Myron Magnet spells out in a City Journal article how Founding principles have shaped Justice Clarence Thomas’ legal philosophy. This article is the second part of a two part series on Justice Thomas’ jurisprudence.
The Founders’ Grandson, Part II
On the bench, Clarence Thomas takes precisely the opposite approach from that of Chief Justice Charles Evans Hughes, who famously quipped that “the Constitution is what the judges say it is.” Under that rubric, too many justices have imposed their own policy preferences, Thomas says: “You make it up, and then you rationalize it.” According to his own strictly originalist judicial credo, set forth in a 1996 speech, “The Constitution means not what the Court says it does but what the delegates at Philadelphia and at the state ratifying conventions understood it to mean. . . . We as a nation adopted a written Constitution precisely because it has a fixed meaning that does not change. Otherwise we would have adopted the British approach of an unwritten, evolving constitution.” Consequently, “as Justice Brandeis declared in the great case of Erie v. Tompkins, there is no federal general common law. The duty of the federal courts is to interpret and enforce two bodies of positive law: the Constitution and the body of federal statutory law.” What the law schools teach as constitutional law is just a compendium of opinions that might or might not be correct.
Myron Magnet, prizewinning author of The Founders at Home: The Building of America, 1735-1817, was the editor of City Journal from 1994 through 2006 and is now the magazine’s editor-at-large. A former member of the board of editors of Fortune magazine, Magnet has written about a wide variety of topics, from American society and social policy, economics, and corporate management to intellectual history, literature, architecture, and the American Founding.
His earlier book, The Dream and the Nightmare: The Sixties’ Legacy to the Underclass (William Morrow, 1993; second edition: Encounter Books, 2000) argues that the radical transformation of elite and mainstream American culture that took place in the 1960s produced catastrophic changes in behavior at the bottom of society that gave rise to the urban underclass. Hilton Kramer called the book “an indispensable guide to the outstanding question of the day,” while columnist Mona Charen deemed it “the book of the decade.” President George W. Bush told the Wall Street Journal that it was the most important book he’d ever read after the Bible, and Bush strategist Karl Rove called The Dream and the Nightmare a roadmap to the president’s compassionate conservatism.
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