Was the US Constitution, as drafted, ‘defective from the start?’
Image via Wikipedia
Thurgood Marshall once said that the Constitution of the United States, as originally drafted, “was defective from the start.” As Marshall wound up a Supreme Court Justice, one is inclined to take him at his word, yet Republican opposition to President Obama’s nomination of Elena Kagan to sit on the Supreme Court of the United States has brought Marshall’s critique back into the news. “Does Kagan Still View Constitution ‘As Originally Drafted And Conceived’ As ‘Defective,’” the Republican National Committee asks.
The RNC is referring to Kagan’s quotation of Marshall in a 1993 article; they fail to mention, however, that Marshall found the document “defective” because the Constitution’s original text codified slavery and counted slaves to be 3/5th of a person.
Certainly the institution of slavery is among the great historical evils in which the United States participated and from our modern viewpoint the inclusion of slavery within the Constitutional framework is morally repugnant. But the United States fought a civil war over (among other things) the issue of slavery for a reason and our present-day viewpoints exist largely because the Union won that war.
In 1787 there the only Civil War with which the founding fathers were terribly familiar was the Revolutionary one that they had just fought against the British Crown. The institution of slavery was a matter of some contention amongst the men tasked with the second draft of American Democracy and though ultimately a compromise was reached, many of those who would back the Constitution as a blueprint for Democracy were displeased with the morally questionable middle ground. As John Jay wrote in 1786, “It is much to be wished that slavery may be abolished. The honour of the States, as well as justice and humanity, in my opinion, loudly call upon them to emancipate these unhappy people. To contend for our own liberty, and to deny that blessing to others, involves an inconsistency not to be excused.”
Yet despite his misgivings on the issue of slavery, Jay proved among the most fervent supporters of the new Constitution, drafting Federalist Papers #2-#5 and #64. Perhaps Jay saw a solution to the issue of slavery in the amendment process and hoped that, in time, the nation would come to abolish the institution verbosely codified in the document he fought so hard to make “the Supreme Law of the Land.”
One wonders if Jay might have agreed with Marshall, that the Constitution as drafted was intrinsically flawed and in need of amendment or if he would have argued that the possibility of amendment itself rendered the document redeemed or at least capable of redemption. Indeed, had the RNC quoted Marshall in full their question would scarcely need asking.
“[T]he 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.”
Yet that word “defective” remains problematic. Without the three-fifths compromise and the codification of slavery it is doubtful that the US Constitution would ever have survived the Constitutional Convention, much less ratification by the states. The greater political good and the construction of a democratic system of government both strong and flexible enough to survive centuries required, in the late 18th Century, significant compromise and a willingness to come together on a few issues at the expense of a host of contentious ones.
To modern eyes such a willingness to bend to one’s political opponents is almost unthinkable. Present-day Americans have expressed time and again a preference for political leaders who are strong in their convictions, who reject compromise, and who fight for what they believe in. All of those qualities are alternative ways of rejecting the sort of politics that made the drafting and ratification of the US Constitution possible in the first place. Theodore Lowi once referred to American Democracy as an “Incomplete Conquest” yet that view has fallen out of political favor as the nation has become increasingly partisan. Particularly on the right, the notion of compromise and concession in the name of political expedience have become cause for ideological outrage as seen in the reaction to Scott Brown’s (R-Mass) vote on Obama’s jobs bill and even Sarah Palin’s endorsement of Carly Fiorina over Chuck DeVore in the 2010 California Senate Race.
Given this political predisposition, Republican criticism of Kagan’s/Marshall’s critique of the Constitution as “defective” becomes even more puzzling. Perhaps the RNC disagrees with Marshall for objecting to the codification of slavery or perhaps it finds fault with Marshall’s seeming rejection of the politics of compromise – a position the GOP has itself strongly advocated, even to the extent of proposing political purity tests for Republican candidates.
Far more likely, however, is the possibility that Republican strategists found an exploitable quotation and took it out of context to score political points and drum up the usual brand of ignorant outrage in the hopes of using Kagan as a cudgle against Democrats in November.
Post Your Comment
You must be logged in to post a comment
T/S Members
Log in with your True/Slant account.
This sort of knuckle-headed argument is like a fart in church, a bit of hot air with a distracting stink.
I do hope the republicans go ahead with this objection because it illuminates how idiotic is the position of all these strict constitutionalists.
Yes, slavery was a flaw, born of a deep seated disagreement between Christians, that was not pressing enough that it couldn’t be put off for another time. The issue of suffrage was also a bit of a flaw in the constitution and that one man, one vote was a bit of a problem in federal elections. There were a number of thorny problems that required some pragmatism.
Would these same critics claim that the constitution is the opposite of flawed? That it was flawless, that is perfect? God may have blessed America but God didn’t write the constitution.
This is exactly why the I find the originalist position to be indefensible. You can’t take a snapshot in time, and interpret the constitution in that light forever after.
Mr. Thomas,
Of course the Constitution was defective, why else would it have been amended? Had it been perfect why amend it?
The Republicans are, unfortunately, masterful practitioners of exploiting the ignorance and prejudices of their base for political gain. They care not one bit for the harm it does the Republic or how it poisons the national discourse. And all in the guise of loving and preserving the very document they subvert at every turn. That is the definition of cynicism and perfidy.
[...] Was the US Constitution, as drafted, 'defective from the start … [...]
[...] http://trueslant.com/christopherthomas/2010/05/10/was-the-us-constitution-as-drafted-defective-from-... Tags: constitution [...]
If one has studied the Constitution and the Federalist and Anti Federalist Papers and communications between the founding fathers, you can see that the mission of the Constitution was the protection of the inalienable rights, freedoms and property of the INDIVIDUAL, PERIOD.
What is good for the individual is good for the masses, but what is good for the masses is not always good or necessary for the individual.
The founders would have found the myriad of alphabet soup agencies repugnant and legislation through executive orders insane.
The founders recognized the frailties of the human psyche, especially greed and lust for power, and placed a blueprint of checks and balance to avoid concentration of power in any branch of guv, or agency.
If we could rid ourselves of the professional politicians and stop all special interest involvement in guv, and return to the basic tenets of the original organic Constitution, we could save the Republic. Our representative have all taken an oath to obey and protect the Constitution…. violation of that oath is treason.
We no longer need to be ruled by the oligarchy of banksters and big corporate monopolies that rule government through special interest bribery.
The federal government was not intended to trump the states and the ability to change the Constitution by amendments ratified by at least 3/4 of the states is available.
Keep it simple or the lawyers will screw it up!
If one has studied the Constitution and the Federalist and Anti Federalist Papers and communications between the founding fathers, you can see that the mission of the Constitution was the protection of the inalienable rights, freedoms and property of the INDIVIDUAL, PERIOD.
What is good for the individual is good for the masses, but what is good for the masses is not always good or necessary for the individual.
The founders would have found the myriad of alphabet soup agencies repugnant and legislation through executive orders insane.
The founders recognized the frailties of the human psyche, especially greed and lust for power, and placed a blueprint of checks and balance to avoid concentration of power in any branch of guv, or agency.
If we could rid ourselves of the professional politicians and stop all special interest involvement in guv, and return to the basic tenets of the original organic Constitution, we could save the Republic. Our representative have all taken an oath to obey and protect the Constitution…. violation of that oath is treason.
We no longer need to be ruled by the oligarchy of banksters and big corporate monopolies that rule government through special interest bribery.
The federal government was not intended to trump the states and the ability to change the Constitution by amendments ratified by at least 3/4 of the states is available.
Keep it simple or the lawyers will screw it up!
http://www.constitutionattacked.com