John Blake, a CNN journalist, has a hit analysis piece trying to “explain” things he finds baffling about Clarence Thomas. For instance, why should Clarence Thomas vote against affirmative action on the Court when he himself benefited from affirmative action, in getting into Yale and in being appointed to the Supreme Court because he was black? Blake also associates affirmative action with the civil rights movement in an apparent attempt to make it sacred, and make Justice Thomas’s independent mindedness into not only ingratitude but also heresy.
His question proves Justice Thomas’s point: that affirmative action enables people to devalue or call into question black accomplishments. To some extent, this sort of thing cannot be helped. Clarence Thomas took Thurgood Marshal’s spot on the Supreme Court, and obviously there is no formal quota system on the Supreme Court, but just as obviously there would have been a felt need to appoint a black Justice. Moreover, even if GHWB rejected such affirmative action and gone with the nominee he considered best, there would always be the appearance of preferential treatment if the man he thought was best happened to be black.
Barack Obama has faced similar questions, as I’m sure Thurgood Marshall himself did.* There was obviously a strongly felt desire for a black President when Obama ran in 2008. Was BHO really more qualified than, for instance, Hillary Clinton for the Presidency? Now, respectable conservatives don’t really emphasize this argument about Obama the way liberals do about Thomas. This is either because they are inherently less inclined to racially charged arguments or, more likely, because there is a taboo against conservatives raising such arguments (thus, any conservative who makes them is by definition not respectable.)**
There is tension between being fair and speaking the truth, but one can suspect that Thomas and Obama had a bit of a boost, without making race central to one’s critique of them. After all, Clarence Thomas has been on the court for over twenty years; what his qualifications were at the time of his appointment, and the reasons for the appointment, aren’t very relevant to evaluating his performance when we have legal opinions we can look at.
Most black people are Democrats, and so liberals have no reason to accuse them of ingratitude or of not deserving their achievements. Blake presents Justice Sonya Sotomayor, for instance, as a model minority in contrast with Thomas, (she votes as she should, and her record does not therefore require his “analysis” and “explanation.”) Taboo prevents conservatives from accusing prominent black people of not deserving their position. So in most cases, the system preserves a kind of civility. Conservative blacks, however, are not protected by any taboo against racially-charged liberal attacks.
In any case, Blake thinks it would be most natural for a black Justice, because affirmative action has benefited him personally, to vote to hold affirmative action Constitutional, regardless of his views of the merits of the Constitutional arguments.
Speaking of the Constitution, Blake’s next complaint about Thomas is that he embraces an originalist view of the Constitution “when the framers would have considered him a slave.” This is in the first place a non sequitur. Originalism is a school of Constitutional interpretation. What does the correct interpretation of a document have to do with the wisdom of its framers or ratifiers? Or is the suggestion that Thomas should not attempt any interpretation of the Constitution, originalist or otherwise, because slavery tainted the document? In that case, what exactly should he base his rulings on when faced with Constitutional questions?
Moreover, it isn’t true that “the framers” would have considered Clarence Thomas a slave. This suggests that the framers were a monolithic entity, and that they all would have considered a black person to be, morally speaking, a slave, even if he happened to be free; that they treated slavery as justified, and black freedom as an aberration. Yet many framers strongly opposed slavery, while many others wanted it eventually gone. We cannot make general statements about “the framers,” but the document they created merely condoned slavery, more or less silently, while empowering the national government to eventually outlaw the slave trade, as it did under Jefferson.
The three-fifths compromise, which Blake and others see as the Constitution’s moral endorsement of slavery, treating blacks as three-fifths of a person, in fact reads “three-fifths of all other persons,” and was adopted as a compromise about representation, not as some estimate of the moral worth of black people. It would not have applied to free blacks; it was a person’s slave status, not his status as a black person, which governed his treatment for representation purposes. If we were going to have slavery, there was no moral reason why slaves should be counted at all for representation purposes, and to the extent they were counted, this was an incentive for states to allow and encourage slavery.
The worst we can say about the Constitution is that, in condoning slavery, it put aside absolute principles and embraced pragmatic, compromise-based stability built on a tolerance of evils. Many of the framers, we might say today, put aside ideology and broke gridlock to pragmatically get something done.
The principle they put aside was the idea of natural rights. Justice Thomas adamantly insists on that principle today, against the urgings of our contemporary pragmatists.
A more obvious but less interesting objection to Blake’s critique of originalism: originalism doesn’t mean we follow the original Constitution, you blithering idiot, it means we interpret the Constitution and its amendments according to their original intent. So, for instance, the Thirteenth Amendment abolishes slavery, and an originalist would interpret it as doing so, and would thus interpret the Constitution legally in force today as banning slavery. So, what’s the problem?
Blake acknowledges this argument, and so turns to the argument that Justice Thomas does not interpret the Fourteenth Amendment, which grants everyone equal protection of the laws regardless of race, according to its original intent. Thus he rather drastically shifts his argument mid-way through. An academic debater would even say he double-turns himself (originalism is bad. Justice Thomas isn’t an originalist. Therefore…Oops!) The argument is that the original intent of the Fourteenth Amendment’s equal protection guarantee is to help blacks, and affirmative action helps blacks, therefore, affirmative action is consistent with the Fourteenth Amendment.
This is rather sophistical reasoning from the particular to the general. It is true that the reason the Fourteenth Amendment was necessary was that blacks did not receive equal protection of the law, and so in that sense it was adopted to help blacks. But this tells us nothing about whether the goal was helping blacks because they were black, or simply to…provide equal protection of the laws. It gives us no reason, in other words, to go beyond or even contrary to the text. Going beyond text for some higher spirit of the Constitution is contrary to originalism as most originalists use the term, and is indeed a guiding idea for many of the schools opposed to originalism.
* A similar instance was Rush Limbaugh’s comments about Donovan McNabb early in McNabb’s career. McNabb had been heavily hyped by the media as a kind of great black hope at quarterback, but was off to a poor start in 2003, completing something like 48% of his passes in the early going. But he had always been an inaccurate passer. Rush Limbaugh, then beginning an ESPN gig, didn’t see much requiring explanation in his poor start. “I don’t think he’s been that good from the getgo,” Rush said, arguing that the media overrated him because it was invested in his success.
This seemed unfair to a lot of people, but I don’t think it’s at the level of what Blake is doing here. Rush’s point was about the role of race in the media’s portrayal of McNabb, not in his actual career (which is there for us to judge by entirely colorblind measures.) Rush left race out of the thing itself, the primary reality, McNabb’s career. He only considered race as it related to perceptions of McNabb’s career- the perceptions that were leading to the question “what’s gone wrong with McNabb,” when in fact McNabb had arguably not been “that good from the getgo.”
Nonetheless, Rush quickly resigned from ESPN, while so far as I can tell two days after the article there is no movement to get Blake removed from CNN.
** And yet, the taboo against racially charged arguments by conservatives is exploited by liberals who try to link any opposition to Obama’s policies or ideas to opposition to his race. This leads to obvious questions about whether, for instance, John McCain could have gone after Obama more aggressively had Obama been white, and thus fuels skepticism that he won on entirely meritocratic grounds.