Winnipeg Free Press - PRINT EDITION

We the people: 'hinge of modern history'

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The judge who never speaks is holding court. We are in a small auditorium at the National Archives, beneath the hushed and dimly lit rotunda in which the founding documents of the United States are entombed under glass, like the hapless flies of the Early Cretaceous sealed in the amber of long-fallen trees.

Among the parchments on display upstairs is the original of the U.S. Constitution, the 225-year-old, four-page, 4,543-word document whose delegation of governance to ordinary citizens rather than to hereditary rajahs, czars, and sultans makes it, in the words of a scholar who also is part of tonight's public conversation, "the hinge of all modern history."

"Where was there democracy?" poses this learned man, Yale University law Prof. Akhil Reed Amar. "In Athens, but then it faded out? A few sheep and goats in Switzerland, before there were Swiss banks? The hinge of all modern history is 'We the people.' "

"When did folks like you and me become part of the 'We?' " Clarence Thomas asks the Indian-American prof, to laughter all around.

Prof. Amar is here to lob a few talking points at the second-ever and currently only black member of the court of last resort. At work, Justice Thomas maintains a famous policy of never asking a question during lawyers' presentations. ("If I invite you to argue your case, I should at least listen to you," is his alibi.) Tonight, half the people in the audience seem to have come to the neoclassical colossus on Constitution Avenue just to find out if he is able to talk at all.

It turns out that he can. In this informal setting, the Quiet Man is jocular, voluble, self-deprecating and seemingly as pleased as punch with the sound of his own voice.

"I'm totally a sucker," Justice Thomas is saying of the so-called "hinge of history," producing a copy from his breast pocket. "I get chills about it. The constitution has a lot of problems -- I don't know if I could do better -- but it WORKS.

"I still believe that it is perfectible. I resist the attitude that it's all lost. I don't deny the flaws. I've LIVED the flaws. I've LIVED the contradictions. There was nothing in front of me that told me it was OK to keep trying, to be a better person, when everything around you said to be bitter and cynical. But there was always this underlying belief that we were entitled to be a full participant in 'We the people.' "ä

For more than 20 years -- ever since the Senate confirmation hearing that he renounced as a "high-tech lynching" -- Clarence Thomas has been pilloried by progressives as a mere carrier of water, a Stepin Fetchit for the outer elements of the racist, homophobic, Jesus-praising Tea Party Right. Being an African-American, in their view, only serves to capitalize his sins.

Justice Thomas's retort is he is better-qualified than any cosseted coastal liberal to discourse on rights and liberties, having risen from dirt-floor, barefoot poverty in segregated Georgia. At 64, the former Roman Catholic seminarian need persevere only until his 80th birthday to achieve the ultimate victory; he then would become the longest-serving Supreme Court Justice of all time.

"I grew up with people who believed that this country could be better," he says at the archives, eulogizing his antecedents as "these unlettered people who never, ever quit" and praising the "nobility of humanity" of people "who bore no bitterness" against the society that debased them.

"That's the way we grew up," he says. "It was 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."

The constitution of the United States does not specify how many Supreme Court justices should sit at any one time, or whether they even need to be citizens or to have attained a certain age. In theory, should a pair of vacancies suddenly occur, U.S. President Barack Obama could nominate Snooki Polizzi AND her son, the distinguished three-week-old jurist Lorenzo Dominic LaValle. But the reality is Supreme Court appointees now are chosen solely for their position on the partisan spectrum, a process that is no more or less cynical than any other in this town.

"Would you have a constitution if everyone there was a cynic?" Clarence Thomas cries in the wilderness. "Would you have a Declaration of Independence if Jefferson was a cynic?

"I've spent half of my natural life in Washington. The ONLY reason to be here is the ideals."

Prof. Amar and Justice Thomas do NOT discuss the merits of the Obamacare Act, which the court narrowly upheld in June with the latter, predictably, dissenting, or the many decisions in which Justice Thomas has been on the losing end of an eight-to-one hammering. (Back at the College of the Holy Cross in Massachusetts, freshman Thomas was the only member of the Black Student Union who voted against establishing a separate dormitory corridor for African-American boys. The tally was 24 to one.)

"You're a sterling professor of law," Clarence Thomas says to his interlocutor at one point.

"You're done all right for yourself," the law professor responds.

In the fullness of time, Clarence Thomas pleads, he should be judged not for the political timbre of his decisions but for the fact they were rendered honestly, according to his own conscience.

"Yes, we disagree on what the constitution says," he admits. "Not to the point that we destroy it, but to the point that we believe that we are perfecting it.

"Will people look back and say we added something? Did we really think about things or were we just trying to score points? What I don't want is for someone to say 'He was there, but he didn't care. He didn't think it through.' "

Allen Abel is a Brooklyn-born Canadian journalist based in Washington, D.C.

Republished from the Winnipeg Free Press print edition September 22, 2012 J11

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