Republican nominees have often been disappointments for originalists, but Neil Gorsuch is turning out to be the exception to this trend.
“There are no rewards today for uttering unpopular, but timeless, truths.” So said Justice Clarence Thomas after only a couple terms on the Court. Over 25 years later, Clarence Thomas’ moral and constitutional message of staunch originalism and ordered liberty is one that America needs to hear—perhaps now more than ever.
“What He Made Me”
Thomas’ message is rooted in his biography. He grew up in the Jim Crow South—Pinpoint and Savannah, Georgia to be precise—in various states of rural and urban poverty. Abandoned by his biological father, he was chiefly raised by his grandmother and grandfather, the latter of whom he knew as Daddy. Of his grandfather, Myers Anderson, Thomas writes in his autobiography “What I am is what he made me.” Thomas’ moral message is that of his grandfather.
When Thomas and his brother arrived at his grandparents’ house—each carrying all of his possessions in one grocery bag—Myers said, “The damn vacation is over.” He ruled the household and governed the Thomas boys with an iron fist. The lot of man is toil and hard work, he emphasized, and Thomas came to know long hours of working with him in a delivery truck with no heater in the winters (intentionally removed by Myers as an impediment to hard work) and on the farm from dawn till dusk in the heat of the Georgia summers.
Despite the structural disadvantages of living under state-enforced segregation and the very real fear of racist violence at the hands of prejudiced whites, Thomas’ grandfather toiled, saved, and sacrificed not only to provide the basic necessaries of life, but to provide his sons with the educational opportunities he never had. Annual tuition at St. Benedict the Moor grammar school was $25—a considerable sum for a 1950s black family in Georgia. Yet his grandfather worked to make it happen, and never claimed to be a victim.
Due to the virtues instilled through the heroic parenting and example of his grandfather, he worked hard at his studies and excelled in school, eventually earning admission to College of the Holy Cross, then Yale Law School. During his college years, Thomas drank deeply from the well of radicalism. Angry at the lack of progress for blacks, he imbibed black nationalist writings of thinkers like Malcom X. He clashed and rowed with his grandfather, who thought his head was being filled with a lot of nonsense.
Thomas himself says that his falling away from his Catholic faith during these years was the predicate of his anger, resentment, protesting, and flirtation with black nationalism. It wasn’t until he began a journey back to faith, when he prayed that God would take away his anger, that his outlook began to evolve.
The Critique of Victimology
While Thomas flirted with left-wing radicalism in his college years, he came to reject the ideology of victimhood, which underpins or dovetails with postmodern narratives about power structures and the dichotomies of oppressor and oppressed.
Whether oppression is framed in terms of class or race or gender, the victim sees society and the state as at once responsible for inequalities of wealth, status, and privilege. Society and the state are therefore properly subject to victims’ rights-claims for preferments and entitlements. When one sees oneself primarily as a victim of social forces outside of one’s control, personal dignity itself is at stake in politics. The natural effect is to feel indignation at this asymmetrical condition, which in turn either flames into aggression or smolders into envy and resentment.
For Thomas, the rise of victimhood ideology has accompanied the deconstruction and death of the hero. History and biography come to focus in on the “foibles, mistakes, and transgressions of people our culture idealized for centuries.” Moreover, radical egalitarianism applied to historiography emphasizes mere accidental causes in the lives of heroes. Random and therefore non-moral differences of circumstance and ability explain greatness away.
Thomas’ incisive analysis thus suggests lessons for us today. The current wave of iconoclasm is not merely an overdue reckoning with racial injustice. It is a natural outgrowth of the ideology of victimhood and radical egalitarianism, which has corroded the teaching and learning of American history. When figures like Washington and Jefferson—who once upon a time were celebrated for heroic acts of will and self-sacrifice—come to be seen as mere appendages of a white, wealthy, male power structure that endowed them with unearned privilege, their achievements are no longer seen as meritorious. All that remain are their mistakes and transgressions—and therefore monuments to them serve only to remind the dispossessed of their oppression.
Thomas’ analysis may also explain the reaction of the radical egalitarian Left to the so-called “Harper’s Letter,” a modest critique of cancel culture signed by an assortment of centrists, liberals, and more moderate leftists. From the radical egalitarian perspective, the defense of robust free speech and debate is a defense of an inheritance bound up with the Founders’ oppressive white power structure, and can therefore be analyzed in terms of power and victimhood. Speech in defense of free speech becomes violence.
Thomas believes that the cure for victimhood ideology is ordered liberty, a vision that provides the moral ground of originalism.
Originalism and Ordered Liberty
Thomas’ jurisprudence is one of staunch originalism. As Thomas explains this view, the judge deciding a constitutional case should seek out the original public meaning of the Constitution, which means “the goal is to discern the most likely public understanding” of constitutional provisions “at the time it was adopted.” The judge must inquire into the relevant evidence to discern how ordinary citizens would have understood a provision “at the time of ratification.” On this view, constitutional meaning is fixed at the time it was adopted, and “its meaning does not alter.” Thomas’ originalism is staunch insofar as it less willing than other forms to accommodate non-originalist precedent.
Thomas’ jurisprudence should be seen as grounded in a moral vision in which “freedom and responsibilities are equally yoked,” what he calls “ordered liberty.” The value of originalism lies not merely in the sheer will of the democratic sovereign enacting this constitution, but in its enactment of an allocation of powers and recognition of rights grounded in a conception of equal human dignity and ordered liberty:
When the Framers proclaimed in the Declaration of Independence that “all men are created equal” and “endowed by their Creator with certain unalienable Rights,” they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built.
Of course, the judge is bound by the sovereign will of We the People, expressed in the written words of the Constitution. Still, the institutional arrangements enshrined in the Constitution, while animated by the natural-law vision of the Declaration, were matters of judgment within the realm of prudence, a sphere of action in which natural law permits a wide scope of action. The same natural law philosophy that grounds democratic sovereignty and thus endows the Founders’ judgments with normative value also places moral limits on the People’s potential sovereignty. Voluntaristic originalism, which attempts to ground originalism in will alone, independent of reason’s grasp of the just and the good, misses this point and risks undermining fidelity to original meaning.
Just as Thomas’ grandfather never talked about the abstract value of liberty, Thomas does not interpret rights in an atomistic manner, as if they were untethered to duty and community. Rather, the genuine independence that comes through self-reliance is a hard-won condition achieved through embrace of one’s “awful responsibilities.” Thomas thus articulated the implications of the philosophy of self-reliance:
You want to be free, you want to leave your parents’ house? Then you’ve got to earn your own living, you’ve got to pay your own mortgage, pay your own rent, buy your own car, and pay for your own food. You’ve got to learn how to take care of yourself, learn how to raise your kids, how to go to school and prepare for a job and take risks like everybody else.
Ordered liberty is not the freedom of self-interested, monadic libertarianism. Rather, the dignity of the individual is tied first to his or her familial relationships, the embrace of which emanates good out toward his or her community, generating the social capital upon which a healthy republic depends. The byproduct of the virtue of industry is wealth, and Thomas’ grandfather used what extra he earned to help others, leaving groceries on the steps of struggling neighbors and giving free heating oil to clients in extreme need. Myers serves as an example of the heroic ideal for the practice of ordered liberty available to all, animated by the Christian virtues and an understanding of the equal dignity of persons.
The value of original meaning is that it makes space for the cultivation of ordered liberty. In Thomas’ view, the structures of federalism originally understood protect a broad corporate liberty of persons and institutions of civil society to deliberate in their local communities and democratically pass laws that, in their view, facilitate flourishing. Traditionalist visions of human flourishing like that of Myers, which emphasize the centrality of the family, are conceptions that the Constitution permits local communities to act upon.
A few examples of the ways in which Thomas’ vision of parental rights and interests colors his first amendment jurisprudence are illustrative. First Amendment claims cannot be leveraged by secularists to undermine parents’ right of educational choice; nor by purveyors of violent video games to speak to minors bypassing parental consent; nor by cross-burners, since that sort of conduct has an undeniable history and purpose of terrorizing black families. The Constitution facilitates personal responsibility and well-ordered families which are the conditions of a flourishing community.
Thomas’ outlook does not, of course, deny that there is “very saddening injustice and harm” that is sometimes brought about by societal and governmental forces, nor that such injustices should not be fought. But an ideology that finds systemic oppression (societal or governmental) to be the primary cause of one’s misfortune, while seeing the seizure and use of those power structures to be the primary instrument of one’s liberation and happiness fundamentally misunderstands the human condition. Hence, Thomas strikingly suggests that the belief that institutional racism is the source of all racial disparities is a conspiracy theory.
Human dignity rests in “freedom of the will, the capacity to choose between good and bad, and the ability to endure adversity and use it for gain.” Myers’ credo was Genesis 3:17-19. That painful toil is man’s lot means that suffering is endemic to human nature; no amount of social engineering can eradicate it. It seems Thomas’ message is that the line between good and evil we must confront is not one running between systems of oppression and its victims, but the one running through every individual human heart.