Clarence Thomas’s Straussian Moment: The Question of Slavery and the Founding

A question for the political theorists, intellectual historians, and maybe public law/con law experts. The question comes at the very end of this post. Forgive the build-up. And the potted history: I’m writing fast because I’m hard at work on this Clarence Thomas book and am briefly interrupting that work in order to get a reading list.

In the second half of the 1980s, Clarence Thomas is being groomed for a position on the Supreme Court, or senses that he’s being groomed. He’s the head of the EEOC in the Reagan Administration and decides to beef up on his reading in political theory, constitutional law, and American history. He hires two Straussians—Ken Masugi and John Marini—to his staff on the EEOC. Their assignment is to give him a reading list, which they do and which he reads, and to serve as tutors and conversation partners in all things intellectual, which also they do.

These are West Coast Straussians. Both Masugi and Marini hail from the Claremont orbit in California (Masugi was in the think tank, Marino was a student). Unlike the East Coast Straussians—the Blooms and Pangles, who champion a Nietzschean Strauss who’s overtly celebratory of the American Founding but is secretly critical of natural law, natural rights, and the Framers—these West Coast Straussians follow Harry Jaffa, arguing that the American Founding is the consummation of ancient virtue in a modern idiom.

But what’s also true of these West Coast Straussians is that they are intensely interested in race. Jaffa’s great work is on Lincoln’s battle with Stephen Douglas over the question of slavery, and many of the West Coast Straussians dedicate themselves, in the 1970s and 1980s, to developing a view of the Constitution that, while acknowledging its embeddedness in slavery, nevertheless sees it as being redeemed by the egalitarian promise and natural rights philosophy of the Declaration of Independence.

This, of course, is an old struggle in American constitutionalism. Figures like William Lloyd Garrison and Wendell Phillips saw the Constitution as inherently a pro-slavery document (ironically, agreeing with Chief Justice Roger Taney); Garrison said it was “dripping…with human blood.” Figures like Lincoln, Charles Sumner, and the later Frederick Douglass dissented from that view, seeing the possibilities of an anti-slavery Constitution.

The West Coast Straussians take up the latter view. Interestingly, many of them are at the forefront, in the academy (or at least among white political scientists), of introducing African-American thinkers—Douglass, DuBois, King, even Malcolm X—to the canon of American political thought.Consider, for example, this classic anthology from 1970, though as Jason Frank pointed out to me on Facebook, it’s edited by Herbert Storing, who wasn’t a West Coast Straussian. I’ve heard from not a few political scientists who got their undergraduate degrees or PhDs in the 1960s and 1970s that their first encounter with African-American political thought was in the classroom of one of these Straussians.

So these are Thomas’s tutors in the late 1980s. They lead Thomas to a natural law interpretation of the Constitution, in which the various passages of the Constitution should be interpreted (redeemed) by the egalitarian promise of the Declaration of Independence.

This, needless to say, is a somewhat heterodox view, not just on the left but also on the right. It gets Thomas into a lot of hot water during his Senate confirmation hearings—before the revelations of Anita Hill—as Joe Biden, chair of the Judiciary Committee, grills Thomas on his view that a strict defense of property rights, for example, is justified not so much by the literal words of the constitutional text but by the natural law philosophy that is said to inspire the text. (Political theory folks will be excited to learn that Thomas’s citing of Steve Macedo in various speeches plays a critical role in these contretemps. Biden thought he had Thomas in a gotcha, but it turned out to be a gotcha for Biden. But that’s another story for another day.)

Up until this weekend, I hadn’t planned to do much with this natural law moment in Thomas’s development. For the simple reason that once he’s on the Court, I see little evidence of its presence in his opinions. Despite what some scholars have claimed, I don’t find many references to natural law thinking in Thomas’s judgments, and I don’t think the real action of his opinions lies anywhere near that.

But a conversation with my friend Seth Ackerman convinced me that I should deal with this moment in my book. Not because it has any lasting impact on Thomas’s jurisprudence but for two other reasons.

First, because it shows that Thomas’s first sustained engagement with constitutional law, after law school, is motivated/inspired/animated by a single, solitary question: How is it possible to reconcile a document that is so imbricated with the institution of slavery with a fidelity to that document? From the very get-go, the most important, most pressing issue for Thomas, when it comes to the Constitution, is the question of race and slavery. Needless to say, there aren’t many recent Supreme Court justices one can say that about.

What the natural law episode reveals is precisely what Thomas told Biden during his confirmation hearings:

My purpose [in resorting to natural law] was this….You and I are sitting here in Washington, D.C., with Abraham Lincoln or with Frederick Douglass, and from a theory, how do we get out of slavery? There is no constitutional amendment. There is no provision in the Constitution. But by what theory? Repeatedly Lincoln referred to the notion that all men are created equal. And that was my attraction to, or beginning of my attraction to this approach.

Second, Thomas had two sustained periods of engagement with conservative thought. The first was in the mid 1970s, when he read Thomas Sowell’s Race and Economics, and became fascinated with the question of slavery, capitalism, and black freedom. The impact of that moment over time was made evident two decades later, in a fascinating profile Jeffrey Rosen wrote for The New Yorker, in which Thomas recounted for Rosen his intimate knowledge of books like Roll, Jordan, Roll and Time on the Cross, which are classics of the debate around the relationship between slavery and capitalism. The second was in the late 1980s, in these tutorials with the West Coast Straussians.

What’s common in both moments is the presence and centrality of slavery and race. In both instances, Thomas’s engagement with the right is entirely refracted through the question of race.

And so at last we come to my question: What are the best works (articles or books) on the salience of the race question (particularly the relationship between slavery and the Constitution) in the work of these West Coast Straussians? Feel free to answer in the comments or email me at corey.robin@gmail.com.