Clarence Thomas and the Lost Constitution
When Clarence Thomas joined the Supreme Court in 1991, he found that it was interpreting a very different Constitution from the one the Framers had written—the one that had established a federal government manned by the people’s elected representatives, charged with protecting citizens’ inborn rights while leaving them free to work out their individual happiness themselves, in their families and communities.
In CLARENCE THOMAS AND THE LOST CONSTITUTION (Encounter Books, May 7, 2019) City Journal editor-at-large Myron Magnet contends that Clarence Thomas’s originalist jurisprudence presents a path forward for recovering our nation’s “Lost Constitution” and restoring America as a free, self-governing nation made up of independent-minded, self-reliant citizens. Magnet reveals how the conflict between the original Constitution and the evolved “Living Constitution” lies at the heart of the animosity that divides Americans today.
Magnet recounts how the Constitution became twisted beyond recognition from the 1787 document, the 1789 Bill of Rights, and the Reconstruction-Era Amendments meant to give full citizenship to black Americans. Magnet points to Woodrow Wilson as the originator of that distortion, aiming to replace the Founders’ government of separated, enumerated, and limited powers with government by unelected judges and by “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.
Franklin Roosevelt supersized this distortion by creating New Deal agencies that he acknowledged formed a fourth branch of government with no constitutional basis. And under Chief Justice Earl Warren in the 1950s and 1960s, the Supreme Court set about realizing Wilson’s dream of Justices sitting as a permanent constitutional convention, conjuring up laws out of smoke and mirrors and justifying them as expressions of the spirit of the age.
Clarence Thomas had deep misgivings about the new governmental order. He shared the Framers’ vision of free, self-governing citizens forging their own fate. And from his own experience growing up in hyper-segregated Savannah under the vigilant eye of his ferociously self-reliant grandfather, flirting with and rejecting black radicalism at college, and running an agency that supposedly advanced equality, he doubted that unelected experts and justices understood the moral arc of the universe better than the people themselves, or that the rules and rulings they issued made lives better rather than worse.
So in the hundreds of opinions he has written in more than a quarter century on the Court, Clarence Thomas has questioned the constitutional underpinnings of the new order and tried to restore the limited, self-governing original one, as more legitimate, more just, more free, and more truly up-to-date than the one that grew up in its stead.
The Court now seems set to move down the trail he blazed. So far, few of Justice Thomas’s searching opinions have 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 and self-reliance at its heart.
ABOUT MYRON MAGNET
Myron Magnet, author of The Founders at Home: The Building of America, 1735-1817, was the editor of the Manhattan Institute’s City Journal from 1994 through 2006 and is now editor-at-large. A former member of the board of editors of Fortune, he has written about a wide variety of topics, from American society and social policy, economics, and corporate management to intellectual history, literature, architecture, and the country’s founding. He was awarded the National Humanities medal in 2008.