Clarence Thomas-- The Most Important Justice?

[Richard Dougherty]

Lynne Henderson wrote:

>  I, too, thought the assertion that Thomas is the Supreme Court
> Justice most representative of the Jeffersonian/Declaration view was
> surprising and would appreciate examples.  It has seemed  to me that
> he has been much more an advocate/expositor of what he believes was
> the 1789 Constitution/"original meaning" --across the board.
> Lynne

Lynne:
Do you take these two approaches to be at odds with each other? I think
Thomas sees them of a piece.  Here I think he clearly parts company with
Scalia, who will not countenance such appeals to the Declaration.  Where
one sees it in practice I'll leave to Scott Gerber; as a provocative
example one one might consider his concurrence in Adarand:

    "That these programs may have been motivated, in part, by good
intentions cannot provide refuge from the principle that under our
Constitution, the government may not make distinctions on the basis of
race. As far as the Constitution is concerned, it is irrelevant whether
a government's racial classifications are drawn by those who wish to
oppress a race or by those who have a sincere desire to help those
thought to be disadvantaged. 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").
    These programs not only raise grave constitutional questions, they
also undermine the moral basis of the equal protection principle.
Purchased at the price of immeasurable human suffering, the equal
protection principle reflects our Nation's understanding that such
classifications ultimately have a destructive impact on the individual
and our society. Unquestionably, "[i]nvidious [racial]  discrimination
is an engine of oppression," post at ___. It is also true that
"[r]emedial" racial preferences may reflect "a desire to foster equality
in society," ibid. But there can be no doubt
that racial paternalism and its unintended consequences can be as
poisonous and pernicious as any other form of discrimination. So-called
"benign" discrimination teaches many that because of chronic and
apparently immutable handicaps, minorities cannot compete with them
without their patronizing indulgence. Inevitably, such programs engender
attitudes of superiority or, alternatively, provoke
resentment among those who believe that they have been wronged by the
government's use of race. These programs stamp minorities with a badge
of inferiority and may cause them to develop dependencies or to adopt an
attitude that they are "entitled" to preferences. Indeed, JUSTICE
STEVENS once recognized the real harms stemming from seemingly "benign"
discrimination. See Fullilove v. Klutznick, 448 U.S. 448 , 545 (1980)
(STEVENS, J., dissenting) (noting that "remedial" race legislation "is
perceived by many as resting on an assumption that those who are granted
this special preference are less qualified in some respect that is
identified purely by their race")."

Thomas' reading of the Constitution here is clearly informed by his
understanding of the Declaration, and of the necessary connection
between the two.  Critics, of course, may ask whether it is true that
"under our Constitution, the government may not make distinctions on the
basis of race," or whether Thomas is reading that into the Constitution
in light of the Declaration.

Richard Dougherty
University of Dallas
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