Clarence Thomas’s Constitutional Mentor

November 7, 2016 by Ken Masugi  

In a recent interview with Bill Kristol and in a speech at the Heritage Foundation, Justice Clarence Thomas twice mentioned his first mentors on the American Constitution—John Marini and me.

We worked for Thomas back in the late 1980s, when he was chairman of the Equal Employment Opportunity Commission. Given Justice Thomas’s celebration of 25-years on the Supreme Court and widespread (and deserved) recognition as the most steadfast and principled conservative on the Supreme Court, it might be useful for those concerned about constitutionalism and the Court to better understand why Thomas might have emphasized two obscure academics, neither lawyers, as his first mentors on the Constitution. In talks about his autobiography he explained that instead of speechwriters he hired political theorists.

While a sampling of my occasional pieces on politics and law (and on Trump) may be found here and via Google, Marini’s body of work has received widespread recognition in Washington circles but rarely with his name attached. He is the principal advocate of the notion that the “administrative state” has usurped Congress and the presidency and upset the separation of powers. In sum, the 20th-century Congress has surrendered its powers to an executive branch and been satisfied to pass hollow legislation that confers the real law-making powers to the unelected bureaucracy and judiciary. These are, not accidentally, populated by products of the liberal academy, its law schools, and policy programs.

Marini, now a professor at the University of Nevada, Reno, first articulated this radical notion at Claremont Graduate School in the1970s and has continued to develop it, in particular concerning the Trump campaign. But not only has his concept been pushed without acknowledgement of Marini, but more important, those who use the term underestimate its significance and fail to take it to its logical, political implications.

As a representative of this conservative viewpoint, columnist George Will understood two years ago Thomas’s objection to the administrative state to lie in issues such as delegation of congressional powers to the executive—important issues but not Thomas’s or Marini’s ultimate concern. Neither Will nor others, such as U.S. Sen. Ben Sasse (R-Neb.), seem to accept that the administrative state represents a change of regime, an actual overthrow of the Constitution of 1787, and therefore requires a candidate of the order of Donald Trump who comes from outside the system created by the administrative state. (Justice Thomas, of course, is not offering a 2016 partisan endorsement by recalling his experiences of some 30 years ago.)

Marini came to then-Chairman Thomas’s attention, when he asked me to recommend some others who might also serve as special assistants. I forwarded him a copy of a Marini paper on the administrative state’s overthrow of Congress’s constitutional functions. He returned it to me with bold writing on top: “I must see Marini!!”

Never having worked in Washington, Marini deduced his notion of an unconstitutional counter-state from diverse intellectual sources establishing the notion of constitutional government and the rule of law, such as Aristotle, The Federalist, Tocqueville, and Lincoln and their interpreters such as Leo Strauss and his students, principally Harry Jaffa. He took account of the radical assaults on constitutional government demanded by Rousseau and above all Hegel. Their American Progressive progeny included otherwise obscure Progressive Era-political scientists and journalists, the most famous of whom is Woodrow Wilson. By working through their thinking plus some recent political scientists he concluded in theory what Thomas, who had worked in the Senate and bureaucracy, had learned through painful practice: republican government and the rule of law are under attack from current political arrangements. (Obviously Justice Thomas doesn’t necessarily share the more recent political conclusions from work he admired some 30 years ago.)

Marini presents the foundation of his argument in three books, The Politics of Budget Control, whose bland title masks the revolutionary argument it makes, a co-edited and mistitled book, The Imperial Congress, and his book on Progressivism (co-edited with me) The Progressive Revolution in Politics and Political Science: Transforming the American Regime.

His more recent articles appear on the website of the Claremont Institute, where he is a senior fellow, and include the revealing “Donald Trump and the American Crisis.” Also on the site are a rich array of thoughts ranging from American western movies and western civilization and Richard Nixon as protector of the Constitution.

These and other articles on the meaning of Trump will eventually find their way into a book, but perhaps the most direct discussion of the meaning of Trump for American constitutional politics was his September 2016 Hillsdale College Constitution Day talk and exchange with Trump critic Jonah Goldberg.

As of yet, no transcript is available, but the presentation is brief and the exchanges bracing. Here Marini is not focused on Trump’s policies, strategy, or personality but rather on what the success of such an outsider means for understanding our current crisis. The elite knowledge class—a non-and bipartisan group controlling our political and moral vocabulary through government, the academy, and media—has prevented serious political focus on the common good (or justice) and instead catered to the needs of various interest groups, reflected by demographic status. That knowledge class’s politically correct speech makes it difficult for these deliberately balkanized groups to have a common good as Americans. But those who do not benefit from this balkanization that serves the interests of the knowledge class revolt from its strictures. That is the separation Trump has focused on.

The last few minutes of Marini’s presentation in September condense his defense of a dying constitutionalism against the Washington and global elites and note Trump’s role in defending the old order by his actions. He said:

If the people are to understand themselves as sovereign, they must re-establish the political authority of the Constitution in a manner that makes it possible to restore the moral ground of civil and religious liberty. A government that does not recognize the sovereignty of the people, cannot defend the rights of individuals in a constitutional manner. A Constitution is a compact of the people, and the government is created on its behalf. The people grant it power, but only the Constitution can established limits on the power of government. In the modern administrative state, the power of government is unlimited, and the rights of citizens, and the rule of law, itself rests on a precarious ground. For if the government alone creates and confers rights, the constitution can no longer limit the power of government, nor can it protect the civil and religious liberty of its citizens.

Trump has established his candidacy on the basis of an implicit understanding that America is the midst of a crisis. Those who oppose him deny the seriousness of the crisis and see Trump himself as the greatest danger. And here again, Trump’s success will likely depend upon his ability to articulate the ground of a common good that is still rooted in the past—a common good established by a government that protects the rights of its citizens in a constitutional manner and establishes limits on the authority of government by demanding that the rule of law replace that of political privilege and bureaucratic patronage.

Trump may or may not succeed in becoming president of the United States. All of those who have a stake in preserving Washington as it now exists are his enemies, and the public that is drawn to him is fickle. Much will depend upon the ability of the established order, which has authority and respectability on its side, to erode the trust that Trump has built with the constituency he has created. In any case, the need that brought Trump to the fore will not disappear with Trump’s demise. His success thus far has revealed the need to restore the political rule of the people as a whole. To do so, American public opinion must be reflected in the creation and mobilization of national political majorities. Constitutional government is not possible in the absence of the mobilization of such majorities. They are indispensable for establishing the legitimacy of law in a manner compatible with the rule of law and the common good. That requires revitalizing the meaning of citizenship and reaffirming the sovereignty of the people and the nation. It also requires the necessity of restoring the link between the people and the political branches of the government, so that both can become the defenders of the Constitution, as well as the country that has made it essential to its political existence.

This makes sense of Trump’s political strategy, his assault on the elites of both parties and the media, his disdain for experts and preference for successful practitioners, his mannerisms, and his appeal to a new majority. And it puts his immigration, trade, and national security policies in a new light. A politics of citizenship may not yet be dead.