Justice Clarence Thomas’s recent speech at the University of Texas, which began as a celebration of the 250th anniversary of the Declaration of Independence, meandered across disconnected political postulates and resembled a cut-and-paste rehash of previous talks, filled with gaping holes in its reasoning.
His remarks then descended into a diatribe against progressivism, in general, and included an indictment of American progressives, whom he blames for policies, programs and practices that have fundamentally betrayed the principles of the Declaration and wreaked so much havoc for more than a century that they cast doubt on the very survival of our culture and nation.
The historical errors that pockmark Justice Thomas’s 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 to improve the quality of life for average, ordinary working-class Americans: child labor, worker safety in mines, mills and factories, a woman’s right to minimum wage and the right to vote, measures to improve health standards in the meat and dairy industries, and direct election of U.S. senators, among many other achievements.
In another section of his speech, Justice Thomas 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 does, 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 rightly notes that that founding document is not “law.” Can judges cannot be left to interpret and apply a body of indeterminable natural rights, what Thomas often refers to as “natural law”? 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, according to James Madison’s records, there was no mention of “natural law” or “the law of nature.” In the 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 right 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 judge, 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.”
David Adler is president of The Alturas Institute, a non-profit organization created to promote the Constitution, gender equality and civic education. This column is made possible with the support of the South Dakota Humanities Council, South Dakota NewsMedia Association and this newspaper.
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