Imprimis: Clarence Thomas and the Lost Constitution

This article comes from Hillsdale College’s Imprimis. This is a longer article that gets into some details of Justice Thomas’ dissenting opinions and why he feels it is important to write them in hopes that future justices may overturn wrong precedence.

Clarence Thomas and the Lost Constitution

Clarence Thomas is our era’s most consequential jurist, as radical as he is brave. During his almost three decades on the bench, he has been laying out a blueprint for remaking Supreme Court jurisprudence. His template is the Constitution as the Framers wrote it during that hot summer in Philadelphia 232 years ago, when they aimed to design “good government from reflection and choice,” as Alexander Hamilton put it in the first Federalist, rather than settle for a regime formed, as are most in history, by “accident and force.” In Thomas’s view, what the Framers achieved remains as modern and up-to-date—as avant-garde, even—as it was in 1787.

What the Framers envisioned was a self-governing republic. Citizens would no longer be ruled. Under laws made by their elected representatives, they would be free to work out their own happiness in their own way, in their families and local communities. But since those elected representatives are born with the same selfish impulses as everyone else—the same all-too-human nature that makes government necessary in the first place—the Framers took care to limit their powers and to hedge them with checks and balances, to prevent the servants of the sovereign people from becoming their masters. The Framers strove to avoid at all costs what they called an “elective despotism,” understanding that elections alone don’t ensure liberty.

Did they achieve their goal perfectly, even with the first ten amendments that form the Bill of Rights? No—and they recognized that. It took the Thirteenth, Fourteenth, and Fifteenth Amendments—following a fearsome war—to end the evil of slavery that marred the Framers’ creation, but that they couldn’t abolish summarily if they wanted to get the document adopted. Thereafter, it took the Nineteenth Amendment to give women the vote, a measure that followed inexorably from the principles of the American Revolution.

During the ratification debates, one gloomy critic prophesied that if citizens ratified the Constitution, “the forms of republican government” would soon exist “in appearance only” in America, as had occurred in ancient Rome. American republicanism would indeed eventually decline, but the decline took a century to begin and unfolded with much less malice than it did at the end of the Roman Republic. Nor was it due to some defect in the Constitution, but rather to repeated undermining by the Supreme Court, the president, and the Congress.

The result today is a crisis of legitimacy, fueling the anger with which Americans now glare at one another. Half of us believe we live under the old Constitution, with its guarantee of liberty and its expectation of self-reliance. The other half believe in a “living constitution”—a regime that empowers the Supreme Court to sit as a permanent constitutional convention, issuing decrees that keep our government evolving with modernity’s changing conditions. The living constitution also permits countless supposedly expert administrative agencies, like the SEC and the EPA, to make rules like a legislature, administer them like an executive, and adjudicate and punish infractions of them like a judiciary.

To the Old Constitutionalists, this government of decrees issued by bureaucrats and judges is not democratic self-government but something more like tyranny—hard or soft, depending on whether or not you are caught in the unelected rulers’ clutches. To the Living Constitutionalists, on the other hand, government by agency experts and Ivy League-trained judges—making rules for a progressive society (to use their language) and guided by enlightened principles of social justice that favor the “disadvantaged” and other victim groups—constitutes real democracy. So today we have the Freedom Party versus the Fairness Party, with unelected bureaucrats and judges saying what fairness is…

Click here to continue reading at Imprimis.

Imprimis: America’s Cold Civil War

Imprimis, a publication of Hillsdale College, has a posted a transcription of a speech given by Charles Kesler, the Dengler-Dykema Distinguished Professor of Government at Claremont McKenna College and editor of the Claremont Review of Books. America’s Cold Civil War discusses the current political divide in the USA and how it came to be. The somewhat lengthy piece details the difference in beliefs about the Constitution, individual vs group identity, and opposing definitions of rights. It also identified five possible paths ahead, including hot civil war.

…[W]e have described our current political scene as a cold civil war. A cold civil war is better than a hot civil war, but it is not a good situation for a country to be in. Underlying our cold civil war is the fact that America is torn increasingly between two rival constitutions, two cultures, two ways of life.

Political scientists sometimes distinguish between normal politics and regime politics. Normal politics takes place within a political and constitutional order and concerns means, not ends. In other words, the ends or principles are agreed upon; debate is simply over means. By contrast, regime politics is about who rules and for what ends or principles. It questions the nature of the political system itself. Who has rights? Who gets to vote? What do we honor or revere together as a people? I fear America may be leaving the world of normal politics and entering the dangerous world of regime politics—a politics in which our political loyalties diverge more and more, as they did in the 1850s, between two contrary visions of the country.

One vision is based on the original Constitution as amended. This is the Constitution grounded in the natural rights of the Declaration of Independence, the Constitution written in 1787 and ratified in 1788. It has been transmitted to us with significant Amendments—some improvements and some not—but it is recognizable still as the original Constitution. To simplify matters we may call this “the conservative Constitution”—with the caveat that conservatives have never agreed perfectly on its meaning and that many non-conservatives remain loyal to it.

The other vision is based on what Progressives and liberals, for 100 years now, have called “the living Constitution.” This term implies that the original Constitution is dead—or at least on life support—and that in order to remain relevant to our national life, the original Constitution must be infused with new meaning and new ends and therefore with new duties, rights, and powers. To cite an important example, new administrative agencies must be created to circumvent the structural limitations that the original Constitution imposed on government.

As a doctrine, the living Constitution originated in America’s new departments of political and social science in the late nineteenth century—but it was soon at the very forefront of Progressive politics. One of the doctrine’s prime formulators, Woodrow Wilson, had contemplated as a young scholar a series of constitutional amendments to reform America’s national government into a kind of parliamentary system—a system able to facilitate faster political change. But he quickly realized that his plan to amend the Constitution was going nowhere. Plan B was the living Constitution. While keeping the outward forms of the old Constitution, the idea of a living Constitution would change utterly the spirit in which the Constitution was understood.

The resulting Constitution—let us call it “the liberal Constitution”—is not a constitution of natural rights or individual human rights, but of historical or evolutionary right. Wilson called the spirit of the old Constitution Newtonian, after Isaac Newton, and that of the new Constitution Darwinian, after Charles Darwin. By Darwinian, Wilson meant that instead of being difficult to amend, the liberal Constitution would be easily amenable to experimentation and adjustment. To paraphrase the late Walter Berns, the point of the old Constitution was to keep the times in tune with the Constitution; the purpose of the new is to keep the Constitution in tune with the times.

Until the 1960s, most liberals believed it was inevitable that their living Constitution would replace the conservative Constitution through a kind of slow-motion evolution. But during the sixties, the so-called New Left abandoned evolution for revolution, and partly in reaction to that, defenders of the old Constitution began not merely to fight back, but to call for a return to America’s first principles. By seeking to revolve back to the starting point, conservatives proved to be Newtonians after all—and also, in a way, revolutionaries, since the original meaning of revolution is to return to where you began, as a celestial body revolves in the heavens…

Click here to read the entire essay at Imprimis.