J. Michael Luttig is a respected conservative legal scholar who was appointed to be a federal appeals court judge by President George H.W. Bush. He served for 15 years on the U.S. Court of Appeals for the Fourth Circuit from 1981 to 2006. In 2020, he advised Vice-President Mike Pence that he had no constitutional authority to overturn the presidential election. He is an outspoken critic of Trump. In 2024, he voted for Kamala Harris.
In this post, Judge Luttig critiques a speech that Justice Clarence Thomas delivered in late April to the Civitas Institute at the University of Texas. It was supposed to be a speech about the 250th anniversary of the Declaration of Independence.
Justice Thomas expressed the bizarre idea that progressivism is at odds with the ideals of the Declation of Independence. He described progressivism as the demonic ideology that is responsible for the great evils of the past century. Justice Thomas connected progressivism to Stalin, Hitler, Mao, and Mussolini.
Here is a video. Here is a transcript.
Law school dean Erwin Chemerinsky analyzed his speech here.
Ruth Marcus, former editorial writer for The Washington Post, critiqued his upside/down version of history in The New Yorker.
Judge J. Michael Luttig joined many who were critical of Justice Thomas’s understanding of history and of progressivism.
He wrote:
The speech exe that Justice Clarence Thomas gave last week at the University of Texas could prove to be the single most important speech of political and constitutional philosophy that never should have been given.
As a conservative my entire life, I certainly wish Justice Thomas had not written and given the insidious speech.
Though his unmistakable targets were Progressives and progressivism, his speech is far more injurious to Republicans, conservatives, and conservatism than it is for progressivism because it is demonstrably and inarguably wrong as to Progressives, but it is a siren song to today’s Republicans and conservatives. Webster’s Dictionary defines “siren song” as “: an alluring utterance or appeal, especially one that is seductive or deceptive.”
Justice Thomas intended his speech as a Republican and conservative manifesto for our times — and for all times. But the political and constitutional philosophies he described and embraced are neither doctrinal conservatism nor Republican nor political conservatism, and they are manifestly not constitutional conservatism.
No one should mistake for true conservatism, or even Republicanism, much less constitutional conservatism, the political and constitutional philosophies that Justice Thomas has embraced his entire life and spoke about last week. His philosophies represent anything but true conservatism.
Rather, together, they constitute a bastard strand of conservatism that lingered and languished in the faculty lounges of the conservative academy from around the mid-1960s until it was summoned forth from the academy by acolytes of Clairmont McKenna College’s natural law philosopher Harry V. Jaffa to fuel Donald Trump’s rise to power in 2016.
Those acolytes included Justice Thomas and his, and my, former law clerk John Eastman.
Thus, the overarching significance of Justice Thomas’ speech last week is that it represents the intellectual political and constitutional philosophies for Donald Trump’s two presidencies and his entire MAGA movement.
It was these political and constitutional philosophies that underlaid and justified Donald Trump’s failed plan to cling to power on January 6, 2021, the architect of which was John Eastman.
The political and constitutional philosophies that Justice Thomas embraces are as certainly wrong for America, whose preeminent law is the Constitution of the United States, not the Declaration of Independence’s admittedly majestic and inspirational Preamble,” as Justice Thomas believes they are certainly right for America under that Constitution. His twin philosophies are, simply and demonstrably, wrong as a matter of historical fact, political fact, and both constitutional fact and law.
Together, they are a shockingly and reprehensibly ahistorical characterization of liberals and progressives and progressivism, as well as an ahistorical characterization of Republicans, Republicanism, and conservativism.
These philosophies are a radical understanding of American and world history over the past century and a quarter, a radical way of thinking about American political history, and a decidedly radical way of thinking about the relationship between the Declaration of Independence and the Constitution.
This is emphatically not what the Founders of this nation and the Framers of the Constitution of the United States contemplated, envisioned, or ever intended.
The historical flaws in Justice Thomas’ speech are many and every one of them has already been identified and authoritatively denounced by experts and scholars across the political, philosophical, and ideological spectrum.
Justice Thomas purports to trace progressivism in America back to Democrat President Woodrow Wilson, when in fact progressivism for the past century and a half is actually traceable directly back to Republican President Theodore Roosevelt. Astonishingly, Thomas then blames all progressives of the twentieth and twenty-first centuries – including progressives in the United States over this period – and charges them with responsibility for the profound failures of societies worldwide during those one hundred and twenty-five years, including Stalinism, Maoism, Mussolini’s fascism, Naziism, and worse.
Oblivious to the actual history, but supremely confident in his ahistorical understanding of that history, Justice Thomas intoned as if reading from the Gospel that “Progressivism has made many inroads in our system of government and our way of life. It has coexisted uneasily with the principles of the Declaration. Because it is opposed to those principles, it is not possible for the two to coexist forever…. Stalin, Hitler, Mussolini, and Mao all were intertwined with the rise of progressivism, and all were opposed to the natural rights on which our Declaration was based. Many progressives expressed admiration for each of them shortly before their governments killed tens of millions of people.”
Justice Thomas’ invidious accusation that progressives in America for the past century and a half up to this very day have been pursuing the same anti-democratic and anti-constitutional regimes as Stalinism, Maoism, Mussolini’s fascism, Naziism, and the like, is frightening, risible, and reprehensible.
While it can fairly be said that Woodrow Wilson was critical of the Declaration’s Preamble, virtually no other Progressive or Democrat since Woodrow Wilson has so much as criticized the Preamble, much less rejected it. The Reverend Martin Luther King, Jr., famously regarded the Declaration of Independence and the Constitution as the “promissory notes” to which all Americans were heir and he called upon the nation to fulfill the pledges of these two Founding documents.
Jeffrey Rosen, one of the greatest constitutional scholars and historians of our times and indisputably the foremost constitutional scholar of America’s Founding, writes in his recent book The Pursuit of Liberty: How Hamilton vs. Jefferson Ignited the Lasting Battle Over Power in America that Thomas Jefferson was, after all, the founder of the progressive Democratic Party and most Democrats in 19th and 20th centuries revered Jefferson.
Mr. Rosen goes on to explain that when he was President Wilson’s closest advisor, progressive Supreme Court Justice Louis Brandeis handed out biographies of Thomas Jefferson to Kentucky schoolchildren, quoted Jefferson in the greatest free speech opinion Brandeis ever wrote on the Supreme Court, and took his famous criticism of the “curse of bigness” from Thomas Jefferson.
Supreme Court Justice Hugo Black, a liberal originalist, worshiped and frequently quoted Thomas Jefferson. President Franklin Delano Roosevelt built the Jefferson Memorial on the Mall in Washington D.C. and had Jefferson’s portrait permanently engraved on the obverse of the nickel and his Virginia home, Monticello, engraved on the reverse. Mr. Rosen writes that President Roosevelt died the day before Thomas Jefferson’s birthday with an undelivered speech in hand, in which he called Thomas Jefferson the prophet of the post-war order.
And of course, President William Jefferson Clinton began his inauguration with a pilgrimage to his namesake’s Monticello home in Charlottesville, Virginia, symbolically traveling from Thomas Jefferson’s mountaintop home to the Nation’s Capital, to be sworn in as the 42nd President of the United States.
As a matter of historical fact, every single progressive president since Theodore Roosevelt, with the arguable exception of Woodrow Wilson has unhesitatingly embraced the Declaration’s Preamble, the Declaration itself, and indeed, Thomas Jefferson, the author of the Declaration of Independence.
For 250 years, it has never been the case that either of America’s two political parties has been anti-Preamble, anti-Declaration of Independence, or anti-Constitution . . . until, that is, the past 10 years, when the Republican Party led by Donald Trump has acted as if it were all three.
As a matter of historical, political, and constitutional fact, it is the 47th President and today’s Republicans and conservatives who, every day of the week, act in denial of the Declaration of Independence and the Constitution of the United States, all the while professing to revere these two Founding and foundational documents of the United States of America.
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