Clarence Thomas is the finest defender of liberty the Supreme Court has seen since the New Deal, but until now the only serious book about Justice Thomas was Scott Gerber’s First Principles. Too short and too expensive, Gerber’s book quickly reviewed some of Thomas’ more outstanding opinions, and wisely discerned that Justice Thomas’ views more closely resemble those of Thomas Jefferson or James Madison – what Gerber calls “liberal originalism” – than the views of Justices Rehnquist or Scalia – the “conservative originalists” whose views are ultimately authoritarian and even mobocratic. It was particularly commendable for Gerber to make this distinction since it escapes most in the overwhelmingly left-liberal legal academy. (Over 80% of American law professors are registered Democrats.)
But Peyton Thomas presents us now with a long and thoroughly researched biography of this remarkable man, whose life is an inspiring story of adversity and triumph that is, unfortunately, drowned out by leftist hysteria. Leftists rarely attempt a coherent criticism of Thomas’ views, and one wonders how many of them have actually read his opinions. Jeffrey Rosen of The New Republic has called him “perverse,” saying his long and scholarly legal opinions are “beyond the pale.” An essay in Time referred to his opinions as full of “bilious rage” –
a ridiculous charge to anyone who has read Thomas’ generally dry writing. When the American University Law Review devoted an issue to a symposium on Adarand Constructors v. Pena, an affirmative action case in which Thomas denounced racial preferences, hardly a word was devoted to serious consideration of the issues Thomas raised. Scott Gerber was even reduced to asking the legal community’s permission to take Justice Thomas seriously; while writing his book, he was warned that “unless I write a ‘very, very critical’ book about Justice Thomas, my ‘own career may be damaged by the Thomas curse!”’
The left’s visceral reaction to Justice Thomas is, in part, an example of what Fyodor Dostoyevsky described over a century ago: “You have only to wound the vanity of anyone of these innumerable friends of humanity, and he is at once ready to set fire to the world out of a feeling of petty revenge.” Justice Thomas is a lightning rod because he serves as a constant reminder of some things Good Liberals don’t want to think about: the great injustices lying at the heart of their system.
Leftists don’t want to be reminded that their racial preferences enact.into law precisely the iniquity they claim to be fighting. They don’t want to acknowledge that their lack of concern for economic liberty perpetuates the underclass status of minorities – for instance, by stifling job creation with the minimum wage, which protects predominantly white labor unions from having to compete with immigrant or inner-city workers. They don’t want to face the fact that their anti-tobacco crusades hinder free speech; that their property regulations are used by big business to steal poor people’s homes; that their opposition to school vouchers sacrifices the desires of most minority parents – and the futures of countless minority children – for the protection of indolent and incompetent unionized teachers.
Where Are the Troops?
Reflecting on these things, one might wonder why there aren’t more black libertarians. After all, who has suffered more at the hands of government than black Americans? After the end .of slavery, the state and federal governments, led by the Democratic Party, spent a good deal of time and ingenuity devising mechanisms for keeping freed slaves from competing with white laborers, getting an education, and exercising their right to vote, or enjoying a variety of other liberties which all Americans should take for granted. Then – allegedly to remedy these abuses – they created an addictive welfare state, followed by Urban Renewal which favored white businesses over the property rights of blacks, and topped itall off with a disastrous War on Drugs, which has succeeded in throwing a scandalous number of black men in jail.
But blacks remain an overwhelmingly Democrat voting bloc, and one reason is the so-called black leaders and their promoters in the media. Such demagogues promise white politicians reliable votes in exchange for favors which generally redound, not to the benefit of black Americans, but to the benefit of those very demagogues. Jesse Jackson, for instance, has traveled the country extorting millions of dollars from corporations with threats· of boycotts while assailing the very things which black America so desperately needs: educational opportunity, free markets, and a morality of family values. A man of integrity, who wants to actually work a substantial improvement in the lives of black Americans, is a standing rebuke to such demagogues, and therefore a Man to Be Destroyed. By enforcing “solidarity” through intimidation and threats, racial “leaders” like Jackson can secure themselves permanent positions of fame and wealth which do not disappear even when they commit gross ethical and moral transgressions, or when a great many of their so-called supporters don’t actually support them.
To a degree, then, Justice Thomas is hated because – as Ellsworth Toohey says in Justice Thomas’ favorite movie, The Fountainhead – “a man abler than
Justice Thomas’ views more closely resemble those of Thomas Jefferson than those of Justices Rehnquist or Scalia.
his brothers insults them by implication.” But to a greater degree, Justice Thomas is hated because he must be hated. If he weren’t, too many so-called civil rights leaders would be exposed for what they are: great obstacles to minority advancement.
It’s fitting that Peyton Thomas begins his biography with· a quotation from Frederick Douglass, whom Justice Thomas much admires. Douglass was what today would be called an Uncle Tom: a self-made man who did not allow others to control him, but attained an education and a life through his own hard work and determination. He thought for himself, and would have indignantly rebuked anyone who suggested – as civil rights leaders do – that all minority members must think and vote alike. That is precisely the assumption that lies at the center of the civil rights movement today, and Justice Thomas struck this exposed nerve during his 1991 confirmation battle, when he referred to the lies and inconsistencies Anita Hill brought forth as “a high- tech lynching for uppity blacks who in any way deign to think for themselves.” But the “lynchings” haven’t stopped. In his ten years on the Court, black”leaders” have continued to refer to him as an Uncle Tom; protesters call him a “traitor,” and denounce him for not “giving back” to the black community (a particularly ironic statement, since Justice Thomas has demonstrated a profound dedication to community service). Liberals call him a “clone” of Scalia, noting his frequent agreements
Justice Thomas is a lightning rod because he serves as a constant reminder of some things Good Liberals don’t want to think about: the great injustices lying at the heart of their system.
with Scalia’s conclusions. Yet, as Gerber pointed out in First Principles, Thomas agrees with Scalia about 80% of the time, while Justice Breyer agrees with his senior colleague David Souter about 84% of the time, but one never hears that Breyer is a “clone” of Souter.
At what point does the view that Justice Thomas doesn’t think for himself merit being called “racism”? At what point will the left be punished for its antipathy toward any achievement which comes outside its shabby patronage? It’s hard to say when, but that day is coming. As Frederick Douglass once noted, “While the rank and file of our race quote with much vehemence the doctrine of human equality, they are often among the first to deny and denounce it in practice. Of course, this is true only of the more ignorant. Intelligence is the great leveler here as elsewhere. It sees plainly the real worth of men and things, and is not easily imposed upon by the dressed up emptiness of human pride.” That dressed-up emptiness is losing its pretense more and more every day, and Peyton Thomas’ book is an example of why: The more the left shrieks unthinking slurs at Clarence Thomas, the more his quiet logic and profound good character stand out in relief.
Man of Quiet Dignity
Peyton Thomas describes, for instance, a speech Justice Thomas made to the National Bar Association in 1998. Two years earlier, the black news magazine Emerge had published an article called “Uncle Thomas: Lawn Jockey for the Far Right,” with a cover illustration depicting Thomas in a racist caricature more appropriate to a secessionist newspaper in 1850s Georgia. A committee of the Association tried to uninvite him, and when he came anyway, hecklers in the audience shouted that he was “an enemy of the people.” But Thomas’ quiet dignity would have made Frederick Douglass proud. The “civil rights movement,” he said, believed he had:
. . . no right to think the way I do because I’m black. Though the ideas and opinions themselves are not necessarily illegitimate if held by non~ black individuals, they, and the per~ son enunciating them, are illegitimate if that person happens to be black.
I have come here today not in anger or to anger, though my mere presence has been sufficient, obviously, to anger some. Nor have I come to defend my views, but rather to assert my right to think for myself, to refuse to have my ideas assigned to me as though I [were] an intellectual slave because I’m black. I’ve come to state that I’m a man, free to think for myself and do as I please.
Peyton Thomas’ book is remarkably evenhanded, although in his attempt at fairness he sometimes goes a bit overboard. For example, he describes the central premise of Justice Thomas’ jurisprudence clearly: The Constitution is an act within the auspices of the Declaration of Independence, and is only comprehensible through it. ”’50 when we use the standard of “original intention,” we must take this to mean the Constitution in light of the Declaration,’ [Thomas] said. ‘With the Declaration as a backdrop, we can understand the Constitution as the Founders understood it – to point toward the eventual abolition of slavery.'” As Peyton Thomas notes, this view, which served as the foundation of the antebellum Republican Party, came to lovely fruition in Thomas’ Adarand Constructors opinion, when he wrote that “There can be no doubt that the paternalism that appears to lie at the heart of [affirmative action] is at war with the principle of inherent equality that underlies and infuses our Constitution. See Declaration of Independence …” Yet Peyton Thomas concludes this look at Thomas’ philosophy with a flippant denial: “The problem, of course, was that the Founders had no such clear understanding.” Peyton Thomas provides no evidence to back up this denial – which he repeats later in the book, again, without justification.
The fact is, the Founders did understand the Declaration this way. That’s why Jefferson and Adams spent their lives attacking slavery – and even tried to do so in the Declaration itself; that’s why George Mason was forced to edit the language of his Virginia Declaration of Rights – which had originally said that “all men are by nature equally free and independent, and have certain inherent rights of which they cannot, by. any compact, deprive or divest their posterity . . . ” but, on the insistence of defenders of slavery, was changed to “. . . certain inherent rights, of which, when they enter into a state of society, they can-
One might wonder why there aren’t more black libertarians. After all, who has suffered more at the hands of government than black Americans?
not, by any compact, deprive or divest …” That’s why secessionists called the Declaration a “self-evident lie”; that’s why Calhoun said there was “not a word of truth in it.” And that is why Frederick Douglass broke with those Abolitionists who declared the Constitution an evil document because of its compromises with slavery. “I differ from those who charge this baseness on the framers of the Constitution of the United States,” said Douglass:
It is a slander upon their memory, at least, so I believe … [T]here is no matter in respect to which the people of the North have allowed themselves to be so ruinously imposed upon, as that of the pro-slavery character of the Constitution. In that instrument I hold there is neither warrant, license, nor sanction of the hateful thing; but; interpreted as it ought to be interpreted, the Constitution is a GLORIOUS LIBERTY DOCUMENT.
Yet Peyton Thomas buys into this ruinous imposition as well, in a conclusory assertion he does not bother to defend. It is to his credit that Clarence Thomas does not.
Unfortunately, most conservatives are not with Justice Thomas on this point. Robert Bork, for instance, wrote an entire book to denounce the Declaration of Independence, and he merely stood on the shoulders of Russell Kirk, Irving Kristol, and many others. Even Justices Scalia and Rehnquist have denounced the doctrine of natural rights upon which the Declaration and Constitution rest. Scalia, for instance, has said that “you either agree with· democratic theory or you do not. But you cannot have democratic theory and then say, but what about the minority? The minority loses, except to the extent that the majority, in its document of government, has agreed to accord the minority rights.’i And Rehnquist has gone even farther: If “a society adopts a constitution and incorporates in that constitution safeguards for individual liberty,” he says, “these safeguards do indeed take on a generalized moral rightness or goodness . . . neither because of any intrinsic worth nor because of any unique origins in some- one’s idea of natural justice, but instead, simply because they have been incorporated in a constitution by a people.” In other words, one cannot prove that freedom is morally superior to slavery – it’s all just a matter of taste.
Is it any wonder that conservatism fails to attract more black adherents? Prominent conservatives are fundamentally hostile to the one thing that makes the Constitution a “GLORIOUS LIBERTY DOCUMENT” and which should endear the United States to every descendant of slaves: equality. That principle – which conservative political scientist Harvey Mansfield called “a self-evident half-truth” – is, to Bork’s mind, the great evil which has “tempted” America out of its cultural Eden.
Earlier this year, National Review writer Stanley Kurtz wrote that what America really needs is to throwaway our answering machines (those icons of individualism) and write a Declaration of Dependence, which would return us to the “fabric of mutual entanglement that defines traditional societies.” This hostility to equality and to individualism – entirely consistent principles when understood correctly – is the last and greatest challenge that conservatism faces in attracting more black adherents. It must recognize, as Justice Thomas’ “liberal originalism” recognizes, that liberty is our only hope – no matter who “we” happen to be.