In nearly two and a half centuries of American constitutionalism, from 1776 to today, the words that are most difficult to understand yet crucial to our republic are found in Abraham Lincoln’s first inaugural address. Reflecting upon the Supreme Court’s infamous pro-slavery decision in Dred Scott v. Sandford (1857), Lincoln observed that “the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”
Here we find the fundamental paradox of American constitutionalism, which contains both republican self-government and the rule of law. The rule of law requires judicial power and independence. But republicanism requires that these powerful and independent judges be made the people’s servants, not their masters. Lincoln venerated the Constitution, willing even to wage war against the Southern states in order to preserve it. But Lincoln rejected the suggestion that judges are our final arbiters in announcing the Constitution’s meaning; that obligation fell to the people themselves, for the sake of both republican self-government and the rule of law.
Yet the people themselves can misjudge or misrepresent the Constitution just as badly as judges. So what is better for American constitutionalism in those eras when the people are wrong and the judges are right—a judicial supremacy that enforces the Constitution’s original meaning at the cost of democratic self-rule, or a democratic supremacy by which the people refuse to “resig[n] their Government into the hands of that eminent [judicial] tribunal” but at the cost of the Constitution’s original meaning?
That is a bleak thought, indeed. It is far more pleasant to consider the scenario in which the people rally to protect the true Constitution against the anti-constitutional schemes of lesser politicians and judges. And that is why we are so lucky to live in the time of Justice Clarence Thomas, who personifies both populism and constitutional originalism.
An impoverished child in Savannah, raised not by his troubled mother (let alone his absent father) but by heroic grandparents, Thomas would eventually be formed by elite institutions before rejecting elite conventional wisdom on matters of political and personal values. He studied law at Yale and served in Missouri state government and then the Reagan and Bush administrations, before being appointed to the U.S. Court of Appeals for the D.C. Circuit and eventually the Supreme Court. And he won his appointment to the high court only by surviving an unprecedented attack based on dubious allegations of personal misconduct—an episode he rightly denounced as a “high-tech lynching.”
Thomas continues to face ceaseless and blistering assaults from critics, yet he remains undaunted. And even after nearly three decades on the Supreme Court, he shows no sign of slowing down. At a Supreme Court Historical Society event in June, he dismissed rumors of imminent retirement: “I have no idea where this stuff comes from,” the New York Times quoted him saying. If anything, Thomas is living his best life: “I really don’t have a lot of stress,” he told the audience. “I cause stress.”
Indeed he does. In late May, when the Court declined to review a lower-court decision in Box v. Planned Parenthood, which had negated Indiana’s bar against sex-, race-, or disability-selective abortions, Thomas wrote a separate opinion describing abortion as “an act rife with the potential for eugenic manipulation” and tying Planned Parenthood’s founder, Margaret Sanger, to the eugenics movement. Modern-day progressives were scandalized by the suggestion.
Each year, Justice Thomas spends nine months writing works of principled constitutional originalism in judicial opinions, and then he spends his summer touring the country with his wife in a recreational vehicle, savoring America one truck stop at a time. He is a constitutionalist and a populist.
Myron Magnet celebrates both of those things in his new book, Clarence Thomas and the Lost Constitution. He celebrates the man by recounting Thomas’s inspiring personal story, drawing largely from Thomas’s 2007 autobiography (My Grandfather’s Son) and two landmark profiles written by Thomas’s friend, Juan Williams. And he celebrates the justice’s efforts to formulate an originalist constitutional jurisprudence that would (if adopted by a majority of justices) correct the errors of a century that replaced the original Constitution with a “living” Constitution always malleable enough to suit progressives’ new political agendas.
Justice Thomas deserves all of Magnet’s praise, but the last century’s political and jurisprudential history presents challenges that are not easily boiled down into a simple story of pro-constitutional populists versus anti-constitutional elites.
Throughout his book, Magnet traces much of what has gone wrong in American constitutionalism to Woodrow Wilson, who, as Magnet puts it, wanted the Supreme Court to “sit as a permanent constitutional convention, continually making and remaking the law, to adapt, in a kind of Darwinian evolution, to changing circumstances.” Wilson deserves a fair share of blame for modern departures from the Constitution’s separation of powers—impatient with checks and balances, his pre-presidential academic writings called for a turn toward a less restrained government. “The period of constitution-making is passed now,” he wrote in 1885. “We have reached a new territory in which we need new guides, the vast territory of administration.”
But it is a mistake to call Wilson’s program a judicial “constitutional convention.” Rather, Wilson—and the voters who elected him, and who would later elect FDR—counted on constitutional reforms to come first and foremost from legislators and executives. The early-20th-century progressives mostly wanted for judges to simply stay out of the way of the people’s political reforms.
A half-century later, a new generation on the left would turn from judicial self-restraint to judicial activism, announcing constitutional rights not found easily in the Constitution’s actual text and imposing them to negate democratically enacted laws. The latter is what we came to know as “legislating from the bench.” But Wilson’s and FDR’s progressive approaches, by contrast, legislated not from the bench but from the legislature and from the executive. Magnet should be blaming the people, not the judges.
When the Supreme Court finally turned in the 1960s and 1970s toward energetic announcement of new constitutional rights superseding federal and state policymakers, their decisions inspired generations of conservative judges and lawyers skeptical of judicial announcement of rights not clearly found in constitutional text. But eventually the conservative legal movement came to repeat the left’s own evolution, by separating somewhat into two groups. One group, primarily libertarian, called on courts to recognize rights or impose restrictions not found in the Constitution’s plain text (an approach known increasingly as “judicial engagement”), while the other called on courts to maintain a more self-restrained approach.
Thomas is the justice most closely identified with the more energetic approach. This was especially so after his solo opinion in McDonald v. Chicago, where he joined the majority in arguing that states and localities are bound by the Constitution’s right to keep and bear arms even as he invoked the 14th Amendment’s “Privileges or Immunities” Clause as the source of the constitutional right against the states and cities. Magnet declares this to be “Thomas’s magnum opus so far.” Thomas’s opinion might be the correct reading of the law, but until we are confident in that conclusion, we should approach it warily, precisely because the 14th Amendment’s words provide little substance to guide and restrain judges. What specific rights are protected as “privileges or immunities of citizens of the United States”? That inquiry, undertaken by judges without clear textual guidelines, risks repeating the left’s experiment in legislating from the bench.
Magnet is committed to textualism. Quoting Thomas in 1996, he stresses that “we as a nation adopted a written Constitution precisely because it has a fixed meaning that does not change.” But when it comes to finding the correct, timeless, and long-lost meaning of the powerful “Privileges or Immunities” Clause that would serve as a significant limit on elected leaders in the states, Magnet is putting supreme faith in conservative judges and justices.
And therein lies the irony of casting the larger narrative of this book as one of progressive elites versus the people. Early on, Magnet contrasts a Tea Party yearning for more “democratic self-government” with a left that “likes government by experts and elites.” He warns that the latter prefers to empower “well-educated administrators and justices from the Yale and Harvard Law Schools” to “augment, correct, and sometimes nullify those broad directives made democratically by an electorate teeming with benighted deplorables.” But conservatives and libertarians who put utmost faith in judges to announce and protect other rights not clearly stated in the Constitution run the risk of making the same mistake. After all, all of the Court’s conservative justices are “well-educated . . . justices from the Yale and Harvard Law Schools.”
In the end, Magnet is right to worry that Americans (or at least Americans’ elected leaders) have ceded too much power to the parts of government least directly accountable to the people themselves—namely, to administrative bureaucracies and to courts, both of which are staffed by particular types of experts, to govern primarily through the use of those particular types of expertise.
“As the founders often cautioned,” Magnet warns, “a self-governing republic doesn’t have a governing class.” But when he further notes that “part of America’s current predicament is that it now has a permanent, unelected one, unanswerable to the people,” it is worth remembering that a federal judge’s tenure is even more permanent than a bureaucrat’s, and that a judge is even less answerable to the people than a regulator is. That is equally true for conservative and liberal judges alike.
In the end, as Magnet makes clear, Justice Thomas’s principled constitutionalism and comfortable populism make him a genuinely singular American statesman. And for precisely that reason, we should hesitate before handing dispositive political power to judges, very few of whom are Justice Thomas.
