ing. But nowhere in the Constitutionnare the Declaration or its supposedndoctrines invoked or implied, and innthe Preamble, where the purposes ofnthe charter are explicitly stated, thenDeclaration and any mention of equalitynare conspicuous by their absence.nAll of which is understandable. ThenFramers of the Constitution hadnenough trouble drafting, adopting, gettingnratified, and enforcing their charternwithout importing into it the quixoticnramblings of Enlightenment tabletalk.nAs dubious as the Jaffa-Thomasnconnection between Declaration andnConstitution is, it is the foundation forna good deal of mischievous misunderstandingnof what the Framers intendednand of how the idea of equality shouldnbe imposed upon us. Mr. Thomas,nagain following Mr. Jaffa and hisnschool, has to explain why it is, if thenFramers were egalitarians, they refrainednfrom abolishing slavery andneven went so far as to acknowledge andnprotect slavery in the text of the Constitution:nthe “three-fifths clause,”nwhereby slaves were to count as threefifthsnof a free person in apportioningncongressional representation; the fugitivenslave clause; and the prohibition ofnrestrictions on the slave trade untiln1808.nIt is the conceit of the Jaffa-Thomasnschool that, in Mr. Thomas’ words,n”With the Declaration as a backdrop,nwe can understand the Constitution asnthe Founders understood it — to pointntoward the eventual abolition of slavery.”nThe protection of slavery in thenConstitution the Jaffa-ites see as a meren”compromise,” necessary to dragnalong the Southerners, who would notnhave ratified the Constitution had theynbelieved the document contemplatednabolition.nIt is curious that the Jaffa-Thomasnargument, ostensibly designed to praisenthe Constitution and its architects, innfact turns the Framers into liars andnhypocrites. When Virginia debated ratification>nfor example, Patrick Henry,nwho opposed ratification, argued thatnthe Constitution and its strong centralngovernment would indeed lead to thenabolition of slavery. But both JamesnMadison and Edmund Randolph,nleading veterans of the ConstitutionalnConvention, denied his charges vigorously.n”There is no power to warrant itn[abolition],” Madison declared. “I believensuch an idea never entered anynAmerican breast.” Randolph also arguednthat “The Southern states, evennSouth Carolina herself, conceivedn[slaves] to be secure by these words [thenslave-trade clause]. . . . There was notna member of the Virginia delegationnwho had the smallest suspicion of thenabolition of slavery.”nIf the Jaffa-Thomas interpretation isncorrect, then Madison and Randolphneither were lying or else didn’t understandnthe document they had justnhelped write. Moreover, if the Framersnhad really regarded slavery as a grotesquenviolation of natural rights thatnshould have been abolished, how canntheir temporary compromises with it benjudged as anything but the most cynicalnpragmatism?nIndeed, Madison’s own notes of thenConvention show that there was nonintention on the part of the Framers tonabolish slavery through the Constitution,nthough different members expressedndifferent opinions about slaverynas an institution. In any case, thenJaffa-Thomas efforts to paint slaverynout of the Constitution (and therebynexclude acceptance of inequality in thenAmerican political tradition) don’tnwash. As historian William E. Wieciknhas written, “So permeated was thenConstitution with slavery that no lessnthan nine of its clauses directly protectednor referred to it.”nWere Mr. Jaffa’s misconceptionsnconfined to the esoterica of the Founding,nthey might be irrelevant for constitutionalnlaw today. But Mr. Thomasninsists on making them stand up andnmarch. If the purpose of the Constitutionnis to implement the equality clausenof the Declaration, then it is the businessnof the Supreme Court to get onnwith the project. Mr. Thomas himselfnhas roundly endorsed this mission,npraising Martin Luther King’s characterizationnof the Declaration as an”promissory note” (a conception strikinglynsimilar to that of Mr. Jaffa), andngladly hailing also King’s remarksnshowing that “Dr. King captured wellnthe utopianism of America.” He findsnespecially inspiring “the powerful elementnof the American political traditionnPresident Reagan appeals to in hisnfrequent quotation of the political theoristnand pamphleteer Tom Paine: ‘Wenhave it within our power to begin thennnworld over again.’ Paine captured wellnthe revolutionary meaning of basing anparticular nation on a universal truth,nthe truth of human equality.”nIt was, of course, the “truth ofnhuman equality” that produced thenReign of Terror in the country wherennatural rights egalitarianism was so chicna few years before. Mr. Jaffa and Mr.nThomas presumably would disavownthe bloodshed of the French Revolutionn(ideologues never take responsibilitynfor their misshapen offspring; theynmerely engender more), but the passionnthey share with Paine andnRobespierre for using the state to imposenequality by force ought to makenus skeptical.nMr. Thomas, of course, is bestnknown for his criticisrn of affirmativenaction and other “group rights” thatnegalitarians of the stripe of ThurgoodnMarshall have spawned. There is nonreason to doubt his sincerity, but thenpoint is that the Jaffa-Thomas brand ofnequality is no less generative of tyrannynthan that of Mr. Marshall.nIt is in his account of civil rights lawnthat Mr. Thomas makes clear his fundamentalnkinship with Jacobinism. Unlikenthe Warren Court, which invokednsocial science as a justification for strikingndown school segregation, Mr.nThomas relies on the dissent of JusticenJohn Marshall Harlan in the decisionnBrown overturned. In Plessy v. Fergusonn(1896), the Court upheld a lawnsegregating New Odeans streetcars onnthe grounds that such social segregationnwas not inherently a “badge ofninferiority” but was only construed asnsuch by the “colored race.” The Courtnhad already held in the Civil RightsnCases of 1883 that “badges of slavery”nwere forbidden by the ThirteenthnAmendment’s outlawing of slavery itselfnIn Plessy, it simply refused to labelnsegregation such a badge.nHarlan dissented, arguing, as he hadnin his dissent in the 1883 decision, thatnthe Thirteenth Amendment forbadenall forms of racial segregation on thengrounds that “the arbitrary separationnof citizens, on the basis of race … is anbadge of servitude wholly inconsistentnwith the civil freedom and the equalitynbefore the law established by the Constitution.”nHarlan’s view, based on thensame understanding of the Declarationnas egalitarian charter that the Jaffanschool promulgates, is thus broadernOCTOBER 1991/11n