Thinking In Public

July 22, 2019

America’s Lost Constitution and its Great Defender:  A Conversation with Myron Magnet about Justice Clarence Thomas

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Albert Mohler: This is Thinking in Public, a program dedicated to intelligent conversation about frontline theological and cultural issues with the people who are shaping them. I'm Albert Mohler, your host, and president of the Southern Baptist Theological Seminary in Louisville, Kentucky. Myron Magnet is Editor-at-Large of City Journal, an influential urban policy magazine based in New York City. He previously served as the magazine's editor. He's had an impressive career writing about topics ranging from American social policy, economics, and corporate management to intellectual history, literature, and architecture. In 2008, President George W. Bush awarded Myron Magnet the National Humanities Medal for what the president called, "Scholarship and visionary influence in renewing our national culture of compassion." He's the author of many books. He's a graduate of both Columbia University and the University of Cambridge. He holds his PhD from Columbia. Amongst his many books is the book The Dream and the Nightmare: The Sixties' Legacy to the Underclasswhich became one of the most important books in American public policy in the current generation.

Albert Mohler: I enjoyed a previous Thinking in Public with Dr. Magnet on his book The Founders at Home: The Building of America 1735 to 1817. Today, we get to talk about his newest book Clarence Thomas and the Lost Constitution. And so to Dr. Myron Magnet and our listeners, welcome to Thinking in Public.

Albert Mohler: Dr. Magnet, as I look at your most recent book, Clarence Thomas and the Lost Constitution, I have to tell you I was a little bit surprised that this book came from you. Behind every book like this, there is a story. When I say I was surprised it came from you, it wasn't that you would find this interesting, but that you would find these issues urgent. Tell us how the book came about.

Myron Magnet:Well, you and I talked a few years ago about my last book The Founders at Home, and being a journalist, I write a book because I got questions that I want answered. I set out to research. What I wanted to know in The Founders book is what kind of republic did the founding fathers envision, and what kind of government did they frame to bring it about? I found the answers to those questions that they had come up in the Constitution with something unexampled in human history, and 232 years after the Constitutional Convention still the cutting-edge in politics. That is, it's a government that instead of ruling simply protects your right to pursue your own happiness in your own way in your family and your local community. This has never been beat. It's still avant garde.

Myron Magnet:Then I got a whole bunch of further questions, which is, "Wait a minute. We don't have that government anymore, so what happened to it? How do we get it back?" That led me to Justice Thomas, who in 28 years, in hundreds of opinions, has set forth this really comprehensive account of how we lost it and has laid up a roadmap for its restoration.

Albert Mohler: One of the points you make convincingly, and we'll get to this, is the consistency in the historical understanding and the constitutional interpretation of Clarence Thomas. But b efore we turn to Justice Thomas, I want to go back to how you begin the book. You begin with a quote from Walter Bagehot, the famous constitutionalist of Britain's unwritten constitution who talked about the fact there are really two governments. In Britain, you can see this so clearly. You have the gilded monarchy, which has all the power of impressiveness but none of the power of actually ruling. Then you have the real government, made up of people who tend to wear business suits, and yet they are the government under Britain's parliamentary system. You raise that because you argue that in the United States we now have both a visible government and an invisible government, but of a very different form that Bagehot warned of.

Myron Magnet:Yeah. A much less benign form too. You know, I think that we are in the midst of a crisis of legitimacy in this country, because we have two competing ideas of where the authority of the government comes from. People like me and Justice Thomas, and I daresay you, believe that the reason we obey the government is because it rests on that original constitution of 1787 as improved by the Bill of Rights and perfected by the reconstruction amendments and the 19th Amendment that gave women the vote. And this constitution guarantees freedom and expects self-reliance. We're the freedom party.

But on the other side, there is what I call “the Fairness Party.” They're the people who believe in a constitution that works by unelected judges making up laws as they go along based on really nothing, based on the zeitgeist, based on what the age requires, and an army of unelected, supposedly highly educated, supposedly expert bureaucrats, who make rules like a legislature, carry them out like an executive, and adjudicate and punish infractions of them like a judiciary. So, you've got no separation of powers in this, what Franklin Roosevelt recognized as a fourth branch of government, that has as Franklin Roosevelt also recognized, no legitimate basis in the Constitution.

And that’s our real government now. That's what people are calling the Deep State. The judges and the bureaucrats and even the secret service agencies, secret police agencies. These don't have any home in the Constitution whatsoever. It's this ersatz government that Justice Thomas has been trying to dismantle in 28 years.

Albert Mohler:  Well, I am indeed glad and honored to be on the list you just mentioned there. I'm also glad to have received the Edwin Meese Award for Originalism.

Myron Magnet:Kudos to you. Let me tell you.

Albert Mohler:  I'm just saying, we're coming from a similar perspective here of course, but I think the greatest achievement of your book is in exceeding the title. The title is Clarence Thomas and the Lost Constitution. What you write delivers that, but actually I think you offer the most succinct history of what's actually happened to the republic and what's happened to the constitutional form of government that was established by America’s founders and the framers of the Constitution. I wanted to get to that story, because you really talk about it in three different moves. Honestly, I think that no one has quite encapsulated the history has convincingly as you have and succinctly. So, just walk us through those three different steps and the abandonment of America's constitutional order.

Myron Magnet:Well, the first one is really not very well known, and you know the founders recognized perfectly well that slavery was a blemish on their vision for the republic. And if they could've done away with it and still gotten the Constitution ratified, they would've done it. Instead, they did everything they could to limit it, to prevent its spread. And they hoped that it would go away. The whole history of this country from the 1830s until the Civil War is an effort to compromise to compromise to try to do something to solve it, but Eli Whitney gave us the cotton gin, slavery spread southward, the Kansas-Nebraska Act spread it westward. The Civil War came, and after the Civil War, when the congress was only Northerners—right, remember the Southerners they still hadn't been let back into the Union—we passed the 13th, 14th, and 15th Amendments. The most important part of those was the privileges and immunities clause of the 14th Amendment, which intended to clothe freed slaves in all of the rights protected by the Bill of Rights against any depredations by the state governments.

Well, as it happens, two 1870s decisions of the Supreme Court, one in 1873, the other in '76, just subverted that clause of the 14th Amendment. Just said, "No, no. These are not the rights conferred by the 14th Amendment. In any event, it's not the government that confers these rights. The government only protects them." Basically what these two decisions did was to make a dead letter of that heart of the 14th Amendment and allow the reign of Jim Crow in the South for 90+ years. Allowed the turning of the freed slaves into serfs, if you will.

Myron Magnet:Clarence Thomas says, "Hey, this is personal with me. I grew up in Savannah under segregation, so I couldn't drink from this drinking fountain. I couldn't walk across that park. Couldn't use the good library. I know what government oppression is like." It is particularly painful to him that it's his own court that in effect nullified the Civil War and made a mockery of the death of nearly 400,000 Union men who died to make men free. That was Act I.

Albert Mohler:  Let's stop there for just a moment if we may?

Myron Magnet:Yeah.

Albert Mohler:  I'll just interrupt you because I think you're right. Most Americans have, and including Americans who would consider themselves very concerned about the loss of our constitutional order, would not begin the story where you begin it. And honestly, I don't think I would have until you convinced me in this book that that's the right place to begin. I think I would've probably begun with what you described as Act II or the second development.

Myron Magnet:Yeah, but the reason that I'm beginning here, it's not my brilliance that's come up with this. It's Justice Thomas. Justice Thomas' finest opinion is MacDonald v. Chicago, which interestingly is a Second Amendment case. It's about possessing guns. Justice Thomas recounts this whole history in his decision in a way that just absolutely gripped me. I thought, "Wow. I didn't know about this." And so, I immediately went back and started reading histories of Reconstruction, and it was all eye-opening to me. I hope that the freshness of it comes through in the book because this is history that we don't think about a lot. Yeah, it really happened, and the Supreme Court was the bad guy here. As it turns out to be more than once in our history.

One of the lessons I take away from this is that “the Fairness Party” is perfectly happy having judges twist our Constitution of freedom, but if they look back over the history of Supreme Court subversions of the Constitution, they will see that when the Court twists the Constitution, it doesn't always twist it to the left. I think that not just conservatives ought to want judges who just read the Constitution as the framers write it. Anybody who cares about liberty ought to want to read it straight.

Albert Mohler:  Absolutely. You know, you mention the MacDonald decision, Clarence Thomas' opinion. I will tell you another part of that opinion struck me with visceral force when I first read it. It was a Second Amendment case, famously so, that has to do with the right to bear arms. I remember reading Justice Thomas say, "Look", and he documents this historically, how there were so many cases in which vulnerable black men in particular were protected from mob violence and from government violence in local situations by the fact that they were protected by allies with arms. Reading that, again, it had visceral force. I thought, "This isn't just a constitutional hypothetical for this justice. It's a matter of life or death."

Myron Magnet:Life or death. You bet. I mean, he says that he remembers testimony of some man who remembers his father standing outside a jail where there were black prisoners that a white mob was coming after, and there was this father standing out there with a gun to protect these vulnerable, innocent men. Thomas's witness here says, "It was a most empowering story for him."

Albert Mohler:  I can imagine.

Myron Magnet:And you know, we ought to stop and remember that the purpose of the Second Amendment is not to guarantee sportsman the right to go out and shoot deer. The purpose of the Second Amendment is that the founding generation didn't want the government to disarm them, because they were extremely suspicious of government power. They were extremely afraid that even with the Constitution that they wrote they could end up with what they called, "An elective despotism." And they wanted an ultimate recourse against that. That was the right to keep and bear arms.

Albert Mohler:  So that first development comes after the Civil War when the gains of the Civil War, and even the constitutional gains, the perfection, as Justice Thomas would call it, of the constitutional order with the 14th Amendment, those gains are basically eviscerated by the Supreme Court itself in order to placate demands especially from those who wanted to revert to a new form of slavery basically?

Myron Magnet:Basically, and one of the bizarre things about it is a lot of those Justices were Lincoln appointees. Even when you read the decisions, you're left scratching your head wondering how they could come to the conclusions they did.

Albert Mohler:  The second development comes in the early decades of the 20th century. I think most constitutional conservatives to put it that way, those who believe the Constitution is to be interpreted according to the text as Justice Scalia defined it, the textualists, and who understand, most importantly perhaps, on the ground the fact that government has only enumerated powers, the next step comes early in the 20th century and especially with Woodrow Wilson.

Myron Magnet:Yeah. Our first professor president who understood which way the arc of history bent better than your average American and who really didn't believe in the founding fathers or their Constitution. He believed that modern conditions demanded a modern form of government that could adapt very quickly to changing times, to a fast developing technological world. And so instead of being governed by this limited document, he wanted to have the judges sitting as a kind of permanent constitutional convention, making up the laws, and he set up this whole what we now called the Administrative State, all these agencies starting with the FTC and the SEC, that would make laws for us in effect.

He believed—you know his keyword here was always “modernity,” “expertise,” “new technology.” You look at this, and you think, "Well, hang on." He'd read his Hegel, which he taught himself German to be able to read. He loved that. He loved that philosophy, and who is the hero who stands behind all this Hegelianism? Well, it's the Prussian King Frederick the Great who first set up this supposedly incorruptible, non-political civil service, which did actually under Frederick the Great operate very, very efficiently. But the thing about elective despotism, I mean about enlightened despotism, is that the enlightenment always evaporates leaving only the despotism behind.

And so, if Woodrow Wilson is claiming that he's got something more modern than those antique, bewigged founding fathers, and that his more modern thing is enlightened despotism, well that's just a non sequitur. That is not more modern. Being ruled is not more modern than self-government. We still have in our original Constitution the most cutting-edge form of government ever invented.

So, Franklin Roosevelt then supersized this system, right? It was Wilson who started it out and laid down the theoretical formulation for it. We've got to have a Darwinian constitution that evolves with changing conditions, not a Newtonian one like the founders invented. Franklin Roosevelt comes along, and he just absolutely supersizes it. What he does is he puts a gun to the head of the Supreme Court, and basically says, "If you don't say that these unconstitutional things that I want to do are okay, I'm going to enlarge the court and pack it with New Deal supporters, so you're going to lose your power completely." And a judge named Roberts said, "Okay, I give up. I give up." That was the famous switch in time that saved nine.

But as law professor Philip Hamburger says, "What's the point of protecting the Court if you let the Constitution be traduced in this way?" That's what the court did, and suddenly you have Franklin Roosevelt who mistakenly believed that the depression resulted from a crisis of overproduction, and he wanted to get control of the whole economy in order to limit output.

So, what he does is get the Congress to use the interstate commerce power of Article One of the Constitution to say that the government can control all economic activity in the country.

Albert Mohler:  Let me ask you to hold on there for just a moment, because I want to go back a bit. I want to go back to Wilson for a moment. Then we'll turn to Roosevelt. So, the first transformation came just after the Civil War, the second with the progressivism of Wilson, and then with the vast government expansion under Roosevelt. I want to go back to Wilson for a moment, because this is one of my major historical interests in American history. You mentioned that Wilson was “the first professor president,” and I understand exactly the inflection in your voice when you say that. Then you mentioned a Justice named Roberts. I heard that inflection again, trying to maintain the dignity of the court. The very day we're having this conversation, that's a very contemporaneous issue.

Myron Magnet:That’s going on now.

Albert Mohler:  I want to go back to Wilson for a moment, because I actually read Woodrow Wilson's works as a professor. And what astounded me is that this man would ever be elected President of the United States. There's a hostility in his writings to the founding vision of the United States. He sees the Constitution of the United States as ratified in 1789 as a constraint upon the natural development of the United States of America and argued openly that the nation would have to transcend the Constitution if it were to develop.

Myron Magnet:He did, and…. But remember that he was elected in a three-way contest. He was a minority president. It was one of those awful flukes. Had only Theodore Roosevelt not decided to go in and split the vote, we might have been spared this guy who wanted to go in and deconstruct what the heroic founding fathers had given us. But you're absolutely right. He was opening hostile, and in book after book and essay after essay, he's completely open and unconcealed about not liking the American idea and not thinking that America is exceptional. He wants to make it more German.

Albert Mohler:  Well, more German indeed. And there are so many things that, again, intelligent Christian and intelligent American listeners might not think about. And that is the fact that Woodrow Wilson was in the first generation of those who identified their expertise as political science. It was because of this infatuation with science as the epistemology of modernity. So, the most privileged and responsible knowledge would be produced by some kind of science. He really thought the founders were backwards because they did not look at politics as a science. They looked at it as a way of trying to arrange a government around a notion like liberty. That's not what Woodrow Wilson was coming from.

Myron Magnet:Imagine the hubris of this. I mean, one of the interesting ironies of course is that both Madison and Hamilton in the Federalist Papers talked about the new science of politics. One of the heroic efforts that Madison made in the lead up to the Constitutional Convention was to read crates of books that Jefferson had sent him from Paris of all of the political thinkers from antiquity down to the present to study in the most—I don't know if you would want to call it scientific way as he did—but in the most scholarly way, in the most…. You see, he was really concrete. He wanted to look at all of the republics, ancient and modern, and figure out how they worked to the extent that they worked, and why ultimately they failed, so that he could devise from actual experience, which he believed to be the oracle of truth, how to devise a republic that would not fail for the reasons that the republics of the past had failed.

So, this was real science. It was not made out of airy, fairy theorizing, such as Hegel's.

Albert Mohler:  I think you're also very right to point to the basic Darwinianism behind all this. The struggle of the fittest so to speak amongst nations and a necessary evolution of modern human societies. I will also tell you that I feel a little Churchillian when I tell you that two couplets that cause me pain and concern are German efficiency and political science. And in Woodrow Wilson, they were combined.

Myron Magnet:I feel it in my blood. I really do. It makes my blood run cold.

Albert Mohler:  With Wilson, that was one thing, because even…. By the way, before we leave, we've got to back to enumerated power. Until the Wilsonian Revolution—and you can see strains of this coming in the late 19th century in progressivism beginning—but until Wilson, it was openly believed that the United States government was limited constitutionally to the exact powers enumerated in the Constitution. Wilson's expansionist progressivist vision was only made possible because he said that the Constitution must no longer be seen as binding in those enumerated powers.

Myron Magnet:And he got the judges to go along with it to some extent too and set up these independent agencies that were going to make up laws based on powers that existed nowhere in the Constitution. So yes, you're absolutely correct.

Myron Magnet:The thing about that…the limitation of government. I'm sure that you read in the last couple of months an interesting newspaper article about a case of a rancher in Montana who was worried about forest fires in this dry season. Since he had a little trickle of water running down his mountain acres, he dug a couple of ponds so he'd have a reservoir to pump from in case the wood started to burn. Well, the EPA comes down based on a rule, a rule that its bureaucrats made, not on a law in the first instance, and they charged him with polluting the navigable waterways of the United States.

The upshot was that they fined him $130,000 and sent him to prison for 18 months for digging two ponds on his own land 40+ miles away from anything that could remotely be considered a navigable waterway of the United States. There was no way that he polluted anything. Now, this is the kind of tyranny that the founding fathers were trying to protect us against by limiting government only to those enumerated powers, which do not extend to preventing you from digging holes on your own land.

Albert Mohler:  That happened, well, in that third development you point to.

Myron Magnet:Just in the last year. No, this happened in the second development. That second development, that second development was Woodrow Wilson with his unlimited, his unlimited powers, and his army of smart-aleck ivy-league-trained experts in administrative branch or independent agencies making rules and carrying them out as if they were the government, which indeed they are, right? They are.

Albert Mohler:  I would agree that in that first development, some of that happened, but it was primarily related at least as I can tell that first... Well, we're in the second development. We're talking about the Wilsonian expansion. It was primarily limited to financial transactions, to… He was very much concerned like other progressivists with big business and controlling big business. But what I want to point to is something you document in your book because I think the average American understands the rancher in Montana, and a farmer in Ohio, Roscoe Filburn, because it was with the great expansion of the government outside those enumerated powers, the rise of the administrative state, and the tyranny of these bureaucrats. It really is illustrated, you mention it twice in your book actually, in that 1942 Supreme Court decision Wickard v. Filburn over a farmer who actually grew extra grain to feed his own cows and never was involved in commerce at all.

Myron Magnet:And so, Clarence Thomas writes an opinion in a case called Gonzales v. Raich in which he mentions Wickard v. Filburn quite explicitly. He says, "Now, look. Here's a case in which we have two sick people in California who think themselves protected by California's medical marijuana law, so they are growing marijuana plants for their own use to control their pain. Federal agents come in under the Federal Controlled Substances Act, seize their marijuana plant, and file federal charges against them and convict them." They appeal to the Supreme Court, which upholds the conviction.

Thomas strenuously objects to this. He says, "Excuse me, these people have not engaged in commerce, which, by the way, meant something very limited when the framers wrote the Constitution. It didn't mean agriculture. It didn't mean industry. It meant basically trading. They're not involved in commerce. It certainly is not interstate commerce. Right? Their marijuana plants never leave California." And he said, "And it's not even economic activity whatsoever." He said, "If we go on like this, if the Supreme Court goes on like this, we're going to have the government regulating potluck suppers next, and this is just not the proper role of a limited government of enumerated powers."

What he's doing in Gonzales v. Raich is in effect saying, "We need to overturn Wickard v. Filburn and remind the government that its commerce power is a very limited power that as to do with things like running steamboats on interstate waterways or preventing internal tariffs but has nothing to do with telling Roscoe Filburn that he can't grow grain to feed his own cows or telling these two Californians, in a state with a medical marijuana law, that they can't grow marijuana for their own medical needs.

Albert Mohler:  Right. I think it's important to stipulate that here Clarence Thomas was not saying that the state of California could not criminalize possession of marijuana. That was not the legal question.

Myron Magnet:No. Not at all.

Albert Mohler:  The legal question was under the federal power of the commerce clause that the federal government could criminalize an economic activity that didn't exist.

Myron Magnet:That's exactly right. Exactly right. So then we go onto the third stage of the courts…. I mean, it wasn't the court that really was the main actor in the second stage of the subversion of the Constitution. It was the president, abetted by Congress in the case of Woodrow Wilson and Franklin Roosevelt. The court, you know in the case of the New Deal, did it under duress, but nevertheless did it, and did not exercise its constitutional duty as it had sworn to do to preserve, protect, and defend the Constitution of the United States. They simply did not obey their own oath.

In the third stage of constitutional subversion, the Supreme Court played a really active role in just making up rights out of whole cloth, out of, as Justice Douglas said, "The emanations formed by penumbras from the rights enumerated in the Bill of Rights." In other words, out of gas and shadows he's making up a right to privacy that then leads to a right of abortion. And, you know, Justice Thomas has no patience with this whatsoever because so many of these made-up rights by the court were rights of gang bangers, for example, to monopolize street corners and scare all the passers-by because they were muggers. Right? There were an awful lot of gang murders in Chicago in those years as unfortunately there are now. Or, the rights of students to act up in school, and by the way the rights of students to sue their teachers and principals if they infringed any of these—to sue them personally if they infringed any of those—so-called rights. The rights of housing project residents not to be thrown out of their apartments for selling dope or creating bedlams of noise without a full court hearing.

Thomas says, "First of all, where did they get these rights from? If you just look at the history of the American common law, you know perfectly well that the police have always had an order-keeping function that goes back to not only the early days of the republic, but even before. You know that teachers have always been considered in loco parentisand invested with the authority of a parent to discipline their children and turn them into the kind of citizens who have the responsibility then to bear rights. Of course, as far as keeping the peace, as far as punishing disturbances of the peace, that also has always been part of the police powers of the state. Where is the court finding these rights to make an anarchy?"

He says, "Furthermore, please look at the concrete results of what you judges have done. How would you like to live in a community like these inner-city communities where thanks to your work kids are afraid to walk through these menacing streets to schools that are anarchies where the students who want to learn can't learn, and then to come how to housing projects that are so noisy and disorderly that you can't find a quiet corner in which to learn your spelling or your multiplication tables because there's music banging away from every side all the time."

He says, "You know, not only is this from a constitutional theory point of view illegitimate, but just from an empirical, practical point of view, who can live in a society like this? Remember that the first civil right is the right to be safe in the streets in your own home. If the court is inventing a right of criminals to take this civil right way, well, what's the point of having a government at all?"

Albert Mohler:  Well, absolutely. Furthermore, we've seen the pattern over and over again of the elites setting down judicial fiat or bureaucratic rulings that will affect where somebody else's kids go to school and whether or not someone else's daughter has to have a biological male in the locker room and on and on and on. Who else has to live in lawlessness, but they send their own kids to private schools. They can buy their own children out of any of these issues. They never have to face the consequences of their decisions, but that's the way elite always operate. Elites operate with a condescending authority over the rest of the population, saying, "We know what's best for you." That's exactly what has happened.

Myron Magnet:"Because we're doing this for you, we feel a special virtue because our intentions are very pure and very selfless. It's our intentions, not the results, that count."

Albert Mohler:  Looking at the last words of Dr. Magnet's title, Clarence Thomas and the Lost Constitution, looking to those two words, “lost constitution,” reminds us of a very urgently needed conversation in the United States. The great shame is, perhaps the tragedy right now, is that that conversation is largely not taking place. America's public life is now so focused on headlines it doesn't look at the basic issues, the more fundamental issues, that are at stake, including the questions: What kind of nation is this established to be? What kind of order was brought about by our constitution? Where do these rights arise? How are they grounded? And, perhaps even more urgently, is the government of the United States of America we now know anything like the government that is mandated by the United States Constitution?

Albert Mohler: Well, as you're looking at all of this, I want to go back to something that you address early in the book. And that's a question, again, I think most Americans never really think about. That is, where do these rights come from? There are a couple of issues raised in your book. Both of them deserve new books. That would be my assignment to you. Two new books.

Myron Magnet:Yes, sir.

Albert Mohler:  Both of them are raised in your book. One of them has to do with the fact that the founders understood these rights to be natural rights, rights endowed by nature and nature's God.

Myron Magnet:The creator.

Albert Mohler:  The creator. Yes. You've got very clear language there, which isn't just poetic mentioning the creator. The question is, where do these rights come from? If you're going to establish an order in the face of George III, if you're going to justify this new experiment, this new order of the ages, and you're going to do so in the name of rights, you have to explain where they come from. The framers of the Constitution never believed themselves to be creating rights but merely to be respecting, by the constitutional order, rights that been endowed, given to humanity, in particular, human beings, by the creator. That was rejected, and it can be argued, and again you mention this, it can be argued clearly. There has be the concession that the framers of the Constitution violated that very principle when it came to the question of slavery.

Albert Mohler:  As Alan Guelzo has argued recently, they basically put enough bombs in the Constitution about slavery that you can draw a line of consistency to the 13th, 14th, and 15th Amendments as completing the constitutional order. The fact is that now the modern court has denied any ontological rootage of those rights. Where does the court now think that these rights originate?

Myron Magnet:Well, they think that the rights originate in the Constitution, but the Constitution as defined by them. It's kind of like those roadrunner cartoons where suddenly Wile E. Coyote finds himself running off the edge of a cliff and running, running, running except that there's nothing underneath him. When he finally looks down, blam. He drops to the bottom. That's kind of where constitutional law now is. It rests on nothing. It is standing over an abyss. If you ask them to justify it, they'll say, "Well, there's this precedent. There's that precedent. There's the other precedent that finally goes back to substantive due process, which finally goes back to those 1870s decisions that overturned the Civil War essentially.” It's a pretty embarrassing position to be in when you're saying that, "Oh, all my jurisprudence rests on a denial of giving rights to freed slaves." I think that's rather a pathetic thing.

The framers were not only basing themselves…. I mean, they had two bases for these rights. They had three at least really. One is that man is endowed by the creator with these unalienable rights. They were just flat out clear about this. This inhered in the nature of humanness to have these rights, and that the reason that government was founded, as Jefferson tells us in the Declaration of Independence, is to protect these rights. Right? That's the only reason that we have government. Government doesn't give us our rights. Government is there to protect us, and that's what the whole tradition of political philosophy is about.

But furthermore, in all of the law books that the founders studied in Lord Coke or in Blackstone, the emphasis always was on, "But there are also these traditional rights of freeborn Englishmen." Remember, I mean we were freeborn Englishmen before we were American. These are rights that go back to Magna Carta. They go back to 1215. They go back even to the Anglo Saxon Witenagemot. These are rights that English monarchs and English government have recognized for 1,000 years. Leave us alone.

Then a guy like Blackstone in his founding era text—now this is an English judge writing—essentially believes that the activity of the judge in ruling the common law is: discover those principles that are consistent with English liberty. There is an idea of some absolute in there, and where that absolute comes from, people can be very slippery. Let us thank Mr. Jefferson for putting a name to it that is unambiguous.

Albert Mohler:  Well, as you look to Europe now, just as one example, you're looking at a society that is so inherently secular and opposed to the very idea of natural rights that the European Parliament, as it's now known—let's put it this way, the entire Euro State Project—it's based upon the idea that it itself is the guarantor of rights, that it itself basically causes into existence.

Myron Magnet:Not the guarantor. Not the guarantor, but the source of rights.

Albert Mohler:  That's where I'm headed. That's where I'm headed. Right.

Myron Magnet:The source of rights.

Albert Mohler:  They only exist insofar as the European courts, including the Human Rights Courts and others…. If they do not declare them to exist in this situation, they do not exist.

Myron Magnet:Look where that leaves us. That makes you the individual a creature of the state. You belong to the state, which is the polar opposite of what the American founders imagined, which is the state works for us. It is there only as a means to preserve our liberty. If asked to choose between those, I think neither you nor I nor quite honestly any other American would have a moment's pause about which is preferable.

Albert Mohler:  Absolutely, or which is deadly, because eventually a regime that claims to be the source of rights can deny them at whim and will.

Myron Magnet:That's exactly right. And does. And does. And in the most irrational way possible. There, it's European court taking away all sorts of protections from Christianity while they are covering Muslims with protections, and you have to say, "What? On what even basis of logical consistency are you doing this? Why are you saying that Christian culture has no standing here but Islamic culture has?" It just doesn't make any sense whatsoever.

Albert Mohler:  No. Without belaboring this and switching entirely to Europe, the European Union rejected even in its official history of Europe a reference to Christian influence, which is in other words, it acts like Europe just emerged virgin-born in the 20th century.

Myron Magnet:It didn't of course. We can thank the French Revolution for this, but George Washington had the good sense to look at the French Revolution and think, "Only bloodshed and tyranny is going to come out of this." All these years later, we got the European Union, which is a pallid version of it, but not a very attractive one either.

Albert Mohler:  You mention one other thing in your book, and my guess is that even the limited number of Americans who will think about the first of the issues that I raised with you, and that is the source of rights or the ground of rights. They will miss something else you mentioned. That is that today's Supreme Court denies the existence of a federal common law.

Myron Magnet:Well, there is no federal common law. This is Justice Thomas speaking. What he's saying is…. And his implication is even more radical than that. It's what the law schools teach as Constitutional Law is not.... There's no such thing, in a way, at least from the point of view of the Supreme Court. Yeah, it's true that the inferior federal courts have to follow precedent. They're pledged to do that, but as far as the Supreme Court is concerned, all these judicial decisions that preceded them are really just what they're said to be, opinions. They are the opinions of very smart men, but very fallible smart men like Justice Brandeis and Frankfurter and Oliver Wendell Holmes Jr. They made mistakes, and so we don't work here in America, says Justice Thomas, by the slow accretion of judicial opinion upon judicial opinion. You know what? How much better, he says, would it have been if the judges just stepped up to the plate and did what Justice John Marshall Harlan did in Plessy v. Ferguson in which all of the justices except him said that separate but equal was okay in public accommodation for blacks versus whites.

John Marshall Harlan, the lone dissenter, says, "Excuse me. Our Constitution is color blind and neither recognizes nor tolerates classes among citizens. The law regards man as man." Thomas says, "60 years later," he again wrote this a few years ago, he said, "60 years later, what do we read? We don't read the majority opinion. We read the dissent." Thomas is perfectly content in his jurisprudence to lay down these markers thinking that 60 years later, when he's dead but America is still alive, they're going to be reading them.

For example, in the case of Brown v. Board of Education, how much better would it have been had Chief Justice Earl Warren and his court just stepped up to the plate and said, "Our Constitution is color blind and does not permit distinctions among citizens," instead of saying, as they said, "In the special case of education, separate cannot inherently be equal, and therefore we are outlawing discrimination by race in education?" Had the court really had the courage of its convictions in this case, and had overturned precedent, we wouldn't have had now 50 years of affirmative action in government contracting and that sort of thing. We would not be discriminating by race ever in anything. And as Thomas says, "Look what happens when you discriminate by race? First of all, you implicitly impute inferiority to blacks because the idea is that without this discrimination, they can't succeed, and you generate so much resentment and so much anger on the part both of blacks and whites that you are sowing social decisiveness that you could've avoided if you just said, 'The law regards man as man. Right? We are all created equal.'" Just as Mr. Jefferson said, just as the founders wanted to get to, and when we could get to it, the court flinched. We got to get, sooner or later, we really do got to get to it.

Albert Mohler:  Well, it, again, Justice Thomas has been more consistent than any other justice in the history of the Supreme Court on this matter. I do think Chief Justice Roberts states this case most succinctly when he says in repeated decisions and opinions, "The way to stop discriminating on the basis of race is to stop discriminating on the basis of race."

Myron Magnet:Well, let's do it.

Albert Mohler:  That's the clarity that we need in this situation. Looking at your book, and by the way I don't want leave the common law for just a minute. I want to leave a comment here. I'll come back to it in some other conversation. There are two historic meanings of common law here that I think are important. One is what we might call the pre-legislative law. In that sense, without a common law, we're in big trouble. In the history of Britain, the common law in that sense exists even to check the power of the king, even if it were not legislated. It's very dangerous not to have that common law. The common law that Justice Thomas rejects is the idea that the justices are making law, that judges make law. As you say, by the accretion of those laws, they basically modify the Constitution by their judgment.

Albert Mohler:  It again comes back to the title of your book: Clarence Thomas and the Lost Constitution. I don't want to fail to deal directly with Clarence Thomas, a remarkable human being who is now the longest serving amongst the justices on the Supreme Court, one largely unknown to Americans, especially to younger Americans. A man whose biography is the history of racism in the United States, and the fact that he tasted it firsthand in segregated Savannah in a family situation in which he learned character forged under adversity by his grandfather, who built a business and build a farm and who lived out the promises of the Constitution in the respect for and protection of property. I love the part of Justice Thomas's memoirs where he talks about his grandfather in his cornfield saying, "This is mine." He bought the land. He planted the corn.

Myron Magnet:It's really true. I mean, one of the important points I make in my book, and I think this is important, is as important, as anything else. One of the radical things that Justice Thomas says in speech after speech after speech—this is not in his jurisprudence—but it takes a certain kind of character, individual and national character, to be capable of liberty. It takes a certain kind of culture to foster the nurture of such characters. Justice Thomas didn't exactly go from a log cabin to the White House, but he did go from a kerosene lit shanty in the Georgia swamp to the high bench. Pretty fantastic, as you say. Brought up by a grandfather who put him to work in his little, little fuel-oil delivery business delivering oil and keeping records after school and on weekends with him and his little brother to work clearing land and tilling fields and growing crops and butchering animals all summer long to teach him self-reliance by being literally self-reliant. He said, "Out there on the farm, we had an off-grid existence." They really did. Up at dawn. To bed at dusk. Working, working, working, and in addition to teaching the kids the most extreme almost pioneer-like self-reliance, what his grandfather was doing was keeping the boys away from street culture, which he understood was absolutely toxic.

You mentioned that his grandfather was a self-made man. Well, this was a semi-literate guy who had started his own coal and ice delivery business, which then turned into, on a very small scale, a fuel-oil delivery business that never grossed more than I think it was $6,000 or $7,000 a year, Justice Thomas said. It was that…. Justice Thomas said to him when he was old, the business was starting to decline, "Why don't you go to work for somebody else?" His grandfather said, "Well, because this business is mine. This business is mine. I don't want to work for somebody else. I want to be independent." And Thomas says, "Yeah, he wanted to be free, and this is what freedom is about." So, what his grandfather would always tell the boys is, "Where there's a will, there's a way." Although when Justice Thomas went to Holy Cross as an undergraduate he flirted with black radicalism, and indeed had had a sort of sneaking kindness for the Black Panthers for a minute there, he went finally at the end of his junior year, he went to a rally for our black political prisoners, namely Black Panther murderers. He drove to Harvard Square to participate in this rally that turned to a full-scale riot where cops got hurt, where businesses were broken into and burned, where all kinds of property damage was done, and it was a real riot. A friend of mine actually was there and saw it and said, "This was serious violence." Thomas gets back to Holy Cross the next morning, and he goes into the chapel, and he prays. He prays for God to deliver him from his anger, because he realizes that it's going to wreck his life, this anger against what he takes to be American oppression of his race. What he asks himself is, "Do I really believe in this country's promise that all men are created equal?" He said, "Yes, I do. Yes, I do. Do I really believe that this is an equal opportunity nation?" He said, "Yes, I do." He makes this beautiful speech years later in which he says, "You know, I'm a man, a black man, an American with all the complexity that that involves." He manages to balance that very beautifully.

He says, he says when he was a kid... The first thing is, in this self-making of grandfather's, his grandfather became a Catholic. He brought the two grandsons up as Catholics and sent them to Catholic school where the mostly Irish immigrant nuns taught them that all men are created equal, and that therefore segregation is wrong. So, he knew this from the start, and he knew that the American vision belonged to him as much as to anybody else.

Albert Mohler:  It is a remarkable story.

Myron Magnet:I mean, so he had no problem understanding that men are endowed by their creator with unalienable rights, and that it's his job on the court to vindicate these rights.

Albert Mohler:  He has done so, again, more consistently than any jurist in recent American history, certainly on the Supreme Court. He is now the longest serving justice on that court. Justice Antonin Scalia became far more famous for his public arguments and his personality.

Myron Magnet:He's so funny. He was so funny.

Albert Mohler:  That's right. And his personality, engaging on these issues, making the arguments for originalism and textualism. There is no record among conservative justices of voting the same way, in agreement, as was between Scalia and Thomas during their years together on the court. Right now, it is very interesting to note that it can well be argued that those who clerked under Justice Thomas have more influence in the federal courts right now than those who clerked under Justice Scalia, which in a lot of ways I think points to the long standing influence the Thomas has had kind of under the radar.

Myron Magnet:Well, imagine that. You know that he's had a lot of clerks over 28 years, and he and his wife treat them like children. He's mentored then, mentored then, mentored them. Now, 20% of the judges whom the Trump administration has elevated to the federal bench are ex-Clarence Thomas clerks. He's laid out this roadmap for future courts to restore our constitution of liberty, which he's already started to do. And he's put the troops in place to follow out that roadmap in the future, which is why I am sure that he's going to be looked at 100 years from now as the most consequential jurist of his time, more consequential than Justice Scalia, his dear friend. But, you know, Justice Scalia even said, "You know, I'm an originalist, but compared to Justice Thomas, I am a faint-hearted originalist." Nobody quite had the guts to do it as consistently as Clarence Thomas.

Albert Mohler:  No one has drawn attention to that better than you have, Myron Magnet, in this book Clarence Thomas and the Lost Constitution.

Myron Magnet:You know, one of the things that Clarence Thomas says is when he was growing up, when he was growing up, everybody used to read…. You probably remember this. Remember the Landmark books?

Albert Mohler:  Absolutely.

Myron Magnet:All those Landmark Biographies of heroes? I mean, we all read them when we were kids. George Washington, Marie Curie, George Washington Carver. He said, "We admired heroes, and their whole idea was to teach us character and to teach us that because of their virtues, they were able to deal with such adverse circumstances as they might have faced to mold their own fate and then to go on to mold the fates of a whole society, a whole civilization, a whole nation. And these were real heroes, and these were people that we should emulate and we should try to have characters like them." I think that Justice Thomas can be added to that pantheon of heroes, and I don't know if they're still doing Landmark books, but somebody ought to do one about Justice Clarence Thomas.

Albert Mohler:  That's a great way to end the conversation. Again, Dr. Myron Magnet, thank you for joining me today for Thinking in Public.

Myron Magnet:Such a pleasure, as always.

Albert Mohler:  I very much enjoyed this conversation with Dr. Myron Magnet. I also enjoyed reading his book, Clarence Thomas and the Lost Constitution. It reminds me that every single time a reader encounters a book, the very experience of reading a book is in effect an intellectual conversation. You have a conversation with the text, you have a conversation with the paragraphs, you have a conversation with the author, and the ideas expressed in the book. And what makes that even better is when you can have an actual conversation with the author about the book. That's what makes Thinking in Public so much fun.

The conversation today is an example of the power of just that kind of experience, but my purpose in doing Thinking in Public is to invite listeners into the conversation. In effect, I have the honor of having this conversation on your behalf. There are so many issues that arise in this kind of conversation that will take us to future conversations, including for Christians an obvious question in light of this book. How do we understand the interpretation of Scripture in current debates to be parallel to the debates over the interpretation of the Constitution? I've talked about that before, and we will talk about it again. But i encourage you to read Clarence Thomas and the Lost Constitution, and you won't be surprised by this, to have a good conversation about it.

Many thanks again to my guest Myron Magnet for thinking with me today. If you enjoyed today's episode of Thinking in Public, you will find more than 100 of these conversations at AlbertMohler.com under the tab Thinking in Public. For more information on the Southern Baptist Theological Seminary, go to sbts.edu. For information on Boyce College, go to BoyceCollege.com. Thank you for joining me for Thinking in Public. Until next time, keep thinking. I'm Albert Mohler.

 

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