The Next President Jackson? A Harvard Head Case

The headlines may claim that “affirmative action is gone,” but the reality is that the effects of the recent Harvard and University of North Carolina Supreme Court case will be minimal on higher education. The scandal of racial and ethnic preferences (not to mention egregious preferences for women) will continue through subtle means. While the Court’s 6-3 majority opinion conceded these dodges of justice, the Chief Justice’s clever argument dropped the weight of the Constitution on Harvard, daring it (and other super-select schools) to separate themselves from their partners in crime among the state universities.

Though the fireworks between Justices Clarence Thomas and Ketanji Brown Jackson have been highlighted, no one has articulated the actual significance of their radical differences for understanding the American political tradition.

Now approaching his 32nd year on the Court, the venerable Justice Thomas is routinely viewed as the “ideological leader” of the conservative justices. Unfortunately, this silly political label fails to appreciate Thomas’ core concern for natural right, which has defined and guided his opinions, whether he mentions the term or not. This unique viewpoint in contemporary jurisprudence helps explain why his solo radical dissenting and concurring opinions have become adopted by more of his colleagues. Thomas’s colleagues would never think of using this approach in their opinions, but who can tell over time?

Now, in his 58-page concurring opinion, one can clearly see the depth and subtlety of this natural right approach. In sum, Thomas appreciates the political and moral necessity of grounding originalist jurisprudence on the Declaration of Independence: the self-evident truth that all men are created equal.

Succinctly, this means that no human being is born either the master or the servant of another. In turn, a legitimate government, in making the laws governing society, must do so in a way that reflects this original equality by respecting the concept of consent of the governed. Consent, in turn, demands a government that protects rights—including free speech, elections, broad suffrage, representation, separation of powers, and republican character. This is no esoteric doctrine: In the recent New York gun case, Thomas wrote for the Court on the “inherent right of self-defense”; he might as well have written “the natural right of self-defense,” basing his argument more closely on the Declaration. His accumulated opinions could be assembled as a casebook of the constitution of liberty based on natural rights.

Justice Thomas’s most recent opinion delineates how the Reconstruction Amendments, especially the 13th and 14th Amendments, reconciled the Declaration and the Constitution. The Civil War made possible, practically speaking, the republican government based on the principle of equality George Washington fought for. Justice Thomas’ jurisprudence in general and this concurrence in particular should be reprinted as a tract describing the recovery of liberty—demonstrating how liberty once thought lost and dead could be resurrected, in a New Birth of Freedom.

To recall just two of the most relevant opinions:

In his partial dissent and concurrence in the University of Michigan law school case of Grutter v Bollinger (2003), he maintained that “Like [Frederick] Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators.” Thomas defended “the principle of equality embodied in the Declaration of Independence and the Equal Protection Clause.”

Going back to his earlier days on the Court, in his concurrence in Adarand v Pena (1995) Thomas laid down this interpretive principle. “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. See Declaration of Independence (‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness’).”

Here, in the most recent case, Thomas expounds the history of the equality principle, an absolutely colorblind concept. The Civil War regrounded the entire Constitution on the basis of that principle of equality, viz. the anti-slavery principle: most prominently Article I, with its infamous three-fifths clause; Article IV, with its privileges and immunities and republican guarantee clauses; and the so-called fugitive slave clauses. The 13th Amendment’s rejection of slavery included the erasure of “badges of slavery” as well as the outright ownership of human beings. Thus, it legitimated the Civil Rights Act of 1866, which was also supported by the subsequent 14th Amendment. Thomas takes the Chief Justice’s court opinion to mean that “all forms of discrimination based on race—including so-called affirmative action—are prohibited under the Constitution.” He also makes the 14th Amendment’s Equal Protection Clause the focus of his opinion here, following the Chief’s emphasis.

Here I would instead emphasize the 13th Amendment by itself, for many of the problems of interpreting the 14th Amendment follow from a crabbed understanding of the 13th, but I recognize the argument Justice Thomas is making here as appropriate for his purposes. The 13th Amendment saved the Constitution by explicitly prohibiting slavery and making the role of the Declaration greater. It forbade both masters and slaves; recognizing only republican citizens. Here is the ultimate color-blind rejection of slavery and selective racial legislation. Thomas needn’t have spoken of a “second Constitution,” which resembles too much the late Justice Thurgood Marshall’s scorn for the original document. 

The great dissenting Justice John M. Harlan appropriately saw the Reconstruction amendments as a whole authority against the practice of state-sponsored racial segregation. The authority  would include the “badges and incidents” of slavery in the 13th Amendment. Recall too that Harlan ended his classic Plessy v. Ferguson “color-blind Constitution” argument with a reference to the republican guarantee clause, which had been a distinctly pro-slavery part of the antebellum constitution but was born again as an anti-slavery clause in the new Constitution. 

Thomas argues that these amendments, whatever minor deviations may have existed, were color-blind in their recognition of the political issues involved and interpreted—one prominent example being the Freedmen’s Bureau’s programs, which were not restricted to black freedmen. In this light he tries to rescue an otherwise poorly reasoned Brown v. Board of Education argument, in light of color-blind principles. In sum, Thomas’ opinion makes generous use of the natural rights arguments of the Declaration and Abraham Lincoln. “[W]e must adhere to the promise of equality under the law declared by the Declaration of Independence and codified by the Fourteenth Amendment.” The Constitution leaves no room for so-called “positive discrimination” or “aesthetic” versions of equality.

Quite the contrary to Thomas’ Declaration-anchored jurisprudence of original intent is the approach of Justice Jackson, which disdains the founding (speaking instead of the “second founding”), relies on social science expertise, and follows Progressive notions of a dynamic and volatile history. In fact, her opinion makes quite the companion piece to President Obama’s infamous second inaugural. But her opinion is far more focused on racial differences, in particular on inherited wealth and its relationship to race. It is surely the most Marxist opinion ever written by a justice, producing what Thomas called “a race-infused world view.” (Given her bizarre view of what a Supreme Court opinion should be, I would not be surprised if she resigned from the Court and ran for president. That would seem to be something more interesting to someone like her than writing unhinged dissents for the foreseeable future.)

Thomas and other critics have appropriately focused on this offensive, haughty passage: “The only way out of this morass—for all of us—is to stare at racial disparity unblinkingly, and then do what evidence and experts tell us is required to level the playing field and march forward together, collectively striving to achieve true equality for all Americans.” (This is surely the most fascistic opinion ever written by a justice.)

The best riposte is in Thomas’s own opinion:

Her dissent is not a vanguard of the innocent and helpless. It is instead a call to empower privileged elites, who will “tell us [what] is required to level the playing field” among castes and classifications that they alone can divine . . .. Then, after siloing us all into racial castes and pitting those castes against each other, the dissent somehow believes that we will be able—at some undefined point—to ‘march forward together’ into some utopian vision.

As in Obama’s vision, there is no limit to government power to “level the racial playing field.” And, referring to Jackson’s “John” and “James” hypotheticals—the functional equivalent of Brown’s goofy doll test—Thomas points out that these imaginary persons are “race-based stereotypes.” The Justice who couldn’t say what a woman is during her confirmation hearing cannot articulate what a black American is either. Perhaps she is waiting for more evidence to accrue or for an expert to follow.

Such absurdities prevail when one suppresses the color-blind Constitution in favor of desperate attempts to create a color-blind society. Thomas has a much more realistic world-view—note his appreciation of historically black universities. And ponder especially his warning that “Then, as now, the views that motivated Dred Scott and Plessy have not been confined to the past, and we must remain ever vigilant against all forms of racial discrimination” (in case anyone forgot about the Asian-American origins of this case). In conclusion, Justice Thomas warns that Progressive notions of jurisprudence or history may delude us into thinking “that the present arrangements are superior to the Constitution”—that is, the founders’ Constitution, as Frederick Douglass put it, that “glorious liberty document.”

Ken Masugi is a senior fellow of the Claremont Institute. He has been a speechwriter for two cabinet members, and a special assistant for Clarence Thomas when he was chairman of the Equal Employment Opportunity Commission. Masugi is co-author, editor, or co-editor of 10 books on American politics. He has taught at the U.S. Air Force Academy, where he was Olin Distinguished Visiting Professor; James Madison College of Michigan State University; the Ashbrook Center of Ashland University; and Princeton University.