Essay written in September 1991.
2018 Note: President George H. W. Bush nominated Clarence Thomas to the United States Supreme Court on July 1, 1991. He had previously served on the United States Court of Appeals for the District of Columbia. In effect, he underwent two hearings before the Senate Judiciary Committee. In the first set of hearings, Thomas was questioned closely by senators who did not share his strict-constructionist approach to Constitutional interpretation, Senator Edward M. Kennedy of Massachusetts being one of his leading critics. After these initial hearings were concluded, allegations of sexual harassment of a co-worker at two of Thomas’s previous jobs in the federal bureaucracy were leaked from an FBI report. This caused the Committee to reconvene and call his accuser as a witness, along with Thomas himself, in a dramatic quasi-trial. The ‘case’ boiled down to his word against hers; absent anything more substantial than hearsay evidence, Thomas’s nomination was confirmed. This essay was written before the second set of hearings, when the issue was the more conventional question of how a Supreme Court Justice should ‘read’ the Constitution.
In nominating Clarence Thomas to the United States Supreme Court, President Bush has chosen the right controversy. The polemics of Mr. Thomas’s critics may serve to highlight the real issue that this nomination raises: Whether or not American courts will defend the fundamental principles of United States Constitutional law.
Opposition to Thomas has centered on his refusal, as Chairman of the federal Equal Opportunity Employment Commission, to promote group quotas in hiring. By so refusing, Thomas stood on firm Constitutional ground. During his tenure, the EEOC has sought to protect the rights of individuals, not groups, because Thomas understands that only the protection of individual rights can enable a people to govern themselves.
Individuals can govern themselves only as reasonable citizens—that is, as individuals participating with other individuals in a political community. Orwell’s word “groupthink” points to the obvious fact that groups do not, cannot really think at all. Without reasoned thought, without public deliberation as distinguished from demagoguery, no real self-government can occur. The American regime of representative government by the consent of the governed makes no sense unless we accept the Founders’ understanding of it: A means for governing the factional passions political life inevitably provokes by rewarding reasonable deliberation.
Judge Thomas’s principles differ sharply from those of nineteenth-century individualism. That individualism tended to dissolve into mere self-assertion, making reason the calculation of personal advantage. Thomas avoids this libertarianism in exactly the same way the Framers of the Constitution did, on the unalienable rights enunciated in the Declaration of Independence. Unlike a legion of contemporary law school professors, Thomas affirms that all human beings are “endowed by their Creator with certain unalienable rights,” and that the Constitution establishes a government whose sole purpose is to protect those rights by the means summarized in its Preamble, elaborated in its main text, and refined in its amendments.
To understand the vitriolic attacks on Thomas, we must appreciate the extent to which today’s interest groups, ‘Left’ and ‘Right’ (but mostly ‘Left’) have abandoned those Constitutional principles. What libertarians claim for the individual—unrestricted sovereignty with no real moral limitations—’leaders’ now claim for the groups they claim to represent. Whether this is a business lobby demanding preferential treatment or some association based on ethnic or social criteria, these ‘leaders’ reduce the concept of rights to desires. To them, ‘We have the right to what we want,’ really means, ‘What’s right is what we want,’ or even more simply, ‘We want what we want.’ This sort of thing deserves the name of socialist libertarianism, which is as much a contradiction in terms as “groupthink.” It uses the Constitution to further some goal-of-the-moment, while undermining the reasoned deliberation and natural law upon which the Constitution depends.
Unfortunately, this spirit of unthinking assertion pervades not only the interest groups but the government. Judges and legal scholars step forward rather to eagerly to claim that the law is what judges say it is, that the Constitution is what the Supreme Court says it is. Today’s ideologies compete to replace the principles of the American founding. The first casualty is the rule of law. Judges and interest groups reinforce each other’s power.
Clarence Thomas will refuse to play the interest groups’ game. They know that. They fear it. They fight to block his appointment.
To the best of my knowledge, for all the multiplication of political opinions, for all the ramping up of ideological passions, twentieth-century thinkers have yet to discover a single new political principle. The political significance of this century has been almost exclusively practical. We have witnessed a struggle between those animated by ideas popularized in the eighteenth century—particularly representative government respecting the unalienable rights of individuals—and mass ‘movements’ inaugurated in the nineteenth century, led by men and women who spurned natural law for ‘History,’ exalting some group (be it a race, a nation, or a class) over the rest of humanity—always, supposedly, for the good of humanity. Since the 1940s we have learned one simple thing from our many afflictions: The eighteenth-century men were right. They drew nearer to the truth than the men of the nineteenth century did. Philosophically there has been no progress, least of all in ‘Progressivism.’ In our military victory over rightist tyranny in the 1940s, and in our political and economic victory over leftist tyranny today, we have seen the vindication of the principles of justice in practice. As a result, the most formidable enemies of representative government and the rule of law today are home-grown.
Clarence Thomas defends the truths propounded by the American Founders, truths not relative to the Founders’ time and place but true for all times and for all places human beings live. His opponents merely update the errors of nineteenth-century ideologues. Because this struggle is not over, because one battleground is and will remain the American courtroom, and because we need judges who know how to be warriors for the rule of law, the nomination of Judge Clarence Thomas to the United States Supreme Court deserves confirmation by the United States Senate.
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