Introduction
Justice Clarence Thomas’ April 16, 2026, op-ed in The Wall Street Journal is a perfect example of the kind of bad-faith arguments that have always given lawyers a bad reputation—perhaps never more so than today.
The op-ed, entitled “Justice Thomas: Progressives vs. the Declaration,” is excerpted from remarks he delivered the day before at the University of Texas-Austin, commemorating the 250th anniversary of the Declaration of Independence. In it, Thomas argues that “progressivism”—a political ideology born in the pangs of scientific progress, raised in opposition to the injustices of the Gilded Age, and evolving significantly ever since—is fundamentally opposed to the “principles of the Declaration.” The two, he warns, cannot “coexist forever.”
Here is a Supreme Court Justice openly seeking to convince Americans that we cannot coexist unless large swathes of us abandon a political ideology he disfavors. That is outrageous enough, although we can thank him for his candor. Even worse, in making this argument, Thomas deploys many of the rhetorical tricks slick-tongued lawyers have long used to dupejudges, juries, and the public alike. From strawmanning and selectively quoting to obscuring, oversimplifying, and outright distorting, Thomas’ anti-progressivism rhetoric has it all, packed into one factually false, logically flawed, and blatantly partisan argument.
An old-school “originalist,” Justice Thomas is now the second-longest serving member of the Supreme Court. But, since his confirmation in 1991, he has probably never been more candid about his political philosophy than he was in these recent public remarks. And yet, as always, the pervading error in Thomas’ brand of thinking is its demand for the “original” Constitution without America’s original sin: the explosive contradiction between the Declaration’s promise that “all men are created equal” and the brutal reality of chattel slavery enshrined in the pre-Civil War Constitution, among other inherent injustices.
Every mention in the op-ed of the Declaration or Constitution is met with praise for liberty, while every mention of progressivism is met with slander or selective outrage. Butcontrary to Thomas’ assertions, progressivism—despite its notorious flaws—has always sought to defuse America’s many combustible contradictions in a post-Civil War Union still smolderingfrom the factional friction that continuously threatens to ignite once again.
Justice Thomas’ Selective Originalism Ignores the Constitution’s Original Sin.
The op-ed begins with the assertion that the “Constitution is the means of government; it is the Declaration that announces the ends of government.” This ignores that the preamble to the Constitution announces the ends of government, too: “to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity…”
It’s a subtle distinction that matters because the Constitution is the supreme law of the land whereas the Declaration, despite its philosophical importance, is not legally binding. Every law school student knows this, so Justice Thomas must have a reason to focus Americans’ attention on the Declaration’s stated ends of government and away from the Constitution’s. I suppose it’s because treating the Declaration as the sole repository of the government’s “ends”permits Justice Thomas to praise the Declaration’s language of natural rights while downplaying America’s original sin.
While the Declaration espoused the “unalienable rights” of “life, liberty, and the pursuit of happiness,” the Constitution ratified in 1788 did not. It did not even contain the Bill of Rights. In fact, the 1788 Constitution made no mention of “rights” at all. The word “right” appears only once, in Article I, Section 8 regarding copyrights and patents. Arguably, Article I, Section 9protects rights by implication. But it also illustrates the Constitution’s inherent contradiction,simultaneously protecting the “Privilege of the Writ of Habeas Corpus” while permitting the international slave trade to continue until at least 1808. As Madison and Hamilton argued, the original Constitution certainly did circumscribe government power, but it also enshrined injustice by denying the natural rights of the majority of people in America. In the case of over a half-million African slaves (growing to over four million by the Civil War), the exclusion was explicit. In the case of free blacks and women, whom the states excluded from voting for at least another century, it was implicit from the Constitution’s silence in the face of disenfranchising state laws. In the case of native Americans, it was what we would now call genocide or ethnic cleansing.
This inherent injustice spawned America’s long, two-steps-forward-one-step-backward march toward expanding the meaning of “people” in the Constitution’s first words, “We the People.” Likewise, the Declaration’s lofty proclamation that “all men are created equal” is an enduring rallying cry for those seeking to elevate and effectuate these famous words—that “all men and women—of all colors and types—are created equal.”
The Greatest Threats to Liberty Are Corrupt Yet Captivating Minorities, Not Majorities.
All this must be lost on Justice Thomas when he says, “The slaveholders used the power of government to deny the fundamental natural rights of the slaves; the segregationists used the state to oppress the freed men and women—including my ancestors.” These injustices, Thomas argues, reflect the wisdom of Federalist No. 10, which “proposed the idea that the great threat to our rights comes from majority faction.” But it was not a majority, let alone progressivism, that allowed slaveholders to use the power of government to deny the natural rights of the slaves. As the Supreme Court recognized in the infamous Dred Scott Decision, it was the Constitution itself—and, particularly, a strong minority faction of land-owning white men representing the Southern states. Their demands enshrined the abhorrent afront to natural rights of slavery into supreme law, despite what the Declaration says. Similarly, it was not a majority, let alone progressivism, that allowed segregationists to oppress freed black men and women. It was the Supreme Court itself, in Plessy v. Ferguson, which caved to the demands of the descendants of that strong minority faction of land-owning white men. Armed with their ancestors’ rhetoric, they continued employing the Tenth Amendment of the Constitution to deny natural rights to blacks—even after the Civil War.
Even with the blessing of hindsight, Justice Thomas appears to carry the same blind spot that the Founders had. Channeling Madison’ argument in Federalist No. 10, Justice Thomas writes that, “Human history teaches us, alas, that numerical majorities frequently seek to control the government, and use the state to violate the rights of the minority.” The specter of pure democracy does have some merit. But even Madison acknowledged, in Federalist No. 10, that “Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people.” Human history and common sense teach us that this—the machinations of a sinister, corrupt, and captivating minority faction—is by far the greater and more likely threat to rights. In hindsight, Madison’s argument rested on a naïve faith in “the republican principle, which enables the majority to defeat [the minority faction’s] sinister view by regular vote.” In reality, even “majority factions” have leaders and followers, the leaders naturally far fewer in number than the followers, who often follow leaders intent on betraying them. A tyrant is typically a faction of one—the tiniest minority commanding a legion.
For all of Madison’s talk about the threat of majority faction, his definition of “majority”was limited to majorities within a minority comprising mostly land-owning white men, the same minority comprising the entire definition of “people” in the pre-Civil War Constitution. The contradiction between this reality and the lofty ideals of the Declaration defeats Madison’s logic. The very existence of a constitution denying rights to the majority of the people it governs is itself the triumph of a minority faction over the majority.
In the op-ed, Justice Thomas confronts none of this. Rather, on top of his faulty premises about the Declaration, the Constitution, and threats to liberty, Justice Thomas builds a strawman of “progressivism” to serve his purpose of maligning its tenets, goals, and effects.
Justice Thomas Strawmans Progressivism with Blatant Misquotations.
But first, make no mistake: many self-described and proud progressives held views abhorrent to most modern Americans, including me, and those views had very real consequences for myriad victims. Justice Thomas singles out among these progressives Woodrow Wilson, the 28th president, whom he describes as one of the most prominent “proponents of this new set of first principles” that were “introduced into the American mainstream” at the “beginning of the 20th Century.” And he is not entirely wrong. Like a stereotypical lawyer, Thomas ignores whatever hurts his case and overemphasizes whatever helps it.
For example, Wilson may be remembered as the Democrat who signed into law the eight-hour workday, restrictions on child labor, and robust anti-trust laws; championed national self-determination after World War I; and spearheaded the creation of the noble-minded yet ill-fated League of Nations. But Justice Thomas mentions none of this. Instead, he eagerly reminds usthat Wilson also resegregated the federal workforce, emphasizing Wilson’s blatant racism after having just whitewashed the blatant racism etched into the Constitution.
In Justice Thomas’ telling, progressivism is nothing more than a vehement rejection of the Declaration, liberty, rights, and everything that makes America great, and a wholehearted embrace of eugenics, sterilization, and contempt for the common man. To create this largely distorted image, Thomas misquotes Wilson and the only other American progressive he mentions by name, John Dewey, while grossly misrepresenting the history of progressivism as both an ideology and political movement. For one, Thomas never mentions what progressivism has evolved into today. Nor does he dare mention that both Wilson, a Democrat, and Theodore Roosevelt, one of the most beloved Republicans, were both considered “progressives” at the time. They even ran against each other for president in 1912, but Roosevelt ran on the ticket ofthe Progressive Party—a party he himself had just formed.
Instead, Justice Thomas begins by emphasizing that progressivism is not “native toAmerica.” Foreshadowing his conflation of progressivism with Nazism, Thomas claims that “Wilson and the progressives candidly admitted that they took it from Otto von Bismarck’s Germany, whose state-centric society they admired.” But this is simply untrue. Thomas did not cite a source (it was a speech, after all), and the only source I found making a similar claim does not cite a source either. But in Jennings C. Wise’s comprehensive biography of Wilson, Bismarck is mentioned only eight times—once as the object of Wilson’s father’s hatred and otherwise as an instrumental figure in the international order Wilson inherited as president during World War I.
Most likely, Justice Thomas got his German strongman wrong—along with Wilson’s point. In The Study of Administration (1887) and Constitutional Government in the United States(1908), Wilson offers tepid praise for Frederick the Great, who reigned over Prussia nearly a hundred years before Bismarck unified Germany. In each case, however, Wilson was tracing the history and the evolution of the state. Wilson placed Frederick the Great’s efforts in creating a more-or-less efficient bureaucracy, aimed at improving the lives of the common people, in the second of four stages of governmental development—only one step up from pure despotism. But Wilson ranked the American and English constitutional systems above Prussia’s bureaucracy, placing them in the fourth and highest stage of political development because “the leaders of the people themselves became the government.”
Not done yet twisting Wilson’s words, Justice Thomas veers even further off course. He claims that “Progressives like Wilson argued that America needed to leave behind the principles of the Founding and catch up with the more advanced and sophisticated people of Europe.” This is a blatant lie. As Matt Ford observed in The New Republic, Wilson says quite the opposite. While acknowledging Prussia’s administrative efficiency, Wilson wrote that “all reasonable preference would declare for this English and American course of politics rather than for that of any European country” and that it was “better to be untrained and free than to be servile and systematic.” His goal was not to abandon the Founding’s principles for “state-centric” government, but to improve the administration of American government within those principles. As Wilson put it, “Liberty cannot live apart from constitutional principle; and no administration, however perfect and liberal its methods, can give men more than a poor counterfeit of liberty if it rest upon illiberal principles of government.”
Similarly, in Constitutional Government in the United States, Wilson expressly praised the Declaration of Independence. He argued that the Declaration leaves each generation free to determine “what they will do with their lives” and what form of government best secures their “safety and happiness.” Political liberty, he wrote, is “the right of those who are governed to adjust government to their own needs and interests.” One may, of course, disagree. But any argument against Wilson’s conception of liberty as evolving with each generation must argue equally against several of the Founders’ conception of liberty, most notably Thomas Jefferson’s.
In a 1789 letter to James Madison, Jefferson writes: “The earth belongs in usufruct to the living…the dead have neither powers nor rights over it” and “no society can make a perpetual constitution, or even a perpetual law.” In a 1816 letter to H. Tompkinson, he elaborated on this theory:
I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.
Thomas Paine echoed the same theory in The Rights of Man, calling “the vanity and presumption of governing beyond the grave” a form of tyranny. Even James Madison, though skeptical of Jefferson’s theory, acknowledged its value as “a salutary curb on the living generation from imposing unjust or unnecessary burdens on their successors.”
Justice Thomas next claims that Wilson “called Germany’s system of relatively unimpeded state power ‘nearly perfected.’” This is another gross misquotation from The Study of Administration. Wilson did not praise Germany’s “relatively unimpeded state power” but merely noted that “in Prussia…administration has been most studied and most nearly perfected.” Wilsonwas discussing administrative efficiency, not praising authoritarianism. Thomas’ attempt to transform this historically accurate point into admiration for tyranny is absurd.
Justice Thomas likewise claims that Wilson said Americans were “‘slow to see’ the superiority of the European system.” This is another blatantly selective quotation from The Study of Administration. Wilson was referring narrowly to the quality of the administration of government functions. Americans, he explained, had long been spared the need for such careful administration because the United States enjoyed abundant land, economic opportunity, and relatively liberal political institutions. Thus, although Wilson praises America’s founding principles while suggesting that Americans might still learn something from European administrative practice, Thomas reduces the argument to “progressives hate America and love Europe.” Such analysis may suffice for social-media trolls, but not for a Supreme Court justice.
Justice Thomas continues with the same disregard for truth and logic: “Progressivism was the first mainstream American political movement—with the possible exception of the pro-slavery reactionaries on the eve of the Civil War—to openly oppose the principles of the Declaration.” But, as already shown, progressivism did not oppose those principles—openly or otherwise. Worse, as noted above, the “pro-slavery reactionaries” Thomas mentions inherited their anti-Declaration views from the Constitution itself, which protected slavery at the insistence of a powerful minority faction of Southern slaveholders. South Carolina’s declaration of secession even mimicked the Declaration in both style and purpose, arguing that the “non-slaveholding states” had defeated the “ends” of the federal government by infringing South Carolina’s constitutional right to own slaves—and this, primarily, justified the first secession that led to the Civil War.
Justice Thomas does not stop there. “To Wilson, the inalienable rights of the individual were ‘a lot of nonsense,’” he claims. Not true. In Constitutional Government in the United States, when Wilson says, “No doubt a great deal of nonsense has been talked about the inalienable rights of the individual,” he is not referring to the Declaration per se. Rather, he is simply making the point that “The rights of man are easy to discourse of…but they are infinitely hard to translate into practice…[T]he abstract rights of man are singularly difficult of execution.”In other words, Wilson argues that merely stating, for example, that “all men are created equal” does not make it so. The Constitution, and the bloody history of the United States that followed its ratification in 1788, prove Wilson right.
Not satisfied with misquoting Wilson, Justice Thomas aims this tactic against John Dewey. According to Thomas, Dewey attacked the Framers for believing their ideas were “immutable truths good at all times and places.” But Dewey was not attacking the Framers for championing liberty and individual rights. In Liberalism and Social Action, he explicitly praised Locke’s liberalism and the Declaration’s principles of “life, liberty and the pursuit of happiness.” His critique of “immutable truths” was far more nuanced. Dewey argued that specific interpretations of liberty—such as laissez-faire economic theory—were historically conditioned.At first a force for positive social change, laissez-faire economics became destructive to itsoriginal ends once it was embedded as the status quo, leading to the injustices of the Gilded Age.Dewey’s point was not that the idea of liberty itself was “to be repealed,” but that human beings must continually redefine what liberty means in light of their particular historical moment.
The profound irony in all of this is that the lofty goals of progressivism, like political equality, scientific progress, and economic fairness, reflected the Declaration’s ideals that “all men are created equal” and have a “unalienable right to” happiness. And the ills of progressivism, like eugenics, sterilization, and imperialism, reflected the same contradiction between the Declaration’s egalitarian ideals and the Constitution’s preservation of liberty for only a privileged minority. Whatever the relationship between progressivism and the Declaration, American history proves that the power of racism always grinds against the force of liberty, often bursting into flames. Much like national, ethnic, or religious supremacy, when racial supremacy is institutionalized, it is always the tool of an affluent elite ruling over a downtrodden or bedazzled majority.
Justice Thomas Recklessly Distorts History to Fit His Dangerous Narrative.
From here, Justice Thomas paints what can only be described as a “bad trip” through history, where frightening ideologies blur together into one ominous haze. He claims that the European system Wilson supposedly admired “led to the governments that caused the most awful century that the world has ever seen,” linking progressivism to Stalin, Hitler, Mussolini, and Mao.
To lump Wilson in with communist and fascist dictators already defies reality. But to imply that these tyrannical regimes were merely the natural offspring of the European governments that preceded them—rather than revolutionary or counterrevolutionary movements that toppled those governments—smacks as too obviously wrong for an educated man like Thomas to believe by accident. As Matt Ford observed, “for a Supreme Court justice who claims to be able to infer the original public meaning of the Constitution from a broad range of historical sources…[i]f this is Thomas’s attempt at historical analysis, it is woefully lacking.”
It does not get any better. Justice Thomas somehow blames progressivism for the Supreme Court’s ignominious decision in Plessy v. Ferguson. The Court, he explains, upheld segregation in light of the “established usages, customs, and traditions of the people.” But that reasoning is plainly conservative, not progressive. It elevates established institutions and historical practices per se into constitutional law—the very methodology Thomas and his fellow originalists routinely invoke to limit the expansion of rights. Taken literally, this logic threatens nearly every major expansion of rights since the Civil War Amendments, from Brown v. Board of Education to Obergefell v. Hodges. What a perfect mechanism for preserving the entrenched power of a corrupt minority.
Conclusion
Whether one agrees with Justice Thomas—or with my critique of him—is less important than whether one agrees that the public statements of Supreme Court justices deserve rigorous scrutiny from every point on the political spectrum. This is especially true here because Thomas openly argues that Americans cannot coexist unless millions of us abandon a political ideology he disfavors.
I humbly suggest that the esteemed Justice is not only wrong, but dangerously wrong.
