Principalities & Powersnby Samuel FrancisnN o matter how many curses should benheaped on the head of Thurgood Marshall,nrecently retired from some 24nyears of slicing and twisting the rawnmeat of the Constitution into whatevernideological pastry suited his appetite ofnthe moment, even his shrillest foes havento acknowledge Mr. Marshall’s eminencenin the legal and judicial wodd innwhich he lived. When Lyndon Johnsonnhailed him to the Supreme Court inn1967 as the first black justice in Americannhistory, Mr. Marshall was by far thenmost distinguished civil rights tubthumpernin the country. For years henhad manfully wrestled and wrigglednwith Jim Crow and the sour apostles ofnthe thesis that the children of Ham shallnnever mix with the progeny of Shemnand Japheth, and his crowning momentncame in 1954, when he mouthed beforenthe Court the clever sophisms thatnwon the field in Brown v. Board ofnEducation. It was hardly his fault thatnby the time of his retirement last June,nMr. Marshall’s mind had long sincenrotted on the shelf, and he spent hisnfinal days in office muttering to reportersnthe same inanities he had entrenchednin the nation’s fundamentalnlaw.nUnfortunately, Clarence Thomas,nhis would-be successor, cannot matchnMr. Marshall for distinction. Thoughnthere is no evidence of senility in thenman President Bush named to thenCourt a few days after Mr. Marshallnbid farewell to it, neither is there muchnindication of intellectual luster. Mr.nThomas appears to be as much of anman of integrity as any career publicnservant can be, and he is by no meansngiven to the kind of jurisprudentialnextravagance that made Mr. Marshallnand his colleagues on the WarrennCourt a greater menace to society thannBaby Face Nelson. Nevertheless, hendoes espouse a judicial philosophy,,nthough his is a creed only marginallyndifferent from the egalitarian sonoritiesnthat steamed through the pipes of hisnpredecessor’s cerebral organ.nMr. Thomas, the author of a numbernof articles in legal journals and thenpopular press, is a disciple of philosophernand historian Harry V. Jaffa, andn10/CHRONICLESnhis bibliography bristles with allusionsnto and quotations from the works of thenMaster. Mr. Jaffa, now retired from anlong career at Claremont College, isnperhaps best known for his own untiringnadulation of the political emissionsnof Abraham Lincoln and for nearlyntwenty years of literary guerrilla warfarenwith Lincoln’s chief contemporarynnemesis. Professor M.E. Bradford ofnthe University of Dallas.nSome years ago, after the repeatednthrashings Professor Bradford had inflictednon Mr. Jaffa’s roseate views ofnFather Abraham and their supposednconnection with the “Founding” ofnthe Republic, his friends and supportersn(of whom I am one) deludednthemselves that Lincoln’s ghost wouldnrise no more and that we were free atnlast of the sage of Claremont. But itnwas not to be. Indeed, the Jaffa school,na faction of the larger conclave thatntrundles after Mr. Jaffa’s own mentor,nLeo Strauss, seems to have permeatednmuch of what passes for philosophicalnconservatism in the country today.nBoth Jack Kemp and Lew Lehrman,namong other illuminati, have lent theirnlips to his praise, and in one guise ornanother his disciples throng the thinktanks,nlaw firms, and periodicals thatnhave sprouted in the beehives of thenright for the last decade or so. Now Mr.nThomas threatens to inject Mr. Jaffa’snpronouncements into the Constitutionnitself, whence they shall come to rulenthe land for generations. Those whonunderstand the errors of the Jaffa persuasionncannot welcome this prospect,nnor can those Americans who wouldnprefer to be governed, not by thenconcoctions of an academic stylite, butnby the simple rules and principles theirnforebears established.nThe central contention of Mr.nJaffa’s teaching is the claim that thenDeclaration of Independence — specifically,nits assertion that “all men arencreated equal” — governs the Constitution.nAs Mr. Thomas expresses it innan article in the Harvard Journal ofnLaw and Public Policy, “If the Constitutionnis not a logical extension of thenprinciples of the Declaration of Independence,nimportant parts of the Constitutionnare inexplicable.” The purportnof this claim is that in the absencenof the egalitarian effusion at the begin­nnnning of the Declaration, there is littlenjustification for much of what eventuallyntriumphed in American history —nthe prosecution of war against thenSouth, Lincoln’s own egalitarian rhetoric,nthe abolition of slavery, the passagenof the Reconstruction amendments,nand the victory of the civilnrights movement over states’ rights andnsegregation. Mr. Jaffa, Mr. Thomas,nand their school are at one in demandingnconcurrence in the view that thendoctrine of equality is the guidingnprinciple of the American political tradition.nYet the argument for the connectionnbetween Declaration and Constitutionnis particularly weak. Not only were thentwo documents the work of almostnentirely different groups of men assemblednin two entirely different institutionsnand under entirely different circumstances,nbut also the documentsnthemselves are entirely different inntheir purposes and content. The Declarationnof Independence is preciselynthat — a declaration (by the representativesnof the 13 colonies) that thencolonies were no longer subordinate tonGreat Britain but independent states.nThe first part of the Declaration rehearsesnthe natural rights ideology thatnenjoyed a vogue among many educatednAmericans and Europeans (especiallynat the French court, whose sympathynthe Americans were trying tonwin), but the grounds for and thenmeaning of these bromides are nevernmade clear, and they are soon forgottennin the bulk of the document. AsnProfessor Bradford has shown, most ofnthe Declaration is an exposition of thenatrocities allegedly visited upon thencolonists by George III, and they arenatrocities not because they violate “naturalnrights” or the doctrine of equalitynbut because they transgress the historicnliberties of Englishmen and therebyndeliver the innocent subjects of thenking to the misrule of an illegal andnarbitrary regime.nYet, even if the Declaration is readnas a predominantly egalitarian manifesto,nits relevance to the Constitutionnremains minimal. The Constitutionnpresupposes the Declaration only innthe sense that national independencenwas necessary for any national constitutionnto have legal and political stand-n