Justice Thomas’ Speech: Political Attacks, Unanswered Judicial Questions
Justice Clarence Thomas’s controversial speech at the University of Texas, which began as a commemoration of the 250th anniversary of the Declaration of Independence, inexplicably meandered across disconnected political postulates, reflected significant historical errors and left unanswered fundamental questions about the judicial ascertainment and enforcement of natural rights. His remarks then descended into an unusual, extra-judicial political diatribe against progressivism, which he declared an existential threat to the United States since it represents an effort to replace the principles of the Declaration. His indictment of American progressives, whom he blames for policies, programs and practices that have wreaked so much havoc for more than a century, casts doubt on the survival of our culture and nation.
The historical errors that pockmark Justice Thomas’ portrayal of the origins of progressivism in America are too numerous to review here. Suffice it to say that, contrary to his claims, Woodrow Wilson did not invent progressivism and, in fact, his contributions to the new political movement at the turn of the 20th Century were overshadowed by the signal efforts of Theodore Roosevelt, as well as a wide stream of legislators, judges and journalists who, like Roosevelt, recognized the deep and pervasive corruption of the Gilded Age and the harms posed by industrialization. Progressives initiated sweeping reforms in the spirit of the Declaration of Independence to enhance democracy and the quality of life for millions of working-class Americans: child labor, worker safety in mines, mills and factories, a minimum wage, women’s right to vote, collective bargaining, measures to improve health standards in the meat and dairy industries and direct election of U.S. Senators, among many other achievements.
Justice Thomas also returned to one of his familiar themes– Americans’ “rights come from God, not government” –without explaining, precisely, what it is that judges, including Supreme Court Justices, will enforce. It is one thing to invoke the majestic language of the second paragraph of the Declaration of Independence, as Thomas did, but the Court has the fundamental duty to “say what the law is.” While the Declaration declares that “all men are created equal, endowed by our Creator with unalienable rights, including life, liberty and the pursuit of happiness,” Thomas notes that that founding document is not “law.” If not, how can judges apply an extra-legal body of indeterminable natural rights, what Thomas erroneously refers to as “natural law,” to cases and controversies? Would this undermine the framers’ efforts to temper judicial discretion?
The founders addressed this very issue, noting the historic importance of the theory of the Declaration while recognizing the problem of reconciling it with the fundamental judicial function to ascertain the law and apply it. In the Constitutional Convention, Edmund Randolph observed that a “display of theory, howsoever proper in the first formation of state governments, is unfit here since we are not working on the natural rights of men not yet gathered into society, but upon those rights modified by society.” The framers of the Constitution, and those who drafted the Bill of Rights, distinguished rights that preexisted society and the civil rights enjoyed by citizens once society has been created.
In the founding period, the doctrine of natural rights and natural law had little acceptance as a basis for judicial decisions. It is easy to see why. The Constitution is a written document and, indeed, is recognized in Article VI as the “supreme law of the land.” It cannot be superseded by an unwritten higher law which would justify governmental transgression of the very limits that the Constitution is intended to restrain. Constitutional restraints on governmental power, it is to be recalled, apply to the judiciary, as well as the other branches of government. An invitation for judges to apply an unwritten body of natural laws, perhaps impervious to all but the judges, is prescription for government by the judiciary.
If judges are precluded from foraging through an inchoate body of natural law, what Justice Felix Frankfurter called, “literary garniture,” as a source for judicial rules and decisions, does that render insignificant the concept of “unalienable rights”? Not at all. Justice John McLean, in 1853, summed up the distinction that seems to have eluded Justice Thomas. “It is for the people in making constitutions and the enactment of laws, to consider laws of nature. This is a field which judges cannot explore. They look to the law and the law only.”