At Commentary, Adam J. White: Lest Ye Be Judged — Review of 'Clarence Thomas and the Lost Constitution' By Myron Magnet. From the introduction:
In nearly two and a half centuries of American constitutionalism, from 1776 to today, the words that are most difficult to understand yet crucial to our republic are found in Abraham Lincoln’s first inaugural address. Reflecting upon the Supreme Court’s infamous pro-slavery decision in Dred Scott v. Sandford (1857), Lincoln observed that “the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”
Here we find the fundamental paradox of American constitutionalism, which contains both republican self-government and the rule of law. The rule of law requires judicial power and independence. But republicanism requires that these powerful and independent judges be made the people’s servants, not their masters. Lincoln venerated the Constitution, willing even to wage war against the Southern states in order to preserve it. But Lincoln rejected the suggestion that judges are our final arbiters in announcing the Constitution’s meaning; that obligation fell to the people themselves, for the sake of both republican self-government and the rule of law.
Yet the people themselves can misjudge or misrepresent the Constitution just as badly as judges. So what is better for American constitutionalism in those eras when the people are wrong and the judges are right—a judicial supremacy that enforces the Constitution’s original meaning at the cost of democratic self-rule, or a democratic supremacy by which the people refuse to “resig[n] their Government into the hands of that eminent [judicial] tribunal” but at the cost of the Constitution’s original meaning?
That is a bleak thought, indeed. It is far more pleasant to consider the scenario in which the people rally to protect the true Constitution against the anti-constitutional schemes of lesser politicians and judges. And that is why we are so lucky to live in the time of Justice Clarence Thomas, who personifies both populism and constitutional originalism.
And from the conclusion:
Magnet is committed to textualism. Quoting Thomas in 1996, he stresses that “we as a nation adopted a written Constitution precisely because it has a fixed meaning that does not change.” But when it comes to finding the correct, timeless, and long-lost meaning of the powerful “Privileges or Immunities” Clause that would serve as a significant limit on elected leaders in the states, Magnet is putting supreme faith in conservative judges and justices.
…
In the end, Magnet is right to worry that Americans (or at least Americans’ elected leaders) have ceded too much power to the parts of government least directly accountable to the people themselves—namely, to administrative bureaucracies and to courts, both of which are staffed by particular types of experts, to govern primarily through the use of those particular types of expertise.
“As the founders often cautioned,” Magnet warns, “a self-governing republic doesn’t have a governing class.” But when he further notes that “part of America’s current predicament is that it now has a permanent, unelected one, unanswerable to the people,” it is worth remembering that a federal judge’s tenure is even more permanent than a bureaucrat’s, and that a judge is even less answerable to the people than a regulator is. That is equally true for conservative and liberal judges alike.
In the end, as Magnet makes clear, Justice Thomas’s principled constitutionalism and comfortable populism make him a genuinely singular American statesman. And for precisely that reason, we should hesitate before handing dispositive political power to judges, very few of whom are Justice Thomas.
(Thanks to Mark Pulliam for the pointer).
RELATED: At City Journal, Myron Magnet: Justice Thomas’s Credo — The Constitution, not precedent, is the law of the land (discussing Justice Thomas' concurrence in Gamble v. United States).
Posted at 6:31 AM