New Blue Nightmare: Clarence Thomas and the Amendment of Doom

By Walter Russell Mead
The-american-interest.com

Lord of the Rings aficionados know that the evil lord Sauron paid little attention to the danger posed by two hobbits slowly struggling across the mountains and deserts of Mordor until he suddenly realized that the ring on which all his power depended was about to be hurled into the pits of Mount Doom. All at once the enemy plan became clear; what looked like stupidity was revealed as genius, and Sauron understood everything just when it was too late to act.

Jeffrey Toobin’s gripping, must-read profile of Clarence and Virginia Thomas in the New Yorker gives readers new insight into what Sauron must have felt: Toobin argues that the only Black man in public life that liberals could safely mock and despise may be on the point of bringing the Blue Empire down.

In fact, Toobin suggests, Clarence Thomas may be the Frodo Baggins of the right; his lonely and obscure struggle has led him to the point from which he may be able to overthrow the entire edifice of the modern progressive state.

Writes Toobin:

In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court. Since the arrival of Chief Justice John G. Roberts, Jr., in 2005, and Justice Samuel A. Alito, Jr., in 2006, the Court has moved to the right when it comes to the free-speech rights of corporations, the rights of gun owners, and, potentially, the powers of the federal government; in each of these areas, the majority has followed where Thomas has been leading for a decade or more. Rarely has a Supreme Court Justice enjoyed such broad or significant vindication.

This is one of the most startling reappraisals to appear in The New Yorker for many years. It is hard to think of other revisions as radical as the declownification of Clarence Thomas: Herbert Hoover as the First Keynesian? Henry Kissinger as the Great Humanitarian? Richard Nixon, the most liberal president ever (that one might even be true)?

There are few articles of faith as firmly fixed in the liberal canon as the belief that Clarence Thomas is, to put it as bluntly as many liberals do, a dunce and a worm. Twenty years of married life have not erased the conventional liberal view of his character etched by Anita Hill’s testimony at his confirmation hearings. Not only does the liberal mind perceive him as a disgusting lump of ungoverned sexual impulse; he is seen as an intellectual cipher. Thomas’ silence during oral argument before the Supreme Court is taken as obvious evidence that he has nothing to say and is perhaps a bit intimidated by the verbal fireworks exchanged by the high profile lawyers and his more, ahem, ‘qualified’ colleagues.

At most liberals have long seen Thomas as the Sancho Panza to Justice Antonio Scalia’s Don Quixote, Tonto to his Lone Ranger. No, says Toobin: the intellectual influence runs the other way. Thomas is the consistently clear and purposeful theorist that history will remember as an intellectual pioneer; Scalia the less clear-minded colleague who is gradually following in Thomas’ tracks.

If Toobin’s revionist take is correct, (and I defer to his knowledge of the direction of modern constitutional thought) it means that liberal America has spent a generation mocking a Black man as an ignorant fool, even as constitutional scholars stand in growing amazement at the intellectual audacity, philosophical coherence and historical reflection embedded in his judicial work.

Toobin is less interested in exploring why liberal America has been so blind for so long to the force of Clarence Thomas’ intellect than in understanding just what Thomas has achieved in his lonely trek across the wastes of Mordor. And what he finds is that Thomas has been pioneering the techniques and the ideas that could not only lead to the court rejecting all or part of President Obama’s health legislation; the ideas and strategies Thomas has developed could conceivably topple the constitutionality of the post New Deal state.

Reshaping the Constitution

Back in Pundit High, they used to teach a fair amount about constitutional history in the US history course; phrases like “Marbury vs. Madison” and “Fletcher vs. Peck” had an ugly way of turning up on quizzes and tests. Our American history teacher, besides discreetly taking some of the boys aside from time to time to explain the dubious origins of their family hoards, was steeped in New Deal constitutional views and made a point of telling us that two of the ten amendments in the Bill of Rights were vestigial organs, constitutional equivalents of the appendix. The Second Amendment on the right to bear arms simply meant that states could have militias; the Tenth Amendment reserving all additional powers to the states meant nothing at all and had simply been thrown in as a sop to ignorant know-nothings of the age.

Other parts of the Constitution, by contrast, gained in importance over the years: the commerce clause, for example, gave the federal government a practically unlimited power in this modern age to regulate everything under the sun.

In that as in so much else Pundit High prepared us to move into the liberal world of the day; we were being given exactly the ideas and opinions that would prepare us to lead the next generation of American liberalism in the New England way. Until very recently the constitutional vision I was taught in my teens remained, as they say, hegemonic. The enlarged role of the commerce clause was uncontested and the two amendments dangled with the other dead constitutional provisions — letters of marque and reprisal, no bills of attainder, the prohibition on quartering — in constitutional limbo.

The way we learned them, the Second and Tenth amendments were as dead as the three fifths clause: so dead that there was no point in asking why they died or what they were doing there. Like the “begats” in the Bible (long tables of genealogy listing endless generations of people who are otherwise entirely forgotten) they padded the document without doing any work. The federal government faced few realistic constraints on its power and the constitutional settlement of the New Deal was unshakably firm.

Those were the operating assumptions my generation took with us to college and beyond; they are still the conventional wisdom among most American intellectuals and journalists today.

What we didn’t know, and what the world at large didn’t know until very recently, was that the New Deal constitution was not as permanent or unalterable as it looked. Intellectually its foundations were shaky, and after two decades of a Clarence Thomas-led assault, the constitutional doctrines that permitted the rise of the powerful federal government could be close to collapse.

In the case of the Second Amendment, the collapse has already come. Back in my Pundit High days, anyone who dared to suggest that the Bill of Rights gave individuals the right to bear arms would have been laughed out of the class as an ignorant yahoo. These days, that is the accepted view of the US Supreme Court and most of the legal profession. The resurrection of the Second Amendment proves that the “dead letter” clauses of the Constitution can come back to life — and suggests that Clarence Thomas understands how this can be done.

The next topic for Constitutional revisionism is the expansive reading of the commerce clause that the New Deal judges used to justify the Roosevelt administration’s ambitious economic programs. The Obamacare health reform depends on that kind of reading of the commerce clause; the penumbras must stretch pretty far for the Constitution to give Congress the right to require all Americans to buy private health insurance. And if the commerce clause can be stretched this far, one must ask whether there is anything that the Constitution blocks Congress from doing.

If gun control and Obamacare were the only issues at stake in the constituional debate, liberals would find Thomas annoying but not dangerous. Losing on gun control and health care frustrate and annoy the center left, but those are only two items on a long list of liberal concerns.

The real problem will come if Thomas can figure out how to get the Tenth Amendment back into constitutional thought in a serious way. The Second Amendment was a constitutional landmine for the left; the Tenth is a nuclear bomb.

Toobin, who disagrees strongly with Thomas about most matters constitutional, political and cultural, does a good job of showing why Thomas is a formidable judicial thinker. The interpretative concept of “originalism” is sometimes confounded with a simplistic literal interpretation of the words of the Constitution. Thomas argues that to understand what the Constitution meant to the framers, one needs to do more than read the words on the page and look to see how Samuel Johnson and perhaps Noah Webster defined them in their dictionaries.

Thomas is not a fundamentalist reading the Constitution au pied de la lettre; the original intent of the founders can be established only after research and reflection. The Eighth Amendment ban on “cruel and unusual punishment” can only be understood if one understands the thought of the period, the types of punishment then widely used, and the political and cultural traditions that shaped the thinking of the founders on questions of justice and punishment. One then takes that understanding, however tentative, and applies it to the circumstances of a given case today.

It is not the only possible way to read the Constitution, but it is a very interesting one and it may be the only politically sustainable way for the Court to read it in a contentious and divided country. Without some rule of interpretation that the average person can understand and accept as legitimate, the Court gradually loses legitimacy in the public eye. The originalist interpretation, whatever objections can be made to it intellectually and historically, is politically compelling. It resonates with the American propensity for commonsense reasoning. To say that the Founders meant what they meant and that the first job of a judge is to be faithful to their intent is something that strikes many Americans as sensible, practical and fair.

As Toobin tells the story, the revival of the Second Amendment was the first great triumph of the new approach. Thomas and others assembled a mountain of evidence that convinced increasing numbers of legal scholars that the Second Amendment must be read as conferring an individual right to bear arms — not merely a generic endorsement of the right of each state to maintain a militia. More, this right was intended as political: to check the power of the state to overawe and crush the people. As a result, the once seemingly unstoppable movement toward gun control has gone into reverse gear.

The startling possibility now beginning to dawn on some observers is that these same methods applied to the Tenth Amendment would lead to a much more far reaching revision to constitutional doctrine. The text of the Amendment is simple and short:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The standard interpretation is that this merely restates an assumption that undergirds the Constitution as a whole and so has no special meaning or significance in law. If reading the rest of the Constitution leads you to uphold some act or law as constitutional, this amendment would not affect that judgment. Therefore it can be and usually is ignored. That is certainly what we were told to do with it in the hallowed halls of Pundit High.

But there is another view of this amendment. The Constitution of the United States confers specific, “enumerated” powers on the Congress, and many of the things that Congress does today are not listed among those enumerated powers. On his last day in office, President James Madison vetoed what today we would call an infrastructure bill. He thought the bill was a good idea, that the country needed the infrastructure and that the federal government was the right agency to provide it, but believed that the Constitution he had helped write provided no authority for Congress to act in this way. If Congress wanted to support infrastructure in the various states, the right way to proceed was to get an infrastructure amendment into the Constitution. Barring that, nothing could be done.

Taken seriously today, that approach to the Constitution would change the way Washington does business. Radically. The list of enumerated powers is short and does not include, for example, health care, education, agricultural subsidies, assistance to the hungry or old age pensions. Most of the New Deal and Great Society (with the interesting exception of civil rights laws which enforce the Civil War era amendments) would be struck down. Whole cabinet departments would close.

The federal government would not wither away completely; even on a narrow reading of the commerce clause (the clause that places the regulation of interstate commerce among Congress’ enumerated powers), Washington would exercise considerable authority over the national economy. But the balance between the states and the feds would change, and among other things, our federal tax burdens would fall, but the costs of state government would rise.

This is pretty much a Tea Party wish list, and it is why the Tea Party movement is so strongly identified with originalist interpretations of the Constitution. Unleashing the Tenth Amendment would move the constitutional status quo back towards the early 1930s when the “Nine Old Men” struck down one New Deal law after another. For Toobin and most New Yorker readers, it is hard to imagine an idea that more radically and totally runs against everything they believe.

That Justice Thomas’ wife Virginia is a prominent speaker and organizer in the Tea Party completes the picture: the Thomas’ are the anti-Clintons, the power couple out to dismantle the progressive American state. The specter Toobin’s piece conjures is of Clarence and Virginia, like Frodo and Sam, quietly toiling towards Mount Doom while liberal attention is fixed elsewhere.

How Real Is The Fear?

The prospect of a serious judicial rehabilitation of the Tenth Amendment is real, though perhaps not immediate. And change this sweeping is unlikely to come simply because a relative handful of judges and lawyers change their minds on an issue of constitutional interpretation. A broader change would need to take place in society so that the idea of transferring more activities from Washington to the states appeals to public opinion to the point where presidents appoint judges who share this philosophy, the Senate confirms them, and the new majority begins to set a new direction for the law.

Arguably, we are nearing a zone where something like that could happen. The apparent Republican front-runner Governor Rick Perry has strong views on the Constitution. His book Fed Up! Our Fight To Save America From Washington is essentially an essay calling for a return to the concept of a federal government limited to its enumerated powers. Let unemployment stay above 8 percent through November of 2012 and President Perry could be sending the names of judicial nominees to a Republican Senate. With a couple more allies on the Supreme Court, Justice Thomas could get pretty close to the lava pits of Mount Doom.

Big constitutional changes have happened before. The Supreme Court was a very different and much stronger institution by the time Chief Justice John Marshall was through with it. It took Court a few years to accept the New Deal, but when it did, the law changed very quickly. The reversal of Plessy vs. Ferguson transformed racial jurisprudence and stood old doctrines on their heads. The Warren Court’s decisions of the 1960s and, of course, Roe vs. Wade transformed the American legal landscape.

Nowhere in the Constitution or anywhere else is it written that all these changes must be one way: that liberal judges can overturn conservative precedents while conservatives must let liberal precedents stand. (From a Tea Party point of view one of the great virtues of Thomas’ originalism is that it provides a principled basis for conservative jurisprudence that ruthlessly reverses decades of liberal precedent.)

At the moment, Governor Perry’s advocacy of Tenth Amendment Federalism looks like an asset in the competition for the GOP nomination but a serious and perhaps fatal liability in a general campaign. Medicare and Social Security might not pass a strict Madisonian constitutional test, but there are not many voters who want to see them vanish. The public mind is more skeptical about Washington than at any time in living memory, but that is not the same thing as a public demand for less federal spending on middle class entitlements.

Nevertheless, the Jacksonian populism behind the Tea Party and associated movements connects with some deep seated American preferences. The public is suspicious of clever legal theories that run counter to ‘obvious’ ideas about what the Constitution means. Just as populists like mandatory sentencing rules that reduce the discretion of judges in criminal matters, they like ways of interpreting the Constitution that reduce the ability of judges to base their decisions on anything beyond the clear meaning of the text. Andrew Jackson’s populism drew energy from his opposition to the (elite backed, constitutionally questionable) Bank of the United States and his firm stance against John Marshall and his usurping Court. Governor Perry’s attacks on Fed Chairman Bernanke are not unlike Jackson’s attacks on Nicholas Biddle; the platform being hammered out in Texas has a distinctly Jacksonian feel.

It’s hard to argue with Toobin that Thomas has moved the ball down field in his quest for a new era of constitutional jurisprudence. Sauron’s tower is probably not going to fall right away, but for the first time, progressives are beginning to see credible scenarios which could change the rules of the game.

Jeffrey Toobin is announcing to the liberal world that Clarence Thomas has morphed from a comic figure of fun to a determined super-villain who might reverse seventy years of liberal dominance of the federal bench and turn the clock back to 1930 if not 1789.

The fantasy is still far fetched, and it is notoriously hard for political movements to get and hold power long enough to shift the balance on the Supreme Court, but that Thomas has accomplished as much as he has shows how far the country has drifted from the old days when liberals were confident that the Supreme Court would find new ways to fit its judicial philosophy to the demands of the blue social model.

They can no longer count on that; the consequences could be extreme.