The Constitution Turns 225

The Constitution Turns 225

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David Ferriero:
Good evening. I’m David Ferriero, the archivist of the United States, and it’s a pleasure
to welcome you to the National Archives and the William G. McGowan Theater this evening.
Special welcome to our friends at C-SPAN and the other media outlets who are with us tonight.
We have a lot of special guests in the audience today, but I want to single out for a special
welcome Senator Mike Lee, who is a good friend of the National Archives, Senator Lee from
Utah. [applause] Who himself clerked for future Supreme Court
Justice, Judge Alito, when he was at the U.S. court of appeals for the third circuit. Welcome. On Monday the constitution of the United States
turns 225. Tonight’s program is one of several that the National Archives is presenting this
month in celebration of this founding document signed in Philadelphia on Sept 17, 1787. Tonight
we’re honored to welcome two distinguished guests to explore the past, present, and future
of the United States Constitution. Our partners for tonight’s program, in honor
of the Constitution, are the Federalist Society and the Constitutional Accountability Center,
and thanks for the opportunity to collaborate with you this evening. While the Declaration of Independence was
long heralded as the icon of our independence and nationhood, the Constitution did not get
as much attention. Its prose is not as stirring as the Declaration’s, and its four parchment
pages to the Declaration’s single sheet deters most casual readers. That lack of celebration,
however, worked to its advantage over the years, the Declaration was exposed to sunlight,
dust, and smoke, but the Constitution was never exhibited. When you view both original
documents upstairs in the rotunda you immediately see the difference. The Declaration is faded
to the point of illegibility, while the Constitution looks nearly as fresh as it did when the scribe
Jacob Chalice presented it to the Constitutional convention. Celebrating Constitution day on September
17th has been a longstanding tradition at the National Archives. It was the one day
of the year when all four pages were displayed to the public. Since 2003, we have been able
to display all four pages year round in the new cases in the rotunda. But this year we
have added something special for the 225th anniversary. For the first time in the history
of the National Archives, we will display the resolution of transmittal to the Continental
Congress; sometimes referred to as the fifth page of the Constitution. This momentous document
described how the Constitution would be ratified and put into action. You will be able to see
it starting on Friday Sept 14th and it will remain out through Monday Constitution Day
September 17th. On the morning of Constitution day the highlight
event of our celebration takes place: the naturalization ceremony for 225 new citizens
of the United States. Though the National Archives has hosted this ceremony for decades
it never ceases to impress as the prospective citizens vow to support and defend the constitution
in front of the actual document. We encourage you to return over the next several
days for more discussions, films, and special events for the Constitution’s birthday.
On Monday September 17th at noon, from noon until 2:00, we do Happy Birthday U.S. Constitution
here in the theater. It is a special program in celebration of the signing of the Constitution
and the first 225 guests will join the founding fathers for cake after their performance in
the McGowan Theater. On Wednesday September 19th at 7:00 pm the
Constitution and the War of 1812, again here in the theater, this is the 2012 Claude Moore
lecture. Journalist Roger Mudd moderates a panel discussion on “What So Proudly We
Hailed: Messages and Lessons from the War of 1812”. Tonight we are privileged to hear two distinguished
guests discuss the past present and future of the United States constitution. Akhil Reed
Amar is Sterling professor of law and political science at Yale University where he teaches
constitutional law at both the college and the law school. He received both his BA and
JD from Yale and served as an editor of the Yale law journal. After clerking for Stephen
Breyer when he was the judge of the US Court of Appeals for the First Circuit, professor
Amar joined the faculty of Yale in 1985. Professor Amar is a coeditor of the leading constitutional
law case book Processes of Constitutional Decisionmaking, and is the author of several
other books including The Constitution and Criminal Procedure: First Principles; The
Bill of Rights: Creation and Reconstruction; America’s Constitution: A Biography; and
most recently America’s Unwritten Constitution: The Precedence and Principles We Live By. The Honorable Clarence Thomas has served as
an associate justice of the supreme court of the United States for nearly 21 years.
He attended Conception Seminary and received an AB from the College of the Holy Cross and
a JD from Yale law school. He served as an assistant attorney general of Missouri from
1974 to 1977, and attorney with the Monsanto Company from ‘77 to ‘79, and legislative
assistant to Senator John Danforth from 1979 to ‘81. From 1981 to ‘82 he served as
the assistant secretary of civil rights in the US Department of Education and as chairman
of the U.S. Equal Opportunity Commission from 1982 to 1990. He became a judge of the U.S.
court of appeals for the District of Columbia Circuit in 1990. President Bush nominated
him as an associate justice of the Supreme Court and he took his seat on October 23,
1991. Ladies and gentleman, please welcome Justice
Thomas and Professor Amar to the stage. [applause] Akhil Amar:
Thank you, ladies and gentleman, for that extraordinarily generous and warm welcome.
Thank you to the National Archives and to the staff for making this event possible.
Thanks also, especial thanks to the Federalist Society and to the Constitutional Accountability
Center, and thank you, Justice Thomas, for being with us today as we mark the 225th birthday,
the 225th anniversary of our Constitution. And I guess I would like to start our conversation,
it just seems fitting with those, with the words that the Constitution starts with; “We
the people.” And how that — what that phrase means to you how that phrase maybe has changed
over time thanks to amendments and other developments. What do you mean — who we, you know, who
is this ‘we’? When did folks like you and me become part of this ‘we’? Clarence Thomas:
Well you know, obviously it wasn’t perfect. That is an understatement. But you grow up
in an environment, at least I was fortunate enough to, where we believe that it is perfectible.
You know, it’s very like — pretty much it’s acceptable or maybe in vogue somewhat today
to be so critical almost invariably critical of the country and pointing out what’s wrong.
There are obviously things wrong. There were obviously things wrong when I grew up in Georgia.
And that was pointed out. But there was always this underlying belief that we were entitled
to be a full participant in “We the people.” That’s the way we grew up. It is the way
the nuns, who were all immigrants, would explain it to us; that we were entitled as citizens
of this country to be full participants. There was never any doubt that we were inherently
equal. It said so in the Declaration of Independence. Of course there were times later on that I
too became quite cynical and would make glib remarks and reciting the not so pleasant remarks,
in reciting the pledge of allegiance or say things that I think were — glad there were
not these cell phones. [laughter] People can YouTube you and it’s around forever.
But I was just upset about things. But I grew up in an 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 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 school yard
saying the pledge of allegiance every day before school. What did we believe? I mean
everything’s 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 of
all 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. I think today we sort of think that all of the work is done with the laws.
I think the heavy lifting for us was done in here, because the people who raised us
believed it in here. And the nuns who taught us believed it in here. You know, today, I was just down at Louisiana
State University. And if you go to the Southeast Conference there’s this tremendous enthusiasm
about football. [laughter] I am a diehard Nebraska fan myself, so I understand
that enthusiasm. But can you imagine, when I grew up, that’s the enthusiasm we had for
a country that did not allow us to fully participate. And one of the birth rights that’s been
passed on, I still have it, I still believe that it’s perfectible. And I think I resist
the kind of attitude that “It’s all lost.” It’s the same attitude I had then, that it’s
ours; it’s ours to make the best of, to disagree about, to work with, and to realize its imperfections,
but to keep working with it. So, when I think of “We the people” there’s a lot. I think
of the exclusion but the possibility and then the eventuality of the inclusion of you and
me. And look at, no one cares that, what, 40 years ago, you and I would not be sitting
here talking about the Constitution of the United States, except to say we’re excluded.
So, and now it’s hardly noticed, you know, well, except you’re a Sterling professor of
Law, so they probably notice that. [laughter] Akhil Amar:
You’ve done okay for yourself, my friend. Clarence Thomas:
I doubt — you know– that’s nice of you to say, but I really look back and I have to
say it’s the same people. You know, I’ve tried to say it over the years, and I think in this
city, people, that’s dismissed as well you’re being, you know, a Pollyanna or something
like that. But I still say it’s all the people who never gave up and have every reason to.
And you know, first in that line would be people like my grandparents, not the cynical
people who know it all, but these unlettered people who never ever quit, who got up every
day and believed, and believed that even if they didn’t make it those who came after them
would. It’s almost as though they self-sacrificed. They were self-sacrificing offerings for these
two boys and for the generations to come afterwards. So, you know, I don’t think I, you know,
people say you haven’t — I haven’t done. I haven’t done this or that. You know, I
think you and I both have people who gave the last full measure for us in many, many
ways. And I just can’t really take too many bows for that. Akhil Amar:
So, there’s so much there, and over the course of our conversation I hope you mention the
Declaration of Independence and the fullness of time. You alluded to Mr. Lincoln in the
last full measure of the Gettysburg Address. You mentioned who was in and who wasn’t, in
this ‘we’ and how that has changed over time. I just want to say a little about — because
I agree with you that it is a little bit easy to be cynical. There were exclusions, so we
can’t forget that. We didn’t mean everyone at the founding. But, just to pick up at that
and then we’ll segue to some of the other things you’ve talked about. Looking back — just
so that the rest of us so we can all begin to appreciate how extraordinary this birthday
is that we celebrate. So, 225 years ago, let’s say August 17, ‘87. Self-government exists
almost nowhere in the planet outside of the New World. You have a few sheep and goat herders
in Switzerland, and this is before there were Swiss banks. [laughter] And Holland, the Netherlands is in the process
of losing self-government. England, yes, it has that, a House of Commons, but it also
has a House of Lords and a hereditary king. And so, and you look back for — so the vast
multitude of the planet no self-government in Russia, China, in India, in Africa, most
of Europe absolutist tyrant, this sort of sits on the throne of France. You look back
at the previous millennia, you have democracy, self-government existing in a very few tiny
little city states, Athens, and then they flicker out because they can’t defend themselves
militarily. And even where democracy did exist, people who speak the same language, worship
the same gods, same climate, and culture over very small little areas, and then, as I said,
they blinked out. That’s all of world history, very little democracy. And you look today
and democracy is existing across half the planet. I like our chances in the next century.
And if you ask me what change was the hinge of all of that, I think I would say those
words, “We the people.” Two-hundred twenty-five years ago is the hinge of world history because
for all its disclusions [spelled phonetically] at the time, it was way better, more perfect
than what went before, because for the first time ever in the history of the planet an
entire continent got to vote on how they and their posterity would be governed. And there
were lots of exclusions, you know, from our perspective. But we wouldn’t exist, you know,
as a democratic country, as a democratic world, but for that. I think, I would say it’s
the hinge of all modern history. That before, democracy almost nowhere, and then a project
is begun, it’s launched, it’s not perfect. It’s better than what we had before but not
at all, you know, as good as what we have now because I think we have gotten better. I want to talk a little bit about how that
process, of getting better — but I’m with you, I’m not a cynic. I think that we the
people do ordain — it was pretty stunning what we actually did. Let me actually pick up on another thing,
just actually because we’re on this, and then we’ll move forward in time. You wrote
— it’s not just that we voted, and it was a pretty fair vote, and it was a vote that
could be lost in a whole bunch of states. And in fact it was voted down in Rhode Island
and voted down in North Carolina. It wasn’t rigged, but you wrote a very interesting concurrence,
I think quite a brilliant concurrence frankly in a case called Ohio versus McIntyre where
you also talked about the breadth of free speech in this event. People could be for
the Constitution or against it. No one was shut down, no one was put in prison if they
liked George Washington or they didn’t like George Washington. An amazing amount even
of anonymous speech. Just this proliferation, robust, wide-open, uninhibited discourse up
and down a continent for a year. That’s the year that we mark today, this month, the beginning
of that. So, some thoughts on free speech and voting — at that moment and as you look
back, and then we’ll work our way forward in time. Clarence Thomas:
Well, you know, I am probably — I don’t have a lot of company with my views on McIntyre
and anonymous speech. But, you think about it 225 years ago, you had the articles of
Confederation, you had a Congress that didn’t work — [laughter]
— that was not functioning — oh. [laughter] That was inadvertent. [laughter] But, you had — it was a very interesting
convention that arguably wasn’t quite what they were authorized to do. You had the resolution
that’s going to be on exhibit. It’s kind of interestingly worded. It certainly throws
the word “unanimous” in and uses it in an interesting way. But you know and you think
of the going to Washington and trying to get him to leave Mount Vernon, and he doesn’t
want to leave because he’s finally back home; he’s been away of four years and he
doesn’t want to leave. And he goes to Philadelphia, and they do it, they come up with this document
in what, four months? Akhil Amar:
[affirmative] Clarence Thomas:
And, now you have it, it’s going to the Congress and it’s going to be sent to the people to
— Akhil Amar:
To the people? Clarence Thomas:
To the people to ratify. Akhil Amar:
Amazing. Clarence Thomas:
I think that, you know, when I read about it, I have to admit I am one of those, I am
totally a sucker, you know? I get chills about it. Because that’s the beginning of the development
of a place that allows you and me to be here. Akhil Amar:
Yes. Clarence Thomas:
With all its warts. You know, it’s sort of how I feel about my hometown of Savannah.
It’s got a lot of problems, but it’s my home. And that’s the way I feel about the Constitution.
It’s got a lot of problems. I don’t know if I could do any better. But, it’s ours. And
we get a chance, through this wonderful opportunity that we have in different roles, to make it
all work, to try to understand, to try to make the country work. You know, I — maybe
a part of a thing that we could do with celebrating the birthday — I mean, would you have a Constitution
if everybody there was a cynic? Would you have the amendments to the Constitution if
Mason was more cynical than adamant? Would you have the Declaration of Independence if
Jefferson was a cynic rather than someone who actually believed in something? Would
you have a Constitution if Madison didn’t care? I mean if we just — all the negative
stuff, you know? I have come to the point, and I tell my law clerks this, that I’ve been
in the city doing these jobs now for half of my natural life. The only reasons to do
them are the ideals now. That’s all, it’s just these are things you believe in, this
Constitution and this country. I know that’s not what you say in Washington D.C. anymore.
You’re supposed to say there’s some angle, there’s some methodology you’re pushing. There’s
origionalism, there’s textualism. There are all these useless peripheral debates other
than just doing our jobs the best we can and trying to live up to our respective oaths
to make it all work. Just what you’re talking about, you know,
your book, that’s what you’re saying. You’re saying you’ve got the text, but you also have,
over here, this unwritten part. All these things that are happening over here, to make
it all work. I know that’s not me. [laughter] Akhil Amar:
So, two thoughts on that, since you mentioned both the Declaration and the Bill of Rights.
Again, just to sort of set the stage about why the Constitution is this thing really
worthy of our celebration, acknowledging who wasn’t part of the ‘we’. None of the ancient
democracies that ever existed in the world, even if they had democratic constitutions,
ever had a democratic constitution-making process. None of them were put to vote by
the people themselves in Athens, or Florence, or pre-Imperial Rome. In 1776, as great as
the Declaration of Independence was, not put to a vote, not a lot of free speech, either
you’re for us or you’re against us. And, it’s the middle of a war, and we can’t have this
philosophical debate. And the Constitution is put to a vote in which in eight of the
13 states property qualifications are lowered or eliminated compared to what they were before.
And then a yearlong conversation in which people say, you know, there are some problems
here. In effect, it’s crowd-sourced. And we the people actually say, where are the rights?
And we get the Bill of Rights because of that conversation. And even before there is the
text of freedom of speech, there is the practice of freedom of speech. Five times the Bill
of Rights uses the same phrase, “the people,” and the First, and the Second, and the Fourth,
and the Ninth, and the Tenth amendments. And I think it’s because it’s coming from the
people, so this process of correction that you are talking about that is more perfectible,
I think is connected to the democratic ideal. When you get people together and they are
in the process — and you have to make sure they are not cynical. You have to beat the
anti-Federalists because then there’s no constitution if you don’t prevail. But you’ve
to get them — keep them on board, to keep them believing, you know, keep them part of
the game. Maybe you’ll win next time. And they do, we call that the Bill of Rights.
To keep that conversation going so that you can actually perfect it. Or at least make
it better than it was the day before with the Bill of Rights. Clarence Thomas:
You know, I don’t know if they’re anti-Federalists. I mean, maybe they didn’t quite believe that
the national government should be given unfettered authority. Akhil Amar:
[affirmative] Clarence Thomas:
Maybe they were the people who were saying, we’ve got to have a Bill of Rights. You got
to temper this authority with protection for the individual. So, I don’t know whether I
would just call them anti-Federalists. I think that they were people who certainly saw that
they had these God given rights or believed it, and they thought that this would be an
intrusion upon it if you didn’t have some limits. So, think about it: Would you’ve had
a Bill of Rights if you didn’t have those that we would call anti-Federalists? Akhil Amar:
I don’t think you would. Clarence Thomas:
I doubt it. Well okay. Akhil Amar:
And that — and you are a fierce believer in independence of thought, in dissent, in
— not even George Washington and Ben Franklin might have had a complete monopoly of all
wisdom. So it was useful that you had a George Mason critiquing it. That you had — Clarence Thomas:
I never liked George Mason. I think George Mason seemed like a pretty stubborn guy. The
other thing was that, he — you know, I think that he made it clear — he did not undermine
the process. If you go back and you look at the last days of the Convention. George Mason
did not throw a monkey wrench into the works. Akhil Amar:
Right. Clarence Thomas:
What he did is he made it clear. Akhil Amar:
He didn’t filibuster. Clarence Thomas:
He made it absolutely clear. He had a list of objections. He thought you needed a Bill
of Rights. He’d been down this road before. He was not a politician. He had no idea — he
was not into making a lot of friends and allies. He was going to argue his point and then he
was going to return to Gunston Hall. I happen to think that that was pretty effective. He
wasn’t against — remember, he was very helpful in developing the Constitution. Akhil Amar:
He was. Clarence Thomas:
With a strong national government. But, he wanted to build this wall that’d make it clear
that that did not exist in sort of a contradiction or in opposition to these individual rights.
So I think he was — again he wasn’t cynical, he wasn’t an obstructionist. But he was, I
think, rightly adamant that these protections exist. Akhil Amar:
And here’s one way of putting that and then maybe we’ll start to move forward in time,
maybe, with your permission. The people who opposed the Declaration of Independence, you
never hear from them again. They’re basically cast politically into the void. The people,
who opposed the Constitution, think it can be better still, call them anti-Federalists,
they become — they are not cast out. They become presidents of the United States: James
Monroe; vice-presidents of the United State: Elbridge Gerry, George Clinton; justices on
the Supreme Court: Samuel Chase. So it’s extraordinary how they are kept in the process. Clarence Thomas:
But think about it. It continues to play out. It’s the same debate. What are the limits?
What are the limits? You know, I hear people today make it seem as though, that when you
talk about limits on the national government, that that’s antithetical to the Constitution,
the existence of a national government. It has been — it’s embedded in the original
argument. The argument was always about limits. It wasn’t about their — you know, you hear
this kind of glib comment, “Oh, these people are trying to push us back to the Articles
of Confederation.” That’s ludicrous. And that’s, really, that isn’t — that’s unhelpful.
The very man who pushed for these limits actually helped developed the Constitution. So, the debate, when you move it forward,
whether you look at McColluch versus Maryland, you look at — it’s always arguing about whether
there should be a national bank. You’re arguing about the same limitations. You can
fast-forward to today. That debate is embedded in the very formation of the country. From
the beginning, from the time we adopted the Constitution, that debate existed, and that
debate has continued. There was a civil war fought not just over slavery, which, you know,
and obviously I’m on the right side winning. [laughter] You know, I have a personal interest in that.
And there are lots of these things, but at the same time you understand there were some
people still fighting that debate or fighting that, you know, engaged in that debate. And
subsequent to that, even with the adoption of the 13th, and 14th, and 15th Amendments
you still have it. So we’re still talking about it. What are the limits of the national
government? What is the role of the national government? How do we protect individual rights
and individual liberties, et cetera? Akhil Amar:
So, let’s actually move forward in time and start talking about the events that presage
the 13th, 14th, and 15th Amendments. And I want our audience, you and I of course know
this, but I want everyone out there on CSPAN to recognize that this month isn’t just,
it’s a very special anniversary, it’s not just the 225th anniversary of, birthday
of, of really the year I think that changes everything, the hinge of human history, this
“We the People” moment. It’s also, the 150th anniversary to the month, of the first,
the initial Emancipation Proclamation, which is issued on, immediately after the Battle
of Anteitam, which is fought September 17th 1862, 75 years to the, to the day, after the
Constitution has gone public. So, we mark today, not just this month, not
just the 225th anniversary of the Constitution, but the sesquicentennial, is what I think
they call it, of the Emancipation Proclamation, a document you’ll also find here in this
building. I’ll have a little bit more to say about that at the end. So, we’ve been talking about our forbearers,
you know, our Founding Fathers, I guess some thoughts about our re-founding, about Father
Abraham, about, we mentioned Washington, maybe bringing Lincoln into the picture too, and
your thoughts about this new birth of freedom that begins with the Emancipation. You have
a family story? You know, your grandfather? You write this book, “My Grandfather’s
Son,” and you mention that his grandmother was a freed slave, and so some thoughts about
that. Clarence Thomas:
Well, you know, for us
in the South, Abe Lincoln was the Great Emancipator. I know there was Revisionism today. I’m
a big Abe Lincoln fan, I have a bust of Lincoln, I have photos of Lincoln. I am not — you
know I have a problem with clothing everything in this sort of cynical Revisionism. Abe Lincoln
meant quite a bit to us. You know, you go and read his “House Divided” speech and
you begin to see what the country is, it’s the beginning. Once again, it’s ripped asunder. You’ve got the South is one way of life
and the, again, with the peculiar institution that, in my opinion is the great, single greatest
immorality in the country. How can you have a free country with slaves? We understood
that. It’s a contradiction; it contradicts the very founding premise of the country.
But at any rate, Lincoln for us, in what I grew up, was the, he was the author of real
liberty. You had the Emancipation Proclamation; you had Field Order Number 15 — Akhil Amar:
Tell us, tell us what that is — Clarence Thomas:
— Well it was the ord — Akhil Amar:
— You had to remind me of it — Clarence Thomas:
Well it was issued — Akhil Amar:
— back stage. Clarence Thomas:
It, that was the actual order that freed the slaves in the eastern part of Coastal Georgia.
I think down as far as Florida. And of course my family was on an island, Ossabaw Island,
and plantations along the coast of Georgia for over 100 years. The, we’re from an island,
again that’s just south of Hilton Head, and Daufuskie in the Carolinas, and we were
in those villas and geegies [spelled phonetically]. And the family would remain on that island,
even after the Civil War. It was a storm actually, a hurricane in the 1890’s that drove them
over toward Pin Point and some of the more inland, mainland areas. But the, the fascinating thing is that the
people who came from that not only maintained their culture, but there was always this desire
to be a part of this country, and Lincoln was the person, the promise of 40 acres and
a mule. So, and that promise went on for years. Again, it was unfulfilled, but there was that
promise, and it was a promise of freedom. It was the promise of 40 acres and a mule.
And so you would hear people talk about the lack of freedom in the same way they talked
about the unfulfilled promise and the 40 acres and a mule. But it was Field Order Number 15 that directly
affected my forbearers and so it has a very special place in my heart and, certainly,
I keep in my office, a copy of Field Order Number 15. And a copy of the Emancipation
Proclamation, because of course I have a very particularly, I keep, actually it’s mounted
on my wall because of my particular interest in what, in it, and what it has done for those
who came before me. We are from a plantation, or part of my family
is from a plantation, south of Savannah. My grandfather was raised, and that’s where
we farm, just across from the plantation where his grandmother had land. And his great grandfather
bought land in the 1870’s right after he was free. And we all, as my grandfather said,
we all were going to be raised in the ways of slavery time, and that’s the way we were
raised on that farm. Very hard life but it is a life, and a way of life, of which I’m
enormously proud. There’s not been a moment in my life when
I’ve had nothing but the greatest pride in the people who grew up under the most difficult
circumstances with a dignity that’s unmatched in this city and any of the great cities in
this country. It’s almost as though it is a nobility of humanity, simply because of
the dignity with which they bore the, the negatives that were put in their way, and
the harshness of life. 
 And as I say in my book, and I mean it, my
grandfather still reigns as the greatest person I know of or I know about. You tell me a person
who could have accepted and not have a father, loose a mother, as he said, handed from pillar
to post to his relatives, his grandmother and uncle, and bore no education, and yet
– segregation, Jim Crow laws — and bore no bitterness. Rose above it and insisted
that his grandsons rise above it. Fight it, participate, eliminate wrongs, but not be
consumed by it or destroyed by it. And I don’t think you could get much greater than that. Akhil Amar:
Yeah. Now, you and I are huge Lincoln fans. Clarence Thomas:
[affirmative] Akhil Amar:
Do you think at all in the culture
that Lincoln still gets his due? Because, you know in so many ways, there is so much
talk about the Founding Fathers and yet you’ve said — “House Divided” speech, that house
fell because, in a way, because of the contradiction, because of slavery. And Lincoln’s generation
re-builds it, Frederick Douglass and others. Do we give that, maybe, you know, that has
a time to be the greatest generation too. Do we today, in our law and in our culture,
give enough credit to that re-founding? Clarence Thomas:
You know, you think of the great moments in our history. We talk about, of course, the
Revolution, the, certainly the Constitution that we celebrate now 225 years, but it was
all coming asunder. It was coming apart. And the country as we know it today is re-shaped
after the Civil War, the Civil War amendments. And you teach in the area of constitutional
law, you’re an expert. What would it look like if there were no 14th Amendment? What
would be its application, the Bill of Rights, to States? Akhil Amar: 
Exactly. Clarence Thomas:
So, there’s a whole, there is so much that goes beyond the war. You know, I tell my law
clerks, “That’s why we have to go to Gettysburg.” This isn’t just about, you know, we pull
these little threads out of what we do every day. We talk about Textualism, Originalism,
and we argue over them. It is much bigger than that. You know, I see some people here who argue
before the court. I have not once thought that the people who came there did not understand
that what we did was larger than who we are, that we were engaged in an enterprise to preserve
something that is truly great. Do we agree? No more than the framers agree. No more than
Mason and Hamilton agree. But do we say they did not want it to work? No. No. That’s
the beauty of “We the People.” We the people agree that we that should have a country.
Exactly what it should be, we disagree. Not so to the point that we destroy it, but certainly
to the point that we think that we’re perfecting it. And we’re still here. So no, I think that Lincoln saw what was happening
with the Civil War. He saw that slavery, we could not exist half slave and half free,
that you couldn’t do it. It was not going to happen. He understood that that you have
to have a union. And he knew ultimately it could not be a slave country that allowed
slavery, allowed slavery. Now, I know that you have your Revisionism, people quibble.
You know I just, I don’t have time to pick all those lints, all that lint out of everything.
I — Lincoln preserved the Union. Frederick Douglass you mentioned. I also have
a portrait of him behind my desk. He’s been there, that portrait, since I went on the
Court two decades ago, a little more than two decades ago. I’m a big fan of Frederick
Douglass. I want you to think of what courage it took for him, a freed slave, to stand as
he stood, to cite the Declaration of Independence. Not something that’s foreign to this nation,
but the founding document of this nation. He cited that as exhibit A in what was wrong
with slavery. Exhibit A. You didn’t need to go to another, any other shores, or any
other ideology. It was our founding ideology. How could you be inherently equal and have
slaves? How could you be free and enslave another race? He understood that. So, we fought
a great war. You go to Gettysburg and what does he say? It’s up to us, the living,
to make it all worthwhile. We’re the living. We’re the living. We have an opportunity,
a finite amount of time, to make it work. So I hear people, they just, you know, the,
that you disagree with someone, well that person’s motives must be bad. Well that’s
not the case. I don’t think that Mason’s motives were bad. He was not necessarily a
cheery fellow, you know? You could probably say that, you know, he’s a dour man who’s
always upset about something, you know? He’s too bilious for me, or something. But he contributed. Washington, Washington did not want to go.
You know Hamilton. You know he was young, you know those guys; maybe he wanted to make
money. You know I don’t know. But, he contributed. And so I think that we should sort of look
at this more the way that — not warring factions like the Civil War, but rather as people who
are engaged in this great project, as Lincoln, as Lincoln sort of left us at Gettysburg.
We live it. And we may be disagreeing as the living, but we are living. And that is one of the things I do like about
the Court. I’ve been there now through a number of members of the Court, and in the
years I’ve been there, I honestly come away thinking that every member really wants to
make it work. They really, every single member; they don’t agree with each other, but somehow
they agree that this is more important than we are and we’ve got to make this thing
work. So, yes I’m a Lincoln person. I am a Frederick
Douglass person. I am a Booker T. Washington person. I grew up loving these people and
I will go to my grave. I think that, I want you to — one last point. I want you to think
of a little black kid in Savannah, Georgia, in the Carnegie Library, and you see pictures
of whom? The Great Emancipator, Booker T. Washington, Frederick Douglass, W.E.B Du Bois,
George Washington. You see what I’m saying? You grow up with this as a part of your life.
This is a part of your fabric. This is the under pinning. And what do you think you bring to the court
if that’s the way you’re raised? You bring this sense that it’s not some ambition,
it’s this obligation to fulfill something that they started. It’s this calling you
have to do what you’re supposed to do. Is it hard? Sometimes. Is it disagreeable? Well,
sometimes. But is it the right thing? Yes, all the time. And I’m willing to bet you, if we could
get Lincoln to come back, and we could ask him how hard the Civil War was and how hard
being president was, whether or not he would say to you it was worth it. And I’m willing
to bet you he would. If you were to ask Washington to come back and ask him whether it was worth
leaving family to fight at Valley Forge in the Revolution, he would say it was worth
it. To leave Mount Vernon to go to the Constitutional Convention, he would say it was worth it.
To leave to become president, he would say it was worth it. All the absentees, all the
days, I think they would say it. And I think any of us should be able to say that. So. No, I’m a Lincoln person. I am a Booker
T. Washington, Frederick Douglass, and I keep those around me to remind me what our obligations
are, yours and mine. Akhil Amar:
Now the first time I think I
heard you, you were talking about the Declaration of Independence, which of course Mr. Lincoln
eludes to right out of the gate in the Gettysburg address, “Four score and seven,” well
that’s 1863 minus in ’87, that’s 1776 when you do the math. Clarence Thomas:
[affirmative] Akhil Amar:
Now, our fathers, again this imagery, you know, many quotes from the Declaration. Our
fathers brought forth in a new nation conceived in liberty, and dedicated to the proposition
that all men are created equal. That’s the language from the Declaration. You have often
— you have thoughts about the Declaration. It’s up there in the Rotunda alongside the
Gettysburg Address and the Emancipation Proclamation and the parchment Constitution itself. So
I just wanted to invite you to, as you have talked about Lincoln to tell us a little about
how you think about the Declaration and its part in the American story. Clarence Thomas:
You know you, you think
the beginning is that we have these rights, we’re endowed with certain unalienable rights,
and we give up some of those rights to be governed by consent. That’s critical. For me, when I started though it wasn’t
so much about the government, it was about what was the best argument against slavery.
It was as simple as that. When you grow up under segregation you take the founding document
and you use it as the point to make to others who think that segregation is right. This
is our founding document and we are inherently equals. The nuns ingrained it in us. The Declaration
and our faith in God, we were created equal. And they didn’t have to go to the Bible
or a religious document. They went to the founding document, that we are created equal.
That was always this thing you carried that, with you, that you, when you were treated
badly, when people try to engrain it in you. You know, I hear people say it affected your
self-esteem to be segregated. It never affected mine. Akhil Amar:
[affirmative] Clarence Thomas:
And absolutely at no point in my life, because from day one, we knew we were equal. It said
so. The nun said so, my grandfather said so, and by golly the Declaration of Independence
said so. And it may have taken a war and it may take Black Codes and Slave Codes and Jim
Crow Laws, but still, no matter how contradictory that was, here was this document that said
we were equal. So, it starts there. Then you look — that’s what got me started
again at EEOC. To read this great document, to re-read it, to talk about it, to talk about
the founding — I wasn’t going to be a judge. Who knows how I became a judge, you know?
I was at EEOC. I was only interested in the best about this country, with all its problems,
the things that made it worth having. And the, low and behold, you come to the understanding
that this founding document, this great experiment, is a wonderful thing. And that was in the mid 1980’s. I was chairman
of the EEOC, worrying more about budgets and getting in all sorts of trouble over the Age
Discrimination and Employment Act and this hearing and that hearing, none of which was
of great consequence as far as the structure of the country. But spending hour after hour
learning about the things that you write about so, and teach so eloquently, I think that
the, for me, that central document is the greatest. I think that one, the Declaration
of Independence, and to then go to Gettysburg and to think about Pickett’s Charge. To
think about the carnage there, the lives lost, the great battles before at Fredericksburg
and at the wilderness. You talk about Antietam, you talk about Shiloh, Manassas. All these
battles for people defending or — either what they think of way of life, or slavery,
what have you. All of it, all that bloodshed to settle this contradiction, and we won;
we have our country. And I like to go to Gettysburg to say to my clerks, “Are we– do we deserve
this? Do we deserve this sacrifice for a country that we have? And are we living up to that?
Are we doing our part?” Just go anyplace. Think of the people at Battle of the Bulge.
Or you think of them at, you know, during any war and just ask yourself, you know, they’ve
— let’s assume without debating whether you should have had this battle, or this war,
or that; they’ve done their part, have we done ours? And the thing that I was told — I
was going to be a priest. That’s the only real sort of goal that I had. And what’s
a priest? It’s — you’re called to do something. Every ex-seminarian is always looking
for that next vocation. Suppose your call now is to do your part, to see, to be able
to earn the right to be here. Akhil Amar:
You mention in your book very promptly on the first page and the last page, you just
mention, again, God. The Declaration of Independence has a very prominent — several prominent
— from the very beginning nature and nature’s God, you know, endowed by our Creator: At
the very end, in the most military language, appealing to the supreme judge of the world
for the rectitude of our intentions. And they’re not talking about Robert, CJ — they’re
— [laughter] — great as he is. Now, thoughts — and then
you look at the Constitution and the references aren’t so prominent. Janie Randall has talked
about — one of my students wrote an interesting paper about the words Sunday is accepted in
the Constitution, but it’s not very prominent in the preamble or in other articles. We’ve,
just this week, heard debates or conversations about God on the coins, whether there were
sufficient references to God on 9/11. So, thoughts about the role of references to God
in our national discourse in our public culture — Clarence Thomas:
You know, I think we’re kidding ourselves if we don’t think it’s been prominent
and a central part of our formation. And you can argue nihilism or atheism now, but you
— I mean, we know it’s there. So I mean your first amendment is what? Congress shall
make no law respecting the establishment of religion or the free exercise thereof. In
other words, stay out of it; leave people alone when it comes to their religion. Obviously
it assumes there’s a religion. Akhil Amar:
[affirmative] Clarence Thomas:
Okay. And there’s God. I mean, we knew what the religions were. The Baptists convention:
they weren’t like worshiping a pulpit or something. Their god, they believe in God.
So I’m not going to revise history to pretend that. I grew up in a religious environment
and I’m proud of it. I was going to be a priest. I’m proud of it. And I thank God
I believe in God, or I would probably be enormously angry right now. So the — I am grateful for
my faith and unapologetic about it. So — Akhil Amar:
Now here’s one interesting, sort of — I mean it is pretty remarkable — we started
talking a little bit about how the we has changed a little bit over time. We could have
also added the nineteenth amendment and women becoming part of this ever greater arc of
democratic inclusions. Amendments — Clarence Thomas:
You could also add prohibition. Akhil Amar:
Which got, you know — Clarence Thomas:
I’ll drink to that, right? [laughter] Akhil Amar:
But, you know, and that was repealed. Clarence Thomas:
Yeah, I know. I understand. Akhil Amar:
But in general most of the amendments really have made, as you said before, sort of made
the thing I think more perfect — Clarence Thomas:
Well that made it less perfect. [laughter] Akhil Amar:
But then we got rid of it, so — Clarence Thomas:
Oh I don’t drink. But I understand, you know. [laughter] Akhil Amar:
But on religion, it is pretty extraordinary, the Constitution frees every American to be
eligible for public office. There’s no religious test oath. And that wasn’t a prominent feature
of the state constitutions. A lot of them actually had religious tests for office — Clarence Thomas:
Well you had, actually, in New England in particular I mean, you had establishment religions. Akhil Amar:
Yeah. Clarence Thomas:
So I understand that, but I’m just simply saying that the country moved on. I grew up
at a time when people were respectful of religion and religious people. I grew up when the church
was open all the time and nobody broke in, and nobody engaged in sacrilegious conduct
in the church. It was just — our church was in the inner city. I walked to six o’clock
mass to be the altar boy there. And I was a little guy with my U.S. government surplus
book bag and scared of dogs more than anything else. [laughter] But the — you know, I really like when I
grew up. I can’t transpose that or superimpose it — transpose it to or superimpose it on
the current day. But I think our country is what it is, and there’s some of us who but
for faith would not be here. There was nothing in front of me to tell me it was okay to keep
trying. There was nothing in front of me that explained all the wrong, the hurt, the pain,
the things that happened, even in this city, to me. There was nothing that could deal with
it and to make you a better person; to force you to be a good person when everything around
you says you could be, like, mean, and cynical, and react and punch back. You know? So yeah,
I mean I know all the smart alecks; they know better than I do, but they weren’t there.
They weren’t in the tenements. They weren’t in the heat. They weren’t — they didn’t
walk in those steps. And I thank God for the environment I was in of people who had strong
faith, the house I was in of people with strong faith, the schools I went to. Did we impose
it on anyone else? No, it was ours. And I, certainly in my own daily life I respect other
people. I don’t abuse them; I don’t do things to them. You respect them. And that
all comes from the way I was raised, and that includes a strong faith. Akhil Amar:
And this thought that I had which is I think we’ve as Americans today grown into a pretty
remarkably respectful faith culture in the following sense; We begin by saying the system
is open to people of many different faiths. We’re not going to require a belief in the
trinity or, you know, in any particular [unintelligible]. So here’s what actually just strikes me
at this moment as we sort of look back 225 years later just at the process that’s developed:
Ours remains a kind of — theirs was a project where most Americans at the founding were
mainstream Protestants. Mainstream Protestantism today sort of remains a huge part of our culture
and yet here’s what’s interesting: None of the justices, I think, on the court is
a mainstream Protestant. Neither — Clarence Thomas:
You have to ask them. I don’t speak for them. [laughs] Akhil Amar:
Yeah, but neither John Boehner nor Harry Reid — Clarence Thomas:
I have no idea. Akhil Amar:
None of the four — [laughter] — presidential candidates, only Barack — Clarence Thomas:
You spend a lot of time following this stuff. [laughter] Akhil Amar:
But only Barack Obama, whose father was a — what I’m saying is, it’s an extraordinary
openness, actually, 225 years later. Clarence Thomas:
You know, I think we talk about it a lot. I, you know, I liked it when I was a kid.
You didn’t talk about it a whole lot. You just lived your life. That to me — we talk
a lot about you know this person does that and that person does this, and then we all
pretend that we’re all tolerant. You know I liked it when people didn’t care. Like,
you — I was Catholic. And you talk about a minority, within a minority, within a minority;
— [laughter] — I was a black Catholic in Savannah, Georgia. [laughter] Now that is a — what is an insular — Akhil Amar:
[laughs] A discreet and insular minority — [laughter] Clarence Thomas:
That’s us; a discreet and insular minority. So the — I — but nobody bothered us. I was
the only black kid in my seminary: 1965. ‘64 there was another young man; he left. And
so the next two years I was there by myself, in Savannah. I mean, nobody bothered me. So
I hear people say these things about they’re tolerant, but they’re really [unintelligible].
They’re really identifying who’s what a lot more. The — I kind of like the idea
that when you started — here you and I are here. Neither one of us is Caucasian. And
nobody seems to care, nobody’s pointing it out. Well we noticed it; said, “Oh you
look like you’re Indian descent. Oh you look like you’re –” well I don’t know
what they say. People say horrible things about it — is it — well I’m not black.
So I’m just a little doubtful I should say I’m black. You know? [laughter] But the — I mean, here we are. No one really
is bringing that point up. I think what you should be more concerned about, particularly
at the court, is look where we are; we’re off in the Ivy Leagues. That seems to be more
relevant that what faith people are. But even with that, even with — we can nitpick all
that. These are good people. These are people who — I go back to what I said — they are
continuing what was started 200 years ago with that debate about the great docket. They’re
good people. I mean I sit next to Justice Ginsburg. Now how often do we agree? [laughter] Akhil Amar:
A lot, actually. Clarence Thomas:
We do? Akhil Amar:
Yeah. I mean most — [laughter] — you know, most — many cases are unanimous.
You — Clarence Thomas:
Oh the unanimous cases. Yeah. [laughter] Akhil Amar:
Yeah. Clarence Thomas:
Well that’s given me a lot, and I agree with her in all the unanimous cases. [laughter] You know, I like that. That’s a — really
a shrewd move. Well, there’s one category of cases we agree. What are they? The unanimous
cases. [laughs] [laughter] But she is a good person. She is a fabulous
judge. I like sitting next to her. You know, we’re friends. [unintelligible] I think
that’s what you want. You want people who still believe, who’ll work together and
try to get it right, but don’t change their mind just because they’re there, just because
it’s sort of the fad. You want them to think the same way you had it at the convention:
In the we the people, the ratification debates. I think I would love to — I’m going to
spend time going back to read them. Simply because that was a time — you talk about
people actually saying what they believe, people actually fighting about it, people
actually caring about it, people writing articles about it, the Federalist Papers, people traveling,
people having meetings at homes and in their churches. Oh, you can’t do that I guess.
But you having — people meeting in their — in town halls all over the country, debating
this. People actually, and this is the fascinating thing, people who have actually read the Constitution.
I mean that’s something that’s new. People claim to love it today. Do they actually read
it? They read it back then. And they were not as universally available. There was no
internet to read it on, but they somehow printed them, and read them, and talked about it. Akhil Amar:
Absolutely. Clarence Thomas:
And the people who couldn’t read had it read to them — Akhil Amar:
[affirmative] Clarence Thomas:
— and formed opinions. So I think yes, it was a — I think it was a debate about this
country, its formation, how it would develop, in what direction, the protections. And I
think it continues; it’s the same debate. So you can talk about the commerce clause.
You can talk about equal protection, due process, [unintelligible] due process, the first amendment;
it’s all the same debate. And it is an appropriate debate. And it’s one that I would wish would
sort of try to reach the same high level that we saw in Philadelphia, and that we’re going
to see at other points in the ratification process. Who writes, like, that — the sort
of defenses and arguments that you see in the Federalists today? Who writes it? Who
sits at home and drafts the arguments that you see — letters — you see Mason. He didn’t
have a staff drafting these things. These are people who were engaged, who knew the
Constitution and the — also want you to know, these were not scholars. These were not people
who had appropriated to themselves, licensed a sole license to interpret or to talk about
this great document. These were foreigners. These were business people: Some of them who
had formal education, some who did not. But they cared about this country and it’s — I
think you still have it today. And you know I think that, again I go back to your book.
You talk about the written and the unwritten Constitution. Well the unwritten Constitution
is really what we do. It’s that sort of trying to bring — to apply it to current
events and problems and cases and develop it. Akhil Amar:
[affirmative] Clarence Thomas:
And that debate continues on each one of those, and that’s why you see the court at different
points. That’s why the arguments are so important. That’s why your scholarship is
so important. And you know one thing I like about the tone of your book is it’s so positive,
it’s refreshing. You know? It’s not, “I have all the answers,” but, “Here are
some answers, let’s talk about it.” It isn’t up here, you know? I tell my clerks
when we work on opinions, “You got to explain this.” Take your parents: they’re immigrants.
They’re bright people, but I don’t think they’re doctors, not lawyers. Akhil Amar:
Exactly. Clarence Thomas:
It’s their Constitution too. Akhil Amar:
Right. Clarence Thomas:
And we should explain it and get — in a way and interpret it in a way to make it accessible
to them. And that’s what I think you’re trying to do with your book: to make it accessible,
to open it up. Akhil Amar:
So here’s maybe one concluding note. We’ve been talking a lot about the past, the last
225 years, this sort of arc of ever greater inclusion. Didn’t talk as much as we might
have about women’s suffrage, but that of course is a huge, I mean revolutionary moment
of additional inclusion. These amendments that, prohibition aside generally tend to
expand liberty and equality, which is pretty striking that in general the amendments do
that and they don’t take us back. Now here’s the thought experiment: Cause one understanding
of an unwritten constitution might be the constitution still to be written, the unfinished
constitution. What — we’re not done, history isn’t over. What amendments are imaginable
over the next 225 years? If we look back — Clarence Thomas:
I hope you don’t expect me to hang around for that. [laughter] Akhil Amar:
Well, just thinking about, you know — if we — because you and I spent a lot of our
time thinking about 225 years ago, 150 years ago, 75 years ago. If we turn that camera
around and try to think forward 75 years from now, 150 years from now, 225 years from now;
any thoughts at all? These issues aren’t going to come up before the court immediately.
But just on — so just thoughts on the democratic project in America or the world, you know,
going forward. Clarence Thomas:
You know I’m not that creative or that prescient. You know I do think — I wonder when people
look back as we’re looking back now, will they say we added something? Akhil Amar:
[affirmative] Clarence Thomas:
Will they look at what we’ve written and understand that we actually thought about
things or were we just trying to score a point here or there? Akhil Amar:
[affirmative] Clarence Thomas:
I would hope that we can say that we’ve made, or at least they can say that we’ve
made a positive contribution; as positive as you and I think of the — those who were
at the convention, those who participated in the debate, they added something. You know,
when we do opinions I don’t like to get into this back and forth with my colleagues
and quibble with them. I like at the end of it to say, “This is what I think that we
should be looking at or approach that we should be taking.” And that doesn’t mean that
everybody should agree with me or they should change their minds. I just think that what
you’re trying to do is think it through and tell them exactly what you think without
rancor, without personal attacks ad hominems. There’s enough of that. But just to try
to add something. So I think that we are obligated you and me. Akhil Amar:
Yes. Clarence Thomas:
If we talk about this great document we’re obligated to try to improve it. Akhil Amar:
Yes. Clarence Thomas:
We’re obligated to disagree, but in a way that’s constructive, in a way that adds
something, in a way that is worthy of the Constitution. We think it’s a document up
here. And I think we are obligated — you have kids. You teach them that they talk about
things in a certain way, and to each other in a certain way, to their parents in a certain
way, to your parents in a respectful way. This is a great document. And you know I don’t
deny the flaws, I really don’t. I’ve lived the flaws, I’ve lived the contradictions.
I say it in spite of that. That it is to us to do the — it’s you and I — Akhil Amar:
The living — Clarence Thomas:
— the living. Akhil Amar:
It’s up — that’s what Lincoln — Clarence Thomas:
But it’s you and I — Akhil Amar:
Yeah. Clarence Thomas:
— we’re talking about it. I have a job. I start again this month to go back to that
job to — that we’re called to do. You and I have an obligation to do it in a positive
way that adds something. And what I don’t want is someone to say, “Well, you know,
he was there but he was cynical, or negative and didn’t think it through.” Remember
— notice I didn’t say I want them to say, “I agree with you.” I couldn’t care
less; that’s not my point. The point is: Do you think it through and communicate it
in a way that adds to this development that you’re talking about? Think about Harland.
Think about Harland and Plessy. Akhil Amar:
The first Justice John Marshall Harland — Clarence Thomas:
Harland — Akhil Amar:
— the great dissenter in Plessy vs. Ferguson. Clarence Thomas:
Do we quote from the majority opinion or the dissent? Akhil Amar:
Exactly. Clarence Thomas:
It’s the dissent that won the day. Sixty years later it was the dissent. So you write
it in a way that contributes. Did you think that when he was the lone dissent — Akhil Amar:
Alone in dissent. Clarence Thomas:
Do you think — Akhil Amar:
Sole dissenter. Clarence Thomas:
— and as I understand, if my recollection serves me, the sole southerner on the court. Akhil Amar:
From Kentucky — Clarence Thomas:
Yeah. Which is kind of interesting, but these are little tidbits that as I think, sometimes
as my wife says, that I get too caught up in all these little things. Because you read
these cases over, and over, and over and just the eloquence of it that, you know that, to
think of what he said. You know, we have all our biases and people and — but this document
— this is what he says; “This document knows no caste and knows no color. This document”
— Akhil Amar:
He’s colorblind. The Constitution is — Clarence Thomas:
Well, he didn’t quite say that. He said, “It knows no color.” Akhil Amar:
Yes, knows no color — Clarence Thomas:
And I truly believe that he added something. And at that time he was alone. That people
thought that they could deal with us in a Constitutional way based on our skin color;
I’ve lived that. That’s a contradiction. What do you think we held onto: The majority
opinion, or those words from Justice Harland? It is my understanding that that dissent was
what Justice Thurgood Marshall read when he was despondent and thought that he was having
great difficulties in doing the right thing across this country. He would read that dissent.
But we both read it at different points; he a great man and me a little kid, an [unintelligible],
a giant and a kid merely trying to get out of there. Akhil Amar:
And you now sit in the seat that Thurgood Marshall held. Clarence Thomas:
I sit in a chair. I think he occupied his own seat. [laughter] The thing that — you know, I had spent time
with him and I’d like to just say a word. People do a lot of talking on behalf of other
people. I sat with him in a meeting when I first got to the court — Akhil Amar:
This is Thurgood Marshall. Clarence Thomas:
— a courtesy visit that was supposed to last 10 minutes and lasted two and a half hours.
And he regaled me with stories. And I said to him, “I wish that if I’d had the courage
and the age that I could have traveled with him across the South, but I doubt I would
have had the courage that he had to do that.” And he looked at me and very quietly said,
“I had to do, in my time, what I had to do. You have to do, in your time, what you
have to do.” That was all the guidance. And perhaps when we talk about this great
document, it sums up the founders, it sums up those at the convention; they had to do,
in their time, what they had to do. And they did it. And we have to do, in our time, what
we have to do. Will we do it? Akhil Amar:
So, with that, let me add one additional thought and then maybe bring our proceedings to a
close. This conversation, I think, has been in the spirit that you’re calling for. Our
sponsoring institutions, The Federalist Society and The Constitution Accountability Center,
they don’t always agree on everything, but I think they both do agree on the idea of
serious conversation centered on this document. Since I mentioned amendments — I’m not
going to make too many predictions, but I will say that most of the amendments as a
practical matter had to have the support of both parties, because it’s hard to get two-thirds,
two-thirds, three-quarters without both parties being on board: The great amendments of the
1960s, for example, the great iconic statutes of the 1960s, the Civil Rights Act of ’64,
the Voting Rights Act of ’65, the Fair Housing Act of ’68, Republicans and Democrats in
the spirit that you are calling for and — I have one other thought since we are talking
about our sponsoring institutions for this really extraordinary conversation, and that’s
the National Archives. I think that the framers of the Constitution who were amending their
regime studied what had gone before. They studied the state constitutions, saw which
ones worked and didn’t. They — Massachusetts put its constitution to a vote so let’s
put our constitution to a vote. Most of the constitutions have three branches of government,
let’s go with that. Most of them have bicameralism, let’s go with that. An independent executive
works well for Massachusetts and New York; let’s build on that and so on. The abolition
of slavery and the amendments, many of the Bill of Rights, George Mason you mentioned:
He first gives us Virginia’s Bill of Rights and that’s a model for the federal Bill
of Rights. Abolition of slavery occurred in various states and then at a federal level.
So we have to study and make [unintelligible] what has gone before us. We have this duty
to the future, but I think we discharge it best when we actually are understanding or
respectful of the past, and that’s part of what this National Archives is about. 

And if I could just on a personal note tell you the story of why I’m here. You see Justice
Thomas’ presence needs no explanation. He’s Justice Thomas. But what the heck am I doing
here? Well when I was 11 years old I came to the National Archives and I got this document.
It’s a big, big version of the Emancipation Proclamation. And it was an edition of the
Emancipation Proclamation; you can take a look, on the 100th anniversary of the emancipation.
Fifty years ago was September 1962 and the archives released that; a special edition
for kids like me. And I got my picture of Abe Lincoln because I’m a Lincoln man, too. [laughter] Clarence Thomas:
You don’t throw anything out, do you? Akhil Amar:
I don’t. [laughter] And I came. And that’s what made me not
cynical; coming at a very young age to a place like this, being exposed to Mr. Lincoln and
what he did for the Union, being exposed to the Declaration of Independence and the Constitution.
And I think I’m here today honestly because of that. And I — so I would like to give
special thanks for this national treasure: the National Archives. I want to thank all
of you for coming to this extraordinary conversation. I want to encourage those in the — on the
television audience to come to this place if you can bring your kids. Bring your grandkids
and your grand-nephew. Bring the next generation here. And if you can’t come here physically,
experience the National Archives online. You mentioned the internet. Because I think, and
if it is up to us, the living, we can’t just think about the future without thinking
very deeply about the past. And I think this is a place that will help us do that thinking.
And so I ask all of you to join me in thanking Justice Thomas and thanking the Archives. [applause] Clarence Thomas:
Thank you all. Thank you. Thank you all.

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