Carter G. Woodson is widely credited with the activism that, in 1926, established a week, and later a month, to focus on the history and contributions of black Americans.
In his message on the observance of Black History Month 50 years later, President Gerald R. Ford connected Black History Month to “the realization of the ideals envisioned by our Founding Fathers,” such as “[f]reedom and the recognition of individual rights.”
For more than four decades—even before he joined the Supreme Court in 1991—Justice Clarence Thomas has profoundly contributed to making those ideals both real and lasting by doggedly defending true equality before the law.
The organization Woodson founded in 1915, the Association for the Study of African American Life and History, explains that he chose February for this observance because of its connection to “two great Americans who played a prominent role in shaping black history; namely, Abraham Lincoln and Frederick Douglass.”
Black communities had for decades been celebrating both of those leaders by marking their birthdays in mid-February.
Douglass, a former slave, delivered his famous “What to the Slave Is the Fourth of July” speech in Rochester, New York, on July 5, 1852, nearly a decade before the Civil War.
Calling the Constitution a “glorious liberty document,” Douglass said: “Now, take the Constitution according to its plain reading, and I defy the presentation of a single pro-slavery clause in it. On the other hand, it will be found to contain principles and purposes, entirely hostile to the existence of slavery.”
In other words, true equality before the law, anchored in the consistent “plain reading” of the Constitution, is the key to freedom and individual liberty for all.
Douglass argued that the Constitution can manifest the Declaration of Independence’s principle of equality only by focusing on “the text and only the text.”
Four years later, Justice Benjamin Curtis said the same in his 1856 Dred Scott v. Sandford dissent. When a “strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning,” Curtis wrote, “we have no longer a Constitution. We are under the government of individual men who, for the time being, have power to declare what the Constitution is, according to their own views of what it ought to mean.”
Fast-forward more than 130 years. Thomas, during his long tenure as chairman of the Equal Employment Opportunity Commission, connected those principles in a speech at The Heritage Foundation the day after Constitution Day, 1987. (The Daily Signal is the news outlet of The Heritage Foundation.)
“Equality of rights, not of possessions or entitlements,” he said, “offer[s] the opportunity to be free and self-governing. … [We] must acknowledge each other’s freedom and govern only by the consent of others.”
These, of course, are the very “self-evident truths” asserted in the Declaration of Independence. Two years after his speech at The Heritage Foundation, on the eve of his first federal court nomination, Thomas indeed wrote about the Constitution as a “logical extension of the Declaration.”
This, of course, can be true only if, as Douglass and Curtis had argued, judges take the Constitution as it is, according its “plain reading.”
In an interview with two legal commentators in 2008, nearing his 20th year on the Supreme Court, Thomas said: “[I]t’s not my constitution to play around with. … I don’t feel I have any particular right to put my gloss on your constitution. My job is simply to interpret it. … People say, ‘You are an originalist.’ I just think that we should interpret the Constitution as it’s drafted, not as we would have drafted it.”
A year earlier, Thomas joined the majority in Parents Involved in Community Schools v. Seattle School District, which held that assigning students to schools by race is unconstitutional in the absence of any past de jure discrimination.
Giving school boards “a free hand to make decisions on the basis of race,” he wrote, is “reminiscent of [the approach] advocated by the segregationists in Brown v. Board of Education” … . This approach is just as wrong today as it was a half-century ago.”
The Constitution, Thomas argued, “require[s] us to be much more demanding before permitting local school boards to make decisions based on race.” The Constitution to which he referred, of course, is the real one, the one implementing the Declaration’s principle of equality, the one that has not been captured by political interests.
Thomas, therefore, is making an enormous contribution to black history by demonstrating what it means to take the principles of freedom and individual rights seriously. He is able to do this, decade after decade, because of a depth of personal character that acts by conviction, rather than fear.
His speech on Feb. 13, 2001, at the American Enterprise Institute, in fact, was titled “Be Not Afraid.” One must be “clear and confident about one’s judicial philosophy and have the courage to stand by the decisions that an honest adherence to the law requires.”
Thomas cited Alexander Hamilton from The Federalist No. 78 about the need to minimize “arbitrary discretion in the courts.”
He explained that “judges should adopt principles of interpretation and methods of analysis that reduce judicial discretion.” These include “seek[ing] the original understanding of the provision’s text if the meaning of that text is not readily apparent.”
Those principles and their impartial application, not the slings and arrows of “those who will respond as brutes,” should be the basis for debate about the judiciary’s power and the appointment of its judges. “It is bravery,” Thomas said, “that is required to secure freedom.”
Thomas has served on the Supreme Court for nearly 33 years and is now on the Top 10 list of longest-serving members.
Thankfully, however, his contribution to our freedom will continue. He has inspired legions of law clerks who are now professors, practitioners and federal judges themselves. One of them, U.S. Circuit Judge James Ho, who clerked for Thomas during the 2005-2006 term, delivered the 2023 Joseph Story Distinguished Lecture at The Heritage Foundation and titled it “Pressure Is a Privilege: Judges, Umpires, and Ignoring the Booing of the Crowd.”
He not only argued that originalism is the only legitimate method of interpretation, but offered three suggestions to judges when the crowd boos—expect it, get used it to it, and get comfortable with it. Do your job, Ho urged, and then go home.
During Black History Month—and all other times—we must celebrate those who stand firm for the principles that make freedom and individual rights possible. Clarence Thomas is at the top of the list.
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