Escaping Laurence’s Tribalism Requires Thomas’ Constitutionalism

Why such dishonesty on the Left? Why does the Left lie? Because the truth hurts.

Just when there is occasion to once again denounce the media for its dishonesty, we are reminded that such character flaws flourish even more in academia—the one place where everyone is supposed to denounce dishonesty, no questions asked. Take the case of Harvard law professor Laurence Tribe, who is, by all accounts, a distinguished scholar and teacher of constitutional law. 

A brief interview of Tribe with the Washington Post identifies some of his former students as “Barack Obama, Elena Kagan, John Roberts, Merrick Garland, Jamie Raskin, Adam Schiff and Ted Cruz.” We are supposed to be impressed. But these are mostly politicians, and perhaps Tribe shouldn’t be held responsible for their flaws. But the professor is fully responsible for this whopper from the interview:

Post: Do you consider the Supreme Court to be in crisis now?

Tribe: “Yes. I have no doubt that the court is at a point that is far more dangerous and damaging to the country than at any other point, probably, since Dred Scott. And, in a way, because we even find Justice [Clarence] Thomas going back and citing Dred Scott favorably in his opinion on firearms, the court is dragging the country back into a terrible, terrible time. So I think that it’s never been in greater danger or more dangerous.” (Emphasis added.)

Dred Scott, of course, is the notorious 1857 case that declared blacks to be “beings of an inferior order,” as Chief Justice Roger Taney wrote back then. Thus, according to Taney, slavery was justified in the founding and was still justified at the time of his opinion. Blacks had no rights a white man was bound to respect. But what Justice Thomas actually wrote “in his opinion on firearms” (New York State Rifle and Pistol Association v. Bruen) concerning Dred Scott and Taney was this mockery of Taney:  

“Writing for the Court in Dred Scott v. Sandford, 19 How. 393 (1857), Chief Justice Taney offered what he thought was a parade of horribles that would result from recognizing that free blacks were citizens of the United States. If blacks were citizens, Taney fretted, they would be entitled to the privileges and immunities of citizens, including the right “to keep and carry arms wherever they went.” Id., at 417. Thus, even Chief Justice Taney recognized (albeit unenthusiastically in the case of blacks) that public carry was a component of the right to keep and bear arms—a right free blacks were often denied in antebellum America.” (Emphasis added.)

So Thomas “citing Dred Scott favorably in his opinion on firearms” was Thomas ridiculing Taney for inventing the fable that blacks had no rights a white man was bound to respect, while Taney nonetheless had to conclude that if their inherent rights were respected to their fullest, blacks should be permitted to keep and carry arms. In other words, Taney showed his hand. Blacks with guns, to his mind, were something to fear. So he insisted they had no inherent rights.

Moreover, Taney, despite the inclusive language that “all men are created equal” in the Declaration of Independence, insisted that instrument did not cover this “unfortunate race” but rather only the white race. This white exclusiveness was meant by Taney to assure that blacks could not become American citizens, with all their inherent rights (including gun ownership). This despite half the liberated colonies making slavery illegal following the Declaration.

It would take the 13th and 14th Amendments to alter the legal status of the Dred Scott opinion in practice and, unfortunately, the Supreme Court of that time and its successors never had occasion to return to the key issue that Taney raised and that brought about the Civil War: the centrality of the Declaration of Independence for the proper interpretation of the Constitution, and not only on the slavery question. 

In that time, only Justice John Marshall Harlan understood the true meaning of the Reconstruction amendments, followed now by Justice Thomas on today’s court: these amendments legally reconciled the Declaration and the Constitution. That is, recognition of the equal natural rights of all human beings meant the earlier ambiguities regarding the unmentioned word slavery are resolved in favor of equality. 

What Tribe’s slander actually reveals is Thomas’ dedication to the truth—that is to say, his dedication to the self-evident truths of the Declaration—the leading one of which is that “all men are created equal.” Against the deconstructionists and post-modern relativists of the Left, Thomas argues there are absolute truths that must guide our political life. That recognition separates not only Tribe from Thomas but barbarism from civilization. 

Thus the Tribe taunt is not simply a vulgar partisan shot but a reminder of how divided we are as a nation and how little our luminaries seem to understand its true nature. If we as a nation have forgotten John Locke’s maxim that every man belongs to himself, how can we even think about recovering the truths of the Declaration? 

By showing how Taney defended the implications of having an inherent or natural right, such as self-defense in the example of gun rights, Thomas teaches how all such natural rights—the right to property, for example (including to that property known as conscience and the rational mind)—require the cultivation of civilized life to enhance “the pursuit of happiness.” The goal of political life, the Declaration teaches, is “safety and happiness,” the necessary and sufficient conditions of political justice. 

Our situation today, with the unprecedented assault on American heroes and their defenders, seems comparable to Lincoln’s struggle. Though the Union won the Civil War, it is far more problematic to argue that his understanding of America has prevailed. Even victory in war to hold the nation together could not answer Lincoln’s challenge to the nation during his campaigns of 1858, 1860, and 1864. 

Students of the Constitution today need to recur to fundamental principles as their ancestors did 250 and 160 years ago. The case for a Declaration-guided Constitution remains stronger than ever, but Clarence Thomas needs help, and America’s Harvards are proving to be vicious enemies.

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About Ken Masugi

Ken Masugi, Ph.D., is a distinguished fellow of the Center for American Greatness and a senior fellow of the Claremont Institute. He has been a speechwriter for two cabinet members, and a special assistant for Clarence Thomas when he was chairman of the Equal Employment Opportunity Commission. Masugi is co-author, editor, or co-editor of 10 books on American politics. He has taught at the U.S. Air Force Academy, where he was Olin Distinguished Visiting Professor; James Madison College of Michigan State University; the Ashbrook Center of Ashland University; and Princeton University.

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