Dan Mclaughlin
Picture Clarence Thomas as a legal Indiana Jones, dodging slings and arrows to rescue a valuable and powerful relic from the wrong hands after it fell into undeserved obscurity. That’s the thesis of Myron Magnet’s new book. Magnet, a longtime editor of City Journal, isn’t himself a lawyer, though he is at ease explaining legal arguments for non-lawyers. So this isn’t weighty legal scholarship or a thorough biography. It is, rather, a potboiler, briskly surveying how our founding charter went missing, what impelled Justice Thomas to go looking for it, and what he unearthed. At the end of the journey, the reader will be forgiven for suspecting that the original Constitution will nonetheless be consigned to a dusty corner of a government archive while the capital’s top men insist they can do better without it.
Today’s federal government diverges so sharply from its original design that Magnet compares it to a parasite devouring its host. When he asks, “Who killed the Constitution?” he identifies not one culprit but three. The preference of Woodrow Wilson and his New Deal successors for bureaucratic experts over popular sovereignty was, in Thomas’s words, the “wrong turn” that broke the document’s original structure; racist southern resistance deformed the post–Civil War amendments; and the liberal Warren Court’s overreaching activism upset the federal–state balance and cut the courts adrift from written law. (Executive power gets relatively little attention.) Magnet ties each of these topics to themes in Justice Thomas’s speeches, writings, jurisprudence, and biography. Many of the freshest parts of the book come from Thomas’s words away from the bench.
Magnet surveys the causes of today’s dysfunctions. These include a runaway reading of the interstate-commerce power, which lets Congress regulate a plant that never leaves the property on which it is grown; administrative agencies that write their own laws and flagrantly rewrite the ones Congress sends them; and judges who insert the courts into areas such as regulation of abortion based on unwritten “constitutional” rules while cavalierly disregarding explicit, written limitations on the government’s power to seize private property, restrict political speech, and disarm citizens. The underlying culprit in each case is the same: “experts” who think they know better and are impatient with written limits.
Magnet presents paternalism, condescension, and a spirit of victimization as Thomas’s nemeses. He pulls no punches about the sneering critics along Thomas’s path from Pinpoint, Ga., to the Court, such as a fellow federal judge who snarked that no senator who voted to confirm Thomas would have hired him as his lawyer. Magnet summarizes the story Thomas himself told in his 2007 memoir, My Grandfather’s Son, starting with the grandfather who instilled in Thomas his work ethic and sense of inherent dignity and self-reliance: “My grandfather was no victim and he didn’t send me to school to become one.” Magnet charts Thomas’s drift into and out of black radicalism in the tumult of the late 1960s and how influences such as Leo Strauss, Frederick Douglass, and Thomas Sowell led him to understand that “the maxims and example of his grandfather . . . were conservatism.”
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