From Issue #01-21brf
Justice Clarence Thomas
Excerpts from Justice Clarence Thomas's speech
I am going to speak more broadly tonight — as a citizen who believes in a civil society, and who is concerned because too many show timidity today precisely when courage is demanded.
Alexander Hamilton wrote in The Federalist No. 78, "It would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the constitution, where legislative invasions of it had been instigated by the major voice of the community." This point is rarely stressed enough.
I'd like to reflect upon those two questions: judicial principles and the question of courage in American political life.
When interpreting the Constitution and statutes, judges should seek the original understanding of the provision's text, if the meaning of that text is not readily apparent.
This approach works in several ways to reduce judicial discretion and to maintain judicial impartiality. First, by tethering their analysis to the understanding of those who drafted and ratified the text, modern judges are prevented from substituting their own preferences for the Constitution.
Second, it places the authority for creating the legal rules in the hands of the people and their representatives, rather than in the hands of the judiciary. The Constitution means what the delegates of the Philadelphia Convention and of the state ratifying conventions understood it to mean; not what we judges think it should mean.
Third, this approach recognizes the basic principle of a written Constitution. "We the people" adopted a written Constitution precisely because it has a fixed meaning, a meaning that does not change.
It became clear in rather short order that on the very difficult issues such as race there was no real debate or honest discussion. Those who raised questions that suggested doubt about popular policies were subjected to intimidation. Debate was not permitted. Orthodoxy was enforced. When whites questioned the conventional wisdom on these issues, it was considered bad form; when blacks did so, it was treason.
These "rules of orthodoxy" still apply. You had better not engage in serious debate or discussion unless you are willing to endure attacks that range from mere hostile bluster to libel. Often the temptation is to retreat to complaining about the unfairness of it all. But this is a plaintive admission of defeat. It is a unilateral withdrawal from the field of combat.
A good argument diluted to avoid criticism is not nearly as good as the undiluted argument, because we best arrive at truth through a process of honest and vigorous debate. Arguments should not sneak around in disguise, as if dissent were somehow sinister. One should not be cowed by criticism.
In my humble opinion, those who come to engage in debates of consequence, and who challenge accepted wisdom, should expect to be treated badly. Nonetheless, they must stand undaunted. That is required. And, that should be expected. For, it is bravery that is required to secure freedom.
In September of 1975, the Wall Street Journal published a book review by Michael Novak of Thomas Sowell's book, Race and Economics. The opening paragraph changed my life. It reads:
Even if one has a valid position, and is intellectually honest, he has to anticipate nasty responses aimed at the messenger rather than the argument. The objective is to limit the range of the debate, the number of messengers, and the size of the audience. The aim is to pressure dissenters to sanitize their message, so as to avoid being subjected to hurtful ad hominem criticism. Who wants to be calumniated? It's not worth the trouble.
But is it worth it? Just what is worth it, and what is not? If one wants to be popular, it is counterproductive to disagree with the majority. If one just wants to tread water until the next vacation, it isn't worth the agony. If one just wants to muddle through, it is not worth it. In my office, a little sign reads: "To avoid criticism, say nothing, do nothing, be nothing."
What makes it all worthwhile? What makes it worthwhile is something greater than all of us. There are those things that at one time we all accepted as more important than our comfort or discomfort — if not our very lives: Duty, honor, country! There was a time when all was to be set aside for these. The plow was left idle, the hearth without fire, the homestead, abandoned.
We all share a reasonable and, in many ways, admirable, reluctance to leave the safety and peacefulness of private life to take up the larger burdens and challenges of active citizenship. The price is high, and it is easier and more enjoyable to remain within the shelter of our personal lives and our local communities, rather than the larger state. To enter public life is to step outside our more confined, comfortable sphere of life, and to face the broader, national sphere of citizenship. What makes it all worthwhile is to devote ourselves to the common good.
When one observes the pitched battles that rage around persons of strong convictions, who do not accept the prevailing beliefs of others, it is no wonder that those who might otherwise wish to participate find more hospitable outlets for their civic interests. When one of my friends began feeling the urge to get involved, his spouse glared at him and said, "Don 't even think about it. We love our life the way it is." And that is not an unreasonable perspective, not at all. But is reasonableness always our standard of review on this question? I hope not.
During my youth there were many wonderful sayings, now considered trite, that provided cryptic, yet prescient guidance for my life. Among them was one based on Luke 12:48: "To whom much is given of him much is required." Perhaps such sentiments are embarrassing in sophisticated company today, but I continue to believe this with all my heart.
I do believe that we are required to wade into those things that matter to our country and our culture, no matter what the disincentives are, and no matter the personal cost. There is not one among us who wants to be set upon, or obligated to do and say difficult things. Yet, there is not one of us who could in good conscience stand by and watch a loved one or a defenseless person — or a vital national principle — perish alone, undefended, when our intervention could make all the difference. This may well be too dramatic an example. But nevertheless, put most simply: if we think that something is dreadfully wrong, then someone has to do something.
It goes without saying that we must participate in the affairs of our country if we think they are important and have an impact on our lives. But how are we to do that? In what manner should we participate?
None of us should be uncivil in our manner as we debate issues of consequence. No matter how difficult it is, good manners should be routine. However, in the effort to be civil in conduct, many who know better actually dilute firmly held views to avoid appearing "judgmental." They curb their tongues not only in form but also in substance. The insistence on civility in the form of our debates has the perverse effect of cannibalizing our principles, the very essence of a civil society.
That is why civility cannot be the governing principle of citizenship or leadership. As Gertrude Himmelfarb observed in her book, One Nation, Two Cultures, "[t]o reduce citizenship to the modern idea of civility, the good-neighbor idea, is to belittle not only the political role of the citizen but also the virtues expected of the citizen — the 'civic virtues,' as they were known in antiquity and in early republican thought."
These are the virtues that Aristotle thought were necessary to govern oneself like a "freeman"; that Montesquieu referred to as the " spring which sets the republican government in motion"; and that the Founding Fathers thought provided the dynamic combination of conviction and self-discipline necessary for self-government.
By yielding to a false form of "civility," we sometimes allow our critics to intimidate us. As I have said, active citizens are often subjected to truly vile attacks; they are branded as mean-spirited, racist, Uncle Tom, homophobic, sexist, etc. To this we often respond (if not succumb), so as not to be constantly fighting, by trying to be tolerant and nonjudgmental — i.e., we censor ourselves. This is not civility. It is cowardice, or well-intentioned self-deception at best.
Immanuel Kant pointed out that to escape shame and self-contempt we must learn to lie to ourselves. These lies create a formidable obstacle to action on behalf of truth, and one of the greatest human accomplishments is to find a way to shatter those lies.
Pope John Paul II has traveled the entire world challenging tyrants and murderers of all sorts, speaking to millions of people, bringing them a single, simple message: "Be Not Afraid." He preached this message to people living under Communist tyranny in Poland, in Czechoslovakia, in Nicaragua and in China — "Be not afraid." He preached it to Africans facing death from marauding tribes and murderous disease — "Be not afraid." And he preached it to us, warning us how easy it is to be trapped in a "culture of death" even in our comfortable and luxurious country — "Be not afraid."
Listen to the truths that lie within your hearts, and be not afraid to follow them wherever they may lead you.
Those three little words hold the power to transform individuals and change the world. They can supply the quiet resolve and unvoiced courage necessary to endure the inevitable intimidation.
The war in which we are engaged is cultural, not civil, it tests whether this "nation: conceived in liberty . . . can long endure."
The Founders warned us that freedom requires constant vigilance, and repeated action. It is said that, when asked what sort of government the Founders had created, Benjamin Franklin replied that they had given us "A Republic, if you can keep it." Today, as in the past, we will need a brave "civic virtue," not a timid civility, to keep our republic. So, this evening, I leave you with the simple exhortation: "Be not afraid."
STATEMENT OF PURPOSE
24 may 2001