Marshalled Opposition

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Updated, see below.

Jay has a bit of RNC chair Michael Steele’s skeptical response to Kagan’s Supreme Court nomination, but there’s another facet in the full statement. He implicitly criticizes Kagan for her relationship with Thurgood Marshall, for whom she clerked early in her career (emphasis mine):

Given Kagan’s opposition to allowing military recruiters access to her law school’s campus, her endorsement of the liberal agenda and her 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 “defective” quote comes from a 1987 constitution bicentennial speech given by Justice Marshall on the shortcomings of the Framers and their seminal document when it came to the institution of slavery. Republicans questioning Democratic nominees on  constitutional fidelity is par for the course, but this seems like an unusual extension of that critique. Marshall’s remarks in full context after the jump:

Like many anniversary celebrations, the plan for 1987 takes particular events and holds them up as the source of all the very best that has followed. Patriotic feelings will surely swell, prompting proud proclamations of the wisdom, foresight, and sense of justice shared by the Framers and reflected in a written document now yellowed with age. This is unfortunate not the patriotism itself, but the tendency for the celebration to oversimplify, and overlook the many other events that have been instrumental to our achievements as a nation. The focus of this celebration invites a complacent belief that the vision of those who debated and compromised in Philadelphia yielded the “more perfect Union” it is said we now enjoy.

I cannot accept this invitation, for I do not believe that the meaning of the Constitution was forever “fixed” at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today. When contemporary Americans cite “The Constitution,” they invoke a concept that is vastly different from what the Framers barely began to construct two centuries ago.

For a sense of the evolving nature of the Constitution we need look no further than the first three words of the document’s preamble: ‘We the People.” When the Founding Fathers used this phrase in 1787, they did not have in mind the majority of America’s citizens. “We the People” included, in the words of the Framers, “the whole Number of free Persons.” United States Constitution, Art. 1, 52 (Sept. 17, 1787). On a matter so basic as the right to vote, for example, Negro slaves were excluded, although they were counted for representational purposes at three fifths each. Women did not gain the right to vote for over a hundred and thirty years. The 19th Amendment (ratified in 1920).

These omissions were intentional. The record of the Framers’ debates on the slave question is especially clear: The Southern States acceded to the demands of the New England States for giving Congress broad power to regulate commerce, in exchange for the right to continue the slave trade. The economic interests of the regions coalesced: New Englanders engaged in the “carrying trade” would profit from transporting slaves from Africa as well as goods produced in America by slave labor. The perpetuation of slavery ensured the primary source of wealth in the Southern States.

Despite this clear understanding of the role slavery would play in the new republic, use of the words “slaves” and “slavery” was carefully avoided in the original document. Political representation in the lower House of Congress was to be based on the population of “free Persons” in each State, plus three fifths of all “other Persons.” United States Constitution, Art. 1, 52 (Sept. 17, 1787). Moral principles against slavery, for those who had them, were compromised, with no explanation of the conflicting principles for which the American Revolutionary War had ostensibly been fought: the selfevident truths “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

UPDATE: RNC spokesman Doug Heye is seeking to clarify Steele’s point, writing it is Kagan’s broader belief in an “empathy standard,” not Marshall’s specific view on the constitution, that the chairman was criticizing.

Yet while Marshall pointed to constitutional amendments as redressing the wrongs of slavery, Kagan moves beyond that, contending that, “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.”

As much as Liberals want to make the concern Chairman Steele raised about Marshall and slavery, it isn’t (and if it was, I’d note the Chairman admires Justice Marshall breaking barriers both as a lawyer and a justice, and helped rename BWI airport after him). It’s about how Elena Kagan, who is being nominated for a lifetime appointment to the highest court in the land, views the role of the courts in our society.

In the same law review article, Kagan endorses the view that the Court’s primary role is to “show special solicitude” for people a judge has empathy for.  Liberals would much rather talk about whose view she is endorsing rather than the substance of that view.  That they would prefer to do so is unsurprising, because her view of the Court’s primary mission is at odds with the majority of Americans.

I don’t doubt Steele takes issue with the “empathy standard,” and this criticism is indicative of widespread Republican complaints about Democratic judicial nominations, but I don’t see how one could reasonably draw this interpretation from the original Steele statement. Again, Steele cited Kagan’s “support for statements suggesting that the Constitution ‘as originally drafted and conceived, was defective'” as a reason for Republicans to scrutinize her nomination. If he wanted to quote Kagan on “special solicitude” and leave Marshall out of it, he could have. If “defective” is the issue, it’s worth exploring the remark in its full context.

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