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.


An Originalist Argument for the Unconstitutionality of Sex Discrimination

November 27, 2011
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Posted Image(volokh) It is generally accepted that the Supreme Court’s sex discrimination jurisprudence cannot be reconciled with an originalist interpretation of Section One of the Fourteenth Amendment.   Originalists and non-originalists alike accept that the original intent of Section One was to preclude racial discrimination against blacks, and that there was no intent to prevent sex discrimination by state entities.  Nor did the original public meaning of Section One embody a rule that would prevent state governments from engaging in sex discrimination.

In an important new paper, forthcoming in the Texas Law Review, Northwestern law professor Steven Calabresi and Julia Rickert argue that the conventional originalist view on sex discrimination is wrong, and that the Supreme Court’s sex discrimination decisions (if not their rationales) are largely consistent with a true originalist understanding of Section One of the Fourteenth Amendment.  Specifically, they argue that Section One is best understood as a prohibition on caste legislation and that the meaning of the Amendment must be considered in light of subsequent constitutional amendments, the Nineteenth Amendment in particular.  Thus understood, Section One prohibits state-sponsored gender discrimination and can even justify the Court’s decision in the VMI case.
This article is Lawrence Solum’s “Download of the Week,” and with good reason, as it is sure to prompt significant discussion and debate.  As Solum would say, “Download it while it’s hot!”