Clarence Thomas and the Lost Constitution - Encounter Books

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Clarence Thomas and the Lost Constitution

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Publication Details

Hardcover / 184 pages
ISBN: 9781641770521
Available: 5/7/2019

Clarence Thomas and the Lost Constitution

Clarence Thomas’s 1950s childhood, as a black kid in hyper-segregated Savannah, under the vigilant eye of his ferociously self-reliant grandfather, formed him into the independent-minded, responsible individualist that America’s Founding Fathers assumed—wrongly—would always be this nation’s unique character type. The old-fashioned virtues he learned gave him the strength to reject the 1960s victimology and identity politics in which his well-earned academic success marinated him. When, after decades of government service, constantly battling the responsibility-shirking orthodoxies of racial grievance, he rose to the Supreme Court—after his own confirmation hearings’ up-close experience of the rancorous race and sex politics that define our era—he was uniquely equipped, by character and culture, to understand and revere the Constitution as the Founders wrote it, “to secure the blessings of liberty to ourselves and our posterity.”

What he found when he ascended the Bench, though, was a Constitution twisted almost beyond recognition from the 1787 document and the 1789 Bill of Rights that the Founders had framed, and the Reconstruction-Era Amendments ratified to fulfill Lincoln’s dream of a new birth of freedom. Woodrow Wilson, who despised the Framers’ checks and balances as obsolete and inefficient, purposely began that distortion, aiming to replace the Founders’ government of separated, enumerated, and limited powers with government by unelected, “scientific” experts in executive-branch agencies, dispassionately making binding rules like a legislature, carrying them out like a president, and adjudicating and punishing infractions of them like a court. Also instead of cumbersome congressional lawmaking, Wilson saw the Supreme Court as a permanent constitutional convention, the soul of a “living constitution” that would evolve continually, in Darwinian fashion, with the Bench legislating to meet modernity’s ever-new needs. What Wilson set going, Franklin Roosevelt supersized, creating in the alphabet soup of New Deal agencies what he acknowledged was a fourth branch of government with no constitutional basis.

More painful to Thomas, his predecessors on his own Court had helped kill Reconstruction in its cradle through grotesque 1870s and ‘80s decisions that neutered the Fourteenth and Fifteenth Amendments and ensured decades of Jim Crow black subservience in the South. Even worse, the Court still cites those decisions as precedents for its rulings to this very day. But such racist judgments surely don’t merit the status of Constitutional law, Thomas concluded. In the Justice’s radical originalism, clearly explained in these pages in engaging, non-lawyerly prose, the only legitimate Constitutional law is the Constitution.

So far, none of Thomas’s searching opinions has served as the Court’s majority ruling. But he is laying down, within the Court’s official record, a blueprint for future Justices to restore the authentic U.S. Constitution, just as his own character embodies the old ideal of American citizenship, with liberty at its heart.

About the Author

Myron Magnet, the editor of City Journal from 1994 through 2006, is now the magazine’s editor-at-large. A former member of the board of editors of Fortune , he has written on topics ranging from American society and social policy, economics, and corporate management to intellectual history, literature, architecture, and the American Founding.

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Well before his fellow Englishmen had grasped it, Economist founding editor Walter Bagehot observed that Britain really had two governments, one for show, one for real. The “dignified” government, he explained in his 1867 classic, The English Constitution, is the storied monarchy, with its pageantry of thrones and crowns, gilded coaches and showy guardsmen—but no power. The “efficient” government, which actually runs the realm, is the prime minister and his cabinet, mostly non-aristocrats who go about their business quietly in the shadows, bland men in sober suits (plus Jaguars with drivers today).

Something like that has developed in America, too. But while in Bagehot’s England the two governments strengthened each other, the monarchy cloaking the efficient government in its venerable authority, in America the two have become so increasingly opposed that the disjunction now threatens a crisis of legitimacy. Though that crisis has long been brewing, the 1991 Senate hearings on Clarence Thomas’s Supreme Court nomination first brought it into view, hazily. What was at stake to rouse such ferocity and lead the Judiciary Committee Democrats to sink to the politics of personal destruction, with almost no norm of decorum left intact, to smear Thomas’s character rather than weigh his fitness as a jurist?

What led them to follow exactly the same playbook in the 2018 Brett Kavanaugh hearings, willing not only to ambush the judge at the eleventh hour with sordid, uncorroborated allegations of sexual transgressions as a teenager 36 years earlier but also to withhold from his chief accuser the key fact that she did not have to submit to humiliating public questioning in Washington but could have testified privately in her home state, as she requested? To those who used her as a mere tool of demolition, who farcically endorsed the hysterical shrieking of professional demonstrators in the gallery as “the sound of democracy,” she was just as disposable as Kavanaugh, mere roadkill. Even the biased journalists dishing out fairy tales of yet more alleged debauchery and falsely inflating the main allegation into an attempted-rape charge, far graver than what the accuser described, included hardened veterans of the Thomas slander.

In the aftermath of this squalid spectacle, Left and Right are scarcely on speaking terms, and the anger isn’t likely to fade anytime soon. at’s because, as Americans are coming to recognize from the spotlight on the Court, Left and Right have visions of government so different that they can’t be reconciled easily. One diagnostic index is Hillary Clinton’s assertion that “You cannot be civil with a political party that wants to destroy what you stand for, what you care about.” Another is Senator Cory Booker’s claim that to support Kavanaugh is to be complicit with evil.1 Yet a third is a recent poll showing that 68 percent of respondents think that only among like-minded people are they safe to say what they think about race or Islam, while 70 percent feel similarly constrained on sex and “gender,” and 73 percent on immigration.2 No wonder screaming mobs roam Washington and its suburbs, hounding Republican officials and their families out of restaurants and besieging a conservative broadcaster’s house, while in New York, smirking, twentysomething activists mockingly harass a Fox News anchor in a subway car from which he can’t escape, egging on fellow riders to taunt him threateningly for the villainy of his political incorrectness. À la lanterne!

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