The Progressives’ hundred years war on the Constitution would have been futile without the Supreme Court’s complicity, made possible by justices who abandon their oaths to support and defend the Constitution and, instead, reimagine it as a living document, one that means whatever they wish it to mean. With their rulings unmoored from the Constitution’s original meaning, its protections have crumbled, and our liberties have vaporized, along with the Court’s credibility. Justice Clarence Thomas, however, is anything but complicit as evidenced by an avalanche of dissents written in palpable exasperation.
In direct contrast to a living Constitution, Thomas has courageously adhered to the principle of constitutional originalism—the idea that the Constitution is to be interpreted with the meaning the text held when ratified. This guided the Court’s jurisprudence for its first 150 years only to be abandoned in the 20th century. The damage since has been staggering.
It was Justice Scalia who resurrected originalism from its grave, but it was Thomas who unfailingly adhered to its principles. Thomas’s dissents serve as a modern-day Rosetta Stone for interpreting the Constitution, and no better compilation of them exists than my daughter’s new book, “The Dissents of Clarence Thomas: Fealty to Constitutional Originalism” (free on Kindle through Thursday).
Reading through this collection forces us to understand why so many of the problems plaguing American society today owe their origins to this wayward Court: racism, crime, abuse of power, withering freedoms, and the rise of the soul-strangling administrative state, to name but a few. Here I explore a pair of Thomas dissents to demonstrate just how egregious the Court’s jurisprudence on race and crime has been and the consequences it has had for civil society.
Fully a century and a half after the Civil War, an activist Court means race is once again tearing America apart. By the 1960s, by every quantitative measure, Blacks had risen from bondage faster and further than any oppressed group in history. For the Progressives, it was not enough. Despite Fredrick Douglas’s prophetic warning from a hundred years earlier— Do nothing with us! … All I ask is, give him a chance to stand on his own legs! Let him alone! Your interference is doing him positive injury.”—the plague of the Great Society was unleashed on the Black community with biblical consequences.
The opportunity to rise or fall on your own merits was a right, as Thomas explains, “purchased at the price of immeasurable human suffering” and institutionalized in the 14th Amendment’s Equal Protections Clause. “The equal protection principle reflects our Nation’s understanding that such classifications ultimately have a destructive impact on the individual and our society.”
Image: Clarence Thomas. YouTube screen grab.
Yet, the Court was as deaf to Douglas’s pleas as it was blind to our Constitution when it gave its enthusiastic imprimatur to the institutionalized racism of affirmative action. Justice Harlen’s visionary dissent in Plessy—“Our constitution is colorblind, and neither knows nor tolerates classes among citizens”—which seemed so close to being fulfilled, would now be vanquished for generations.
Today the Court continues its tradition of ignoring the Constitution by elevating race in college admissions, which inspired some of Thomas’s greatest dissents. In 2002’s Grutter v. Bollinger, the Court ruled that the University of Michigan law school could use race in its admissions but arbitrarily limited its use to the next 25 years, when magically, “it will no longer be necessary.”
What better example of a living Constitution? It’s a de facto license to violate the Constitution for 25 years when the Constitution will suddenly transmogrify into something else. Thomas is emphatic: Using “race violates the Equal Protection Clause and that the Constitution means the same thing today as it will in 300 months.”
As clearly as Thomas sees the egregious constitutional violation, he also sees the societal consequences with a Nostradamus-like clarity:
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Discrimination engenders attitudes of superiority or, alternatively, provokes resentment among those who believe that they have been wronged by the government’s use of race. These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are ‘entitled’ to preferences.
Perhaps even worse, because the majority of Black law school admissions are made based on race rather than merit, “all are tarred as undeserving“ and stigmatized by the question of whether or not they are qualified for their positions.
Mercifully, after the stunning reversals recently on abortion and gun rights, both made possible by Thomas’s unwavering commitment to originalism, we have reason for optimism. On October 31, the Court has another chance to right this pernicious wrong when it hears Students for Fair Admissions v Harvard.
With racial tensions tearing society’s fabric, we have seen crime spiral out of control. Here, again, we can trace its roots to the Court’s Due Process malfeasance: manufacturing rights for criminals while decent citizens are condemned to live in fear as criminals violently destroy their neighborhoods.
There is no better example than 1999’s Chicago v Morales. To stem a tsunami of gang-related violence, Chicago officials passed a modest ordinance, making it a crime not to disperse on orders from a police officer who suspects gang members are loitering on public property. Incredibly, the Court found gang members’ loitering to be a right that substantive due process protects.
The Due Process Clause states that “no citizen shall be deprived of life, liberty, or property without due process of the law.” However, the Court has declared that the government cannot deprive citizens of some rights, even by law. This protection is known as substantive due process, but Thomas more accurately describes this as a “legal fiction.”
Nothing is more anathema to Thomas than reasoning that cannot be anchored in the Constitution. Thomas fears, “substantive due process exalts judges at the expense of the People from whom they derive their authority.” Until recently, the Court has recognized that such an ill-defined right must have a clear limiting principle, something best articulated in 1996’s Washington v. Glucksberg:
Only laws that infringe those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition offend the Due Process Clause.
Despite this limiting principle, the Court astonishingly found gang members’ loitering to be a fundamental right “deeply rooted in the Nation’s history,” while the police’s duty to keep the public peace was somehow less deeply rooted, if at all.
As well as a constitution argument, Thomas ridiculed the Court’s hypocrisy because the judges do not have to suffer the consequences of their “lofty pronouncements” from their safe neighborhoods. He also pointed to the devastating societal consequences—plummeting school attendance, economic ruin, fear of leaving one’s homes, extortion, and violent crime—that the most vulnerable must pay:
By focusing exclusively on the imagined “rights” of the two percent, the Court today has denied our most vulnerable citizens the very thing that Justice Stevens elevates above all else — the “‘freedom of movement.’” And that is a shame.
These are just two examples, but the last century is replete with rulings that have shattered the Constitution and consequently society. To experience the full enormity of the damages resulting from the Court’s complicity in the Progressives’ agenda, and significantly, profound insights into rectifying them, Justice Thomas’s dissents are required reading, and there is no better organized, annotated, and edited collection of them than “The Dissents of Clarence Thomas.”