Justice Thomas, Frederick Douglass, and Constitutional Misinformation

 By Eric Segall

The news last week that Justice Thomas might actually prefer luxury yachts and private airplanes to RV's and Walmart parking lots, despite his many statements to the contrary, reflects a disconnect between truth and reality for Justice Thomas that has long plagued his constitutional opinions. I have documented these issues many times before on this blog. The tension between Justice Thomas's alleged originalism and textualism and his actual votes in many areas of constitutional law are well known to most legal scholars. But nowhere is this disconnect more prevalent than in his affirmative action opinions. 

Justice Thomas has never devoted any significant attention to the 14th Amendment's original meaning in his calls for judicially imposed color-blindness. It is highly unlikely that he will do so in June when he votes to end all affirmative action in university admissions, as he has done many times before. Even worse, as I previously documented, Justice Thomas has completely mischaracterized the views of one of his heroes, Frederick Douglass. This issue is worthy of a second look given that Thomas received from the same wealthy friend (read sponsor) a bible owned by Frederick Douglass and valued at $19,000 (a gift Thomas did disclose before he stopped disclosing gifts).

Why is Frederick Douglass so important to Thomas? Thomas gave us the answer in his opening paragraph in his brutal dissent in Grutter v. Bollinger, an affirmative action case upholding the use of racial preferences at the University of Michigan Law School. Here is what Thomas said:

Frederick Douglass, speaking to a group of abolitionists almost 140 years ago, delivered a message lost on today’s majority:

'[I]n regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us… . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! … And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! … [Y]our interference is doing him positive injury.”

Thomas used this quote to argue that

[like] Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators. Because I wish to see all students succeed whatever their color, I share, in some respect, the sympathies of those who sponsor the type of discrimination advanced by the University of Michigan Law School. The Constitution does not, however, tolerate institutional devotion to the status quo in admissions policies when such devotion ripens into racial discrimination.

The problem with all this is that Justice Thomas has taken Frederick Douglass completely out of context and has actually reversed what Douglass meant. The words quoted above were written in 1865--before the Union Army left the South and thus before the promise of equality under the law for the newly freed formerly enslaved people became hollow. More importantly, Thomas leaves out crucial elements of Douglass's speech:

If you see him (a black person) on his way to school, let him alone, don’t disturb him! If you see him going to the dinner table at a hotel, let him go! If you see him going to the ballot box, let him alone, don’t disturb him! If you see him going into a work-shop, just let him alone,—your interference is doing him positive injury.

The omitted part of Douglass's speech shows its true meaning. Douglass was complaining about white people getting in the way of the rights of black people, not the government making special rules to help them. This point becomes even clearer when we turn to other speeches given by Douglass. Here is one:

[T]he world has never seen any people turned loose to such destitution as were the four million slaves of the South. . . . They were . . . free to hunger, free to the winds and the rains . . . free without bread to eat, or land to cultivate. . . .  We gave them freedom and famine at the same time. The marvel is that they still live. What the negro wants is, first, protection of the rights already conceded by law and, secondly, education. Talk of having done enough for these people after two hundred years of enforced ignorance and stripes is absurd, cruel, and heartless. 

As Professor Ronald Turner once wrote:

Douglass's "Let him alone!" plea was not a declaration of opposition to race-conscious efforts to address the needs of African Americans. The declaration "Let him alone!" was in direct opposition to General Nathaniel Banks' campaign to implement a color-coded serfdom and force freed slaves to return to and work on plantations. "Let him alone!" reprimanded those who obstructed and accosted black persons as they tried to go to school, or dine at a hotel, or vote, or work. In that bill of particulars, Douglass left no doubt as to whom he was addressing and what he meant when he stated that "interference is doing him positive injury." Thus, the argument that Douglass indisputably opposed certain governmental actions focusing on and promoting the interests, aspirations, and rights of African Americans, based as it is on the selective quotation of the 1865 speech,' is simply incorrect. 

Justice Thomas has written a number of affirmative action opinions since Grutter and has never corrected his mistake. Why not? The relevance and meaning of Douglass's speech are not reasonably debatable, as Professor Turner shows. Given Thomas's obsession with the past, history, and originalism, one would hope he would also have an interest in getting his facts right. But he does not. 

As I documented here, this constitutional misinformation runs through Thomas's Bruen decision, and as I documented hereJustice Thomas's Constitution favors a straight, white, religious and heavily armed America. How convenient that on all of these issues, and many more, his alleged text and history approach lines up almost completely with the Republican Party, The Federalist Society Leadership, Fox News, and apparently billionaire Harlan Crowe.