Happy Fourth of July! I was lying in my pool enjoying this fine hot summer day, reading the Times , when I came upon an article about how Thurgood Marshall’s name is being thrown about during the Kagan confirmation hearings. I was in total disbelief that there could be serious debate about whether Marshall was one of the most influential and capable Supreme Court Justices of all time. But it seems that many Senators feel that Kagan (who clerked for Marshall and who had Marshall as a mentor most of her adult life) should be ashamed of having written positively about one particular speech of Marshall’s which has for decades caused much division. Here is the main snippet of that speech that critics pounce upon which Marshall gave in 1987 at a celebration of the 200th anniversary of the US Constitution:
“The government [the founding fathers] devised was defective from the start, requiring several amendments, a civil war, and major social transformations to attain the system of constitutional government and its respect for the freedoms and individual rights, we hold as fundamental today.”
Michael Steele, National GOP chairman attacked Kagan publicly for supporting this sentence. Several Senators incredibly stated that they would not vote to confirm Marshall if he were to be at the table instead of Kagan for calling the constitution “defective.” Not vote to confirm Marshall! Because he stated that at the time of its drafting, the constitution gave no individual rights and then even after passage of the Bill of Rights, gave those rights only to white males. There is not one inaccurate word in the sentence as any history book can certify. It did indeed take all of those things he mentioned to bring some semblance of balance to the country. I say some semblance because no one believes we are all the way there yet. As Frank Rich said in the Marshall piece in today’s Times: “America is still very much a work in progress.”
Even before Marshall argued Brown v. Bd. of Education on behalf of the NAACP, he was a highly successful litigator having won numerous cases before the Supreme Court. No one on the current bench (with the exception of Justice Roberts) has a Supreme Court track record like Marshall. Marshall then served as a federal appellate judge and Solicitor General for several years before being appointed to the Supreme Court bench. Once on, he became a champion of an individual’s rights against the government believing that the Constitution was “a living document . . protecting individual freedoms and human rights.”
He was derogatorily referred to as a “well-known activist” at the Kagan hearings by Alabama senator Jeff Sessions. Yet, this current, allegedly “strict constructionist,” court has repeatedly bent and broken prior precedent and stretched the Constitution to its limits in recent decisions. The difference between this court and Marshall is that Marshall always interpreted the Constitution in favor of individuals and in support of limiting the government’s right to invade and restrict the rights of an individual that Marshall believed were part and parcel of the Constitution. Elena Kagan should take this issue on head-on and defend Marshall and be honored at being in any way compared or aligned with him.
So this July Fourth, as we eat our BBQ and watch the fireworks, we should all recall a man who consistently tried his best to assure that the promises and rewards contained in the Constitution were available for all citizens of the United States.