Federal Courts and Nominations

The Constitution at 225: A Conversation Between Prof. Akhil Amar And Justice Clarence Thomas

On Wednesday evening, September 12, Supreme Court Justice Clarence Thomas joined Constitutional Accountability Center board member and Yale law professor Akhil Amar on the stage of the National Archives’ William G. McGowan Theater, and riveted a packed house throughout an animated discussion of the past, present, and future of the Constitution.  Entitled “The Constitution Turns 225,” the program, which was co-sponsored by the Archives, CAC, and the Federalist Society, was live-streamed on C-Span’s BookTV.org.


For those who missed it, the full video — courtesy of the National Archives and Records Administration — is available above, as well as excerpts on MSNBC.com and ABCNews.com, while C-Span is expected to air the full program in an upcoming broadcast. Washington Post and New York Times accounts appeared here and here.  


One way or another, the program is a must see for anyone who cares deeply about the Constitution or practices before the Supreme Court.  


To begin with, of course, it’s not every day that a member of the nation’s highest court, equally renowned for conservative views and for scrupulously avoiding airing those views except in his formal opinions, sits down with a leading progressive academic for a public, indeed, televised, one-on-one exchange.   One of CAC’s main goals is to promote a civil, thoughtful, and “apples to apples” conversation between progressives and conservatives about the Constitution and its history and this program was a huge step in that direction.


But there were other attractions that engaged the two panelists and their audience for nearly thirty minutes past the hour scheduled for their conversation. Most evident was the panelists’ shared reverence for the nation’s founding document and the process and personalities that produced it.  While obviously informed, reasoned, and by no means uncritical, their common passion tangibly, indeed, contagiously, went beyond purely intellectual respect. 


To be sure, this was an occasion for highlighting agreement, not disagreement.  Nevertheless, there appeared to be a surprising amount of meaningful agreement to highlight.   Professor Amar elaborated two related points that have long been central to his scholarship:  First, that the foundational value embedded in the Constituiton is popular sovereignty – the right of We The People to participate in government and decide who will represent us; second, he stressed, it is because the U.S. Constitution embraced popular democracy, even to its original, imperfect degree, that it transformed governance across the globe – “the hinge of all modern history,” Professor Amar said.  


Justice Thomas affirmed the centrality of “We the People” in his constitutional vision, and the corollary that that phrase means “All the People.”  From the standpoint of his own life experience, specifically, from his youth in segregated rural Georgia, he eloquently restated this root commitment to a fully inclusive democracy:


I grew up in a environment with people around me who believed that this country could be better, that the framework for it was there. And we the people — we used to memorize the Preamble to the Constitution. I always — I always think it’s so fascinating to think of these black kids in the segregated school in Savannah reciting the Preamble to the Constitution of the United States or standing out in the schoolyard saying the Pledge of Allegiance every day before school. What did we believe? I mean, everything so obviously in front of you is wrong. You can’t go to the public library. You can’t live in certain neighborhoods. You can’t go to certain schools. But despite all of that, you lived in an environment of people who said it was still our birthright to be included, and continued to push, not only to change the laws, but to maintain that belief in our hearts. . . . There was always this underlying belief that we were entitled to be a full participant in we the people.” 


Both panelists acknowledged that democracy was only partially achieved by the original 1787 document, and that an ongoing process of amendment has been essential to match constitutional text and societal practice more closely with the ideal of full inclusion of all Americans.  In particular, both agreed that, as Justice Thomas eloquently stated, “The country as we know it was remade by the Civil War and the Civil War amendments.”  And they agreed that the constitutional project continues.  “I still believe,” Justice Thomas observed, “it’s perfectable – it’s ours to make the best of, to realize its imperfections.”  


Pointedly, Justice Thomas stressed that neither the commitment he shares with Professor Amar to be guided by the Constitution’s text and history, nor their common embrace of certain basic constitutional values, precludes vigorous defense of differing views, by them or others.  He said, “We talk about textualism and originalism, and we argue over that.”  He stressed repeatedly that such debates are about the means of perfecting the Constitution and achieving its basic values.  As such, they should be pursued vigorously.  But, Justice Thomas emphasized, the overall constitutional enterprise is “much bigger than that:


“We the people agree that we should have a country; exactly what it should be, we disagree, [but] not to the point that we destroy but certainly to the point that we think we’re perfecting it.  And we’re still here.”


Justice Thomas here teed up another conversation – more appropriate for a later date – to explore how thoughtful people can share such similar views on topics like the importance of the Reconstruction Amendments but then depart so vehemently about how to apply those Amendments in cases such as the constitutionality of the Section 5 of the Voting Rights Act.


Ideally, then, Wednesday night was the beginning, not the end of the conversation.  We here at CAC are pleased to have been able to work with the Federalist Society and the National Archives to make it happen in the first place.


This post has been updated to reflect the availability of the full video, now included above.

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