Justice Thomas: Mr. Republican

Copiado de: <http://www.libertylawsite.org/>. Acesso em 15 abr. 2016.

by Ken Masugi

Photo by David Hume Kennerly/Getty Images

Once again Justice Clarence Thomas has given originalist jurisprudence its most robust defense through his revival of an obscure part of the U.S. Constitution.

In 2010, in McDonald v. Chicago, he had protected the right to individual gun ownership by invoking the Fourteenth Amendment’s Privileges or Immunities Clause. Now he has concurred in the decision in Evenwel v. Abbott (2016), which unanimously affirms the state of Texas’ use of population (rather than being required to use eligible voters) as the basis for devising electoral districts.

Thomas’ bold concurring opinion, reviving as it does Article IV’s guarantee that each state shall have a republican form of government, opens up a vast field of possibilities for thinking about apportionment but also about free government generally. His aim in directing us to this clause is ultimately to build a more powerful case against the unconstitutional administrative state, the suppressor of separation of powers, federalism, and basic republican principles. Even more provocative is the basis he sees for the Republican Government Guarantee Clause: the Declaration of Independence.

The thrust of this opinion is obviously contrary to conventional understandings, such as that of Jeffrey Toobin, for whom Thomas’ “separate opinion” showed “how extreme and out of touch his views are. In it, he challenged fifty years of consensus at the Court on voting rights by rejecting a bedrock principle: one person, one vote.”

On the contrary, Thomas did not reject “one person, one vote”—rather, he would not require it. “The Constitution does not prescribe any one basis for apportionment within States.” He pointed out that the states have “significant leeway in apportioning their own districts to equalize total population, to equalize eligible voters, or to promote any other principle consistent with a republican form of government.”

Thomas takes his bearings from the explicit constitutional standard of republicanism, not the vagaries of “equal protection,” an avenue of jurisprudence that leads to gibberish about “vote dilution” and other absurd mathematical understandings of politics.

Article IV, Section 4 of the Constitution reads:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

So all three branches of the federal government must protect states from nonviolent as well as violent “regime change.”

Thomas’ opinion makes one fundamental point: The Court’s apportionment decisions have ignored the basic principle that “The Constitution lacks a single, comprehensive theory of representation. The Framers understood the tension between majority rule and protecting fundamental rights from majorities.”

This tension arose from the Declaration itself. Thomas writes: “Because, in the view of the Framers, ultimate political power derives from citizens who were ‘created equal,’ the Declaration of Independence, beliefs in equality of representation—and by extension, majority rule—influenced the constitutional structure.”

Indeed, he adds, many of the Founders “viewed antidemocratic checks as indispensable to republican government. And included among the antidemocratic checks were legislatures that deviated from perfect equality of representation.”

For example, one might add, Article V makes equal representation in the U.S. Senate of the unequally populous states of the union an unamendable principle. What prevents such practices from becoming contrary to republican government is their purpose. “The Framers believed,” writes Thomas, “that a proper government promoted the common good. They conceived this good as objective and not inherently coextensive with majoritarian preferences.”

In order for government “to promote the common good, it had to do more than simply obey the will of the majority.” It also had to “protect fundamental rights,” says Thomas, citing the Declaration of Independence, Blackstone’s Commentaries, and Federalist 43. (The sentence from Blackstone reads: “For the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which are vested in them by the immutable laws of nature.”)

As for Federalist 43, we can read therein that American constitutionalism is based on recurrence to

the great principle of self-preservation; to the transcendent law of nature and on nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim and to which all such institutions must be sacrificed.

In other words, to the Declaration a free society will always exhibit struggle. Therefore, as Thomas writes, “designing a government to fulfill the conflicting tasks of respecting the fundamental equality of persons while promoting the common good requires making incommensurable tradeoffs.”

In this enterprise the people are the ultimate sovereign, and the Court needs to show its respect for them. Thus, Thomas concludes, “In trying to impose its own theory of democracy, the Court is hopelessly adrift amid political theory and interest-group politics with no guiding legal principles.” The wisdom of the people should prevail over the theorizing of the academic and legal elites.

Justice Thomas’ reminder of the Republican Government Guarantee Clause comes at a propitious moment—when the very idea of republican institutions has come under fire from scholarly, legal, and political forces, and the administrative state appears to enjoy bipartisan approval. The boldness of this opinion becomes even clearer when we realize that it breaks a long silence on the clause. The Court’s last majority opinion mentioning it in any notable way was Luther v. Borden (1849).

The author of that opinion, Chief Justice Roger Taney, dismissed its application as a “political question.” Wrote Taney:

Under this article of the Constitution, it rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not.

By making legal positivism—the will of Congress—the test for what is “republican,” Taney, I speculate, wished to denigrate the republican principles of the Declaration and then separate them from the Constitution.

An even sweeter victory for him would come about eight years later, following the Compromise of 1850, in Dred Scott (1857). There, the Chief Justice distorted the Declaration, as legitimizing slavery, to make it fit his conception of the Constitution. Together with John C. Calhoun, Taney laid the theoretical basis for the unlimited government of the administrative state by separating the Declaration, properly understood, from the Constitution and thus transforming willfulness into legitimacy.

I have argued before that the Thirteenth Amendment brought out the true meaning of the Republican Government Guarantee Clause, among other parts of the 1787 document, by restoring the original understanding of that document. The recognition of our natural rights defines legitimate government. Now we can see that a republican form of government means equality for all men. In America, slavery and republicanism are incompatible.

“None of the Reconstruction Amendments changed the original understanding of republican government,” writes Thomas. It’s a statement that reminds us of what one thinker called “the invisible slave” in constitutional interpretation. As an example, consider the Court’s reliance on dubious social science in Brown v. Board of Education (1954), which was driven by the Court’s need to avoid the real issue of slavery and its badges and incidents.

This habit of obfuscation underscores the importance of the minority opinion from 1896 that referred to the Republican Government Guarantee Clause. Justice Harlan’s colorblind-Constitution dissent in Plessy v. Ferguson concluded:

Such a system [of racial segregation] is inconsistent with the guarantee given by the Constitution to each State of a republican form of government, and may be stricken down by Congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding.

In writing to stop an unwarranted use of the Equal Protection Clause, Thomas is attempting to fulfill Harlan’s spirited defense of equal liberty.

In his various opinions—concurring, dissenting, and occasionally even for the Court—Clarence Thomas has cut through the accretions of scores of years of misinterpretations in all the major areas of constitutional interpretation, including religious liberty, free speech, separation of powers, and federalism. One could say his jurisprudence is “result-oriented”—that is, oriented toward protecting the ends that the Declaration of Independence demands through the Constitution, a republican government that protects safety and happiness.

Ken Masugi

Ken Masugi is a Senior Fellow of the Claremont Institute. He teaches in graduate programs in political science for Johns Hopkins University and for the Ashbrook Center of Ashland University. He has edited Interpreting Tocqueville’s Democracy in America, co-edited The Progressive Revolution in Politics and Political Science, and co-authored and co-edited several other books on American politics and political thought. In addition, he has worked ten years in the federal government as a speechwriter and on policy issues, at the Equal Employment Opportunity Commission, where he was a special assistant to Chairman Clarence Thomas, and the Departments of Justice and Labor.

Disponível em: <http://www.libertylawsite.org/2016/04/14/justice-thomas-mr-republican/>. Acesso em: 15 abr. 2016.

Achieving Our Republican Greatness

Copiado de: <http://www.libertylawsite.org/2016/04/05/achieving-our-republican-greatness/>. Acesso em: 08 abr. 2016

by Richard Reinsch

Writing in the Journal of American Greatness, Plautus, who is more intent on making Trump to be the candidate he wants, as opposed to the vulgar brute that he is, calls for a conservative nationalism with tremendous purpose whose chief goal will be the elimination of the “managerial class.” If achieved, the American people will have recovered something fundamental to American political order: popular sovereignty and the ability to govern themselves by popular opinion whose content is not determined by a “managerial elite.” The essay’s evocation of the sources of Trump’s power and his Teflon resistance, thus far, to the typical politically correct criticisms of his rhetoric is that he is channeling popular opinion in a way that has not been done in generations.

Much of the essay builds on the thinking of those around Pat Buchanan who have distilled ideas from James Burnham’s 1941 book Managerial Revolution. In this book, Burnham noted the rise of a management/bureaucratic/specialist elite class in America that had pushed aside, once and for all, the old order of a largely unregulated capitalism. The source of this class’s power was their purported knowledge arising from credentials, professions, and expertise. In basic forms, this class has come to define the American use of power, foreign and domestic, Burnham argues. Plautus notes that rather than wage a full-frontal assault on this class, postwar conservatives have focused on cutting taxes or deregulation rather than enlisting the passions of the people against such rule, with the promise that once this order is defeated, power will be returned to the states, counties, towns, villages, and hamlets of America. In short, conservatives have fought battles on terms acceptable to this elite. Perhaps.

We could also say that the push for federal tax cuts, or the constant drumbeat of deregulation, has been an attempt to starve this beast rather than a strategy of supine neglect. At the very least, it represented a way to tame Burnham’s elite. That the administrative state is larger and more unwieldy than ever, however, signifies this strategy failed. The Reagan strategy was to manage a restrained regulatory state through executive edicts of a de-regulatory bent by what was believed to be an ongoing train of Republican presidents. The more sustainable and constitutional path is the recovery of Congressional muscle against the bureaucratic state and all its works. But the stirrings of this strategy are already in motion. Why not focus energy here, among other ideas, rather than a Trump crusade?

To this failure to extirpate the “managerial elite” Plautus places blame on the vacuous understanding of American purpose the American Right has displayed. Their invocations of Lincoln and the creedal nation were thought sufficient for the principles of power. But no, we need more flesh and blood. He notes:

the great failure of the American right has been the failure to define an American nationalism at once grounded in binding, necessarily particularist, traditions and institutions while at the same time leavened by a creed worthy of the name. And this failure is inseparable from the right’s failure, even in periods of electoral power, to offer any effective resistance to the ever conquering globalist managerial class or attain any effective cultural significance.

Perhaps one unintended consequence of constant Lincoln talk was that it created the space for equality to be the definitive guide for policy and statecraft. But this hasn’t been Jaffa’s equality and our rhetoric has largely been shaped by calls for equality of outcome. So Plautus has something here, I think. But this is to skip a few steps, important steps, foregoing a much deeper understanding of the sources of our confusion regarding what American republicanism requires for constitutional vigor. This is to say nothing of how thoroughly the classes of folks that Plautus points to as willing participants in such a contest are themselves dependent on the government. They aren’t likely to be the Schmittians some conservative theorists have been waiting for.

Before even touching policy disputes, much less the American managerial class and its globalist pretensions, however, might we look to American constitutionalism and inquire differently how we are failing to think, live, and act as a constitutional people? Getting on the path to recovery requires asking basic questions that precede either perennial attempts to gauge success by how much the tax code is being trimmed or, as Plautus prefers, wars against managerial elitists. And this requires us to have a conversation over the origins and nature of American constitutionalism and how this should inform our attempts to be constitutional. Completely developing such an argument isn’t the purpose of what follows, but I am trying to note how it could begin.

More specifically, are we locked forever in a row between the aggressive states’ rights posture on the one hand, and a consolidated nationalist position that undergirds the regulatory state on the other? Is there a point of mediation between the Jeffersonian and Hamiltonian positions? What about the nature of the human person and how our thinking on anthropology drives disputes over liberty and power? Is American constitutional liberty only defensible on the basis of modern individualism which rejects the collectivity of big government but increasingly shows little regard for any other collectivity as well, i.e., social, familial, or religious?

To begin answering these questions, Robert Moffit and I co-authored an essay about Orestes Brownson, who staked out entirely new ground by articulating and defining the concepts of an unwritten, providential constitution and territorial democracy as the foundation of our republican journey. Our essay “Unwritten Constitutionalist,” which appears in the March-April edition of The American Conservative, argues that “the American conservative project is not a doctrine, but is better understood as a practice grounded in the country’s unique political culture.” Conservatives “have overrelied on sources like free-market theory, the abstract principles in the Declaration of Independence, or simply the post-World War II role of the United States in attempting to maintain global hegemony for democracy.”

In that vein, we point to Orestes Brownson who forged a theory of constitutional order that “secures at once the authority of the public and the freedom of the individual—the sovereignty of the people without social despotism, and individual freedom without anarchy.” Brownson articulated that “the providential or unwritten constitution of the United States—or what the country had been given by way of religious, cultural, social, legal, and economic inheritances,” was the foundation point for political reflection and development in America. Brownson stressed that America’s written Constitution didn’t stand on its own and served to ratify society’s unwritten norms and mores. To elucidate them, Brownson stressed, required deference and humility.

In making this argument, Brownson rejected the ahistorical teaching that an unattached mass of people creates government and a body of law on the basis of self-interest. The people must first be determined politically; before the state there is a common history, culture, language, religion, and law that form a people into a body, making them capable of pursuing a common political project. It is this providential constitution that forms the real organization of the constitution of government. Replacing this unwritten constitution was “state suicide,” Brownson said.

Further elucidating this concept is Brownson’s notion of “territorial democracy” or the possession of a land by a historically formed people. “The sovereign people of the United States are the territorial people of the United States, who have authorized, through the federal Constitution of 1787, a dual system of government, state and federal.” Against the isolating democratic individualism of our elite, which insists on using government power to release individuals from any obligations they might have to others, Brownson articulates “life by communion.”

As we wrote, “American constitutionalism serves the common good by facilitating what Brownson called communion of man with man (society), man with property (economics), and man with God (religious life). This means that what really inspires our loyalty to the constitutional order is its defense of the dignity of our relational personhood, not mere self-interest.”

Plautus calls for a conservative nationalism that knows what it’s about and, consequently, is decisive in the use of power. It’s not that he’s wholly wrong, but beginning a conversation on these terms will only serve to lead us off course if we first neglect the deeper sources of republican wisdom in the American tradition that can provide the self understanding that will enable us to know what we are about and must do.

Richard Reinsch

Richard Reinsch is the editor of Law and Liberty. - See more at: http://www.libertylawsite.org/2016/04/05/achieving-our-republican-greatness/#sthash.dSofzPnl.dpuf