Magazine | June 24, 2019, Issue

Clarence Thomas’s Quest to Recover the Lost Constitution

Supreme Court Justice Clarence Thomas in Washington, D.C., June 1, 2017 (Jonathan Ernst/Reuters)
Clarence Thomas and the Lost Constitution, by Myron Magnet (Encounter, 184 pp., $23.99)

Picture Clarence Thomas as a legal Indiana Jones, dodging slings and arrows to rescue a valuable and powerful relic from the wrong hands after it fell into undeserved obscurity. That’s the thesis of Myron Magnet’s new book. Magnet, a longtime editor of City Journal, isn’t himself a lawyer, though he is at ease explaining legal arguments for non-lawyers. So this isn’t weighty legal scholarship or a thorough biography. It is, rather, a potboiler, briskly surveying how our founding charter went missing, what impelled Justice Thomas to go looking for it, and what he unearthed. At the end of the journey, the reader will be forgiven for suspecting that the original Constitution will nonetheless be consigned to a dusty corner of a government archive while the capital’s top men insist they can do better without it.

Today’s federal government diverges so sharply from its original design that Magnet compares it to a parasite devouring its host. When he asks, “Who killed the Constitution?” he identifies not one culprit but three. The preference of Woodrow Wilson and his New Deal successors for bureaucratic experts over popular sovereignty was, in Thomas’s words, the “wrong turn” that broke the document’s original structure; racist southern resistance deformed the post–Civil War amendments; and the liberal Warren Court’s overreaching activism upset the federal–state balance and cut the courts adrift from written law. (Executive power gets relatively little attention.) Magnet ties each of these topics to themes in Justice Thomas’s speeches, writings, jurisprudence, and biography. Many of the freshest parts of the book come from Thomas’s words away from the bench.

Magnet surveys the causes of today’s dysfunctions. These include a runaway reading of the interstate-commerce power, which lets Congress regulate a plant that never leaves the property on which it is grown; administrative agencies that write their own laws and flagrantly rewrite the ones Congress sends them; and judges who insert the courts into areas such as regulation of abortion based on unwritten “constitutional” rules while cavalierly disregarding explicit, written limitations on the government’s power to seize private property, restrict political speech, and disarm citizens. The underlying culprit in each case is the same: “experts” who think they know better and are impatient with written limits.

Magnet presents paternalism, condescension, and a spirit of victimization as Thomas’s nemeses. He pulls no punches about the sneering critics along Thomas’s path from Pinpoint, Ga., to the Court, such as a fellow federal judge who snarked that no senator who voted to confirm Thomas would have hired him as his lawyer. Magnet summarizes the story Thomas himself told in his 2007 memoir, My Grandfather’s Son, starting with the grandfather who instilled in Thomas his work ethic and sense of inherent dignity and self-reliance: “My grandfather was no victim and he didn’t send me to school to become one.” Magnet charts Thomas’s drift into and out of black radicalism in the tumult of the late 1960s and how influences such as Leo Strauss, Frederick Douglass, and Thomas Sowell led him to understand that “the maxims and example of his grandfather . . . were conservatism.”

The searing experience of the Anita Hill hearings is covered, not in dispassionate forensic detail but rather with a polemical recounting of the reasons Thomas’s partisans found Hill’s account so implausible. It won’t be a satisfying rebuttal for those inclined to believe Hill, but, like any good adventure movie, it sets the tone for the main plotline: This is a man whose stubborn devotion to the original, written Constitution frightened powerful interests who would stop at nothing to take him down. Joe Biden appears here as he did in Thomas’s memoir: the two-faced ringmaster of a plot to assassinate Thomas’s character. The public, as the hearings unfolded, agreed: Polls showed more voters believed Thomas than believed Hill, and voters favored his confirmation by a two-to-one margin. Yet Biden today is broiled by the left wing of his party for going too easy on Thomas and too hard on Hill. Biden, for his part, now seeks to minimize his role, saying that he only wishes he could have done something about the hearings he chaired.

Magnet overstates his case by identifying the Thomas–Hill hearings, rather than the 1987 fight over Robert Bork, as the first open battle over these stakes. But he illustrates the importance of Thomas’s character and upbringing in resisting the temptation to stray from his quest. Many past departures from the Constitution, from “separate but equal” to gun control and campaign-finance restrictions, were the handiwork of segregationists. One of them, Woodrow Wilson, coined the idea of a “living Constitution” as a “Darwinian” exercise in the survival of the strong, allowing for rule by the better class of people.

Each betrayal of the written Constitution was enabled by Republican-appointed justices who abandoned the path Thomas retraced. Magnet dwells on Thomas’s argument in McDonald v. City of Chicago for restoring the 14th Amendment’s privileges-and-immunities clause as the charter of fundamental individual rights against the states. That bulwark was broken by Lincoln and Grant appointees by 5–4 votes in the Slaughter-House Cases and United States v. Cruikshank. Owen Roberts, a Hoover appointee, gave the New Deal the “switch in time” fifth vote to rewrite the commerce clause. Earl Warren and William Brennan were Eisenhower appointees, Harry Blackmun (author of Roe v. Wade) a Nixon appointee, Anthony Kennedy a Reagan appointee. And so on.  

Thomas, for his part, says that living under Jim Crow taught him to “think about the use and misuse of government power.” Richard Brookhiser calls Lincoln “the Founders’ son”; Magnet ventures that “as Thomas works to fulfill Lincoln’s task of extending the inalienable rights of the Declaration of Independence to all Americans, . . . it’s not fanciful to think of the justice as the founders’ grandson.” A living Constitution could be the British, Burkean model of trial by experience. But it is not ours; our colonial experience is one reason our rights are written down, and our history on race is proof they should be.

Given Magnet’s career in urban-policy reform, he focuses on “how the Court sabotaged the order-keeping authority of two essential public institutions, the police and the public schools.” In 1994, Magnet’s first year helming City Journal and Rudy Giuliani’s first as New York’s revolutionary mayor, he published an essay by Justice Thomas on how the “rights revolution” had hamstrung both the cops and school discipline. The Giuliani years, however, suggest that cops can retake the streets even under those rules.

Magnet’s book goes astray when he parts company with his subject. For example, he argues that the Supreme Court’s landmark school-desegregation decision, Brown v. Board of Education, “floated utterly free from the Constitution, which gives the federal government no authority over education of any kind.” It is one thing to argue that Brown encouraged a spirit of expansive judicial activism that often went awry in the years that followed it. Magnet is also on solid ground critiquing Brown’s reliance on social science instead of constitutional text and history. Justice Thomas argues that the Brown Court erred by not embracing the first Justice Harlan’s dissent in Plessy v. Ferguson. Harlan read the 14th Amendment to require that the law be color-blind and to outlaw distinctions on the basis of race. And there is some intellectually respectable support for questioning whether the amendment’s phrase “protection of the laws” was really intended, in 1866, to apply to all public benefits, including schooling.

But the charge that constitutional originalists such as Justice Thomas would have upheld school segregation is perhaps the most common line of attack on the whole originalist project. As such, it should not lightly be raised without the proper context. In fact, unmentioned by Magnet, there is a significant body of originalist scholarship (including Michael McConnell’s influential law-review articles in the 1990s) arguing that a proper reading of the history would lead by a different path to the same result in Brown. That outcome flows logically from what Justice Harlan, within living memory of the amendment’s passage, argued in Plessy. More to the point, as Magnet notes, Justice Thomas has frequently followed Harlan’s line and called for the Court to use it to “validate the Brown decision.”

Magnet spends pages of his concluding chapter contrasting Thomas’s upbringing and worldview with those of Barack Obama. An interesting parallel can be drawn: two smart, high-achieving men who were largely raised by their grandparents, who tried out black radical poses as college students, and who spent years of their lives working through their African-American identity. But the contrast has little to do with Thomas’s thinking about the Constitution and seems forced into a book on the subject.

Will Thomas’s rediscovery of the original Constitution be in vain? His opinions often attract little support or even response from his fellow justices. He writes for posterity, and 20 percent of President Trump’s appellate-court nominees have been former Thomas clerks. Living constitutionalists, in Thomas’s words, overturn precedents until “they get what they want, and then they start yelling ‘stare decisis,’ as though that is supposed to stop you.” By contrast, even conservative judges who hold the line against new inventions often blanch at rolling back old precedents, however rootless. But the original, written and amended Constitution doesn’t belong in a museum.

This article appears as “Raider of The Lost Constitution” in the June 24, 2019, print edition of National Review.

Dan McLaughlin is an attorney practicing securities and commercial litigation in New York City, and a contributing columnist at National Review Online.

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