Clarence Thomas’s Straussian Moment: The Question of Slavery and the Founding

by Corey Robin on December 26, 2017

A question for the political theorists, intellectual historians, and maybe public law/con law experts. The question comes at the very end of this post. Forgive the build-up. And the potted history: I’m writing fast because I’m hard at work on this Clarence Thomas book and am briefly interrupting that work in order to get a reading list.

In the second half of the 1980s, Clarence Thomas is being groomed for a position on the Supreme Court, or senses that he’s being groomed. He’s the head of the EEOC in the Reagan Administration and decides to beef up on his reading in political theory, constitutional law, and American history. He hires two Straussians—Ken Masugi and John Marini—to his staff on the EEOC. Their assignment is to give him a reading list, which they do and which he reads, and to serve as tutors and conversation partners in all things intellectual, which also they do.

These are West Coast Straussians. Both Masugi and Marini hail from the Claremont orbit in California (Masugi was in the think tank, Marino was a student). Unlike the East Coast Straussians—the Blooms and Pangles, who champion a Nietzschean Strauss who’s overtly celebratory of the American Founding but is secretly critical of natural law, natural rights, and the Framers—these West Coast Straussians follow Harry Jaffa, arguing that the American Founding is the consummation of ancient virtue in a modern idiom.

But what’s also true of these West Coast Straussians is that they are intensely interested in race. Jaffa’s great work is on Lincoln’s battle with Stephen Douglas over the question of slavery, and many of the West Coast Straussians dedicate themselves, in the 1970s and 1980s, to developing a view of the Constitution that, while acknowledging its embeddedness in slavery, nevertheless sees it as being redeemed by the egalitarian promise and natural rights philosophy of the Declaration of Independence.

This, of course, is an old struggle in American constitutionalism. Figures like William Lloyd Garrison and Wendell Phillips saw the Constitution as inherently a pro-slavery document (ironically, agreeing with Chief Justice Roger Taney); Garrison said it was “dripping…with human blood.” Figures like Lincoln, Charles Sumner, and the later Frederick Douglass dissented from that view, seeing the possibilities of an anti-slavery Constitution.

The West Coast Straussians take up the latter view. Interestingly, many of them are at the forefront, in the academy (or at least among white political scientists), of introducing African-American thinkers—Douglass, DuBois, King, even Malcolm X—to the canon of American political thought.Consider, for example, this classic anthology from 1970, though as Jason Frank pointed out to me on Facebook, it’s edited by Herbert Storing, who wasn’t a West Coast Straussian. I’ve heard from not a few political scientists who got their undergraduate degrees or PhDs in the 1960s and 1970s that their first encounter with African-American political thought was in the classroom of one of these Straussians.

So these are Thomas’s tutors in the late 1980s. They lead Thomas to a natural law interpretation of the Constitution, in which the various passages of the Constitution should be interpreted (redeemed) by the egalitarian promise of the Declaration of Independence.

This, needless to say, is a somewhat heterodox view, not just on the left but also on the right. It gets Thomas into a lot of hot water during his Senate confirmation hearings—before the revelations of Anita Hill—as Joe Biden, chair of the Judiciary Committee, grills Thomas on his view that a strict defense of property rights, for example, is justified not so much by the literal words of the constitutional text but by the natural law philosophy that is said to inspire the text. (Political theory folks will be excited to learn that Thomas’s citing of Steve Macedo in various speeches plays a critical role in these contretemps. Biden thought he had Thomas in a gotcha, but it turned out to be a gotcha for Biden. But that’s another story for another day.)

Up until this weekend, I hadn’t planned to do much with this natural law moment in Thomas’s development. For the simple reason that once he’s on the Court, I see little evidence of its presence in his opinions. Despite what some scholars have claimed, I don’t find many references to natural law thinking in Thomas’s judgments, and I don’t think the real action of his opinions lies anywhere near that.

But a conversation with my friend Seth Ackerman convinced me that I should deal with this moment in my book. Not because it has any lasting impact on Thomas’s jurisprudence but for two other reasons.

First, because it shows that Thomas’s first sustained engagement with constitutional law, after law school, is motivated/inspired/animated by a single, solitary question: How is it possible to reconcile a document that is so imbricated with the institution of slavery with a fidelity to that document? From the very get-go, the most important, most pressing issue for Thomas, when it comes to the Constitution, is the question of race and slavery. Needless to say, there aren’t many recent Supreme Court justices one can say that about.

What the natural law episode reveals is precisely what Thomas told Biden during his confirmation hearings:

My purpose [in resorting to natural law] was this….You and I are sitting here in Washington, D.C., with Abraham Lincoln or with Frederick Douglass, and from a theory, how do we get out of slavery? There is no constitutional amendment. There is no provision in the Constitution. But by what theory? Repeatedly Lincoln referred to the notion that all men are created equal. And that was my attraction to, or beginning of my attraction to this approach.

Second, Thomas had two sustained periods of engagement with conservative thought. The first was in the mid 1970s, when he read Thomas Sowell’s Race and Economics, and became fascinated with the question of slavery, capitalism, and black freedom. The impact of that moment over time was made evident two decades later, in a fascinating profile Jeffrey Rosen wrote for The New Yorker, in which Thomas recounted for Rosen his intimate knowledge of books like Roll, Jordan, Roll and Time on the Cross, which are classics of the debate around the relationship between slavery and capitalism. The second was in the late 1980s, in these tutorials with the West Coast Straussians.

What’s common in both moments is the presence and centrality of slavery and race. In both instances, Thomas’s engagement with the right is entirely refracted through the question of race.

And so at last we come to my question: What are the best works (articles or books) on the salience of the race question (particularly the relationship between slavery and the Constitution) in the work of these West Coast Straussians? Feel free to answer in the comments or email me at



Jake Gibson 12.26.17 at 9:48 pm

Off topic to your question.
I wish we had an understanding
of how prehistoric people viewed property.
We can be sure that they had a concept of petsonal property. But I would think that they
would not have a concept of real property.
I suspect that the concept of real property did not exist as such before the Agricultural Revolution. What I’m leading up to is how they implied property rights from natural law. I tend to get blank looks from conservatives when I talk about The Commons. Particularly when I claim that all wealth was taken/stolen from the commons.


Kurt Schuler 12.27.17 at 12:31 am

Read or just ask Thomas G. West.

I do not understand the Garrison view. If the Constitution was inherently pro-slavery, the Civil War should not have happened.


charles 12.27.17 at 4:32 am

I would like to suggest that prior to reading a book/books about the Constitution/slavery it would be most beneficial to read the portions covering slavery and property/politics in the book “The Birth of the Modern” by historian Paul Johnson who covers the years 1815-1830 in US/world society. This book gives a very illuminating understanding of how matter-of-fact the attitudes were when reaching the compromises that swirled throughout the whole founding period and the next 50 years. The importance of understanding the political concessions is really crucial I think before looking to Constitutional/Declaration text and the court cases of the day.


Peter T 12.27.17 at 11:55 am


We can’t know about prehistoric people, but many forager groups had notions of property beyond the personal. There was family property (these nut trees), clan property (fishing in this stretch of river, these eel traps) and tribal property (our lands). It was mostly communal, often limited to particular times, but there nonetheless. In fact, very like the medieval commons.


William Berry 12.27.17 at 4:41 pm

Commenting briefly just to recommend against taking seriously anything written by Paul “Wanker” Johnson, who has some skill in dressing up as “history” what is never more than elitist, reactionary cant (e.g., Modern Times).


TKA 12.27.17 at 7:00 pm

Peter T,

A question tangential to your comment.
You note ” many forager groups had notions of property ” then list what sound like examples from contemporary ethnographies.
What reason do we have to take the views of contemporary peoples as evidence of archaic sources of our views, such as natural law?
What if the notions of property such as “family property (these nut trees), clan property (fishing in this stretch of river, these eel traps) and tribal property (our lands)” are in fact the present outcome of as intensive a history of elaboration as the present concepts of natural law, and thus are more usefully compared to present concepts & arguments than examples to base historical reconstruction upon?


Whirrlaway 12.28.17 at 3:24 am

Territoriality is mammal-typical behavior. Eg, sea lion bulls exclusively own chunks of beach and any female sea lions lyin’ on it, just like nation-states.


Whirrlaway 12.28.17 at 3:27 am

… I’m thinking of elephant seals actually. I don’t know what sea lions do. Sacrificed all for the pun, sorry.


Dr. Hilarius 12.28.17 at 3:33 am

Why am I not surprised that Thomas would be familiar with “Time on the Cross,” a book that minimized the horrors of chattel slavery by appeal to dubious statistics (percentage of slaves flogged comes to mind) and even more dubious interpretations of same.


Mike Huben 12.28.17 at 7:23 pm


Robespierre 12.28.17 at 9:05 pm

@6: maybe, but then what kind of evidence WOULD you accept?


Collin Street 12.28.17 at 9:48 pm

What reason do we have to take the views of contemporary peoples as evidence of archaic sources of our views, such as natural law?

Why don’t you read the literature yourself and find out?


sean samis 12.28.17 at 10:42 pm


There were many motivations behind the decisions to secede; I believe the principle one was sheer, cussed pride. If the South had not rebelled; if their Congressmen had remained in Congress; then Lincoln’s Republicans would have been a minority. The Southern Democrats would have been able to protect Southern interests. But rebel they did, from wounded pride (at having lost to Lincoln). The pro-slavery attributes of the Constitution were irrelevant in the emotional moment.

sean s.


sean samis 12.28.17 at 10:56 pm


I’m not able to help you in your quest, but I will be interested in your book.

I do think this kind of question illustrates the worthlessness of trying to figure out what the Framers were thinking about [whatever]; different scholars start with the same facts and arrive at different conclusions because none of them are actually able to “channel the dead” minds of the Framers. All they are doing is following their own whims.

Jurisprudence by seance is an irretrievably bad idea. Better to stick with the public meaning of the text and leave the tarot cards at the circus.

sean s.


J-D 12.28.17 at 11:18 pm

The first part of Peter T’s comment is ‘We can’t know about prehistoric people …’ It’s clear to me that Peter T is not suggesting that we can conclude with confidence that prehistoric foraging groups had similar notions of property to foraging groups observed in historical times. I think the point is supposed to be that historically observed foraging groups can suggest a plausible hypothesis about what may have been the case in prehistoric foraging groups; historical observations of foraging groups are as close as we can get to observation of prehistoric foraging groups. Surely the notions of prehistoric foraging groups must have resembled those of historically observed foraging groups more than they resembled our own — do you not think?

It is also true that all historically observed foraging groups must have been influenced to some extent, directly or indirectly, by contacts with industrial societies with highly evolved notions of property. Still, it should at least in principle be possible to investigate those influences and therefore make some analytical allowance for them.

What’s your alternative — to conclude that prehistoric groups are completely unknown and unknowable? Should pre-historians all give up their work entirely?


Collin Street 12.29.17 at 12:23 am

But rebel they did, from wounded pride (at having lost to Lincoln).

But social conditions in the south were such that to be socially successful… well. The centrallity of slavery to southern social conditions meant that even acknowledging the genuine pain of black humans was an overt and direct threat to the social order and a social — if not physical — death sentence. To be entirely blind to the suffering of black people, it’s pretty likely that you’re going to be impaired in your understanding of anybody else. Add dueling to the mix and you’re marginalising concilliation, the tolerance of disagreement and a search for a modus vivendi in favour of an absolutist crushing of those who disagree with you.

It’s a self-sustaining social setup where social success demands that you be a violent abrasive arsehole with a trigger temper, no? and that’s not something that makes for good plan-making.


steven t johnson 12.29.17 at 1:01 am

sean samis @7 John Brown.

And the prospect of losing a suitably ferocious fugitive slave act; a foreign policy directed away from gaining new slave territory, like Cuba; federal opening of the mails; potential use of patronage to create a unionist party in the South; loss of federal patronage to shore up the planter stranglehold; the possibility of compromise bills on tariffs, lower prices for federal land, and revenues spent on improvements was the possibility of lower incomes for planters/loss of land values; loss of the bully pulpit even to a rigidly legalistic opponent of slavery, but most of all, the demographic lesson of Lincoln’s victory, and the prospect of them steadily getting worse.

The South’s system was obsolete and its problems insoluble, not even by violence. I suppose you could say it was sheer, cussed pride that they still refused to quit. But I don’t think that was what you meant?


LFC 12.29.17 at 2:36 am

Kurt Schuler @2

I do not understand the Garrison view. If the Constitution was inherently pro-slavery, the Civil War should not have happened.

The Constitution as it then stood protected slavery where it existed but said nothing about the issue of its expansion into the western territories, which was of course a contentious issue for years before secession occurred. Garrison’s view of the Constitution was not irrational given his commitment to abolition and other aspects of his political views. Not all abolitionists shared Garrison’s view of the Constitution as irredeemable and fatally flawed, but those abolitionists who thought it was redeemable at least had to favor its amendment to outlaw slavery.

Deep worry about what Lincoln’s election meant for the prospects of slavery’s extension (seen by many in the South as crucial to slavery’s long-term survival), Southern ‘nationalism’, and years of growing disaffection with the idea of the Union among elites in Southern states were several of the main forces leading to secession.


Matt McKeon 12.30.17 at 12:14 am

The South seceded to preserve, protect and extend slavery. They said so clearly at the time. Abraham Lincoln posed a threat to racially based chattel slavery: an institution that absolutely defined most white southerners.


Matt McKeon 12.30.17 at 12:20 am

The Constitution is somewhat ambiguous about slavery. It never mentions slavery, but establishes a 3/5s formula for counting slaves, a time frame for ending the Atlantic slave trade and the right to pursue fugitives and return them to slavery.

Are the enslaved people property, as Roger Taney argued? Or people held as property? If the former they could be “carried” anywhere, as property rights are an important principle. If the latter then the practice of slavery could be limited to the states who had established it by some sort of positive law.

But the real question: is humanity divided in a white master race and a barely human black race fit only to be slaves? Or are all men created equal


Michael Connolly 12.30.17 at 6:56 pm

William (#5) – I found some sections of The Birth of the Modern illuminating and NOT reactionary, e.g. the end of wilderness around the world, eating habits, and the transformation of travel in England through bridges and rail. Johnson’s Tory sympathies were not hard to discern (although it took me about a hundred pages, but that’s only 1/6 of the book) and I felt I could read past them.


Ben Alpers 12.31.17 at 6:35 am


For Straussian stuff on slavery and the Constitution, you might want to look at the readers that Robert Goldwin edited. Goldwin was a Strauss student, a Dean at St. John’s College, and a mentor to Donald Rumsfeld. He served as White House intellectual in the Ford administration. In the 1960s and ’70s, he edited a series of readers on major issues of the day called the Rand McNally Public Affairs Series. These brought together essays by thinkers from a wide variety of perspectives (including some liberal and left ones), but always prominently featured Straussians. You might want to take a look at the 100 Years of Emancipation volume. After his years in the Ford administration, Goldwin became affiliated with AEI. In the 1980s, he edited a somewhat similar series of readers for AEI. Though these tended to be more exclusively conservative in their points of view, they also tended to include Straussians prominently. Check out 1988’s Slavery and Its Consequences, e.g. I think AEI has the full text of many of these online.

(Goldwin actually devoted much of his early career to hosting public affairs conferences that brought together scholars (esp. Straussians), business leaders, and politicians to study issues of the day. He started these at Chicago in the late 1950s, took his Public Affiairs Conference Center with him when he moved to Kenyon in the mid-1960s, and eventually tried reproducing them to little effect in the Ford White House. It was through these conferences that he came to know both Donald Rumsfeld, who was already in Congress, and Charles Percy, who attended before he became a political candidate.)


Peter T 12.31.17 at 11:15 pm

side note and re @15

J-D is right. But there did exist some forager groups more or less entirely isolated from agricultural/industrial societies until the 18th century (Australian aborigines the best example), and we have observations from very early contacts who lived among them. In the Australian case, convicts who ran away, often lived years with aborigines and later returned. The property examples cited were mostly from them.

This does not, of course, exclude independent development. Australians lived here for 50,000 years, and were not static technologically or socially.

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