What Did Clarence Thomas Actually Say About Whether African-Americans Were Part of “We the People” at the Time of the Founding?September 20, 2012
In this recent post, (volokh.com) took issue with Justice Clarence Thomas’ apparent recent statement that African-Americans were not considered part of the “we the People” referred to in the Preamble of the Constitution. In conveying what Thomas said, (volokh.com) relied on a report in the Washington Post, which was echoed by many other media sources.
However, the video of Thomas’ dialogue with Yale law professor Akhil Amar and a transcript of his remarks obtained by VC reader Andrew Hyman suggests that his remarks were a lot more ambiguous. Here’s the relevant part of the transcript (which occurs roughly between 8:00 and 12:00 of the video):
AKHIL AMAR: …I guess I’d like to start our conversation — it seems fitting — with those — with the words that the Constitution starts with, “we the people,” and how that — what that phrase means to you, how that phrase maybe has changed over time thanks to amendments and other developments.
What do you mean — who are “we”? You know, who is this “we”? When did — when did folks like you and me become part of this “we”?… [Note: Akhil Amar is an Indian-American]
JUSTICE CLARENCE THOMAS: Well, you — the — well, obviously, it didn’t — it wasn’t perfect. That’s an understatement. But you grow up in an environment, at least I was fortunate enough to, where we believed that it was perfectible….
So when I think of we the people, there is a lot, I think, of the exclusion but the possibility and then the eventuality of the inclusion of you and me. I mean, look at — no one cares that, what, 40 years ago, you and I would not be sitting here talking about the Constitution of the United States except to say we’re excluded.
The last part of Thomas’ statement – that the inclusion of nonwhites was only an eventual “possibility” could be interpreted to mean that originally they were categorically excluded. But the statement is much more equivocal than the Washington Post’s summary, which stated that “Justice Clarence Thomas acknowledged the other night, that the “we the people” extolled in the Constitution 225 years ago did not include people who looked like him.” I think the Post’s interpretation of his remarks is plausible. But it’s also plausible to suggest that he meant that blacks, while not completely excluded at the Founding, were still subject to horrendous discrimination and only fully included as equal citizens many decades later.
(volokh.com) is grateful to Mr. Hyman for bringing this issue to his attention and for obtaining the transcript.
Some commenters and others have asked whether the distinction between categorical exclusion on the basis of race at the time of the Founding and “mere” extensive discrimination actually matters.
As (volokh.com) noted in his original post, the issue has great historical significance because it was one of the main points of disagreement over the Dred Scott decision. If at least some blacks were part of “We the People” at the time of the Founding, Chief Justice Taney’s notorious majority opinion is wrong, for reasons well captured in Justice Curtis’ dissent.
But the issue also has some relevance to modern debates over the legitimacy of originalism. Some critics of originalism have argued that the original Constitution was illegitimate because it excluded blacks. There is little doubt that the original Constitution tolerated severe racial injustices, most notably slavery. But there is nonetheless a difference between a Constitution that left slavery and other injustices alone (in part because abolition was politically impossible at the time), and one that categorically denies all blacks any “rights which the white man was bound to respect,” as Taney put it.
Obviously, one can reject originalism for a variety of reasons even if Taney’s claim was wrong. And it is possible to endorse originalism even if he was right. But the case against originalism does become stronger at the margin if Taney was right, and weaker if he was wrong.
(via Pat Dollard / Excerpted from WND) If Chaim Amalek had his way, no one would know that mobs of black people are attacking and beating and robbing Jews in the New York area. Or that they shout anti-Semitic epithets.
Or that they target Jews because “they don’t fight back.”
“Such information can only serve to heighten racial tensions between these two groups,” said Amalek, an alias for New York video blogger Luke Ford. “Let us all look beyond the issue of race (in any event a mere social construct) and instead celebrate our diversity.”
In this case, the New York Post saw a pattern that most other media outlets never see. To some, it was jarring.
“Anti-Jewish crime wave,” read the June headline about a series of recent anti-Semitic attacks. “In the most disturbing incident, a mob of six black teenagers shouting, ‘Dirty Jew!’ and ‘Dirty kike!’ repeatedly bashed Marc Heinberg, 61, as he walked home from temple in Sheepshead Bay (in June.)”
This is one of several black mob attacks on – and robberies of – Jewish people in Brooklyn over the last two years, leaving broken bones and life-threatening injuries in their wake.
The assaults are part of a larger pattern in the New York area and around the country: Black mobs assaulting, robbing, destroying property and creating mayhem – hundreds of times in more than 60 cities.
Orthodox Jews may bear a disproportionate amount of the violence in New York. But the lawlessness that black mobs inflict throughout the area is not limited to Jews. Much of it is on YouTube.
In February, four black people beat and robbed an Orthodox Jew in the New York suburb of Monsey. They were charged with hate crimes after it was determined they targeted the victim based on his religion. News accounts do not mention the race of the attackers, but the picture tells the story.
In a three-week period after Thanksgiving 2010, the same group of black people was charged in three separate episodes of targeting, beating and robbing members of the Orthodox community. One of the victims, Joel Weinberger, spent four days in the hospital with broken bones and required 10 hours of surgery on his broken jaw and eye socket.
Ford and others, such as MSNBC news anchor Melissa Harris-Perry, say the media should not report news if it makes black people look bad. But most racial crimes and violence from black mobs in the New York area are usually not reported – not by the mainstream media anyway.
Witnesses and others who know often find a way to drop a dime, or a video or Internet posting.
Just a few days before the Heinberg beating, a group of students from a predominately black school in a predominantly black neighborhood in Brooklyn were “evicted” from the 9/11 Memorial site in Manhattan “after they callously hurled trash into its fountains. The vile vandals from Junior High School 292 in East New York treated the solemn memorial – its reflecting pools honoring the nearly 3,000 people killed in the terror attacks – like a garbage dump.”
One of the students was found carrying ammunition.
The story did not identify the race of the students. The picture for the article featured a young white person looking over the fountains. But people who posted comments to the story, many of whom said they lived near the school, identified the vandals as black – if only to defend them.
“The NYPD have destroyed enough young black lives,” wrote poster Blaque Knyte. “I’d be willing to bet you didn’t suggest jail for the little white suburban thugs who harassed that elderly bus matron to tears, which IS a crime by the way.”
Many of the commenters said the story should have identified the race of the miscreants – if only to protect the community from future mayhem. That was too much for “brooklynborn,” who said, “I am embarrassed for my fellow Americans who flaunt their racism so publicly. What they did was offensive, but the conditions of where we grew up – compared to the wealth of Wall St. – is also offensive.”
While New Yorkers continue to debate whether race has anything to do with crime, or whether it should be reported, the list of racially violent and lawless episodes continues to grow.
On May 12, black women taunted two teenage girls on a subway before “hauling” the girls off the subway, beating them and stealing one of their phones.
The local NBC affiliate did not disclose the race of the mob, but it didn’t have to: The attack was videotaped and posted on YouTube.
On Staten Island in December, two police officers were hurt trying to control a mob of 50 black people attacking a single family home. Firefighters finally disbursed the crowd with fire hoses to get them away from the officers. Several pictures and videos show some of the action.
Last June, hundreds of black people rioted on Brighton Beach in an annual event called Brooklyn-Queens Day. Four people were shot and one killed. Much of it was posted on YouTube.
According to the New York Post: “The shootings didn’t surprise neighbors, who’ve gotten used to trouble on previous Brooklyn-Queens Days.”
“These kids come not to swim, they come for turf fights,” said Pat Singer, president of the Brighton Beach Neighborhood Association. “It’s a problem every year. It’s really hard on the businesses. All day long, all you see are hundreds of teenagers. Of course you’re going to have problems.”
In May of 2011, more than two dozen black people on a “rampage … terrorized” a Dunkin Donuts. The “swarm mob” attacked patrons, destroyed the fixtures and stole food, reported the Daily Mail, which published the story with pictures.
A few months before, the same scenario unfolded at a New York Wendy’s. A mob of black people were fighting and destroying property, and a teenage employee was attacked and hospitalized with a concussion.
So they accused me of stealing it and started searching me and even searched my private parts.’ The slave girl further said, ‘By Allah! While I was standing (in that state) with those people, the same kite passed by them and dropped the red scarf and it fell amongst them. I told them, “This is what you accused me of and I was innocent and now this is it.”‘ ‘Aisha added: ‘That slave girl came to Allah’s Apostle and embraced Islam.