Hello can i have everyones attention please. Hello, thank you, good afternoon. Let me begin basing to get you all for being here. For those of you who do not know me, i am a fellow Deputy Director [applause] emma fellow inject pretty doctor at the manhattan you. This is good to be a particularly nice treat for me today because in addition listening to an author discussed a new book i have the distinct honor of introducing them into a bring him up to the stage. Michael is one of th most brillt lawyers of our time. Radio from National Security to constitutional and criminal law, is developed his expertise of a long and distinguished career as a federal prosecutor and most audibly as chief judge of the is 81st attorney general of the United States, after leaving Public Office he returned to private practice and is not of cancel and like myron magnet he is a graduate of Columbia University unlike Justice Thomas he took his law degree from you. With that, i ask you to join me in welcoming. [applause]. Including one called a dream and a nightmare. [applause] that explains how cultural changes contribute to the urban underclass that george w. Bush said after the bible the most important book he ever read. And though certainly not the only reason the president awarding the National Humanities medal. Occluding philanthropy of one of the topics the revolution and immigration so who could imagine he needed an introduction so what came to light this book is no exception Clarence Thomas and the lost constitution looks at his credentials as a biographer but the constitution is another matter. So mainly for the benefit of the lawyers and this introduction as the previous book show he is gifted when he writes about here is the history of the deterioration of the constitution and with that discussion is the knack to see that deterioration to the eye of someone who could do something about it justice Clarence Thomas who was mortified at the reconstructed Supreme Court did to the 14th and 15th amendments and later courts have done to other parts of the constitution thats why his biography is expressed in the writing style making it accessible to readers and lawyers he is serious about the subject he takes the trouble to make the book short. Only 134 pages. [laughter] with that im happy to yield the podium to the person. [applause] myron magnet. Thank you so much general for those kind words. Welcome to all of my old friends here and also to the cspan audience and we always like having with us. I have to make some large claims so let me jump in with the biggest. I think he is todays most effective countercultural force as radical as they come. He is a quiet army opposing his life in jurisprudence to the most corrosive strains in americas current world. Starting with jurisprudence. Conservatives hold as touchstones the constitution and the framers who aim to design Good Government from reflection and choice as hamilton put it rather than to settle for machines one a regime formed by accident. To see that virtual antipathy in human nature is inseparable from its aggression and lust and the framers reasoned as much as people need government to protect them from the inevitable threats of others , you also need safeguards to keep those who will run the government and will share the same human nature as everybody else from the servant of the sovereign people from their masters they fear that specter of the elective despotism because elections by themselves dont guarantee liberty. To provide that the constitution strictly limited the governments powers to those few explicitly enumerated those and theyd divided up the exercise is one dash on exercises among the three branches. This wasnt a perfect system. Know in the framers knew that it wasnt. It took the 13th, 14th and 15th amendments following a fearsome war to end the evil of slavery that the framers knew perfectly well disfigured their creation but they could not abolish some of the early to get the documents adopted. So it took the 19th amendment to give women the vote that followed the principles of the revolution as one lady stressed to her congressman brothers as early as 1778. Underlying all this was the political idea of selfgovernment the belief in Human History that the express purpose of government is what jefferson stated in the declaration of independence to protect the liberty of each american to work out his own happiness in his own way with his family and local community. In the hubbub of commentary following the signing of the constitution a column is prophesies if citizens ratified the document in due course they would appear just as the worst Roman Emperor shadows of the ancient constitution were held up to amuse the people. Every roman found himself constrained to nero or caligula in america took 100 years and unfolded with much less malice but Something Like that happened here. Not as the columnist had warned from a defect of the constitution but from repeated undermining from the president and the Congress Today it is a crisis of legitimacy fueling the fierce animosity with which americans now view each other. Half of us believe we live under the old constitution guarantee of liberty and expectation of selfreliance. Half of us believe in the rule of the living constitution like Woodrow Wilson a regime that empowers the Supreme Court to sit as a permanent Constitutional Convention issuing decrees that keep our government evolving with changing conditions and that Living Conditions on constitution spawns expert agencies from the epa to make rules like the legislature to administrator like the executive and adjudicate and punish like the judiciary this regime with the government by decree from bureaucrats and judges and lack of separation of powers is not democratic selfgovernance something more like tyranny hard or soft depending on whether or not you are caught in its clutches. But to the living constitutionalist from yale and harvard trained judges making rules for a Progressive Society to use their language, guided by enlightened principles of social justice to protect workers, the disadvantaged and other groups that is what constitutes real democracy. So now we have the Freedom Party with unelected judges and bureaucrats saying what fairness is. My book recounts the amazing and tragic tale of this retreat from selfgovernment. This constitutional d formation as Justice Thomas has driven to appear for brevitys sake let me recount that history here from his most of important opinions to hear the saga at the same time a clear view of his remarkable jurisprudence. And old on constitutionalist in capital letters so strict in his original is an even Justice Scalia called himself a fainthearted originalist comparison. If the framers wanted a constitution involved by judicial ruling they could have stuck with the unwritten british one that works just that way and governed the colonists for a century and a half before the 1787 convention. But they chose a written constitution whose meaning does not change from the words on the parchment as the framers and the ratifying conventions along with their contemporaries understood. But they also understood the purpose of the document is to secure the blessings of liberty to ourselves and posterity to protect citizens right to life and the pursuit of happiness there is no higher or noble more just or uptodate purpose for any government because of that ideal because of slavery if later developments fell away from that and then calling to perfect that. That means the earlier Supreme Court decisions have deviated from what the documents and the amendments say of the choosing of todays justices to overrule them. Consequently with star a decisiveness the rule that they are bound to respect precedent Supreme Court justices clutch fidelity to the constitution alone and if their predecessors have construed willingly they must say so and overturn. Lawyers and professors the idea of this settled law is shockingly radical. And explain so few yletter of thomas opinions are majority most are a dissent or a concurrence but not the reasoning often he rejects the premise on which the majority relies. He is perfectly comfortable with being a minority of one and point to Justice Marshall loan dissent in plessy the ferguson as his model. To that holding separate but equal facility for blacks had countered that our constitution is colorblind that neither knows nor tolerates classes but as thomas says to quote from the majority or the dissent so lays down the markers and the contempt to let history judge. So to take this back to the very first act of constitutional subversion. And arguably the finest and then to violate the Fourth Amendment but not in the way the court says that it does. That declares everybody born or naturalized subject to jurisdictions is a citizen of the United States and of the state where he lives and that no state may abridge the privileges or immunities as citizens of the United States. They meant chiefly that slaves with all the rights. No state could interfere of the framing of the amendment of personal rights guaranteed and secured and the right guaranteed by the bill of rights and then the feds declared to have the power of enforcement. Right quick snow. That the whole country anxiously awaited. In the 1873 slaughterhouse case ruling. And with that main purpose was to establish the citizenship of the negro but there is a big difference between those privileges conferred by state citizenship and National Citizenship it includes only such things as the right to travel on the interstate waterways and not to be subject to rules of attainder. All dealing with life liberty and property attached to state citizenship and not national are not protected by the 14th amendment one of the three vehemently dissenting justices objected it was unequivocally meant to protect the citizens of the United States against the deprivation of the common rights of the state legislature another wrote the majority opinion but the very day before the court handed down this bizarre decision of southern white song terrorist campaign to nullify reconstruction that serfdom had occurred black louisiana ands to put in contentious region elections with the county seat meanwhile prompting more blacks to crowd into the courthouse from mutual protection. On Easter Sunday shot the black says they jumped out the window in flames that evening 150 died nobody knows for sure. Known louisiana da would charge whites to have them convicted of violating the enforcement act that Congress Passed that law made it a crime to conspire to deprive someone of those privileges of us citizenship. But in the 1876 decision the Supreme Court overturned the convictions the right enumerated are not those conferred by us citizenship they come from the creator and those that Forbid Congress from her bridging them and to peacefully assemble were not from any that were confirmed they are individuals. And that 14th amendment refers only to states that was the end of the 14th amendment privileges with only 400,000 Union Soldiers and still did during the childhood. That those would only be in one direction and then to take away anybodys life which really means that some liberties are so basic but this is just smoke and mirrors and the worst is to conjure up those imaginary fundamental rights we dont hesitate to overturn those laws to be signed by the president when we think the constitution doesnt allow that. Why do we treat the errors of our predecessors those representations of these two cases with any more respect especially as a consequence but that is because it violates the 14th amendment invading the citizens of chicago Second Amendment privilege and immunity of that substitution process. And act number two of the great constitutional franklin roosevelt. With that giant reality. So the court initially accepted this rule only with the fdr gun to his head. Wrongly diagnosed in the cause of depression crisis over production. And to get control of the whole us economy to regularly output and then to enlarge the membership to pack that with new dealers the courts dramatic departure in the 1930s a century and half of precedent that marks the start of modern illegitimate constitution making. To cite the new deal courts decision to federal use of the constitution interstate commerce power as a tool that 1942 ruling declared congress authority to regulate interstate commerce can for bid a farmer feeding grain only to his all my stock livestock. That the whole string of cases that grew out of it. In the majority and gonzalez that federal agents have the authority under the interstate commerce power and despite californias legalization of medical marijuana those californians who had to gain their game. And like the green was never bought or sold across state lines and did not affect any markup not only does this not concern commerce it doesnt even concern economic activity. Next they will be regulating potluck suppers and in time the new deal had an even more powerful device for constitutional demolition. This instrument was the agency of creations with real teeth like the nlrb. And the Supreme Court the first of a series in 2015 has overseen and sanctioned the growth and Administrative Systems that concentrates the power to make law and enforce them on the vast and unaccountable that finds no comfortable home in our constitutional structure. Constitutional structure. Bureaucrats what the power to make rules for citizens. Local us, you were can the court delegate judicial power to agency functionary. As is a did in the World War Two case when they ruled the courts must the first to Agency Interpretations of their own regulations. The rationale in doing so was that agencies had specialized expertise that judges back. Thats not the relevant issue. The proper question faced by courts in interpreting the regulation is not what the best policy choice might be but what the regulation means. And who better to interpret the meaning words than a judge . Mortgage bankers association. So of all this, thomas argues, is the different doctrines but the court had in chevron and resources defense council. In 1984. Chevron requires courts to assume that congress intended that any ambiguity under which an agency operates should be resolved by the agency, not the courts. Consequently, exasperatedly, not only do you have bureaucrats making rules like a legislature and interpreting them like a judge, but also the interpretations amount to a further lawmaking power. With no checks or balances whatsoever. With administrative states skeptic, Brett Kavanaugh now on the court and with x thomas clerk and x trump d regulations replacing him on the appeals bench, we can hope for more sanity on this topic courts in the future. Let me finish this train of thought with a virtuoso thomas opinion from last year. His descent of the u. S. In this case, the justice takes on the third and last act in the courts attack on the framers constitution. The ever bolder license with which those presumed to make up the law with no prompting from either congress or the preside president , the claim that greeted the court first excursion into this abracadabra under chief justice on the board, he bolted to ever wilder flights, fancy from connecticut to roe v. Wade as discussed in my book. Carpenter is much less but it is delicious nonetheless. Career onto Robert Carpenter claims that police use of cell phone location data in convicting him had violated his Fourth Amendment protection against unreasonable search. The framers had no cell phones. So heres the case made for Woodrow Wilsons work. Chief Justice Howard had shown as early as 1928 have to make this adaptation to new circumstances correctly. In the case concerning the telephone wire tap, the phone lines were outside the convicted premises, conversations want papers. So federal agents had not invaded persons, houses, papers nor as the amendment says. Therefore it did not occur. In a 1967 wire case, the court which only two years earlier, conjured up a right to privacy out of the constitution supposed emanations, declared the Fourth Amendment originally protects is a persons reasonable expectation of privacy. Weve just reasonable expectation on which this rest, thomas has a field day. Dictionaries from 1770 to 1828 to find the search as a suspected place. So transferring the Fourth Amendment protection from places to people reads that word right out of it text. Its the papers cant be in someone elses records. So what do the forthcoming have to do with the phone companys records . Finally, whos to decide what a reasonable expectation is . Isnt that a policy determination . Not a judicial one . So shouldnt congress decide . Nevertheless, chief Justice Roberts has the deciding vote to uphold this nonsense. I began by saying that todays political divide is between the Liberty Party and the fairness party. With Justice Thomas on that side. Let me and with another of the books main, it takes a certain kind of individual International Character to be capable of liberty. Thomas himself embodies precisely that character. Thats why ive written a life and works book, which chapter two, recounting thomas his biography, his character is bound up with his in an exemplary way. One in a kerosene lit chanting, and a hamlet founded by freed slaves, thomas enjoyed a few look thin like childhood years until his divorced mother moved him and his younger brother to a savanna slum, a foul backyard toilet. On made wages, the children new hunger without the prospect of eating and cold without the prospect of. After a year of this, thomas his mother sent to doors away, to live with her father and and mother, and oliver twist like transformation. Anderson, the selfmade, if some are literate proprietor of a modest fuel oil business lived in a Sparkling Clean block house that boasted porcelain plumbing. A full fridge and a no excuses child rearing code that gripped selfdiscipline and selfreliance. A convert to catholicism from the freeform Baptist Church of his birth, he sent his grandsons to restrict structured school, segregated like Everything Else in mid century savanna. The teaching that all men are created equal. He put them to work, delivering oil after school and on weekends. Summer vacation was no holiday for the boys. Their grandfather, they built a house on 60 rural acres across from where their ancestors had been enslaved. Thereafter, they told the field every summer, harvested the crops and butchered livestock for winter food. Grandfather anderson urged them on with his rich stark including where theres a will, there is a way. His grandsons learned that truth the hardware. Note that there wasnt a spare minute the year for the boys to fall into street culture, which anderson feared. These lessons, and strenuous selfreliance, formed the bedrock of thomas worldview. He temporarily disregarded them during his student face when he and his college comrades started off about how they were oppressed and victimized by a culture you retrieve lee tainted by racism, he quotes. Someone became quite strange, he recalled. My grandfather was no victim, he writes. And he didnt send me to school to become one. My senior year, he snapped out of it. His old selfreliance expanded from a personal greed to a political one as he reflected upon how much his stance aggrieved victimhood that threatened to diminish and impede him, especially compared to what he came to see as his grandfathers heroic independence. He also conjured deeply the multiple harms that affirmative action had done to his black classmates, holy cross and yale law. That policy purportedly toward for its historic victimization of his race was just getting underway during his student years. Watching it unfold, thomas saw that it lead to failure and grievance by placing smart but illprepared kids in out of their league institutions. Granting the relatively few successes like him would be imputation of it. His nine years as a federal civil rights, running the Civil Rights Division of the Reagan Education Department and the equal Employment Opportunity commission, confirmed his oppression that there is no governmental solution to block americas problems, the conclusion underlying the anti affirmative action decisions, he has written on the court. Missed equal opportunity nation, black citizens must forge their own face like all other americans. Where there is a will, there is now indisputably, away. Everybody, its this goes for whites as well as blacks. This is some kind of app for city and must choose whether to buckle down instrumented, shaving his own fate or succumb and blame the outcome on large forces that make him a victim. Only a mighty government can master. The framers constitution presupposes citizens of the first, without them and a culture that nurtures them, no free nation can long endure. Thank you so much. [applause] im sorry to have gone on for so long. We have time for at least two. Wait for a microphone to come to your. Please make it a question. Thank you so much. You answered in part one my question about his upbringing and how that impacted his philosophy. Any further thoughts in his relationships on the court . I talked to a former clerk of his and she mentioned justice stephen. I found a fascinating relationship. Any anecdotal stories you can share . Heres one thats not an anecdote. He and his wife have long treated his clerks like family. Nurturing them, helping their careers a lot. Theyve all been trained up in it. Whats the result . 20 of the federal judges appointed by the Trump Administration of the federal judges appointed by the Trump Administration x thomas clerks. They are everywhere now. In federal agencies. So this kind of nurture, so the justice looks at his opinions as link down markers for the future. Hes link down with them, hes created a whole generation of conservative legal thinkers, trained in the most rigorous way to read the constitution the way it was written. I think that its not too much for him to compare himself to John Marshall. Hes a man whose opinions will be read 60 years and more for pointing the way to the court and the nation. I was really glad to hear you focus a lot on the Florida House cases that new deal cases. It strikes me following president is important but when the president was established under serious the rest, you would have thought somebody would view that as a completely separate reason to disembowel those. Im not sure about the slaughterhouse cases but its a bizarre situation that you think it must have been to rest. Clearly there was the rest on the case. There wasnt arrested on the 18th 70s decision. Probably enough, the majority of the judges were lincoln appointees. I can only think reading the dissents in those cases that the fear was that there was too big and upstate to the structure. That, in fact, the reconstruction amendments which pushing too much power away from the states and into washington. Its a guess. They dont say so but thats the impression i take away from it. They may have had their reasons. I cannot tell you why roger in 1857, i terrible precedent. It would have been so much better for the nation if they had the assumption in deciding the board in 1954 to follow John Marshalls he sent it stood up and said our constitution is colorblind. And not go through all this hocuspocus with psychological experiments that supposedly proved that segregation in schools does psychological harms to brackets. We have up now with the legal regime that says segregation is illegal in this particular case. Government segregation is illegal. Had the judges made this decision in 1954 on John Marshall we wouldnt have had all these years of affirmative action. That provoked so much dissension in the country, so much hard feelings, so much. And grievance and look where we are now. Now we have, ill stop there. Look where we are now. [applause] thank you all for coming. Be sure to pick up a book. There for sale outside the room. Thank you very much. [inaudible conversations] a bookseller here at politics and prose on behalf of the owners i would like to welcome all of you to