Clarence Thomas and the Wisdom of the Founding

Ken Masugi

October 1, 2011

Today it is taken, almost as an article of faith, that Constitutional questions are the exclusive property of specialists housed in the Supreme Court and its sub-branches to be further guarded by a few elite law professors and their prodigies in academia and journalism. Prior to the emergence of the Tea Party, statesmen in either the legislative or the executive branches need not have troubled themselves with coming to their own understanding of the Constitution. That job had been outsourced to the Courts and, sometimes, to academics. Instead, those in positions of political power needed only to concern themselves with their power and with policies crafted to preserve it. Constitutionality or—to put it even more plainly—the justice of their actions, was a distant consideration.

Contemporary examples of ignoring the Constitution abound. Former President George W. Bush signed legislation he considered unconstitutional (the McCain-Feingold campaign finance bill) because he considered it the job of the Courts to decide on that question. And, recently, President Obama—a long time critic of President George W. Bush and his understanding of executive powers in wartime, ordered air assaults on Libya in a fashion that far surpassed the understanding of his predecessor. Routine regulatory proceedings regularly violate property rights as they are guaranteed by the Constitution, yet to suggest this in so-called “respectable” circles is laughable—almost.

Is it any wonder, then, that some members of the House of Representatives and various political observers scoffed at the idea of opening the 112th Congress by reading the Constitution? Former Speaker of the House, Nancy Pelosi, expressed incredulity when asked whether she thought a particular piece of legislation was constitutional. “Are you serious?” she asked.

If an increasing number of citizens today insist on taking our basic documents earnestly—that is to say, in a way unknown for decades—it arises from an ominous sense that government powers are uncontrolled, a mockery of the rule of law. The rule of law cannot justify all government actions. And the secretive and peremptory dictates of a bureaucracy cannot substitute for laws deliberated upon and passed after open debate.

The popular movements demanding constitutionality have a myriad of causes, primarily from the sense of the people themselves, but this recent revival had one cause from the top—Justice Clarence Thomas, who celebrates his twentieth year on the Court this month. Even those who have been among his most strident critics have had to acknowledge his ability to transform the thinking of the Court.

Recently, CNN legal analyst Jeffrey Toobin, who has questioned Thomas’s mental stability, wrote in The New Yorker:

In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court… [I]n each of these areas [free speech, gun owner rights, and the powers of the federal government], the majority has followed where Thomas has been leading for a decade or more. Rarely has a Supreme Court Justice enjoyed such broad or significant vindication.

The implications of Thomas’s leadership for the Court, and for the country, are profound. Thomas is probably the most conservative Justice to serve on the Court since the nineteen-thirties. More than virtually any of his colleagues, he has a fully wrought judicial philosophy that, if realized, would transform much of American government and society. Thomas’s views both reflect and inspire the Tea Party movement, which his wife has helped lead almost since its inception.

How is it that a Justice whom Toobin has ridiculed (he called Thomas a “nut” in a radio interview, and it’s clear that he still more or less holds him in contempt) can now be hailed for his “scholarly and influential jurisprudence?” Despite the Tea Party connection: “In legal academia, Thomas’s rigor has won respect across the political spectrum,” says Toobin. Which Thomas is reality and which is caricature? Is he the toady of Justice Antonin Scalia; the silent Justice who never speaks at oral argument, or is he the trail-blazing scholar who has inspired a revival of constitutionalism?

There is an answer, one that Toobin and others never touch on: natural rights, the philosophic doctrine at the core of American constitutionalism and the rule of law. Thomas is the only Justice now and for many decades who takes the Declaration of Independence seriously, who has quoted it in his opinions. Though the term “natural rights” rarely appears in his arguments, it is what defines Thomas’s jurisprudence and makes his conservatism distinctive from that of the other conservative justices.

To the extent that Thomas exercises “leadership,” giving his colleagues a new set of eyes on old sights, it comes about because he embodies the legitimate radicalism of the American founding.

Contemporary sophisticates cannot abide the notion that a struggle against the Progressive-liberal regime of bureaucracy can be compared with Lincoln’s struggle against slavery. But consider the closing of Lincoln’s speech denouncing a Supreme Court decision, Dred Scott, which—as Lincoln understood it—might easily have been taken to be an argument for the unlimited spread of slavery: “The plainest print cannot be read through a gold eagle”—that is, “all men are created equal” can be blotted out by the gold eagle dollar profits to be made in slavery and the conflicting interests these profits created. Today it can be said that the plainest print (of the Constitution) cannot be read through a gaggle of federal regulations and the many conflicting interests these create.

We think of the rule of law and of revolution as opposites, but in America citizens should think of them together. When the American founders wrote of their fundamental rights, they not only listed the vital liberties of freedom of speech, press, conscience, property rights, suffrage, jury trials, and so on but also took pains to include a separation of powers. And these limitations on powers for the legislature and the executive apply as well to the courts. This concern for separation of powers is as fundamental as regard for any other fundamental right. Just as the other branches are prone to do, the courts can go too far. Thus the American revolutionaries stressed the need for “frequent recurrence to fundamental principles.”

Thomas does not come by this passion for first principles—Toobin calls him “furious”—solely from his scholarship. Sixty-three years of age, he grew up under segregation in Savannah, Georgia. The idea of freedom has purity and preciousness for him as it has for few others in public life, whatever their partisanship. Breaking the chains of bondage is more than a metaphor for Thomas. He could have stayed a self-absorbed leftist, as he was for while in college, but instead he embraced his roots and his American heritage.

Besides the school of the post-slavery era, Thomas knows well another form of despotism: bureaucracy—the form of soft or benign tyranny Americans experience today. In its compassionate goals, it can be more insidious than the slavery of Justice Thomas’s ancestors. Justice Thomas was the longest-serving chairman of one of these bureaucracies: the U.S. Equal Employment Opportunity Commission. His experience in this agency, which enforces federal employment discrimination laws, made him more aware than ever of the distance between the equal opportunity all Americans would like to see and the actual practices of trying to put them into effect with a Commission, even as he struggled to reform its practices. Despite its promise, government could, in practice, contradict its purposes, transforming liberty and equality into their opposites.

Finally, Thomas adds to these experiences an appreciation for the scholarship of the politics of freedom. As he says in his memoir, his work with political theorists while he was EEOC Chairman helped free him “from the mind-numbing effects of the daily grind of running a government agency.”

Thus, once on the Court, Thomas wrote with comfort in applying the nation’s fundamental principles and the Constitution to contemporary cases. In the Kelo property-rights case Thomas writes in dissent that “The Public Use Clause, in short, embodied the Framers’ understanding that property is a natural, fundamental right, prohibiting the government from ’tak[ing] property from A. and giv[ing] it to B.’” He made reference to the Declaration in his concurring opinion in Adarand, a case striking down racial preferences: “There can be no doubt that the paternalism that appears to lie at the heart of this program is at war with the principle of inherent equality that underlies and infuses our Constitution.” Direct reference to natural rights is not essential for this purpose; rather, respect for natural rights requires, as the Virginia Declaration of Rights (1776) puts it, “frequent recurrence to fundamental principles.”

His opinions also support moral principles, as in his dissent from the opinion overturning California’s ban on minors purchasing violent video games. Thomas concluded that the founders’ view of the first amendment did not extend to minors. “Confirm thy soul in self-control, thy liberty in law.” As Toobin relates, “No other Justice, not even Scalia, studies the historical record with as much care, and enthusiasm, as Thomas.”

Moreover, his applications of principle are a blade for a much wider wedge. For example, when agreeing with conservative colleagues that the interstate commerce clause cannot be used to expand federal power indefinitely, he pushes this principle to limits that would invalidate the New Deal. Toobin observes that “On this issue [of questioning the legitimacy of the New Deal], as ever, Thomas led where the conservative movement soon followed.” In his concurring opinion in the case supporting individual gun ownership against state regulation, Thomas eschewed the due process clause favored by four other conservative justices in favor of long-dormant 14th Amendment privileges and immunities clause, which he would apparently return to the robust status its framers intended. The replacement of the vague due process standard with the privileges and immunities standard could lead to a revolution in understanding the rights of personal liberty.

Thomas calls for legislators to be more aware of the limits on their actions, especially those that undermine individual liberties, including the liberty of campaign contributors to give anonymously and of property owners to be free of bureaucratic inconvenience. Perhaps the greatest act of liberation Thomas has performed is that of pulling off the blinders of conservatives and lawyers when it comes to accepting the conventional, without questioning it in light of the founding principles. When he performs this exercise, he liberates them from the dubious premises of previous generations of interpretation. In this, Thomas is, as few men ever truly are, a free man who affirms free government, that is, self-government. It is Thomas, more than any other justice since the great Chief Justice John Marshall, who has enabled citizens to see what a Constitution involves.

And that—more than anything else—is what the Founders intended.

Ken Masugi is a fellow of the Ashbrook Center.