Monday, May 10, 2010

Original intent

The Republican Party and its chairman, Michael Steele have weighed in on the nomination of Elena Kagan to replace Justice Stevens on the U.S. Supreme Court. The GOP and Mr. Steele have decided to make Ms. Kagan's support of Justice Thurgood Marshall an issue. From Mr. Steele's release.
Given Kagan’s ... support for statements suggesting that the Constitution "as originally drafted and conceived, was 'defective,'" you can expect Senate Republicans to respectfully raise serious and tough questions to ensure the American people can thoroughly and thoughtfully examine Kagan’s qualifications and legal philosophy before she is confirmed to a lifetime appointment.
The quote comes from the end of an article, "For Justice Marshall," that Ms. Kagan wrote in the Texas Law Review in 1993 and in which she was quoting Justice Marshall. The quote in full (p. 1130) is
During the year that marked the bicentennial of the Constitution, Justice Marshall gave a characteristically candid speech. He declared that the Constitution, as originally drafted and conceived, was "defective"; only over the course of 200 years had the nation "attain[ed] the system of constitutional government, and its respect for ... individual freedoms and human rights, we hold as fundamental today." The Constitution today, the Justice continued, contains a great deal to be proud of. "[B]ut the credit does not belong to the Framers. It belongs to those who refused to acquiesce in outdated notions of 'liberty,' 'justice,' and 'equality,' and who strived to better them. The credit, in other words, belongs to people like Justice Marshall. As the many thousands who waited on the Supreme Court steps well knew, our modern Constitution is his.
Let's put aside for the moment whether quoting Justice Marshall indicates unqualified support for every word he said (indeed, Mr. Steele can't even bring himself to say that, writing instead that her words were "suggesting" support).

The comments by the GOP and Mr. Steele raise some "serious and tough questions" of their own.

Wasn't a Constitution that included slavery, that treated each black as three-fifths of a human, and that ultimately led to a civil war "defective?" My gosh, no less a historian than Va. Gov. Bob McDowell has written "The abomination of slavery divided our nation, deprived people of their God-given inalienable rights, and led to the Civil War." Are the GOP and Mr. Steele seriously arguing that we should go back to framers' document?

Weren't interpretations of the Constitution that allowed segregated schools, at least until 1954 when Thurgood Marshall brilliantly argued otherwise in Brown v. Board of Education, also defective? Similarly, weren't interpretations that supported Jim Crow and voting discrimination similarly defective? Is our system better with these reinterpretations or without them?

1 comment:

Anonymous said...

I would say that the values of the founders were flawed. The document makes provisions for revisions, right?

Either way, Marshall was right but I would have worded it differently.

I think this association with Marshall is only a minor problem for Kagan considering her limited experience in deciding cases.

--Brandon Burgess