The Most Dangerous Justice? “Natural right is dynamite”

Recently Justice Clarence Thomas reflected on the American condition and its relation to the Constitution.  He focused far less on specific legal issues and more on the enduring love of country  “we the people” give it.  He described how the founding documents still speak to us today, in particular those lovingly displayed at the National Archives, the site of the public interview conducted by Yale law school professor Akhil Amar.

The coverage in the Washington Post and New York Times emphasized different aspects of the conversation.  The Times probed his views of religious diversity in America and on the Court.

The Post had a more interesting albeit incorrect take, that Thomas had admitted a flaw in the Constitution’s treatment of slavery and race, as though this was news. Thomas allowed that blacks were not perfectly part of “we the people.”  Might this flaw in the Constitution confirm the hypocrisy of the “we hold these truths” of the Declaration? Moreover, the alleged admission might clash with Thomas’s opposition to race-preference policies. Might not then his original understanding approach to jurisprudence be fatally compromised? After all, following Justice Thurgood Marshall, why not begin celebrating the Constitution following the passage of the Reconstruction Amendments?

But this distortion is just another episode in the elites’ savaging of Thomas over his career—commentary has swung from him being the dumbest and “cruelest” justice to being the evil legal genius who engineered the Court’s move to the right, bringing it to the point of overturning Obamacare.

What makes Thomas intellectually intriguing? What accounts for his truly, literally radical view of constitutional interpretation ?(I should say at the start that I was a special assistant for then-EEOC Chairman Thomas from 1986 through 1990, when, at about 48 minutes into the conversation, he says he revived his interest in the Declaration of Independence. I have also enjoyed Professor Amar’s thoughtfulness at several academic conferences over the years.)

The National Archives is in fact an excellent setting—rivaled only by Independence Hall—for Thomas to explicate his core political philosophy.  And that is what he did throughout the hour and a quarter conversation, whether he was talking about the tension between the Declaration and the Constitution, growing up in the segregated South, the growing ethnic diversity of America, or life on the Court.  It was not an academic lecture.

That radical core political philosophy can be seen in Thomas’s regard for natural law. This considered view, that an objective, trans-political standard of justice and morality exists and that legitimate governments must observe natural law scarcely reflects the political or legal establishment’s views—though it still dwells in the hearts of the people. Yet the Declaration’s “laws of nature and of nature’s God” not only justify the separate existence of the United States but inform the Constitution’s being and purpose. The Justice referred in his Adarand concurring opinion to “the principle of inherent equality that underlies and infuses our Constitution. See Declaration of Independence ….” (Adarand v Pena, 515 U.S. 200 [1995]).

But explicit references to natural rights or natural law do not reveal the significance of natural law for Thomas’s statesmanship. Just as nature refers us to roots or what is radical, his understanding of natural law drives him to the roots of American constitutionalism in the original understanding of the document.   Thomas’s mild-mannered radicalism was evident throughout the program.  Natural law demands conventional proprieties, for, as Leo Strauss observed, “Natural right is dynamite.”

The Post account portrayed Thomas as allowing a contradiction between the Declaration and the Constitution. While the Constitution’s “we the people” may have excluded blacks, the Declaration’s “we hold these truths” did not. In what has now become an academic bromide, a tension or even contradiction exists between the Declaration—variously portrayed as a libertarian, republican, or even socialistic document—and the Constitution—here cast as oligarchic, commercial, and selfish. We saw this first in Charles Beard and then reworked by diverse scholars through the present. But Thomas does not fall into this lazy, conventional position.

Of all the Justices, Thomas appreciates that an imperfect America required a “new birth of freedom” in the reconciliation of the Declaration and the Constitution. As he notes, this was most eloquently proposed by Abraham Lincoln at the bloody deed and fixed intention of Gettysburg. And in his response to the Dred Scott decision Lincoln defends the founders against the charge that they categorically opposed political and civil liberty for blacks. He agreed with dissenting Justice Curtis that free blacks “‘were not only included in the body of `the people of the United States, —by whom the Constitution was ordained and established; but in at least five of the States [including the slave state of North Carolina] they had the power to act, and, doubtless, did act, by their suffrages, upon the question of its adoption.’”

Moreover, as Frederick Douglass, whom Thomas often dwells on, pleaded in his own denunciation of the Dred Scott decision,

I ask, then, any man to read the Constitution, and tell me where, if he can, in what particular that instrument affords the slightest sanction of slavery?

Where will he find a guarantee for slavery? Will he find it in the declaration that no person shall be deprived of life, liberty, or property, without due process of law? Will he find it in the declaration that the Constitution was established to secure the blessing of liberty? Will he find it in the right of the people to be secure in their persons and papers, and houses, and effects? Will he find it in the clause prohibiting the enactment by any State of a bill of attainder?

These all strike at the root of slavery, and any one of them, but faithfully carried out, would put an end to slavery in every State in the American Union.

This is the radical abolitionist reading of the Constitution, which Lincoln could not embrace politically. Douglass the rhetorician required Lincoln the statesman.

Thus the full inclusion of blacks would await formal emancipation, urged on by the moral and political necessity of the Declaration: each man owns himself and can be governed only by his consent. White men had to acknowledge this truth for their own freedom—and, in their self-interest, would have to recognize it in others as well. As Lincoln argued of a black slave woman, “in her natural right to eat the bread she earns with her own hands without asking leave of any one else, she is my equal, and the equal of all others.”

This Lockean act of human dignity—owning and working for oneself—is the natural right that makes equals of all human beings and establishes a “standard maxim for free society.” Lincoln’s rhetorical cleverness in this speech includes his pandering to immigrant voters (French and Germans), his playing on sentiments about the Fourth of July, and his acknowledging the possibility, however futile, for black migration to Liberia. But each appeal to self-interest reflects a deeper commitment to equal natural rights.

Likewise, Justice Thomas’s love of the founders, appreciation of civility, and his recollection of the hopes of African-Americans exemplify enduring hope for liberty. Moreover, the concern for natural right is not just an archaic argument about slavery—the fight for self-government remains today, in the face of bureaucratic willfulness.  Accordingly, such freedom and equality of opportunity would promote a natural aristocracy and not a conventional elite, as he recently demonstrated in attacking law school rankings and choosing his clerks from a range of law schools. Of this rankings snobbery he asks, “Isn’t that the antithesis of what this country is supposed to be about?”

Justice Thomas’s calling forth the Declaration reminds us of one elected politician-intellectual who has often done so, though with a contrary purpose. In citing the Declaration in his books and speeches Barack Obama emphasizes the need for government to have the powers to right the perceived wrongs against that document. The Declaration, in his view, becomes a justification for unlimited government. In Thomas’s view the Declaration necessarily limits government powers for the sake of individual freedom. Their visions pose a clear choice for Americans.

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. CJ Wolfe says

    This touches on something I think is important to emphasize in the way we view the Constitution. There is a certain balance that needs to be struck between respect for the Framers’ aspirations and acknowledgment of the historical facts about slavery in the Constitution.

    Some originalist defenders of the Constitution only mention Fred Douglass’ point about the absence of the word “slave” in the document, but that’s not the whole story. I’ve noticed that Harry Jaffa, like Justice Thomas here, always goes out of his way to also point out what a compromise with slavery the Constitution really was, and had to be. It was really more than a compromise than the Northern states realized for the Southern states to be granted the 3/5’s clause for representation purposes, to be granted the fugitive slave clause, and to be granted that the slave trade would not be prohibited until 1808. The 3/5 clause would mean electoral dominance for the South in numerous presidential races (until Lincoln) and a great prolongation of slavery.

    As defenders of the Constitution we have to look these facts squarely in the eye, while still praising the brilliance of the Constitution in preserving people’s rights-eventually, the rights of the whole people of the United States.

  2. Andrew says

    Almost everyone favors natural rights. The question is how to enforce them, and who enforces them. Governments were instituted among men to protect those rights, but which branch of government is responsible for this task? The unaccountable, fallible, and irreversible federal judiciary? Is a majoritarian determination about natural law always subject to overruling by the federal courts? Do the federal courts only have power to decide natural law questions that are fundamental, leaving all the trivial stuff to democratic determination?

    I think a fair reading of the Constitution implies that we live in a democracy, except for limited exceptions that are mostly spelled out in the Bill of Rights. But the people can create more exceptions whenever consensus develops for supplementing the Bill of Rights.

    I disagree with Professor Masugi that Lincoln would have embraced the radical abolitionist reading of the Constitution if only he could have done so politically. There were many abolitionists who did not embrace that reading, including leading abolitionists like Wendell Philips and William Lloyd Garrison, and there seems to be every indication that Lincoln sided with the latter. As I understand Douglass’s reading of the Constitution, he favored immense power in the judiciary at the expense of the democratic process, but I’m not sure that Douglass would have held onto that view if he could see what the judges are capable of doing.

  3. David Upham says

    Lincoln, however, significantly backpedaled from his 1857 speech in the 1858 debates, where he emphatically distinguished equality in natural liberty from equal citizenship, and flip-flopped as to whether he favored Article IV citizenship for free blacks. It was not until after the Emancipation Proclamation that Lincoln returned to the issue, and with hesitation. Lincoln, circa 1858-62, seemed to say that Declaration equality did not require incorporation into “the people.”

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