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

Media_httpstatic5busi_geyibIn 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.

The growing Clarence Thomas ethics problem LOLZ… there wasn’t one

June 21, 2011
Friendship of Justice and Magnate Puts Focus on Ethics by Mike Mcintire of nytimes.com

New York Times investigative reporter Mike McIntire penned a hit piece on Justice Clarence Thomas for Sunday’s front page, trying to find a controversy in the funding by a friend of Thomas of a cultural museum in the justice’s hometown of Pin Point, Ga.: “The Justice and the Magnate – Friendship and Museum Project Put Focus on Ethics.” But looking past the loaded headline and lacings of ominous word choices like “ethically sensitive,” one is hard-pressed to find any hints of actual wrongdoing on the part of Justice Thomas.
Prominently placed, hostile investigations of conservative-friendly groups (that lead nowhere) are a specialty of McIntire’s. His front-page story from March 2011 accused a Tea Party group of pushing the agenda of an Indonesian corporation fighting U.S. tariffs. In September 2010 he went after the group Americans for Job Security, another group with Tea Party ties.

” Whelan pointed to a double standard in Supreme scrutiny and challenged anyone “to argue that Thomas’s friendship with, and generous favors from, someone who has had no interest in cases before the Supreme Court is somehow more problematic than Ginsburg’s interaction with the NOW Legal Defense and Education Fund.”

1. The Code of Conduct for United States Judges—which, as the article notes, does not formally apply to Supreme Court justices—sets forth canons of ethical conduct that are reasonably looked to, at least presumptively, as a benchmark for the conduct of justices (even if one reserves the possibility that those canons might apply somewhat differently to justices or that some of the sub-rules inevitably involve arbitrary line-drawing).

Canon 4 states that a “judge may engage in extrajudicial activities, including law-related pursuits and civic, charitable, educational [and other specified types of] activities,” but that “a judge should not participate in extrajudicial activities that detract from the dignity of the judge’s office, interfere with the performance of the judge’s official duties, reflect adversely on the judge’s impartiality, lead to frequent disqualification, or violate the limitations set forth [in Canon 4’s sub-rules].” Canon 4.C in turn states:

A judge may assist nonprofit law-related, civic, charitable, educational, religious, or social organizations in planning fund-raising activities and may be listed as an officer, director, or trustee…. Otherwise, a judge should not personally participate in fund-raising activities, solicit funds for any organization, or use or permit the use of the prestige of judicial office for that purpose.

[A]s this Los Angeles Times article from 2004 discusses, Ginsburg authorized the NOW Legal Defense and Education Fund to name a lecture series after her—the “Justice Ruth Bader Ginsburg Distinguished Lecture Series on Women and the Law”—and she “gave opening remarks” and introduced the speaker at the fourth installment of that series. The NOW Legal Defense and Education Fund took part (and, now rebranded as Legal Momentum, continues to take part) regularly in litigation before the Supreme Court: its database identifies its participation in a dozen or so merits cases during the first four years of the lecture series (including Lawrence v. Texas, Grutter v. Bollinger, and Gratz v. Bollinger), and a similar or higher level of participation in subsequent years (including Gonzales v. Carhart). Ginsburg took part in all those cases.…
According to the LA Times article, legal ethicist Monroe Freedman said that Ginsburg’s affiliation with the lecture series “crosses the line,” and legal ethicist Geoffrey Hazard called it “inappropriate.” By contrast, legal ethicist Stephen Gillers called it “a judgment call.” For present purposes, I see no need to resolve whether Ginsburg acted unethically. My much more modest point is simply that nothing underlying even the wildest smears that the Left has directed against Thomas and Scalia comes anywhere close to Ginsburg’s conduct.

I likewise challenge anyone to argue that Thomas’s friendship with, and generous favors from, someone who has had no interest in cases before the Supreme Court is somehow more problematic than Ginsburg’s interaction with the NOW Legal Defense and Education Fund. via nationalreview.com
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If there is anything that bothers me in the points McIntire raises, it is Ginny Thomas’s political fundraising…. Half of Washington knows this trick. Tom DeLay pioneered it when he started a foundation, told big donors to give money to it, and put his wife and daughter on its payroll.  Others like Newt Gingrich soon followed suit. It may now be seem as standard operating procedure by DC types, but it is a sleazy maneuver, and at the very least public officials should be subject to full disclosure of their entire household income. via frontburner.dmagazine.com