Magazine | July 11, 2016, Issue

The Constitution of Clarence Thomas

(Roman Genn)
On administrative law and civil rights, the justice is leaving his mark

Once a party of ideas, the GOP has degenerated into being a party of personalities. Nothing shows this more clearly than the career of Clarence Thomas, whom a Republican president of moderate sensibilities nominated to the U.S. Supreme Court 25 years ago this month. Whereas Donald Trump has taken liberal positions on everything from the minimum wage to the Second Amendment, Thomas has over the years articulated a robust version of conservatism rooted in our nation’s founding principles and in the natural rights of the individual. Trump appeals to raw passions; Thomas talks to hearts and minds.

Thomas’s quarter century on the Court stands for a few simple propositions: The Constitution means today what it meant at the time of its ratification. It creates a limited national government bound strictly by a separation of powers and a balance with the authority of sovereign states. Thomas rejects social engineering in favor of individual liberty grounded in natural law. In his dissents, he has held true to this understanding of the Constitution even if it has meant casting aside fashionable opinion and decades of judicial precedent and earning the criticism of political and media elites.

No official in any branch of the federal government holds more-deeply-considered conservative values. Thomas thinks that the Constitution protects natural rights, economic freedom, and private civil society from government meddling. He rejects race-based affirmative action, controls on speech or property, and bureaucratic intervention into private conduct. He would allow religious groups more participation in public life while protecting them from the heavy hand of government regulation, and he would protect the Second Amendment right for civilians to bear firearms.

Nowhere is the contrast between traditional conservatism and the beliefs of the GOP’s current standard-bearer, Donald Trump, sharper than on race. Trump is a racist in that he holds prejudicial views about individuals based on their ethnicity. When he announced his candidacy, for example, he declared that when Mexicans immigrate to the U.S., “they’re bringing drugs. They’re bringing crime. They’re rapists.” His bigotry reached its pinnacle (to date) in his attacks on federal judge Gonzalo Curiel, who is hearing a fraud case in California against Trump University. Referring to Curiel as “the Mexican,” Trump claimed that the judge had “an inherent conflict of interest” because of Trump’s proposal to build a wall on the Mexican border. Curiel was born in Indiana and performed with honor and distinction as a federal prosecutor against drug gangs in Los Angeles. Trump sees only Curiel’s ethnic background and presumes that all Americans of Mexican heritage must hold the same views.

If anything has marked Thomas’s jurisprudence on the Court, it is his steadfast rejection of the use of race to define individuals. He not only has taken a tough line against affirmative action but has also attacked the underlying idea that government should help to advance races. He dissented from the Court’s blessing of affirmative action in Grutter v. Bollinger (2003) because he understands the 14th Amendment’s grant of “equal protection of the laws” to all Americans to prohibit race-based government policies. For Thomas, defining individuals by their race violates the Constitution and harms blacks as a group. “‘If the negro cannot stand on his own legs, let him fall also,’” he wrote in his Grutter dissent, quoting Frederick Douglass. “‘All I ask is, give him a chance to stand on his own legs! Let him alone!’”

In Adarand v. Peña (1995), the landmark case that struck down racial preferences in government contracts, Thomas argued that affirmative action is “racial paternalism” whose “unintended consequences can be as poisonous and pernicious as any other form of discrimination.” His views have been shaped not just by the Constitution but also by his background, as he shows in his remarkable memoir, My Grandfather’s Son. Thomas is the only living justice to have spent much of his childhood under racial segregation in the Deep South before the civil-rights movement. He struggled against racial stereotypes in school and in his early career.

“So-called ‘benign’ discrimination teaches many that because of chronic and apparently immutable handicaps, minorities cannot compete with them without their patronizing indulgence,” he wrote in Adarand. He lamented government programs that “stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are ‘entitled’ to preferences.”

When originalism has come into conflict with Thomas’s policy ideas, however, originalism has prevailed. He has voted to strike down the nation’s drug laws as exceeding the scope of federal power (in a case that originated from a drug bust down the street from my Berkeley Law School office). He has found that the use of thermal-imaging technology by police to scan for marijuana in homes requires a warrant. He opposes the Court’s effort to place caps on punitive damages. He would bar the government from placing any regulations on political speech and commercial speech alike. His robust understanding of the First Amendment has led him to protect both violent movies and offensive protesters from state controls.

Thomas parted ways with his great friend the late justice Antonin Scalia on fidelity to the original understanding of the Constitution. Scalia did not have a strong philosophical attachment to the Framers. Rather, he described originalism as “the lesser evil” because it curbed the power of federal judges and allowed the democratic process to choose our nation’s basic policies. Scalia’s career focused on the problem of containing judicial activism, which had led to the Court’s discovery of rights to abortion and gay marriage in the 14th Amendment’s due-process clause. If the plain text might yield a narrower role for judicial power, then all the better.

The difference between Thomas and Scalia emerges most clearly in their attitudes toward the out-of-control administrative state. The executive branch cannot even report to Congress the total number of federal agencies in existence — it lost count after several hundred. All three branches have been complicit in allowing the regulatory state to expand its powers at the expense of individual rights and economic freedom. Congress has delegated much of its legislative powers to the agencies; presidents have allowed bureaucrats to expand their jurisdictions without interference; and the judiciary has deferred to agency interpretation and bureaucratic exercise of sweeping, ill-defined powers.

Throughout his career, Scalia stood at the ramparts in defense of freedom for the agencies — before joining the federal bench, he had made his name as a professor of administrative law. He wrote one of the foundational opinions requiring courts to accept an agency’s enforcement of its own regulations. Thomas, in contrast, has steadily waged a campaign to uproot the administrative state.

Thomas began his battle by drawing sharp limits on the federal government’s power over private conduct. In United States v. Lopez (1995), which held unconstitutional a federal law banning guns in school zones, he called on the Court to reverse decades of case law that had transformed the legislature’s authority “to regulate Commerce . . . among the several States” into a limitless “police power.” He thinks the commerce clause authorizes federal laws to regulate only commercial activity that crosses state borders. He would end Washington’s control over anti-crime measures, education, health care, and welfare and, ultimately, would eliminate the New Deal state.

In a series of opinions in the past two years, Thomas has attacked the operations of the administrative state. He has striven to restore the proper checks and balances on it and called on the courts not to defer to bureaucrats. Last year, in Department of Transportation v. American Association of Railroads, he called for a return of limits on the responsibilities that Congress can transfer to agencies. During the New Deal, the Court, which initially blocked Congress’s transfer of lawmaking power to the agencies (which could then avoid the hurdles of House and Senate approval and a presidential veto), surrendered before the threat of President Roosevelt’s Court-packing plan. Since then, a majority of the Court has agreed that the judiciary should allow virtually unlimited delegation of lawmaking power to the bureaucracy.

Thomas, however, believes that the Constitution’s separation of powers forbids the transfer of the power to make laws. Only our elected representatives, he has written, can enact generally applicable laws that restrict private conduct. The legislature cannot “transfer the power of making laws to any other hands,” he has written, quoting John Locke, “for it being but a delegated power from the people, they who have it [cannot] pass it over to others.” In Perez v. Mortgage Bankers Association (2015), Thomas denounced judicial deference to agencies’ interpretations of their own mandates — a principle on which he and Justice Scalia disagreed sharply.

Administrative law may seem arcane or inconsequential, but these fights over delegation of the legislative power, deference to agency regulations, and the scope of the commerce clause are the crucial issues that determine the size of the New Deal state. Liberal dominance on these questions has allowed the federal bureaucracy to expand its reach over much of our economic and social life. Imagine if Congress, rather than the Environmental Protection Agency, set the mileage-per-gallon requirements for cars. Imagine how much better it would be for our democracy — to which the Constitution assigns these decisions, rather than unaccountable bureaucrats — to take responsibility for education, crime, and social issues.

Building on his steadfast opposition to government’s recognition of racial distinctions of any kind, Thomas devoted his first 25 years on the high bench to affirming the principle that the original Constitution limits not just the courts but the government as a whole. Now he has launched a campaign perhaps even more daunting: stopping the inexorable expansion of the welfare state.

On these questions, Thomas will no doubt chart his own course. While we may not know his ultimate destination, we can predict that he will remain true to the star of the original understanding  of the Constitution. By recalling our nation to its founding principles, he will continue to lead the battle for a renewal of fundamental limits on government and for the protection of the natural liberties of the individual.

Mr. Yoo is the Heller Professor of Law at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute. He is the co-editor of Liberty’s Nemesis: The Unchecked Expansion of the State (2016). He served as a law clerk to Justice Thomas.

John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a visiting scholar at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University.

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