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Clarence Thomas has said more about affirmative action than any other member of the U.S. Supreme Court. That shouldn’t be surprising. After all, Thomas chaired the U.S. Equal Employment Opportunity Commission for almost a decade prior to becoming a judge. Thomas is, of course, the only African-American member of the Court, although he himself takes a color-blind approach to civil rights law. This makes his views about affirmative action in general, and the pending University of Michigan admissions cases in particular, of extraordinary interest to many Court watchers. Thomas’ law review articles, speeches, and Supreme Court opinions shed considerable light on how he is likely to vote in the Michigan cases: against the admissions programs. It’s not difficult to understand why — the group-based classifications at the heart of the programs run counter to the individual rights principles of the Declaration of Independence. JEFFERSON, LINCOLN, AND KING Thomas is without question the nation’s leading proponent of the view that the American regime was founded on the principles articulated in the Declaration of Independence and that public policy should be made, and assessed, in light of those principles. He’s in good company in this regard: Thomas Jefferson, Abraham Lincoln, and Martin Luther King Jr. When Jefferson wrote the Declaration during the summer of 1776, he was inspired by the prevailing individual rights political theory of the day (most notably, the political theory of 17th century British theorist John Locke). When Lincoln condemned slavery in the 1850s and 1860s, he was doing so on individual rights grounds (slaves were people, Lincoln insisted, who were entitled to enjoy the rights of individuals — especially the right to be free). And when King delivered his famous “I Have a Dream” speech in 1963, his “dream” was that his children would one day live in a nation “where they will not be judged by the color of their skin but by the content of their character.” Thomas shares this vision of the American regime. He has for most of his public life. INDIVIDUAL, NOT GROUP, RIGHTS For example, Thomas wrote in a 1987 article in the Howard Law Journalthat the “founding principles of equality and liberty” set forth in the Declaration “dictate the policy of action towards Black Americans.” The then-EEOC chairman credited the first Justice John Marshall Harlan with being the first member of the Supreme Court to appreciate the connection between the Declaration and the enforcement of the nation’s civil rights laws. In particular, Thomas applauded Harlan’s solitary dissent in the infamous 1896 case of Plessy v. Ferguson,the case in which the Court constitutionalized the practice of racial segregation. It was in that stinging dissent that Harlan coined the phrase that would later become so closely associated with Thomas himself: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Similarly, in a 1985 article in the Stetson Law Review,Thomas discussed his daily responsibilities of enforcing the nation’s civil rights laws as chairman of the EEOC. His rejection of the agency’s group-based emphasis was clear. He wrote, “I intend to take EEO enforcement back to where it started by defending the rights of individuals who are hurt by discriminatory practices. To do this, we intend to pursue individual cases as well as pattern and practice cases. . . . Those who insist on arguing that the principle of equal opportunity, the cornerstone of civil rights, means preferences for certain groups have relinquished their roles as moral and ethical leaders in this area. I bristle at the thought, for example, that it is morally proper to protest against minority racial preferences in South Africa while arguing for such preferences here.” A CONSISTENT COMMITMENT Thomas’ critics strived during his 1991 Supreme Court confirmation process to mischaracterize his views about the Declaration of Independence. For example, Harvard Law School professor Laurence Tribe wrote in a scathing New York Timesop-ed that Thomas would use the Declaration to turn back the clock to the darkest days of the nation’s history: “Most conservatives criticize the judiciary for expanding its powers, ‘creating’ rights rather than ‘interpreting’ the Constitution. . . . Clarence Thomas, judging from his speeches and scholarly writings, seems instead to believe judges should enforce the Founders’ natural law philosophy — the inalienable rights ‘given man by his Creator’ — which he maintains is revealed most completely in the Declaration of Independence. He is the first Supreme Court nominee in 50 years to maintain that natural law should be readily consulted in constitutional interpretation.” What critics such as Tribe failed to mention was that Thomas was articulating the standard individual rights interpretation of the Declaration: the same interpretation shared by Jefferson, Lincoln, and King. “To secure these rights,” the Declaration proclaims, “governments are instituted among men.” Indeed, Thomas made this point repeatedly during his confirmation battle. For example, when asked by then-Sen. Howard Metzenbaum (D-Ohio), arguably his most unwavering opponent on the Judiciary Committee, about a speech he had previously given, Thomas responded: “[T]he point I think throughout these speeches is a notion that we should be careful about the relationship between the government and the individual and should be careful that the government itself does not at some point displace or infringe on the rights of the individual. That is a concern, as I have noted here, that runs throughout my speeches.” ON THE COURT Thomas has continued to speak publicly about the Declaration of Independence since being confirmed to the Supreme Court. He recently reminded the faculty and students of James Madison University that Madison, the chief architect of the Constitution, based it on “universal principles, [which] we find . . . most succinctly and, indeed, elegantly stated by Madison’s close friend, Thomas Jefferson, in our Declaration of Independence.” Thomas went on in his speech to describe how the Constitution secures the rights promised to all Americans by the Declaration. Thomas’ critics would be well-served by reading this speech. His critics also should read his Feb. 9, 1999, Lincoln Day address to the Claremont Institute. There, Thomas urges the American people “to be ever vigilant in reminding us — me and everyone else who has the privilege of serving our nation through public office — of the principles of our founding and how they apply to the controversies of our time.” That speech, in my judgment, is the most significant speech about the Declaration since King’s “I Have a Dream.” Thomas is, of course, not alone in his commitment to the Declaration of Independence. However, what makes Thomas the most important voice today on the Declaration is the official position he occupies in the American regime: one of nine members of the nation’s highest court. Thomas, in short, has the power to do something about effectuating the individual rights principles of the Declaration. His civil rights opinions and votes demonstrate that he has been more than willing to act on them during his tenure on the Court. In 1995′s Missouri v. Jenkins,for example, Thomas became the first Supreme Court justice to directly criticize Brown v. Board of Education.He said that the Court was wrong in 1954 to rely on disputable social evidence to declare segregation unconstitutional rather than invoking the “constitutional principle” that “the government must treat citizens as individuals, and not as members of racial, ethnic or religious groups.” Thomas’ conception of civil rights as an individual, not a group, concern also explains his approach to voting rights. In 1994, in Holder v. Hall,Thomas wrote that racial groups shouldn’t “be conceived of largely as political interest groups,” that blacks don’t all think alike, and that existing case law should be overturned to eliminate claims for “proportional allocation of political power according to race.” And in Adarand Constructors v. Peña,the 1995 government contracting case that called the constitutionality of affirmative action into serious question, Thomas invoked the Declaration of Independence as the rule of decision. He wrote, “There can be no doubt that the paternalism that appears to lie at the heart of this [affirmative action] program is at war with the principle of inherent equality that underlies and infuses our Constitution. See Declaration of Independence (‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.’).” Justice Thomas has written and spoken more forcefully about the Declaration of Independence than any public figure since Martin Luther King Jr. Thomas’ profound commitment to the individual rights principles of the nation’s founding document almost certainly means that there is at least one vote against the University of Michigan’s affirmative action programs. If the other members of the Court were as committed to the Declaration as Thomas is, there would be nine votes. Scott D. Gerber, a law professor at Ohio Northern University, is author ofFirst Principles: The Jurisprudence of Clarence Thomas (New York University Press, 1999; expanded edition, 2002). Gerber can be reached at [email protected].

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