Myron Magnet joined Ben Weingarten to discuss the originalists’ battle to defend the Constitution, the fight against the administrative state, and the legacy of Clarence Thomas. You can watch at the link below or read a full transcript of the interview, which has been slightly modified for clarity.
Ben Weingarten: Welcome to Close Encounters, a joint production of Encounter Books and The New Criterion. I’m your host, Ben Weingarten, and today I’m joined by Myron Magnet, author of the new Encounter book, Clarence Thomas and The Lost Constitution. Myron, thank you for joining us.
Myron Magnet: Such a pleasure to be with you, Ben.
BW: So, let’s start right here. You call Justice Thomas, and I quote here, “The Founder’s Grandson.” Why?
MM: Well, because when he is an originalist, he is preserving their original Constitution. What he understands to be the Constitution is what the framers wrote in the 1787 Convention as improved by the Bill of Rights and perfected by the Reconstruction Amendments, and then the 19th Amendment giving women the vote. And in his view, he never says this directly, but I infer that he sees this as the most modern, even avant-garde idea of government that anybody has ever had up to this point. This is a Constitution which does not have a government ruling people, but rather, it’s a constitution that establishes a self-governing republic whose only job is to protect the right of individual citizens to forge their own fate, their own happiness in their own way, in their families, in their local communities. Nothing has ever bettered that.
BW: One of the things that I found in reading your book that I hadn’t considered enough is obviously Thomas’ experience in his personal life, his family life, is intrinsically linked to ultimately his jurisprudential philosophy and his view of the country. But also, his story is bound up in the American story. In some ways, he embodies it. I wonder if you would expound upon that a little bit.
MM: Okay, so he didn’t go from log cabin to the White House. But he did go from a kerosene-lit shanty in a Georgia swamp to the high bench. And he did it just like the rail-splitter, right? By genius and grit. I can try to give you a sort of potted biography. His mother moved him and his little brother to Savannah when I think he was seven. After a year of hunger and cold in a slum tenement, she couldn’t keep him anymore, so she sent him and his little brother about three blocks away to her father and stepmother’s house. Now, her father was truly a self-made man. He was semi-literate, but a real American entrepreneur. He’d set up what had started out as a coal and ice business; it was now a fuel oil delivery business. And as part of this self-making, he had converted from the Southern Baptist Church he was born into to Catholicism because he wanted a structured religion. He sent the boys to Catholic school, segregated, but teaching that all men are created equal and that therefore segregation was wrong.
And he put the boys to work after school delivering fuel oil and keeping the accounts, and in the summers, they would go off to 60 rural acres down in South Georgia across the road from where their ancestors had been slaves. And he had them clear the land and build a cinder block house with him and then they would till the fields every summer and grow their crops and raise the animals. So this was a pioneer existence. Actually, what the grandfather said to them is, “You’re gonna know what it was like in slavery times, boys.” And so, he learned self-reliance by relying on himself. And he said, “You know, you have to understand,” he says this in speech after speech after speech. He said, “We used to learn when we were kids about heroes.” I don’t know, are you old enough to remember Landmark books, the Landmark biographies, right?
So we grew up reading kids’ biographies of George Washington, and he says, “George Washington Carver,” and the idea was always how these people’s virtues and willpower got them to overcome whatever obstacles they had in their own life and not only change their lives, but change the country and the world. I remember Marie Curie was one of that series. And so what Thomas says is now, when people write biographies of these guys, they try to explain all their accomplishments away as neurotic symptoms. They try to diminish them in one way or another. And all the emphasis is on victims, victims, victims, and “Society is responsible for my problem. The government has to fix it.” And what Clarence Thomas believes is that you cannot have a self-governing free republic without self-governing free citizens. It takes a certain kind of individual and national character to be capable of sustaining freedom, and in order to have that, you need a certain kind of culture and that’s why the culture wars that rage so bitterly right now are so important because if you don’t have a culture that turns out free men, you can’t have a free country.
“This is a Constitution which does not have a government ruling people, but rather, it's a constitution that establishes a self-governing republic whose only job is to protect the right of individual citizens to forge their own fate.”
BW: But Thomas didn’t always hold these views. He was a radical and effectively, a self-described angry Black man during the Civil Rights era. So what changed, and how great was the great free market economist Thomas Sowell’s teaching on Justice Thomas?
MM: Well, first of all, yes, you’re absolutely right. He became a self-described Black radical and flirted with the Black Panthers at Holy Cross. He had set out to become a priest. His grandfather’s ambition for him was to be Savannah’s first Black priest. He went to seminary in St. Louis, encountered racism, and could not understand how the church could be racist. And then Martin Luther King was shot and one of his fellow seminarians said, “Good, I hope the son of a bitch dies.” Thomas said, “That was the end of my vocation.” He dropped out, encountered yet more racism in the jobs he held after that, got into Holy Cross, and then was angry because he was looking at racism and starting to think—and it was the beginning of affirmative action so there were increasing numbers of Black kids at Holy Cross who were getting angry in the way that Thomas Sowell describes was inevitable under affirmative action—that if you take in smart kids to institutions one notch above their capability, what are they going do? Are they going say to themselves, “I’m inferior?” No, they’re going to say, “There’s something wrong with the institution. It’s oppressive, it’s got to change, and I’m angry.”
So Clarence Thomas, of course, was one of the really smart kids but even so, out of solidarity with the other Black kids there, he became a Black radical. And he went to a demonstration in Harvard Square at the end of his junior year, and the demonstration turned really violent. And a friend of ours who was there, and saw it said, “Oh yeah, cops were roughed up and windows were broken and fires were set,” and it was a real riot with hundreds of people. And Thomas got back to Holy Cross, and he said, he went into the chapel, and he just prayed for God to relieve him of this anger because it was going destroy him. It was going to turn him into a caricature, an angry Black man, and it was not who he wanted to be. And he said, “I asked myself, do I really believe that America was founded on the principle that all men are created equal? Yes, I do.” He said, “Do I really believe it was founded on the idea that all men were endowed by their creator with unalienable rights? Yes, I do.” So of course, you know perfectly well that he never gave up his anger entirely. You know the man.
He said one time when he addressed The National Lawyers Association, the biggest Black lawyers group in America, “I am a man, a Black man, and an American,” all those things. And he said, “And you know what? I claim the right to define myself.” So it’s pretty good. So now, you asked me about Tom Sowell, when he was running the Equal Employment Opportunity Commission, he employed as aides, John Marini and Ken Masugi, two Claremont wise men. And he said, as Ken Masugi told me, “I can’t think about these important things right now, I got an agency to run and it’s been left in a mess. I need you to do my political, philosophical thinking for me.” So they basically gave him a course in Leo Straussian political philosophy. And so he was taking all of this in, meanwhile, actually before that, he was invited to go off to some conference on race organized by Tom Sowell where he talks to some guy sitting in the audience and tells a story about how his sister is on welfare and how terrible it is. The guy turns out to be Juan Williams, reporter for The Washington Post who runs a story on him the next morning.
And boom, he’s now a celebrity, and he becomes a sort of Black conservative politico, running first one agency and then another and comes to know the administrative state from the inside. But he had read the complete works of Thomas Sowell, which sort of authenticated his own perceptions and his own experiences. And that really made him into a full-throated conservative. But by the way, even though his grandfather was a lifelong Democrat, and a lifelong and very, very enthusiastic member of the NAACP, his grandfather’s view of the world, which is where there’s a will, there’s a way, and this is a free country, and you make your own fate, that was conservatism. Even though the guy was a Democrat, he was a conservative. So in a sense, after this flirtation with college radicalism, Thomas returned to his roots, and Thomas Sowell and Ken Masugi and John Marini most certainly helped him find his way home, but what he discovered is that the way he was brought up was the right way.
“He didn't go from log cabin to the White House. But he did go from a kerosene-lit shanty in a Georgia swamp to the high bench.”
BW: And since you mentioned Marini and Masugi, just a note to our viewers here, there’s an Encounter book, Unmasking The Administrative State, which is written by John Marini and edited by Ken Masugi and gives a lot of insight into I suspect, Clarence Thomas’s thinking on the administrative state. And since you brought up the administrative state, The Lost Constitution is part of the title of this book, the administrative state is clearly a part of that. Where does it fit into Thomas’ view on what has been lost and how consequential has his jurisprudence been with respect to the administrative state?
MM: Well, those are, Ben, are great questions. And I argue in the book that there are three stages by which the Constitution was lost. We’ll go back to the first one. But the second stage of it was something that was theorized by Woodrow Wilson and then supersized by Franklin Roosevelt in the New Deal. And what Wilson had said is, “Arc… We’re beyond the age of constitutions, we’re in the age of administrations. Constitution moves too slowly, it’s for limited government, it’s for government that doesn’t do much.” He said, “Modern conditions demand a modern government that needs to move fast and we need to protect people from all these giant things out there. So what we’re going to have is the Supreme Court sitting as a permanent constitutional convention making up laws to respond to modern conditions. And we’re going to have this army of Ivy League trained bureaucrats in the executive branch or independent agencies like the SEC or the FTC who will make rules like a legislature, and carry them out like an executive, and adjudicate and punish infractions of them like a judiciary with no separation of powers whatsoever.”
And as Franklin Roosevelt himself admitted, he said, “We’ve created a fourth branch of government that has no basis in the Constitution. But hey, we’re going with it.” But what’s so interesting to me is that, we have Woodrow Wilson, our first professor president, who taught himself German in order to read Hegel, and he understands which way the arc of history bends better than your average American voter.
“After this flirtation with college radicalism, Thomas returned to his roots, and Thomas Sowell and Ken Masugi and John Marini most certainly helped him find his way home, but what he discovered is that the way he was brought up was the right way.”
Like Hegel, his model is Fredrick the Great. And he is fabulously incorruptible, non-partisan, bureaucratic service. But what our model is enlightened despotism and, as the founders knew a heck of a lot better than Woodrow Wilson did, the thing about enlightened despotism is that the enlightenment evaporates leaving only the despotism behind. And so it is not a more modern idea than the free republic that the framers envisioned. Well, of course, the Supreme Court blessed all of this. And of course, it was during the New Deal that this primarily happened and it blessed it with Franklin Roosevelt’s gun to its head. Because the court had been saying, “No, no, no, you can’t take control of the whole economy. The Constitution, Article 1, does not give you power, does not give the legislature power to take control of the whole economy.” But it was not until Wickard v. Filburn that the court finally said, “Okay, well, a farmer growing grain to feed only to his own livestock, yes, is interstate commerce. And yes, the federal government can regulate it.”
And Justice Thomas says, “Okay, here’s two sick Californians who think that they’re protected by California’s medical marijuana law. So they’re growing pot to smoke to alleviate their pain, and the Feds come and take the pot plates away and arrest them, charge them under the Federal Controlled Substances Act. And actually, the Supreme Court upholds, and Thomas just goes ballistic over this. He says, “Here you got people growing their own stuff, using it themselves. This is not interstate commerce, it stays in California. It’s not commerce, they don’t sell it, it’s not even economic activity. And if the court goes on in this way, we’re gonna be regulating potluck suppers.”
BW: And he’s right.
MM: And he’s absolutely right. And he mentions Wickard v. Filburn. And he says, “This is a wrong decision. It’s a wrong decision and it ought to be overturned.” Now, as for wrong decisions, let’s go back to the beginning. We fight a civil war, nearly 400,000 Union soldiers died to make men free. So now, we’ve just got basically northerners in the Congress, who passed the 13th, 14th and 15th amendments and send it out to the states to be ratified. And the deal with the southern states is they can’t be let back into the Union unless they ratify these amendments. Well, they do. But now the question is, what do they mean? And the most important part of these three amendments is the privileges or immunities clause of the 14th Amendment, which sets out to clothe freed slaves in all of the rights enumerated in the Bill of Rights against depredations by state governments. And in two decisions, one in 1873 and one in 1876, the Supreme Court says, “Oh no. Oh no, no, these are not the rights which the 14th Amendment gives to Black citizens.” I mean they’re weird, you’ve read those decisions. Slaughterhouse and Cruikshank. You just can’t understand where the justices are coming from in this one. But in effect, what they do is nullify the 14th Amendment, and in effect, they nullify the Civil War.
And during the New Deal, the court found a work-around, which was the idea of substantive due process. So the idea is there are some rights that are so fundamental that no government can infringe upon them whatsoever. And Thomas says, “Wait a minute, this is the most fictional of legal fictions that there is. And the trouble with it is that any Supreme Court Justice can make up his own fundamental rights that can’t be overturned. This is hokey. And furthermore, the precedents that we are protecting here are shameful. Shameful. Cruikshank and Slaughterhouse, they are miscarriages of justice. And what we ought to do is just step up to the plate and say, “Our esteemed predecessors were wrong in these cases and we ought to overturn them.” And this is in a way, the heart of Clarence Thomas’ jurisprudence. I don’t have to tell you that stare decisis is a venerable legal idea, the idea that judges should respect precedent.
All through Clarence Thomas’ jurisprudence, in his 28 years on the High Court now, he has been flirting with the idea of overturning precedent. And he’s been marking out precedents to overturn, Wickard v. Filburn is one case in point, Slaughterhouse and Cruikshank, two more cases in point. Because basically, what he says is, “We justices, when we see a law passed by the people’s elected representatives and signed by the President, but we think it’s unconstitutional,” we say, “This is unconstitutional, we overturn it.” Why should we be any more pious toward the mistakes of our own predecessors who were great and brilliant men? But they’re humans, they’re men, they make mistakes, if they make a mistake, we should say so.
“All through Clarence Thomas' jurisprudence, in his 28 years on the High Court now, he has been flirting with the idea of overturning precedent.”
So the way loggers mark trees to cut down the next time they come through the forest, Clarence Thomas has been going through and marking precedents to overturn. And what’s so interesting is that two weeks ago or so, in a sort of technical tax jurisdiction case, he wrote the majority opinion for the court. And the opinion doesn’t matter, but what’s interesting about it is, in the last paragraph, he said, “By the way, this whole case turns on the precedent which is wrong and we hereby overturn it.” So he wrote the opinion for the majority of the court and overturned one of these decisions. And just a few days ago, he writes an opinion in a case called Gamble in which he sets forth exactly what I’ve been saying. He says, “Stare decisis? Yeah, it’s a good guidepost for us. The framers didn’t want a Constitution that evolves by judicial opinion the way the unwritten English Constitution one that had governed the colonists for 150 years does. They wanted a written Constitution where the words mean what those who wrote them thought they meant, and those who ratified thought they meant, and their contemporaries thought they meant, and you can find it out and it governs you.”
So he said, “Okay, but now even under English jurisprudence, wise men like Blackstone,” the English jurist who wrote the founding legal textbook, “knew perfectly well that even judges could make mistakes, and that even a system that proceeds by precedent could overturn precedents, because men are men, and they’re fallible.” And so what Justice Thomas says in Gamble is that “Even in a Darwinian system like the English common law system, if the judges can overturn precedents, why can’t we overturn precedents?” And that’s what we want to do. And especially that stupid precedent of substantive due process.
I just read a piece that Jeffrey Toobin, The New Yorker’s Supreme Court correspondent has written, in which he says, “Clarence Thomas is basically a more consequential jurist even than Justice Scalia.” And the reason for that, I think, is that he has been perfectly willing to say, “There is a clear constitutional idea at the root of the American republic. And it has been messed up and we need to restore it so that we can once again be a free, self-governing society.” And he would turn then, for his description of the third act of the subversion, to the Warren Court. And what did the Warren Court do? I love this, because when I took over City Journal, he wrote a story for me about jurisprudence. And we were both new to our jobs relatively, and he said, “What is the court doing creating all these hokey rights? Rights for gangbangers, rights for kids to act up in school, rights for dope dealers in public housing projects. Does anybody realize that if you don’t punish evil doers, the message that you as a society are giving to citizens is there’s no difference between doing right and doing wrong, and the law can’t teach where it can’t punish?”
And so he wrote a whole string of opinions dealing with the idea that you can’t be a gangbanger and loiter on the streets of Chicago. School children do not have the right, the unlimited right of free speech, because their teachers and principals are in loco parentis. You don’t need a full court hearing to eject an unruly criminal from public housing, it’s not a right, and so on. And of course he has said, and it is perfectly true, that Roe v. Wade was wrongly decided. So when one of these cases comes to the court, we could kind of predict where he’s going to come down on this. And on the administrative state, in a whole string of 2015 decisions, he says, “Wait, this is something that…” in its lack of separation of powers, and in its delegation of powers to non-elected officials, he says, “Has no comfortable home in our constitutional structure.” And he writes four opinions in 2015, in which he bangs away at all of the tricks by which courts have allowed the administrative state to run roughshod over our liberties, like deference to agency interpretations of its own regulations, deference to agencies’ interpretation of congressional statutes. He says, “Hey come on. We don’t give deference to district judges, and they’re Article III judges, why are we going to give deference to these pip-squeaks. Absolutely not. I’m against it. I want to overturn it.”
And I think, given that Justice Kavanaugh was a real critic of the administrative state on the appellate bench, we’re going to see some fireworks in the years to come on that front too. And you want to know why this is so important? I’m sure you read in one of our favorite papers just a couple of weeks ago the story of a case of a Montana rancher. You remember that? Who was worried about forest fires, so he’s got a little trickle running through his mountain acres. And he digs two ponds so he can have water to pump, should, God forbid, the woods started to burn. The EPA comes out and says, “Hey, you’ve polluted the navigable waterways of the United States. This is under a regulation.” Under a regulation, not a law. And by the way, the nearest navigable waterway is 40 some miles away. But what happens to this guy? They fine him $130,000 and they send him to prison for 18 months. Now, that is tyranny. That is tyranny. That is despotism without the enlightenment, and that is what the framers of the Constitution were trying with might and main to protect us against and what Clarence Thomas is determined to bring us from again.
“Does anybody realize that if you don't punish evil doers, the message that you as a society are giving to citizens is there's no difference between doing right and doing wrong, and the law can't teach where it can't punish?”
BW: Just to jump back to Gamble, briefly, I think, to put an exclamation point on it, he wrote in his opinion in part here, and I think people have to appreciate just how radical and revolutionary this is relative to where we are. They’re not radical and revolutionary in the founders’ view. [chuckle]
MM: Who made a revolution.
BW: Who made a revolution, yeah. But he says, and I quote here, “We should restore our stare decisis jurisprudence to ensure that we exercise mere judgment which can be achieved through adherence to the correct original meaning of the laws we are charged with applying. In my view, anything less invites arbitrariness into judging, the original precedent being the Constitution and the Declaration.”
MM: And he says, “There is no other precedent.” That this one trumps everything else. And that quote you read, who is he paraphrasing, but Alexander Hamilton in Federalist 78. So, you can’t get any more original than that.
BW: What has Justice Thomas done to the Commerce Clause via his jurisprudence?
MM: Well, I mean, he said that Wickard v Filburn is wrong and you cannot use the interstate commerce power that Article 1 of the Constitution gives to Congress to have the feds take control of all commerce. He said, “Remember, commerce meant a very special thing when the framers wrote the Constitution.” It didn’t mean all economic activity, it didn’t mean agriculture, it didn’t mean industry. It meant trading and shipping and that sort of thing. So, what he’s saying is Congress cannot take control of the whole economy by asserting that the interstate commerce power gives it such control. It doesn’t have any such power.
BW: What, in your view, is Justice Thomas’ most underappreciated, but consequential opinion?
MM: Well, no. I would answer a different question, which is what’s his greatest opinion. And his greatest opinion is McDonald v Chicago. If you want to learn about how Reconstruction was overturned and why substantive due process is not just wrong but evil, read McDonald v Chicago. It’s fabulous.
“His legacy is restoring the founders' Constitution. He has shown how to do it and trained the people who can do it.”
BW: Now, I understand that you didn’t talk to Justice Thomas while you were writing this book. You could have. Why didn’t you talk to him?
MM: I write about dead people, and I didn’t want to feel that somebody was looking over my shoulder. I have the warmest affection for him. When an earlier book of mine came out, The Dream and the Nightmare: The Sixties Legacy to the Underclass, he called me up and said, “I love this book. This is my experience. Come down and talk to me.” So, that’s how we met, back in 1993. And it turned out that our take on college was like this. So, I know him. As I said, he wrote for me. We’ve seen each other off and on over the years. But I wanted to do it from the public record. And everybody says, “Justice Thomas doesn’t speak on the court.” Well, he’s written voluminously. I think, more than any other contemporary Justice, and he also speaks. I can’t say obsessively, but Justice Scalia said, “Hey, your job is to show the flag, so when you get invited to give these speeches, you got to give the speeches.”
And the Federalist Society has hosted all these fora for Justice Thomas, and they are online, and I am eternally grateful to The Federalist Society, because you know what? I had had only one question unanswered from the public record, and that was, I thought, “You know what, I should have talked to some of Justice Thomas’ clerks to find out what it was like from their point of view, working for him.” Well, guess what? There’s a Federalist Society Symposium with a bunch of Justice Thomas’ clerks, including of course, Gregory Katsas, who is now a federal judge, which reminds us that 20% of the judges whom the Trump administration has elevated to the federal bench are former Clarence Thomas’ clerks. So, not only has Justice Thomas set this road map in place for future courts to carry out, but he’s seeded the judiciary with these carefully mentored and brilliant young, and some of them now not so young judges, who can carry this out in the future.
BW: Is that Justice Thomas’ legacy, or does it go beyond that?
MM: His legacy is restoring the founders’ Constitution. He has shown how to do it and trained the people who can do it. And what’s so interesting, Ben, is even 10 years ago, almost all of the law professoriate thought this guy is just a kook out there in right field. No more. The smart ones, even on the left, like Akhil Amar, they understand that this is probably the most consequential jurist of his era. That’s pretty terrific, for somebody to have laid out a whole new jurisprudence. It’s like a law text. What they teach as constitutional law doesn’t hold a candle to what Justice Thomas has written as constitutional law.
BW: Myron, thank you so much.
MM: Such a pleasure, Ben. Thank you.