The Most Dangerous Justice? “Natural right is dynamite”

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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.