In the course of the last three months, Justice Clarence Thomas
has been the subject of intense journalistic scrutiny; it is not
my purpose here merely to add to the stack.
Rather, it was a thought right at the beginning of his speech -
delivered at the annual banquet of the American Enterprise Institute
on February 13 - that impressed me as exceptionally relevant to
our times. The main theme of the address was the need for courage,
and here is how the speaker explained why courage made all the difference.
"In important cases," Justice Thomas said in reference
to the ones that come before the U. S. Supreme Court, "it is
my humble opinion that finding the right answer is often the least
Given the volumes of interpretations and analyses attendant to
every decision, the appearance might be that of a simplistic approach
by a somewhat naive man.
Nothing of the sort is the case.
With due deference to the extensive roster of brilliant minds who
have contributed experience, knowledge and wisdom to American jurisprudence,
the Constitution of the United States does not require as much elucidation
as we have been, of late, prompted to assume. Together with the
other documents of the American Founding, and accepted as the "supreme
law of the land," finding the right answer is less confounding
than many would have us believe.
The words of Justice Antonin Scalia, reported here on March 31,
1998, still echo in my ears. "Justice Thomas and I are originalists,
what you might call textualists," he said. In every-day English,
that means reading the Constitution for guidance. "How else
can one read it," I hear you ask.
Why, if you have a pet idea as to how everybody else ought to think,
speak and behave, you might pour over the Constitution and its "interpretations"
until you find something you can successfully twist into a justification
of your pet idea.
That, like it or not, is how an increasing number of courts, judges
and justices have defied what the Preamble lists as early as second
among the reasons for ordaining this Constitution: to establish
For those who seek it, there is such a thing as the standard American
position on most basic issues that have exercised this nation ever
since the 1960s infused an entire generation of Americans with continental
Europe's permanent state of intellectual agitation. The fact that
different courts at different times handed down contrary decisions
has much more to do with the command of reality as perceived, or
the absence of courage, than with genuine doubts about the "right
And since Bush vs. Gore seems still to sit in the throat of some
to the point where Maureen Dowd, a previously respectable columnist,
accused the justices who joined with the majority opinion of "stealing
the election," we might do well to ask whether a standard American
position, too, was clearly discernible in that particular case.
The answer is yes.
"Are you suggesting," you will ask me, "that four
justices of the U.S. Supreme Court were oblivious to the standard
Not at all.
In fact, and may it please the court, I will stipulate that all
nine justices can recite the Preamble from memory, and were fully
cognizant of its application to the matter at hand. "In order
to form a more perfect Union, establish Justice, insure domestic
Tranquility, provide for the common defence, promote the general
Welfare, and secure the Blessings of Liberty to ourselves and our
Posterity," the mushrooming turmoil in the land had to be ended.
Quickly, cleanly, permanently.
Hard as it may be for some, it is time to face the fact that the
outcome of the presidential election was not the issue.
Preserving one of America's two miraculous achievements: the peaceful
transition of power - that was the issue. (The other is freedom
of movement, both physically and metaphorically.) The miracle of
peaceful transition enabled America to proceed with proper elections
even in the midst of a most vicious and bloody civil war. The miracle
of peaceful transition enabled America to craft a smooth way out
of the contentious resignation of a president. The justices of the
majority realized the miracle was at risk. They found and delivered
the standard American answer.
And what of the minority? What moved them to choose positions contrary
to the American standard?
No one can look into another person's soul. For one, it would have
been a matter of personal agenda. For another, it might have been
a mind game about what will be safe and reasonably popular. Or it
could simply have been a preference for standing aloof.
Have we forgotten the story of Peter standing aloof, one of the
most gripping images in the Bible?
When the chips are down, the world depends on America for its survival.
America depends on the Constitution for its survival.
Nine mortals bear ultimate responsibility for the Constitution's
Viewed this way, finding the right answer may indeed be the least
difficult problem. Finding a majority that will invariably deliver
the right answer for America is quite another matter.
Will we always be so fortunate?
Do we appreciate how fortunate we have been all this time?