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Thomas concedes that ‘we the people’ didn’t include blacks

Reporter

It is true, Justice Clarence Thomas acknowledged the other night, that the “we the people” extolled in the Constitution 225 years ago did not include people who looked like him.

But the Declaration of Independence did, he contended, and that was something that a black kid growing up in Savannah, Ga., was told early on.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006. View Archive

“There was always this underlying belief that we were entitled to be a full participant in ‘we the people,’ ” Thomas told a crowd at the National Archives last week.

“That’s the way we grew up. 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.”

Thomas submitted to about an hour of extremely gentle questioning from Yale Law School professor Akhil Reed Amar at an event called “The Constitution Turns 225,” co-sponsored by the liberal Constitutional Accountability Center and the conservative Federalist Society.

It was a packed house, drawn perhaps by the chance to see the “silent justice” speak. That’s far more myth than reality, of course.

It is true that Thomas hasn’t asked a question during the court’s oral arguments since 2006. But he speaks regularly to groups and law schools, and he put on a full publicity blitz when his memoir “My Grandfather’s Son” was published in 2007, including a sit-down with “60 Minutes” and a multi-part series on “Nightline.”

Thomas can on occasion be melancholy in his speeches, such as saying he sometimes envies the seemingly carefree lives he sees from his chamber windows. Several years ago, he told a group of high school students that he sometimes gets “morose,” and bucks himself up by reading inspirational speeches or retreating to the basement to watch the movie “Saving Private Ryan.”

He remains distrustful of Washington, although he mentioned during the discussion that he has lived here more than half of his 64 years. He often refers to it as “this city,” and says it is inhabited by ”cynical people who know it all.”

The “unlettered” people he grew up with, especially his grandparents, he said, withstood “the most difficult circumstances with a dignity that’s unmatched in this city.”

Amar repeatedly brought the conversation back to the point that under the original Constitution, people “like us” were not included. And Thomas spoke extensively about race — after noting with sarcasm that “people say horrible things about it — they say I’m not black, so I’m just a little doubtful I should say I’m black.”

“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 schoolyard saying the Pledge of Allegiance every day before school,” Thomas said.

“I mean, everything 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 all of 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.”

Thomas also noted a period in his college years in which the belief was not so strong.

“I, too, became quite cynical and would make glib remarks in reciting the — not-so-pleasant remarks in reciting the Pledge of Allegiance or say things that I think were . . . ” He paused. “Glad there were not these cellphones,” he said to laughter. “People couldn’t YouTube you and it’s around forever.”

Thomas was not asked about the court’s recent term, and he mentioned it only obliquely.

He did not reference the Affordable Care Act when he said the debate about the powers of the federal government — the overriding theme of the court’s most recent term — is “embedded in the original argument.”

He added: “You can fast-forward to today. . . . We’re still talking about 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.”

The term ended, of course, with Thomas on the losing side of a 5 to 4 vote to uphold President Obama’s signature domestic achievement and reports of a court bruised by the battle.

Since then, justices have gone out of their way to speak of comity. “In the (nearly 22) years I’ve been there, I honestly come away thinking that every member really wants to make it work . . . every single member,” he said. “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.”

He gave as an example Justice Ruth Bader Ginsburg, who joined the court two years after Thomas. She is a good person, friend and “fabulous judge” with whom he almost always disagrees, he said.

When Amar pointed out that many of the court’s cases are decided unanimously, Thomas laughed.

“I agree with her in all the unanimous cases,” he said. “I like that.”

For previous High Court columns, go to washingtonpost.com/fedpage.

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