Notes on Clarence Thomas and the Lost Constitution

by Myron Magnet, June 2020

By coincidence, I read this powerful account of Justice Thomas’s remarkable life-story and originalist jurisprudence at the height of the protests (and riots) triggered by George Floyd’s murder by a previously investigated (17 times) and disciplined (only once) cop in Minneapolis. I had recently watched the superb documentary about Thomas’s life, Created Equal: Clarence Thomas in His Own Words, which was based on Thomas’s eloquent memoir, My Grandfather’s Son. Magnet draws heavily on the memoir in chapter two of his book. In chapter four he provides a concise look at Thomas’s opinions, in case by important case, something that Thomas himself only briefly talks about in his memoir and the documentary. Taken together his life—from boyhood in the segregated South to Associate Justice of the Supreme Court—and consistent efforts to restore the original meaning of the Constitution, emphatically with regard to racial equality, provide a sharp contrast to loudest the themes of the current protests—defunding of the police, making reparations for 400 plus years of systemic racism, providing free college, vandalizing statues and historic buildings, etc.

Magnet sets the stage for Thomas with a chapter on his own views on how the Constitution was “killed”: 1) the post-Civil War Supreme Court’s “subversion” of the privileges or immunities clause of the Fourteenth Amendment, 2) the late-New Deal’s Commerce Clause jurisprudence and acceptance of an administrative state acting as a fourth branch of government, and 3) the Warren Court’s explicit embrace of the fashionable doctrine of the “living constitution,” making it a kind of “permanent constitutional convention” adapting to changing circumstances in a manner akin to Darwinian evolution.

Regarding the first phase, Magnet fills in some important background: Whereas the Thirteenth Amendment ended slavery and the Fifteenth Amendment guaranteed the right of black Americans to vote, it was the Court’s mangling of the Fourteenth Amendment that sounded the death knell for Reconstruction. The text confers to “[a]ll persons born or naturalized in the United States” citizenship in the United States and in the state in which they reside. It adds (wisely, in view of recent history), “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law,” etc. It would seem to be crystal-clear that the amendment confers all the rights enumerated in the Bill of Right to all Americans, black and white. However, in the most tortuous fashion two pivotal Supreme Court decisions eviscerated the privileges or immunities clause and denied that the amendment had extended those rights to blacks.

In Slaughter-House Cases (1873) New Orleans butchers claimed that Louisiana violated their Fourteenth Amendment right to earn a living by forcing them to move into a single facility (supposedly to confine their trade’s pollution). In denying the butchers’ claim, the majority ruled that the rights protected by the federal and state governments were not identical and that the amendment protected only federal rights, which were few in number and limited to such rights as travel on interstate waterways, emphatically not those spelled out in the Bill of Rights. About this twisted and fateful decision, Thomas commented wryly, “If I said to you, ‘You’re a member of my club. You have all the privileges or immunities of membership in this club.’ Then I rewrite the privileges or immunities to mean you get to ride the elevator once a week. You’d say, ‘Boy, that’s a heck of a membership. Everybody else is swimming, and they’re in the gym, or they’re in the sauna, and I just get to ride the elevator once!’ That’s the way I feel about the Privileges or Immunities Clause. . . . I have a personal interest in this. I lived under segregation.”

Slaughterhouse led to United States v. Cruikshank (1876), in which a unanimous Court, citing the precedent of Slaughter-House, denied First Amendment rights to the freedmen of Louisana and therefore concluded that white supremacist perpetrators of the Colfax Massacre could not be prosecuted under a federal law (the Enforcement Act) that made it a crime for individuals to conspire to prevent or punish a citizen for exercising those rights. If First Amendment rights were not privileges or immunities for citizens of the United States, neither was the right to keep and bear arms. Thus, according to Thomas, were the KKK and other anti-black groups able to intimidate and subjugate the newly freed slaves and their descendants. So much for Reconstruction. Plessy v. Ferguson, the infamous 1896 decision allowing “separate but equal” schools, transportation, and other public facilities in the Southern states, further obliterated the rights conferred by the Fourteenth Amendment.

Some highlights of Thomas’s Originalist jurisprudence:

Justice Thomas has written close to 600 opinions, including concurrences, dissents, and majority opinions, more than any other Justice (rendering laughable the oft-repeated comment that he rarely asks questions during oral arguments, with the implication that he has nothing to contribute). My modest aim here is to highlight a handful of the opinions that Magnet discusses in supporting the thesis of his book and that seem especially relevant today.

Magnet considers Thomas’s concurrence in McDonald v. City of Chicago (2010) his “magnum opus to date” and with good reason. In that case a five-member majority incorporated the Second Amendment to apply to the states. Thomas, who has little reverence for stare decisis, went further than his colleagues in invoking the Fourteenth Amendment and arguing that the right to keep and bear arms is a privilege and immunity of citizens of the United States that no state can abridge. In other words, in incorporating a Bill of Rights provision to apply to the states (his first chance to do so as a sitting justice), he sought to over-turn the two history-changing post-Civil War decisions of Slaughter-House and Cruikshank.

What about other cases that touch on the cause of racial justice? Thomas’s opinions in cases related to affirmative action have reinforced the opinion of his critics that he is “the wrong kind of black.” An unprejudiced review of his opinions, however, demonstrates that Thomas has been guided above all by his originalist reading of the Constitution (as well as his personal knowledge of how affirmative action has in fact harmed black Americans and other minorities). In his concurrence in Adarand v. Pena (1995), a case testing the lawfulness of bonuses to government subcontractors who employed blacks or Hispanics, Thomas argued that there is no constitutional difference “between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality. Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law.”

In his concurrence in Missouri v. Jenkins (1995), a case that ended federal district judge Russell Clark’s efforts to impose his ideas of racial justice on the Kansas City schools, Thomas argued, among other points, that it was hard to prove that the racial imbalance in the schools was a vestige of past segregation in the state and that the assumption “that anything predominantly black must be inferior” was demeaning to blacks. Judge Clark’s grandiose plan for improving the predominantly black schools, and imposing one quarter of the cost on the school district, was not only a violation of federalism, Thomas argued, but a case study of the dangers—foreseen by the founders—of equity courts with the power to impose “equitable remedies.”

In the well-known case of Grutter v. Bollinger (2003), in which the Court upheld affirmative-action admissions to the University of Michigan Law School, Thomas concurred with the majority that racial preferences should end in 25 years—but dissented from every other part of the ruling. The effects of affirmative action admissions were something of which Thomas had first-hand experience. Although he was a black who had been admitted to Yale Law School based on merit (i.e., his academic record), upon graduation he was perceived, like other black graduates, as having been an affirmative action admit and had trouble finding a job. In his Grutter opinion he wrote of the pernicious effect of the policy on relatively unprepared minority students who would have succeeded elsewhere but felt over-matched at the schools that admitted them for diversity’s sake. Thomas led off his Grutter dissent by quoting Frederick Douglass: “[I]f the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs!”

Thomas’s originalism is a common theme in his opinions on a wide range of issues, both in concurrences that often go further than the majority in invoking some constitutional principle (rather than finding a workaround to comport with stare decisis) as well as in dissents. For example, in cases related to the late-New Deal’s Commerce Clause jurisprudence, he has challenged the Court’s long-standing “substantial effect on commerce” test. Take the 1995 case of United States v. Lopez, which concerned a federal law banning gun possession in a school zone. Justice Stephen Breyer’s dissent argued that the forbidden activity was a threat to education, would have an adverse effect on the nation’s well-being, and was therefore properly forbidden under the government’s Commerce Clause authority. Chief Justice Rehnquist’s majority opinion countered that the government had exceeded its authority under the Commerce Clause because the government could not show that the forbidden activity “substantially affected” interstate commerce.

Thomas, in his concurrence, went further, arguing that the “substantial effect” criterion, “if taken to its logical extreme, would give Congress a ‘police power’ over all aspects of American life,” from littering to marriage. He invoked the original meaning of “commerce” in the founding era—trade as distinct from agriculture and manufacture—and asked why the framers had bothered to enumerate the powers that Congress did have—coining money, enacting bankruptcy laws, etc.--if the Commerce Clause granted Congress broad authority over all matters that “substantially affect” commerce.

Wickard v. Filburn (1942) had infamously ruled that the Commerce Clause gave the federal government the power to regulate the amount of grain a farmer could grow to feed his own livestock, even though agriculture isn’t commerce and the grain didn’t enter interstate commerce or any commerce at all. The majority nevertheless ruled that the grain “substantially affected” the national economy because the farmer would otherwise have had to enter the grain market to feed his livestock. Thomas cited and criticized this case in his 2005 dissent in Gonzalez v. Raich. Thinking themselves protected by California’s legalization of medical marijuana, two chronically ill Californians grew and used marijuana to control their pain. The Court sided with the Feds, who seized the plants and charged the invalids with violating the federal Controlled Substances Act. Thomas wrote: the invalids “use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.” With characteristic humor, Thomas went on: “If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States.”

Thomas similarly dissented in NFIB v. Sebelius in 2012 (the Obamacare case), rejecting “the Government’s unprecedented claim in this suit that it may regulate not only economic activity but also inactivity [not purchasing health insurance] that substantially affects interstate commerce.”

Criticized for looking backward to the 1787 Constitution, it’s remarkable how prescient and forward looking some of the Thomas’s opinions have been. In his 1999 dissent in Chicago v. Morales and his 2007 concurrence in Morse v. Frederick, Thomas addressed judicial orders not to expel weapons-toting or disruptive children from school or evict drug dealers from public housing. In 1969 in Tinker v. Des Moines the Court had ruled that a school’s punishment of the Tinker children for wearing black arm bands to protest the Vietnam War had violated their First Amendment free speech rights. Subsequently in Morse v. Frederick the Court ruled that a school could forbid students’ free expression of ideas but only if it showed that it “materially and substantially interfere[d]” with school discipline. In his concurrence Thomas wrote that he would have overruled Tinker entirely, arguing that the ruling “has undermined the traditional authority of teachers to maintain order in public schools” and has no mooring in the Constitution and is ignorant of the history of U.S. education. Indeed, the inability to suspend or expel disruptive students has for decades stymied the education of millions, especially in inner city schools. Ask any public school teacher.

In the oft-cited 2010 Citizens United v. FEC case the Court followed Thomas’s advice in overturning a previous ruling’s ban and allowing corporate campaign spending. (McCain-Feingold’s ban on such spending would lead to “outright regulation of the press,” he had argued, because media companies are corporations indistinguishable from other corporations.) In Citizens United and other rulings Thomas also pointed out, prophetically, that McCain-Feingold’s disclosure requirements were unconstitutional. Anonymity was an aspect of free speech, he contended, citing America’s long tradition of anonymous pamphleteering and its rationale (e.g., the 1735 Zenger case and the Federalist Papers). Indeed, California’s required disclosure, on the Internet, of the name, address, and employer of anyone who donated more than $100 to the campaign for Proposition 8 led to personal threats, business boycotts, and firings/resignations. (The proposition asked for a state constitutional amendment recognizing only marriage between a man and a woman as valid.)

In his dissent in Kelo v. New London (2005) Thomas challenged the Court majority’s interpretation of the Takings Clause, upholding the city’s use of eminent domain to remove longtime owners from their homes for an urban renewal scheme—one that would increase the city’s tax revenues and never came to fruition anyway. Under no circumstances did the founders imagine that the Fifth Amendment would allow government to “take property away from A, and give it to B,” Thomas wrote.“If the slums at issue were truly ‘blighted,’ then state nuisance law, not the power of eminent domain, would provide the appropriate remedy.” Urban renewal in fact became Negro removal.

Stenberg v. Carhart (2000) concerned a Nebraska ban on partial-birth abortion. In his dissent, Thomas wrote, the Court majority “holds that states cannot constitutionally prohibit a method of abortion that millions find hard to distinguish from infanticide and that the Court hesitates even to describe.” All of the Court’s abortion jurisprudence, he emphasized in a later decision, has no basis in the Constitution.