embodied in that man.
Magnet then asks the question, "Who killed the Constitution?" (33) It begins with the 14th Amendment. Originally passed to force states to recognize the rights of citizens previously only recognized by the federal government, the Supreme Court quickly began denigrating the very foundation of the law. In the 1873 Slaughter House cases, the Court rightfully asserted that the 14th Amendment gave the rights of citizens to blacks, but as far as the "privileges an immunities" guaranteed, those were highly limited. Rather than restate the clear meaning of the text written to address a clear problem of states not respecting the rights of black people, the Court held that the 14th Amendment only extended the rights of what was to be found exclusively in the federal domain: right to travel on interstate waterways and not be subject to ex post facto laws. This original misreading bears fruit to this day. Subsequent cases continued to let states off the hook for failing to protect the rights guaranteed by the 14th Amendment, leading inexorably to Plessy v. Ferguson and the "separate but equal" doctrine.
This judicial mockery of the clear will of the people played right into President Wilson's doctrine of a "living" Constitution. Frustrated at the roadblocks presented by the "Newtonian" Constitution of the Founders' design with its checks and balances, Wilson appealed to a "Darwinian" Constitution: one that every grows and evolves. Franklin Delano Roosevelt elevated this idea into a full-blown administrative state designed to regulate and dictate all levels of society. Initially rebuffed by a Court committed to a more proper understanding of the division of power, the recalcitrant court was threatened with court-packing and the judges switched sides.
The idea that the government was no longer one of limited and enumerated powers found its apex in the mid-20th century. It begins with the Warren court and Brown v. Board of Education. Under the Constitution, the federal government had no role in education, but Justice Earl Warren, using the 14th Amendment as a pretext, found that its "equal protection" clause demanded desecrated schools. While this result is highly laudable, it created a "right" with no prior recognition. Rather than appealing to the clear language of the "privileges and immunities" guaranteed to all citizens, Warren sidestepped overturning Plessy, and invoked "equal protection" instead. In an ironic turn of events, future courts would use this same language, designed to make the government color-blind in regards to race, to advance race-based policies like Affirmative Action. It also allowed future courts to find additional "rights," no where enumerated in the Constitution, as they saw fit. Eventually rights would be found in the "emanations" and "penumbras" of the Constitution, forming a right to privacy, which was then interpreted to include a right to abortion.
Enter Justice Thomas:
The Constitution means not what the Court says it does, but what the delegates at Philadelphia and at the state ratifying conventions understood it to mean... We as a nation adopted a written Constitution precisely because it has a fixed meaning that does not change. Otherwise we would have adopted the British approach of an unwritten, evolving constitution. (61)
Thomas believed the Constitution was the ultimate stare decisis, or prior decision. It made no sense, in his opinion, to honor prior wrongly decided cases. As C.S. Lewis points out, if you find yourself on the wrong road, the most progressive thing to do is to turn around and go back.
[T]o describe [Thomas'] fully mature method of constitutional interpretation more precisely: he begins with the plain command of the constitutional text or amendment in question, locates it in all the concrete complexity of its historical context, traces the historical process by which the command got distorted from its original meaning, explains the real-world consequences of that distortion, and points out how the Court can repair the damage going forward. His goal is a return to the framers' vision, aimed at protecting the liberty he cherishes as dearly as they did. (72)
We see this in his attempts to rein in a bloated administrative state, to replace a "living" Constitution with an originalist and textual approach, and a desire to reestablish a correct understanding of the 14th Amendment.
On this last front, Thomas combats the idea of "substantive due process," a legal doctrine that has become a catch-all for "whatever a judge wants it to mean." Magnet calls this idea, "smoke and mirrors...a hokey dodge around an old but incorrect, blood-soaked, and disreputable reading of the Fourteenth Amendment." (75) This doctrine, as opposed to plain old "procedural due process," claims that some rights are so fundamental that no state can withdraw them. What are those rights? Well the justices claim to know them when they see them. This has resulted in rights to education, marriage, privacy, abortion, and criminal rights, wreaking havoc in society as the government at all levels seeks to enforce an ever-growing list of rights no matter the outcome. Students have a right to an Olympic-sized swimming pool, drug dealers have a right to government-financed housing, thieves have a right to steal up to $950 in merchandise. At the same time, the government has a right to take property for any reason, the government has a right to regulate political speech, the government has a right to regulate anything and everything.
Thomas traces the roots of all of this to a time when Americans abandoned the ideas of virtue and role models. People are no longer held accountable for their actions; echoes of Thomas' grandfather resound. The New Deal marked a turning point in American history with FDR's "freedom from want." Suddenly the government's job was to provide whatever you wanted and the Supreme Court's job became to find that particular "right" in the Constitution.
As Magnet so eloquently puts it:
as people lose their veneration for the unalienable rights of mankind and their reverence for the active, heroic virtues that sustain them, the rights themselves crumble, government looms larger, the people feel themselves all the more powerless and dependent, allowing government to arrogate ever more power to itself, and so on, in a vicious circle. (120)
Clarence Thomas is fighting to end that doom loop by faithfully interpreting the Constitution.
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