[inaudible conversations] hello, hello. Can i have everyones attention, please. Thank you. Good afternoon. Let me begin by saying thank you to you all for being here. For those of you that dont know me, i am a fellow and Deputy Director [applause] today is going to be a particularly nice treat for me today because in addition to listening to a wonderful author discussed a new book i have the distinct honor of introducing the man whos going to bring him up to the stage. Michael knew casey is one of the most brilliant lawyers of our time. [applause] he is an authority on a host of legal topics ranging from National Security to constitutional and criminal law. Hes developed his expertise over the course of a long distinguished career in Public Service first as a federal prosecutor and most notably as the chief judge of the District Court for the Southern District of new york and at the 81st attorney general of the united states. [applause]e] returned toet private practice n Dallas Council i ask you to please join me in welcoming judge the casey to the stage. [applause] its become something of a commonplace in the introductions to say of one subject that he needs no introduction and maybe that is true in the sense that this is devoted to the debut of a book and hes written books before about a half a dozen of them. Theres the building of this one called the founders at home, the building of america in 1817 that uses biographies to recreate the substance and texture of the country as it exists at that time. Explains how cultural changes in the 1950s contributes to the growth of the underclass and the book president george w. Bush said was the most important book ever read and provided the occasional humanities medal. His books cover such a wide range of topics including philanthropy, what underlies the revolution but i would imagine he needed to show how it was that he came to write about the subject in question. The current book is no exception. Its called Clarence Thomas and the lost constitution and certainly its credentials as a biographer of the constitution is another matter. He is not a lawyer to his great credit. [applause] so mainly for the benefit of the lawyers i offer this introduction. Hes a gifted historian. What hes writing about here is the history of the deterioration of the constitution. What he brings to the discussion is prospective through the eyes of someone who may be in a position to do something about it. Justice Clarence Thomas, who remains mortified at what the reconstruction in the Supreme Court did to the 14th and 15th amendment and with greater courts have done to other parts of the constitution. They make the bucks short only 134 pages. With that, i am happy to yield the vm to the person we came to hear and laterwi to read a. [applause] thank you so much, general casey for those kind words. Welcome to all of my old friends here, and while them also to the cspan audience. I think that today he is the most effective countercultural force as radical as they come in as brave. He is opposing in his life and jurisprudence two of the most corrosive strains in americas current worldview. Lets start with w jurisprudenc. Conservatives hold as touchstones the constitution and its framers who aim to designed for reflection and choice as hamilton put it in the very first federalist paper rather than to settle for the regime like most in history by accident or force. They need to protect them from the inevitable threat from others and they also need safeguards to keep those who will run the government and who share the same old whose human nature as everybody else from turning from the servants into their masters. They fear the specter of what they called an elective despotism because elections by themselves dont guarantee liberty. To provide this guard rails, the constitution strictly limited the governments powers to those few explicitly enumerated. Was this a perfect system even with the first ten amendments to form the bill of rights . Know and they knew it wasnt. The 13th, 14th and 15th amendments amendment following the fearsome warme to end the slavery that the framers knew perfectly well disfigured the creation, but that they couldnt abolish if they wanted to get the document adopted. Thereafter, it took the 19th amendment to give the women to vote, the measure that followed inexorably from the principles of the revolution as one lady stressed to her congressman brothers as early as 1778. Underlying all of this from the start was the political idea of helfgovernment. They believe is an example in Human History that the expressed purpose of government is the one jefferson stated in the declaration of independence. If they ratify the document forms of the republican government would exist in the appearance only in america just as the worst shadows of the ancient constitution were held up to amuse the peoples of the substance had long ago evaporated. They found themselves constrained. In america it took a hundred years and unfolded with much less malice but Something Like that happened here, too. The fierce animosity with which riericans now view each other. Half of us live under the old constitution with its bounty of liberty and its expectation of selfreliance half of us believe in the rule of the living constitution as Woodrow Wilson dubbed it. A regime that empowers the Supreme Court to sit as a permanent Constitutional Convention issuing the darwinian fashion to keep the government devolving. It administered like da dan at executive and adjudicatandexecud punish infractions of them like the judiciary. With its government by decree from bureaucrats and judges and athe lack of separation of pows is not the democratic selfgovernment. But something more like tierney depending on whether or not they were caught in its clutches. But to the living constitutionalists, the government by Agency Experts and the yale and harvard trained judges, making the rules for the progress of society to use their language and guided by enlightened principles, the disadvantaged and other Victim Groups thats what constitutes real democracy in its inclusiveness. So, now we have the freedom partyy versus the fairness part. My book recounts in detail the amazing and can be tragic tale of the retrieved. Its this constitutional the formation that Justice Thomas has driven to repair the. Of. There is the clear view of the remarkable jurisprudence he is an older constitutionalists in capital letters so strict in his original for some. Thee framers had wanted a constitution that evolved by the judicial ruling they could have stuck with the unwritten british one that worked just the way and could govern the american colonists for a century andnd a half before the 1787 convention. The meaningns doesnt change frm the words of the framers of the inventions along with their contemporaries understood. But they also understood was the purpose of the document is the preamble says is to secure the blessings of liberty. The in thomass view there is no higher global lawyer or a more just up to date purpose for any government if the framers had failed to realize the ideal because of slavery. Its going to perfect and that ern mean where the early Supreme Court decisions have deviated from the document and amendments say is the duty of the justices to overrule them. Consequently, while the doctrine that ruled that judges are bound to respect precedent certainly applies to the lower court, Supreme Court justices have pledged to the constitution alone and if the predecessors had constituted erroneously, the justices must say so and overturn. To the lawyers and law professors the socalled settled law is shockingly radical. It explains why so few of the opinions are majority opinions. Most were either defend or conferences in the court to the ruling does not its reasoning are often because thomas rejects the precedent on which the majority relies. It points to Justice John Marshall harlans own defense in plessy v. Ferguson. To that Courts Holding that separate but equal facilities. They argued that the constitution is colorblind and neither knows nor tolerates classes among citizens the law regards man. As thomas says do we quote from the majority or the dissent, it is the dissent that one day 60 years later so he lays down his markers and his contempt to let history judge. He uses his opinion. In the drama of the constitutional subversion. In that opinion arguably his finest he agrees with the majority of chicagos ban on keeping a handgun in ones hou house. No state may average the privileges or the immunities of citizens of the united states. What did the drafter drafters mp language . They meant slaves were american citizens with all the rights of citizens. And no state could interfere with those including the senator and the framing of the amendment the personal rights guaranteed in a secured by the first eight amendments of the constitution. As a typical commentator wrote, the rights if guaranteed which have been construed to apply only to the National Government are imposed on the states and of the amendments chief had the power to enforce them. Not once the Supreme Court got a hold of it. The courts firs courts first pt on the amendment which the whole country anxiously awaited came into the ruling in the opinion. True the amendments main purpose was to establish the citizenship. However, theres a big difference between the privileges and immunities conferred by state citizenship and National Citizenship not be subject to the build and having to do with right, liberty and property attached a state or National Indoor protected by the 14th amendment. One of the dissenting4t justices objected another wrote the majority opinion turns what was meant for brea further into thef the day before the court handed down this bizarre decision, the worstio atrocity the lone terrorist campaign to nullify the reconstruction and find friedman and surfed on had occurred. Black will be cnns aiming to protect the victories and contentious elections occupied the courthouse in the county seat of colfax the antimilitia masked in the surrounding woods prompted evermore frightened blacks to crowd into the courthouse from mutual protection. On easter sunday, the terrorists set the courthouse a light and shot the blacks as they ran out the door and jumped out of the windows inflame this. That evening, they shocked to be crucial to the captive survivors in th bed. Perhaps 150 died there with bodies of two routes in the woods, no one knows for sure. Though louisiana da was going to charge whites with the murder of blacks so a federal prosecutor of three perpetrators convicted of violating an enforcement act Congress Passed to strengthen the amendment. But maybe the crime to conspire to deprive someone of the privileges or immunities of the u. S. Citizenship but the Supreme Court overturned the convictions that the rights enumerated are not the privileges or immunities conferred by u. S. Citizenship the court held. They come from the creator and the First Amendment from abridging them. Either the victims rights to bear arms and peaceably assemble a. In the 14th amendment it refers only to states. Only 4,000 Union Soldiers had died to sedimentary. Jim crow now Reigns Supreme in the south is still dead during thomass georgia childhood. If the Fairness Party thinks that Supreme Court misreadings can run in only one direction, think again. In time the court made a workaround. The amendments next clause forbids the states from taking away anybodys life, liberty or property without due process of law which means the new deal court asserted some liberties are so basic no state can invade them into substantive due process. Its hard to say much less understand that that is just smoke and mirrors. Thomas objects and worse, the doctrine allows the judges to conjure up imaginary fundamental rights making the bal law instef interpreting the constitution. Why are we treating slaughterhouse as sacrosanct, he asks. We dont hesitate to overturn the law made by the peoples elected representatives and signed by the president when we think the constitution doesnt allow them. Why should we treat the errors of the predecessors the obscene misrepresentation. With any more respect especially since weve titled mistake upon mistake. Thats because it violates the 14th amendment by invading a citizens Second Amendment privilege and immunity to keep arms. Why not dump a substitute due process which the majority of the colleagues are relying on in this case and return totu the text. Act number two of the constitutional subversion stars Franklin Roosevelt who made a giant reality of Woodrow Wilsons dream of the court as a permanent Constitutional Convention. They wanted control of the whole u. S. Economy to regulate output. The court resisted this power grab until it buckled under his threat to the membership records of dramatic departure in the 1930s fromar a century and a half of precedent, thomas says was a fatal wrong turn that marks the start of modern illegitimate judicial constitution making. Its the tool for sweeping economic control dot 1942 ruling declared congress has authority to regulate interstate commerce. It was time to consider overturning off just the whole string of commerce power cases that grew out of it. The federal agents handed the erauthority under the commerce power and despite the legalization of to punish the ill californians that grew and used path to control their pain. Interstate commerce . Hardly, thomas w. Than the word. It is never bought or sold or never crossed state lines and did not affect any national market. Not only n does the case not not concern, us, thomas road. If doesnt even concern economic activity. Asked thing you know, they will be regulating pot luck suppers. In time, the justices can to see that the new deal had had an even more powerful device for constitutional demolition than the engorged commerce power. This instrument was the administrative agency, a whole set of them. The Supreme Court, thomas grumbled in the first of the series of 201 2015 administerede state opinion has overseen and sanctioned the growth of an administrative system that concentrates the power to make law and enforce them into the vast and unaccountable administrative apparatus that finds no home in our constitutional structure. For starters, the constitution has all legislative power in congress which means that that power cannot be delegated elsewhere. As the free nurse philosopher john locke had said, legislators can make wall the law but not legislators. That is what congress does when it invests bureaucrats for the power to make the rules that bind citizens. In all but name. For the power to the agency functionaries as the supreme deity in the world war ii case when they rolled the courts must defer to the Agency Interpretations of their own regulations. The specialized Technical Expertise judges lack. That i is anbut that isnt the t issue, thomas contends. The proper question faced by the courts in interpreting the regulation is not the best policy choice might be, but with the regulation means and who better to interpret the meaning of the words and the judge he asks. Of all of this, thomas argues is the deference doctrine the court had in the Natural ResourcesDefense Council in 1984. It requires courts to assume congress intended any ambiguity if left in the statute under which the u agency operates shod be resolved by the agency, not the courts. Consequentially, thomas observes not only did you have bureaucrats making rules like a legislature and interpreting them like the judge, but also the interpretations abound to a ofurther lawmaking power with no checks or balances whatsoever with administrative states, skeptics now on the court and with thomas clerk. In this case the justice takes on the third and last act in the courts tripartite attack on the framers constitution. On they acclaim that greeted the courts first excursion into this jurisprudence under the chief justice warren, brown v. Board emboldened it to th flights of fancy from connecticut to roe v. Wade as amply discussed in my book. Carpenter is much less incendiary, but delicious nonetheless. Career armed carpenter claims. Here is the case made for the darwinian playbook. Chief Justice William howard taft had shown as early as 1928 how to make the adaptation to circumstances correctly. The phone lines were outside of the premise and conversations are not papers so they havent invaded the papers more effects as the amendment describes what it protects. This no Fourth Amendment and the search has occurred. But in a 1967 wiretapping case, only two years earlier it conjured up the right to privacy out of the constitutions. It is a persons reasonable expectations of privacy. With this reasonable expectation thomas has a field day. Dictionaries from 1770 to 1828 defined the search is looking into suspected places. For transferring the protection, he notes from places to people reads the words right out of the text and it cant mean someone elses records, so what does the Fourth Amendment have to do with the subpoena for the companies who decides what the expectation is, isnt that a policy determination, not a judicial one so should congress decide . Nevertheless chief Justice Roberts has the deciding vote i began by saying that todays political divide the. It takes a certain kind of individual and National Character to be capable of liberty and thomas himself embodies precisely that character. With chapter two recounting the biography of his character is bound up with his jurisprudence. In the hamlet founded by freed slaves thomas enjoyed a few childhood years until his divorced mother moved him and hiser younger brother to the savanna tenement with a backyard toilet. The hurt children knew hunger without the prospect of eating and cold without the prospect of the board, the justice rights. After a year of this, thomass mother sent her two little boys to live with her father and stepmother, a magical transformation. Grandfather anderson, the selfmade semiilliterate proprietor of the modest fuel oil business lived in a cinderblock house that boosted porcelain plumbing. To the freeform Southern Baptist church that he sent his grandsons to a strict structure of parochial schools segregated like Everything Else in this century savanna of teaching all men are created equal and put them to work delivering oil on weekends. And Summer Vacation was no holiday for the boys. With their grandfather, they built a house on 60 rural acres across from where their ancestors had been enslaved. Thereafter, they told the fields, harvested crops and butchered livestock. Grandfather anderson urges iran including where theres a will theres a way in his grandsons learned that the truth of the hard way. There isnt a spirit to fall into the street culture which anderson feared. These lessons in strenuous selfreliance form the bedrock of thomass world view. He temporarily disregarded themselves during his student black radical phase when he and his college comrades. They were victimized by the culture here which reasonably tempted by racism. He didnt send me to school to become one of the aggrieved victimhood had threatened to diminish and impede him especially compared to what he came to see as his grandfathers heroic independence. He also pondered deeply the harm that affirmativeaction had done to his black classmates at the holy cross and yale law. The policy in the atonement for its historic victimization was just getting underway during the student years. Watching it unfold h shes all that leasawthat lead to failured grievance. Branding the relatively few successes like him with the education is nine years as a federal civil rights running the Civil Rights Division of the Reagan Education Department and equal employment confirmed his depression but there is no governmental solution to black americas problems. The conclusion underlying the decisions he has written on the court. In this equal opportunity nation, black citizens must forge their own fate like all other americans. Where there is a will, there is no indisputably a way. This goes for whites as well as blacks. Facing some kind of adversity and must choose whether to buckle down and surmount it shaping his own fate or succumb to it and blame the outcome on arlarge forces that make him a victim and only a mighty government canig master. The framers constitution presupposes the citizens of the first. Without them into culture that no free nation can long endure. Thank you so much. [applause] im sorry to have gone on for so long. But rafael will field questions. Please wait for a microphonee to come to you, identify yourself and please make it a question. You more or less answered about Justice Thomass upbringing and how that impacted his judicial philosophy. Any further thoughts on his relationship on a quick . Because i talked to a former clerk and she mentioned she was close to Justice Stevens and i found it a fascinating relationship. Any anecdotal stories that you can share about the relationship with the other justices . Heres one thats not an anecdote. He and his wife have long treated his clerks like family in nurturing them and helping their careers along. They have all been trained up in jurisprudence and whats the result of that, 20 of the federal judges appointed by the administration of the federal judges appointed by theed administration are ex thomas clerks and they are everywhere now and the federal agencies. Er so, this kind of Super Justice looks at his opinions. Hes created a whole generation of conservative legal thinkers trained in the most rigorous way to read the constitution the way that it was written in i think that its not too much for him to compare himself to John Marshall. He is a man whose opinions will be read more for pointing the way the court and the nation ought to be going to. I was really glad to hear you focus on the slaughterhouse cases and the new deal cases. It just strikes me when the precedent was established under serious distress you would have thought somebody would have viewed that as a completely separate reason to disavow those. Im not sure about the slaughterhouse cases that seems like such a bizarre thing that must have been addressed on the new deal case. What are your thoughts on a . The majority were linked so i can only think reading the dissent in those cases that the fear was there was too big and upseanupset to the federalist structure and that infec in face reconstruction amendments were pushing too much power away from the state and into washington. That is the impression that i take away from the dissent. So, they may have had their reasons and they were bad reasons. Now i cannot tell you by roger tawney in 1857 road dred scott, a terrible precedent. And it would have been so much better for theld nation, have court had the gumption deciding in 54 to follow John Marshall harlans dissent and stood up and said our constitution is colorblind, period and not go through all this hocuspocus with psychological experiments that supposedly proved segregation in schools does psychological harm. So, we end up nowto with a legal regime that says segregation is illegal in this particular case. Have the judges made this decision in 1954, John Marshall harlan grounds we wouldnt have followed all these years of affirmative action and the like that have provoked so much dissension and hard feelings and grievance and look where we are now. I will stop there. Look where we are now. Thanks. [applause] thank you all so much for coming in again. Be sure to pick up a book they will be for sale outside of the room. Thank you very o much