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Clarence Thomas and the Lost Constitution

Book Reviews

Image of Clarence Thomas and the Lost Constitution book coverFor readers only passingly familiar with the life and jurisprudence of Supreme Court Justice Clarence Thomas, Myron Magnet’s new book, Clarence Thomas and the Lost Constitution, provides a brief but thoughtful introduction to both. Magnet, the longtime editor of the Manhattan Institute’s City Journal, covers the life and career of the Supreme Court’s leading iconoclast in a manner worthy of his subject.

In this biography-slash-constitutional-commentary, Magnet reconciles Thomas’ life with Thomas’ outlook on the law, and he does so in under 150 pages. Magnet also demonstrates how the “progressive” view of a “living constitution” has created a Supreme Court that often acts more like an ongoing meeting of a perpetual constitutional convention, rather than an interpreter of text and original meaning of the “lost constitution.” In Thomas, Magnet has a justice who refutes the “living constitution” approach that held sway for so long but now arguably finds itself in retreat — not losing every skirmish, but decidedly losing the war.

Magnet begins with Thomas’ grandfather. Myers Anderson, who Thomas himself paid tribute to in his autobiography, My Grandfather’s Son, taught Thomas in part by way of aphorisms, including: “Old Man Can’t is dead — I helped bury him.” Anderson’s dusk-to-dawn work ethic inscribed upon Thomas’ heart a similar work ethic that manifests itself in the way Thomas annually writes many more opinions, sometimes twice as many, as any of his colleagues.

Anderson sent Thomas to Catholic schools run by Irish nuns during Thomas’ formative years growing up in Savannah. “There was always this underlying sense that we were entitled to be a full participant in We the People,” Magnet quotes Thomas as saying. “That was the way the nuns, who were all immigrants, explained it to us. There was never any doubt that we were inherently equal — it said so in the Declaration of Independence.”

But for Thomas, equality of opportunity for all does not translate to equality of outcome because the only way to reach equal outcomes would be to ascribe to the government the ability and authority to manage outcomes. Thomas — like the Founding Fathers before him — decidedly rejects this view. To Thomas, such a Sisyphean task would rob individuals of the opportunity to overcome adversity and it is in overcoming adversity that we receive “our measure as individuals,” and come to understand ourselves as “ruler of [our] actions, not their servant or slave[.]”

Magnet turns from Thomas as a man to Thomas as a jurist by invoking the “lost constitution” concept that Georgetown Law Professor Randy Barnett expounded upon in his seminal 2005 work, Restoring the Lost Constitution. Magnet deftly picks a small handful of important Thomas opinions, including Grutter v. Bollinger, McDonald v. Chicago, and U.S. v. Carpenter to illustrate how Thomas interprets the nation’s formative texts consistent with the text of the constitution as it was interpreted pre-New Deal, pre-Warren Court. Thomas hews to the text and originally understood meaning of the laws he interprets; he does not use the law as a jumping off point to make policy choices properly left to Congress or the states.

Ultimately, Magnet submits that, both as a person and as a justice, a “don’t tread on me independence and self-reliance, especially in intellectual matters, lies at the heart of Clarence Thomas’s character.” In other words, a deep and abiding belief in human liberty drives Thomas in life and in law.

Independence, self-reliance, and liberty — three ideas at the heart of the nation’s founding and its foundational texts. That Thomas shares those beliefs makes him the right justice to lead the charge to recover the lost constitution.

Mark Miller is a senior attorney with Pacific Legal Foundation and manages its Palm Beach Gardens office.