Justice Thomas: Mr. Republican

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.

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Comments

  1. Brian Galbraith says

    Thank you for recognizing Clarence Thomas as one of the Court’s finest jurists. Having read his autobiography and a biography, I have nothing but respect for him particularly relating to his work on the Court.

  2. gabe says

    Ken:

    A little riske’ here?

    “One could say his jurisprudence is “result-oriented…” (or just poking fun at some of the legal commentariat)?

    Yet, it does highlight the problem with some types of judicial decision making. We see some calling for deference, restraint; others call for engagement; still others call for a contemplation of the times – a constitution that is living, adjustable, and rather plastic.

    Yet, I see Justice Thomas as someone who simply does, as Phillip Hamburger suggests one ought to do, his *judicial* duty! It may appear to some that he is outcome oriented (as indeed many jurists are); yet, the outcome is not the prized goal of the decision making – it is faithfulness to the text (and, yes my positivist friends) and intent of the text; where it leads, if properly construed is less important than the act of *dutifully* determining what is proper.

    Re: Evenwell v. Abbott: I would suspect that Justice Thomas may himself have a *preferred* formula for apportionment (heck, even a knucklehead such as I have one); yet, he, as a consequence of doing his judicial duty is able to overcome such a preference and instead look to the text and intent of the document.

    Bully for him!!!

    • ken masugi says

      Thanks, Gabe. Thomas is an activist on behalf of the Constitution. Just as in electoral politics, the older language is becoming less useful for preserving the goal the Declaration sets forth. Of course, many judicial scholars want nothing to do with the Declaration in the first place.

  3. Scott Amorian says

    I don’t follow this part. How does “equality of representation” become “majority rule?”

    I thought that representation meant having a voice in requesting laws and other government actions, and that rule doesn’t necessarily mean rule according to the majority. In the design of the Madisonian Constitution neither senators nor presidents were to be elected by popular majority because the Framers considered that kind of majoritarianism to be bad government. It is the “democracy” in Federalist #10.

    • ken masugi says

      Thanks, Scott. I think that Federalist 10 makes it clear Madison is thinking about a democratic republic. Majoritarianism underlies the institutions, but it is refined–for the Senate via the elected state houses, for the President via the electoral college (amended), which reflects popular will. These are not anti-democratic institutions nor is there will totally detached from the popular vote(s).

      • gabe says

        “…nor is theeir will totally detached from the popular vote(s).”

        Regrettably that somewhat minimized “detachment” was abandoned in pursuit of populist or Progressive Reforms. Although, it must be said that the change to a more direct election of the Senate actually preceded the Progressive movement with some 27 (22?0 or so States having provided for a substantially more direct vote for its citizens. We have seen the results – and they are no all that positive.

        In a sense, Justice Thomas’s decision may be a recognition that there is nothing especially salutary about our current instrumentality for selecting our *Representatives*, OR for that matter, our means of apportioning power within, and between, the States as represented in the composition of our Legislative Branch.

        Yet again, the good Justice, simply recognizes that the Constitution recognizes that each State may differ in whom it chooses to acknowledge as deserving of Legislative Representation. Does this not signify that, at root, we are intended to be a republic not a democracy, albeit a republic with somewhat pronounced democratic substrate(s). To my mind, this would indicate that there was (and ought to be) an understanding that we are not primarily a “majoritarian” polity.

        • ken masugi says

          Scott, thanks for the elaboration. Actually, Gabe above does a good job of “replying” to you. The founders were certainly anti-majoritarian in the Progressive sense that Gabe brings out–because the Progressives had a notion of evolving human nature and History that would bless their collective efforts. Bureaucracy would replace politics. Both parties today embrace the end of history. 2016 has shown some resistance to that.
          Jefferson, in his first inaugural, may have put it most succinctly–the majority should rule but only if it is reasonable. Institutions can’t guarantee that, though they can help. That’s the story of republican govt that Thomas, a few others in public life, are trying to get out.

          • Scott Amorian says

            Well, gentlemen, there is much more to discuss here, but I like it when commentary stays at least a little on topic, and I would hate to distract from the original article which is an honor to a decent man. So I’ll catch you next time.

            S.

          • ken masugi says

            Scott, it could be said, in brief, that the founders believed democracy required refinement, preserving the enlightened consent of the governed, while the Progressives wanted to undermine democracy–recall Woodrow Wilson’s unpublished essay equating democracy with socialism–and replace it with the rule of “enlightened” elites. The first approach is Clarence Thomas, the second Cass Sunstein (and much worse).

  4. Scott Amorian says

    And thank you Ken for replying.

    My concern isn’t whether the Framers designed the institutions as majoritarian. They are, obviously. Rather I question whether they intended the offices to be non-majoritarian, but they didn’t know enough about electoral design to implement the offices as non-majoritarian.

    For example, originally the president was the winner of the election and the VP was the runner up. This created conflicts within the office so the method of selection of VP was changed.

    To get the original intention to work correctly, the election of the president would have had to have been done differently. A voting scheme in which each elector cast one vote for every candidate they thought was qualified, would have produced something closer to the type of cooperative officers the Framers wanted and expected.

    Using “one vote for one candidate” for the office, the “pluralist” voting method, is known to produce antagonistic candidates and tends to produce a divided voting public. The original two-vote method of the electoral college produced the same kind of antagonistic effect as the pluralist method.

    That demonstrates that the Framers didn’t fully understand voting methods and their consequences.

    The Framers went out of their way to keep the senate and presidential elections out of the hands of the general public. They wanted a pluralistic government, one in which everyone has a voice, certainly. I’m not convinced that they wanted a predominantly majoritarian government, one in which the people control to a large degree the actions of the senate and president. Looking at real world consequences, our system is producing the same kinds of problems as the democracy referred to in Fed 10 as well as other writings on the problems of democracy, and that gives me cause to doubt.

    How do we know, or do we, that the Framers intended to implement what became a predominantly majoritarian system?

    The Framers wanted what Richard Reinsch called a “republic of conscience.” How detached from the popular will did the Framers want the two institutions to be to make their experiment more a republic of conscience (which I would call libertarian government), and less a republic of popular will (which I would call majoritarian statist government)?

    We can safely assume that they wanted to prevent a republic of individual or entitled will (totalitarian statist government).

    • ken masugi says

      Thanks, David. Readers of LL will find the link above, on the Blackstone Initiative of interest. Did you study at all with Justin Dyer?

  5. David Upham says

    Two things that made me object in his opinion. (1) Thomas says that republican government, by definition, “promote the common good by placing power in the hands of the people, while curtailing the majority’s ability to invade the minority’s fundamental rights.” The Founders do not say that republican governments restrain majorities. Most republics have failed to do so (Fed. 9). Republican .government, in the definitions Thomas quotes–refers to the mode of authority–popular government. (2) Thomas further states that the Founders pretty much left voting, representative districts to the discretion of the states. But Madison specifically says that republican government requires power be in the hands of the “great body of the people” and not in some “favored class” or “inconsiderable portion.” At some point, a districting scheme–e.g., one that apportioned based on average home value–would be un-republican per Federalist 39.

    • ken masugi says

      Thanks, David. I think Thomas covered those bases with his reference to rotten boroughs.
      Regarding the first point–maybe I’m not seeing the full force of your objection–Thomas clearly favors Hamilton’s devices taken from Hamilton’s new science of politics. Natural law, the “reason of the public” from #49, will have a role in the definition of a legitimate majority, as per Jefferson’s First Inaugural. We are all federalists, we are all republicans.

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