Clarence Thomas and the Lost Constitution by Myron Magnet

Justice Thomas is one of my heroes. Not only is his one of those only-in-America type tale of rising from the very bottom to the very top, he has maintained a consistent ethos is the face of withering criticism. So when I heard about the book Clarence Thomas and the Lost Constitution by Myron Magnet, I immediately put it on my book "gift" list. Thankfully I received it one Christmas (or birthday). 

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.

Six Great Ideas by Mortimer Adler

 

As part of the ACCS teacher accreditation, we were asked to read Six Great Ideas by Mortimer Adler. I was already familiar with this book because several of the chapters were given to us when we began designing our Seminar class. I knew I would enjoy the book, and I absolutely did. 

Mortimer Adler has engaged in yeoman’s work in his book Six Great Ideas, which seeks to place broad parameters around Truth, Beauty, Goodness, Justice, Liberty, and Equality. Since these great ideas are in fact, great ideas, I found the book remarkably helpful for Seminar class. I have proposed to our Seminar team that we study his chapters on Truth in 9th grade Seminar, his chapters on Goodness in 10th grade Seminar, and his chapters on Beauty in 11th grade Seminar. That leaves the trifecta of Justice, Equality, and Liberty for 12th grade Seminar.  As this is the class into which I most directly contribute, I am very excited to introduce his conceptions to our students. 

Ninth-grade Seminar deals with the question of “What is the Good Life?” Adler’s thoughts on Truth are perfect for this section. Adler states, "So the truth of thought consists in agreement or correspondence between what one thinks, believes, or opines, and what actually exists or does not exist in the reality that is independent of our minds, and of our thinking one thing or another” (34).  This definition helps lead the students into what is fundamental in the good life, namely, the pursuit of Truth. Not only does truth exist, but it is foundational that we align ourselves with it. Of course, as Christians, this Truth has taken the form of a person, Jesus Christ.  As humans, Adler says we have a “moral duty” to pursue Truth. He states, “When we recognize that the possession of truth is the ultimate good of the human mind, and, recognizing this, commit ourselves to the pursuit of truth, we have a number of moral obligations to discharge” (63). This perfectly summarizes the lesson we would love our 9th graders to take away: The pursuit of Truth is essential to the good life.

The pursuit of Goodness is also perfect for 10th grade. We focus on how to rightly order our loves. Therefore, all of our loves should be aimed at the Good. Adler helps here with his discussion of real and apparent goods. We all believe that what we desire is in fact, good. And yet Adler makes the distinction between “is and ought.” As humans we must figure out what we ought to desire. These oughts line up with what is actually good for us. In 10th grade, as we discuss rightly ordering our loves, we can easily segue into loving what is an actual good: loving what we ought to love.

Eleventh-grade Seminar, deals with modern philosophy, mostly Enlightenment thinking. We also discuss the way art is impacted by and impacts the culture around it. Art at this time breaks down from realistic, mostly religiously themed, art, dedicated to the proliferation of truth, to a more chaotic and confused modern, abstract version of art. Therefore, a discussion of beauty fits in perfectly with 11th grade. Here, Adler makes a distinction between “enjoyable beauty” and “admirable beauty.” Enjoyable beauty, is that which we simply enjoy. Admirable beauty is that which we ought to enjoy. Therefore, we once again see this “is and ought” distinction. Adler gives this admonition, “We need only say that education should result in the formation of good taste so the individual comes to enjoy that which is admirable, and to derive more enjoyment from objects that have greater intrinsic excellence or perfection” (119). I would add to Adler's discussion of beauty, that true beauty is beautiful to the extent that it reflects the qualities of God. In fact, beauty is, at its essence a reflection of the character and heart of God. This can be applied not only to the visual arts, but even to beautiful ideas. As 11th grade begins to discuss ideas which move past revelation to reason alone, we can discuss the “beauty,” or lack thereof in those ideas.

Finally, we come to the Great Ideas of Justice, Liberty, and Equality. Adler begins by saying Justice must rule over Liberty and Equality. We cannot have too much Justice, but we can definitely have too much Liberty or too much Equality. It is Justice that determines their boundaries.

Adler begins by defining Liberty in three ways: the liberty inherent in human nature, the liberty associated with wisdom and virtue, and the liberty to do what one wants based on external circumstances. It is this final liberty which falls within the domain of Justice. 

Similar to Liberty, Equality exists in three parts: equalities we are entitled to by nature, equalities were entitled to due to our own efforts, and equalities we experience through circumstances. Once again, it is this third dimension in which Justice is most relevant. Inequality is justified when “All must have an equal opportunity to employ their innate and acquired abilities in productive work” (185).

The earlier discussions of Truth, Goodness, and Beauty should lead the students to an understanding of a virtuous man. And that virtuous man, according to Adler, “Is still able to do as he pleases, since he pleases to do what he ought. A right rule of conduct, and a just civil law command actions that ought to be performed and prohibit ask it ought not to be done” (147).  Therefore, when just laws are in place, the virtuous man is free to do whatever he “wants,” because he wants to do the right thing.

Here is the place for a discussion of Justice. Twelfth-grade Seminar begins with Plato’s Republic. In it, Socrates, seeks to make the argument of why men should want to be just. He does this by designing the Just Society. Yet in actuality, this Just Society is a tyranny. If a man will not be just, justice will be imposed upon him. And he will not like it. Since Socrates arrives at such a roundabout, definition of Justice, I believe it is imperative to study Adler’s more focused discussion of Justice. He divides Justice into two main spheres: the man to the state and the state to the man. When dealing with the man to the state, or to the community, a man must recognize what his fellow citizens deserve by right and what they deserve by comparison with others. But he must also act in a way which serves the common good. Justice is often conflated with “fairness.” But fairness is only justice in comparison to others. Justice, vis-à-vis rights due, and Justice vis-à-vis the common good of all fall outside the scope of fairness. In regards to Justice, vis-à-vis the state to men, the state has a similar duty. Adler states, “The man-made laws of the state, derives its authority from justice, in each of three ways: one by the enactment of measures that protect natural rights; two by legislation that prescribes or safeguards of fairness in transactions among individuals; three by regulating matters affected with the public interest for the general welfare of the community” (197). 

This ties in beautifully to the Republic where Thrasymachus advocates a “might makes right” philosophy. Adler makes the convincing case that Justice based on might alone destroys the concept of Justice entirely. That cannot be the case. Adler answers Socrates question, “Why should we be just?” with a great answer. “It is an indispensable factor in our achieving happiness for ourselves” and others (204). 

 I'm very excited to incorporate all of this into Seminar next year. I think it will give us great umbrella ideas in which to subsume everything else we are discussing. It provides a coherence and consistency. That just makes me happy.

Sin Boldly by David Williams

I saw this book on my son-in-law's bookshelf. With a title like Sin Boldly by David Williams, how could I resist? Who knew a book on how to write could be so engrossing?

In chapter after chapter, I found myself nodding along. I wanted to yell, "That's exactly what I tell my students." In short, I felt vindicated. 

Anyone wanting to learn to write well or how to teach writing well should read this book.

For a writing book, it can be a bit spicy. Definitely a PG rating, but, honestly, that's what makes is so good!

The Gulag Archipelago by Aleksandr Solzhenitsyn

I had heard of  The Gulag Archipelago by Aleksandr Solzhenitsyn, and I absolutely love his speech, "Live not by Lies," so I had to read the book that made him famous.

I'm glad I did, but honestly, it's an odd book. Maybe because he's Russian, and he just has a different way of telling stories. The Russians can be bleak and seemingly accepting of whatever life throws at them. The story is not written necessarily in a chronological order. Nor does it even have what we would call a plot. It's written in vignettes and together they weave a tale of absolute horror. Yet the tone is mildly amused and sarcastic. I assume that to tell the story in a straightforward manner, would be overwhelming to both the author and the reader.

Solzhenitsyn begins with, "How do people get to this clandestine Archipelago?" (3) And the rest of the book is his journey to the prison after being unjustly arrested. He calls it an Archipelago because it's spread out all over the country. And it seems that no one really knows of its existence, as it is shrouded in mystery. 

One of the main points of the book is to make clear that however bad it may have seemed under the Tsars, enlightened and modern Soviet Russia was far worse. It seems that he worried people would not believe him. Perhaps the conditions faced by those arrested were not well known at the time. He tells the reader: 

What had been acceptable under Tsar Aleksei Mikhailovich in the seventeenth century, what had already been regarded as barbarism under Peter the Great, what might have been used against ten or twenty people in all during the time of Biron in the mid-eighteenth century, what had already become totally impossible under Catherine the Great, was all being practiced during the flowering of the glorious twentieth century--in a society based on socialist principles, and at a time when airplanes we're flying and the radio and talking films had already appeared--not by one scoundrel alone in one secret place only, but by tens of thousands of specially trained human beasts standing over millions of defenseless victims (94).

And yet, time and again, Solzhenitsyn returns to the idea that none is completely innocent. He recognizes in each human the capacity for the kind of evil perpetrated by the state."And just so we don't go around flaunting too proudly the white mantle of the just, let everyone ask himself: 'If my life had turned out differently, might I myself not have become just such an executioner?'" (160) 

"Pride grows in the human heart like lard on a pig" (163)

It is at this point that he makes his most famous statement, "But the line dividing good and evil cuts through the heart of every human being" (168). This is unbelievable grace from a man so wrongly accused. Humans, he states, must believe they are doing good. No one believes himself evil. Therefore a human will justify any level of cruelty. Ideology is the great justifier in the Soviet Union. Trying to understand the level of evil and its grip on humanity is one of the things I believe kept him sane.

Time and again, Solzhenitsyn details the sheet ridiculousness of the whole system. In the beginning, only one sentence was passed, ten years in prison, and all were guilty. Eventually other lengths were introduced--five-years, twenty-five years, death--but it was all random. Solzhenitsyn cautions his reader not to ask why he is being arrested. There is not an answer for that and there never will be. The arrest is the point. Stalin simply wanted to instill terror in anyone who may threaten him, real or imagined. To ask questions was to sentence yourself. To ask about a loved one was to be convicted as well. Women were brutally raped. Men had all their possessions stolen by roving gangs. Food was almost non-existent. Prisoners were kept in the most inhuman conditions imaginable. For what?

Every story is told with an ironic touch. Solzhenitsyn rejoices that only half the bread was moldy. O happy day! This jarring method of story-telling both reduces and increases the sheer horror of the situation. I believe he arrived at a place where, in order not to lose his sanity, he had to approach each fresh terror with a slightly crazy lens.

He tells stories which have been smuggled out from prisoner to prisoner of individuals and their plights. Many end badly or have no ending at all; The person simply disappeared into the jaws of the Archipelago. In one touching vignette, he describes one of his cellmates:

If the first thing you see each and every morning is the eyes of your cellmate who has gone insane, how then shall you save yourself during the coming day? Nikolai Aleksandrovich Kozyrev, whose brilliant career in astronomy was interrupted by his arrest, saved himself only by thinking the eternal and the infinite: of the order of the Universe--and of its Supreme Spirit; of the stars; of their internal state; and what Time and passing Time really are. (484)

Time and again, Solzhenitsyn offers his reader advice for how to survive the Archipelago. Divest yourself of all possessions. They will be taken anyways and you will only end up bloody in the process. "But by owning things and trembling about their fate, aren't you forfeiting the rare opportunity of observing and understanding?" (915) Cherish the moments when you see the stars or hear music. "Prison will become easier to bear. Otherwise you will explode from rage." (526) Understand the weight under which your jailer toils. He knows he will be joining you soon and it is that thought that drives the fear that drives his madness. 

As he finishes his journey and arrives at his destination, he concludes:

Shut your eyes, reader. Do you hear the thundering of wheels? Those are the Stolypin cars rolling on and on. Those are the red cows rolling. Every minute of the day. And every day of the year. And you can hear the water gurgling--those are prisoners' barges moving on and on. And the motors of the Black Marias roar. They are arresting someone all the time, cramming him in some-where, moving him about. And what is that hum you hear? The overcrowded cells of the transit prisons. And that cry? The complaints of those who have been plundered, raped, beaten to within an inch of their lives.

We have reviewed and considered all the methods of delivering prisoners, and we have found that they are all . . . worse. We have examined the transit prisons, but we have not found any that were good. And even the last human hope that there is something better ahead, that it will be better in camp, is a false hope.

In camp it will be . . . worse.

And yet, before the end, he sums up his advice:

Live with a steady superiority over life--don't be afraid of misfortune, and do not yearn after happiness; it is, after all, all the same: the bitter doesn't last forever, and the sweet never fills the cup to over-flowing. It is enough if you don't freeze in the cold and if thirst and hunger don't claw at your insides. If your back isn't broken, if your feet can walk, if both arms can bend, if both eyes see, and if both ears hear, then whom should you envy? And why? Our envy of others devours us most of all. Rub your eyes and purify your heart--and prize above all else in the world those who love you and who wish you well (591-592).

The Chilbury Ladies' Choir by Jennifer Ryan

A friend gave me this book to read, and I'm glad she did.

The Chilbury Ladies' Choir by Jennifer Ryan is a fun, quick read. It's reminiscent of The Guernsey Literary and Potato Peel Pie Society. 

The book is set in Britain during World War II and the Chilbury Choir has lost its men to the war. In an astonishing feat of pluck, they rebrand themselves The Chilbury Ladies Choir and go on to compete with other local choirs. 

Of course the book involves a variety of characters, each bringing her (usually) own spice to the mix. A love interest is unavoidable and obviously messy. 

All ends well with lessons learned. 

The most interesting part of the book is its epistolary style. Going back and forth as characters either write to those outside the story or in their own diaries, makes for an interesting read. The story is told from multiple points of view, causing it to unfold in way significantly differently than it would have from the point of view of an omniscient narrator. 

The story includes the characters we love, the ones we love to hate, and the ones we hate to love. 

Definitely worth a look.

A Moveable Feast by Ernest Hemingway

Not being a Hemingway fan, this book would have never crossed my path had it not been for my book club. I don't know why A Moveable Feast by Ernest Hemingway was chosen; I wasn't there for that part. 

I missed the book club meeting, so I am stuck with my own thoughts. 

The book felt to me the way Twitter did when I only went on it occasionally: never quite sure who exactly anyone was and what exactly the poster was referring to. 

I don't know Hemingway at all, I don't know Paris at all (in the 1920s or today for that matter), and I don't know the other authors he refers to (with the exception of F. Scott Fitzgerald, whom I only know because of The Great Gatsby).

Therefore it was a struggle. 

It doesn't help that Hemingway is intentionally writing in a way so as to preclude our ability to intuit whether he's telling the truth or not.

It's a fun look at quintessential period of time. I think Hemingway wrote the series of vignettes towards the end of his life to capture a magical, perhaps not exactly-the-way-it-happened, moment in his life. I imagine that if I wrote unconnected stories from my high school days, without explanation and without a overarching point, it would sound the same. It might return to me some rose-colored memories, but to everyone outside my small circle, it would be a hazy collection of "inside baseball" glimpses into someone else's life. 

I think I missed a lot of the point of the book. 

But it was beautifully written. That's worth a read right there. 

A Fiery Gospel by Richard M. Gamble

If I'm being honest, I wanted to read this book because it was written by a Hillsdale professor and the cover is beautiful! After reading A Fiery Gospel by Richard M. Gamble, I will never look at The Battle Hymn of the Republic the same way again!

Gamble tells a deeply researched story of the writing of the song by Julia Ward Howe. She was an eccentric woman convinced the she was on a mission from God. After visiting a Civil War Union encampment, she claims the poem the song is based on came to her fully-formed in a dream/vision. 

The real significance of the song, however, lies in the ways it was used after she penned it. The song has become a national anthem of sorts used by multiple causes to rally the faithful. With its apocalyptic and religious language, it appeals to those most fervent supporters of The Cause. 

All can claim the Lord is on their side. 

I have to say, the book now causes me to cringe when I hear the song. It really is pure propaganda. It's possible it's well-suited for the Civil War and the biblically epic narrative that war embodies, but today it has been used by anyone willing to appropriate it. 

Beautiful book. Interesting story. I'm glad I got to enter into this esoteric piece of history. 

It's too bad humans are what they are.