Marshall’s Unfair Attack on the Founders

May 11th, 2010 at 1:37 pm | 29 Comments |

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Democrats are attempting to make hay of the RNC’s criticism of Elena Kagan’s approving citation of her former boss, Justice Thurgood Marshall.  The purportedly offensive press release asked whether Kagan still believed that the Constitution “As Originally Drafted and Conceived” was “Defective.”  Even the conservative Abigail Thernstrom took Michael Steele to task for this criticism, suggesting that Marshall was, of course, right about the defective character of the original Constitution.

Recognizing that in a nomination fight, the truth is too often a secondary consideration, it remains important both for Marshall’s legacy and for our own fidelity to the Constitution, that we understand what exactly Marshall’s charge was.

He did not, as has been suggested by critics of the GOP attack, simply suggest that the 3/5 Compromise was a blight on the Constitution.  Even on its own, his focus on the 3/5 Compromise does not do the work Marshall wants it to.  The Compromise, rather than demonstrate the fundamental injustice of the Founding by counting blacks as less than fully human, was in fact a positive addition to the Constitution insofar as it diluted the political power of slave states that would have been happy to have slaves count as full persons for the purpose of apportioning representatives.

Still, Marshall argued something even more misguided.

He stated:

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 Founders particularly profound.

This assessment by Marshall was a low point in a remarkable career.  Rather than learn from Abraham Lincoln and Frederick Douglass, who understood the fundamental justice of the American Founding, Marshall took his cue instead from Justice Taney.  While the Founders’ compromise with slavery was the Constitution’s original sin, they did not, as claimed by Taney and other later pro-slavery partisans, argue that slavery was a positive good or that blacks were by definition excluded from the promises of the Declaration and Constitution.  The Founding generation was committed to the revolutionary principle that all persons are created equal and that slavery is an assault on those persons’ natural rights.  Rather than Marshall’s condescension, the Founders deserve our praise for setting in motion a natural rights republic that would liberate the slaves, promote economic liberty, and ultimately save the world from the twin tyrannies of Nazism and Communism.

In her article praising her mentor, Kagan wrote that Marshall “allowed his personal experiences, and the knowledge of suffering and deprivation gained from those experiences, to guide him.”  Kagan is certainly correct that Marshall’s experience with the deep evil of Jim Crow, and with the de facto segregation of the North, made him first an effective advocate and later a statesman.

But it is fair to note that in this case those same experiences clouded Marshall’s judgment and led him to unfairly assess the accomplishments of the Founders and the enduring justice of the original Constitution.

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29 Comments so far ↓

  • chicago_guy

    One can understand why the author wants to hide behind a pseudonym; no one would want to be correctly identified as the author of this load of rationalized slavery apologia.

    Let’s see if we have this right; the 3/5ths compromise was actually a GOOD thing, since it meant that the southerners could ‘only’ benefit from 60% of their property’s humanity. Rather than seeing, correctly, as Marshall did, that the founders lacked the moral courage to do the right thing and identify all men as having value and equality, “Mr Clay” has decided that they didn’t lack courage; in fact, they were darn nice guys, since at least they didn’t let their southern cousins take FULL advantage of their black slaves when it came to apportioned representation in Congress.

    I challenge the author to go ahead and state his real name here. Let his friends, co-workers, and family know that he (or she – but I doubt most women would see the original document as being perfect either) believes that the descendants of slaves should actually count themselves lucky that the framers of the Constitution were willing to let their ancestors be further used and abused by their white masters.

  • mlloyd

    The Founding generation was indeed a courageous, thoughtful, and far-seeing group of people.

    They were people, though. If men were angels, no Constitution would be necessary. Men, and cultures, are fallible.

    There’s just no need to tell this lie: “The Founding generation was committed to the revolutionary principle that all persons are created equal and that slavery is an assault on those persons’ natural rights. ”

    That is a transparently obvious bald-faced lie. You may want to consider how many of the signers of the Constitution, to say nothing of the generation altogether, owned slaves. And please do consider which emotional attachments led you to lie to yourself and to us like that.

    Douglass (and, eventually, Lincoln) believed that the promise of the Constitution exceeded its words and intent. Nothing was inevitable. “Actually, time itself is neutral; it can be used either destructively or constructively.” The lives of slaves from 1789 to 1865 weren’t foreordained to be a mere interlude on the road to freedom. The states who seceded and fought for the right to own slaves didn’t think the end of slavery was inevitable.

    The Founders did a great many praiseworthy things. I am willing to entertain the view that they were perhaps the most moral and courageous generation ever to live on the Planet Earth. They were not perfect. They enslaved and raped human beings. Nothing– not nationalism, not emotional attachment to territory or documents– should make us lie to avoid that fact. And no man can write a document in 1789 and “know” that such a convulsion as a civil war that freed slaves was “inevitable” a century thereafter.

  • Carney

    The 3/5′s compromise, endlessly demagogued with breast-beating guilt-loading nonsense today, had NOTHING to do with arguing over the humanity or lack thereof of black people!

    The free states argued AGAINST counting them and the slave states argued in FAVOR of counting them.

    It was not a philosophical debate at all, merely a pure power play between slaveholding regions and free ones, and ended with a Solomonic split-the-difference.

    Marshall is a puffed up sacred cow, desperately overdue to be exposed as far from the advocate for justice and the brilliant mind he has long been touted as. He was notorious for his racial animus (once snarling in a racial preferences case that “now it’s your turn” to be discriminated against), lack of convincing or insightful papers or writings, etc. Throughout the 80s, when a still-vigorous and -alert Ronald Reagan was mocked as being elderly, Marshall was in his doddering dotage, sleeping through oral argument, carefully protected by the media that pounced at every factoid Reagan flubbed.

  • Carney

    mlloyd, Thomas Jefferson was not a rapist, and no other Founding Father has ever been accused of that crime. Your charges are baseless and reckless.

  • JD Hamel

    Chicago Guy:

    I didn’t write this post, but I’ll put my name to the claim that Marshall’s problems with the 3/5 compromise show a terrible misunderstanding of history. The South, despite treating slaves as animals, wanted slaves to count as fully human for legislative apportionment reasons. Had the slaves been counted as “full humans,” the South would have had a distinctive legislative advantage as it fought to spread slavery into new states. It’s despicable that the South would deny a group its basic humanity while simultaneously using that group’s presence for representational advantage–an advantage that would have been pressed to further deny the rights of slaves. The author of this post understands this; apparently, you do not.

  • balconesfault

    Thomas Jefferson was not a rapist, and no other Founding Father has ever been accused of that crime

    Please – while I would avoid over-the-top rhetoric, which I don’t find useful – if you consider rape to be any sex act where there is no consent, well …

    And the fact is that someone who is the property of another cannot consent. Jefferson’s slaves had as much ability to deny him intercourse as they had to deny him a day of work in the fields. Thus is the evil of slavery.

  • TheRightsWriter

    “This assessment by Marshall was a low point in a remarkable career.” Remarkable for its inability to reconcile legal decisions with the text of the Constitution on which they were allegedly based.

  • mlloyd

    I would avoided that word if I re-did that comment, because I don’t want it to derail the thread. It was one word in a comment that made a broader argument, which stands unrebutted: the Founders were not perfect, and there is no such thing as a foreordained outcome 80 years in the future by “principles set in motion.” Only in retrospect does history appear inevitable.

  • SpartacusIsNotDead

    JD Hamel,

    You misunderstand Chicago Guy’s critique (and Marshall’s critique). The complaint is not that the slaves should have been counted as “full” humans and not merely “3/5″ human. We know, in light of the context of the 3/5 clause, that granting full status in that context would have been an even greater injustice. The complaint is that the founding fathers did not insist on a document that strictly prohibited slavery. Instead, they accepted the institution of slavery and, moreover, granted disproportionate political power to slave states by bestowing power based on property rights.

    Both the omission of full rights for slaves and the granting of disproportionate power to the slave states were despicable acts, and we should not be afraid to say that these were huge moral failings by the founding fathers notwithstanding their other incredible achievements.

  • mlindroo

    This is a fight conservatives simply cannot win: you cannot zealously defend the 1776 Constitution as a fundamentally just and perfect document…

    We can play word games regarding the true meaning and relevance of the 3/5 compromise, but the cold hard truth is the original Constitution “As Originally Drafted and Conceived” was fatally flawed from an African American perspective and the men who wrote the documents were not perfect.
    Let’s face it: Jefferson, Washington & co. were mere humans and children of their time. I will agree they got more things right than just about anybody else in AD 1776. But it’s silly to argue that their consensus view of “all persons are created equal” etc. also encompassed Negroes, as of 1776. Four Amendments plus major legislation in the 1960s were required before African Americans were fully covered, so Marshall’s basic comments about the basic human fallibility of the Founders seem perfectly justified.

    Finally, here is some frantic, truly pathetic spin by RNC’s Michael Zak (h/t David Weigel, Right Now):

    “The supposed defects that Thurgood Marshall decried were resolved by the Republican Party, which wrote the 13th Amendment, the 14th Amendment, the 15th Amendment, the 19th Amendment — and also supported the 1964 Civil Rights Act and the 1965 Voting Rights Act much more than did the Democrats. The nation deserves a Supreme Court nominee who reveres the Constitution. As chairman of a political party founded to oppose the Democrats’ pro-slavery, anti-freedom agenda, Michael Steele understands how dangerous it is for judges to think they know better than the Founding Fathers.”

    MARCU$

  • Rockerbabe

    Yep, the original Constitution was defective in many ways. Slavery was one and the total failure to address a full 50% of the population as human. Yes, women were completely left out of the equation when it came to rights, especially voting rights, right to own one’s property, right to keep one’s children, the right to marital property, the right to control and defend one’s own body and the right to be free of involuntary servitude and the right to not be harmed or abused. The right to an education and healthcare, not to mention due process under the law.

    It has been an uphill battle ever since and still the forces of darkness want to turn back the tide of progress so women are once again someone’s property. General Kagan was right to make her assessment of the shortcomings of our Constitution, but then again, shortcomings are often a matter of where one is standing in the arena and who gets what. Some folks just do not have the capacity to see any pov but their own.

  • rbottoms

    Republicans appearantly have non common sense whatever. The slaveowning founders were rapists and thugs who managed to write a document that was greater than their own personal decency.

    The good news is the GOP strives ever harder to ensure no brown skinned person would consider voting for the party of slavery apologists.

  • balconesfault

    Personally, I’m surprised that more people on the right don’t cite the “deficiency” in the US Constitution that the Confederate Constitution took deliberate pains to right in their preamble:

    We, the people of the Confederate States, each State acting in its sovereign and independent character, in order to form a permanent federal government, establish justice, insure domestic tranquillity, and secure the blessings of liberty to ourselves and our posterity invoking the favor and guidance of Almighty God do ordain and establish this Constitution for the Confederate States of America.

    Because I’ve been told so many times how America was founded as a Christian Nation, it seems a horrible defect for the founding fathers to have included no invocation to the Deity in our Preamble, a flaw that the Confederacy sought to correct.

  • mlindroo

    BTW, this quote by “Henry Clay” is particularly annoying:

    > The Founding generation was committed to the revolutionary principle that all persons
    > are created equal and that slavery is an assault on those persons’ natural rights. Rather
    >than Marshall’s condescension, the Founders deserve our praise for setting in motion [...]

    Historical figures that died centuries ago need no “praise” from us, and nor do we show “condescension” when pointing out the very obvious limitations and flaws of an earlier era.

    I think there is far more justice, compassion, equality, democracy etc. today than back in 1776, just as the Founding Fathers were way better and humane than medieval Western political leaders. Obviously, every generation benefits from the wisdom of its predecessors while making continuous improvements. And the West has come a long way since the horrors of 1618 –48, 1861-65 or even 1939-45. Let’s celebrate THAT while leaving Washington, Voltaire, Locke etc. where they belong: in the history books.

    MARCU$

  • mpolito

    The Dems love to invoke the Founders’ principle of “seperation of church and state” but apparently dislike everything else about those dreadful “rich white men.” Curious. One thing is for sure: this view of the founding has destroyed the curriculums, where children do not learn a thing about our government.

  • ottovbvs

    Carney // May 11, 2010 at 2:38 pm

    “Marshall is a puffed up sacred cow, desperately overdue to be exposed as far from the advocate for justice and the brilliant mind he has long been touted as. He was notorious for his racial animus”

    ……Probably because his antecedents were brought here tight pack in chains……that sort of history CAN color your views……but thanks for the KKK’s take on Marshall

  • beyond left

    Oh the state of our educational system.

    “This is a fight conservatives simply cannot win: you cannot zealously defend the 1776 Constitution as a fundamentally just and perfect document…”

    The Constitution was written and signed in 1787. The Articles of Confederation was a failure as a document to organize a country.

    “. One thing is for sure: this view of the founding has destroyed the curriculums” Curriculums??? Is our conservatives learning? Go to Texas if you want the Gracie Whitebread version of American History.

    balconesfault is totally correct in his assessment that the inability of slaves to refuse the advances of their masters means that any sexual acts between them was by defnintion non consensual, which does make it rape.

    Probably because his antecedents were brought here tight pack in chains……that sort of history CAN color your views……

    Not just his ancestors. Marshall grew up in the time of strange fruit hanging in the southern trees, Jim Crow, debt peonage (sharecropping), forced conscript labor (prison gangs), and daily assaults on the dignity, property, and bodies of black people.

  • JD Hamel

    This is from Marshall’s bicentennial speech:

    “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).”

    It’s irresponsible (and wrong) to mention the 3/5 compromise as remotely positive, and Marshall does just that in the quote above. I haven’t read the RNC criticism, so I won’t comment on it. Nor will I argue that the Constitution was flawless. But people ought to differentiate between a despicable document crafted by despicable men and a flawed document created by flawed men who were compromising. The difference is important.

  • Carney

    balconesfault, however you classify sex with his slaves, or with any blacks, Thomas Jefferson did not have it. Any of it. Ever. Period.

  • Carney

    Read “The Jefferson-Hemings Myth: An American Travesty”.

    http://www.amren.com/mtnews/archives/2009/06/rescuing_jeffer.php

  • msmilack

    The desire of conservatives to criticize the other side has become positively mindless.

  • Jersey McJones

    The idolic myths of the Founders really have to go. They were not perfect people, they did not create a perfect union (Civil War, anyone?), the consitution was not perfect (27 amendments, anyone?), and their motives were not as pure as driven snow. Let’s at least be adults about this.

    JMJ

  • balconesfault

    Carney – while it would not displease me in the least to find conclusive evidence that Jefferson did not have sexual relations with a woman who was enslaved to him, as he is certainly one of my favorite figures in American History (not to mention one of my top 5 Presidents), I don’t find the conclusions in that article particularly persuasive – and I find some of the arguments specious, and the tone fairly off-putting.

  • frankye

    We can only hope that “Henry Clay” flirts with some Harvard student’s boyfriend and has his/her true identity revealed. This is a person who needs to be publicly mocked by name. I mean, honestly:
    “The Founding generation was committed to the revolutionary principle that all persons are created equal and that slavery is an assault on those persons’ natural rights.”
    Similarly, my pack-a-day habit is irrelevant when assessing my commitment to healthy living.

    Then there’s the even stupider:
    “But it is fair to note that in this case those same experiences clouded Marshall’s judgment and led him to unfairly assess the accomplishments of the Founders and the enduring justice of the original Constitution.”
    Yes. It is obviously Thurgood Marshall’s judgment that is clouded on this issue.
    Poor Justice Marshall — Too black, and therefor too dumb, to properly fetishize 18th century politicians and politics. It’s rather astounding that a man so incapable of understanding the Constitution would have such a successful legal career.

    P.S. I also love it when idiots draw a straight comparison between the violent apartheid of the Jim Crow South and the far less virulent racism of the North. I guess they explain the Great Migration the same way they explain Marshall’s failure to be over-awed by Washington, Jefferson and the rest: black folks just too dumb to know better.

  • ottovbvs

    This is from Marshall’s bicentennial speech:

    “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).”

    “It’s irresponsible (and wrong) to mention the 3/5 compromise as remotely positive, and Marshall does just that in the quote above.”

    ………This is a “positive” comment on the 3/5 by Marshall?……..it sounds like simple reporting to me

  • balconesfault

    …This is a “positive” comment on the 3/5 by Marshall?……..it sounds like simple reporting to me

    Actually, it sounded more like ironic counterpoint to me – that for the Southerners, blacks had no more human rights than their cattle and horses … except to also increase the South’s congressional representation.

  • ottovbvs

    balconesfault // May 12, 2010 at 10:18 am

    ……it certainly wasn’t positive as J. D. Hamel suggested……I believe he’s a lawyer so maybe he’s used to arguing red is yellow, up is down, north is south, etc……in fact this seems to be a well nigh universal trait among Republicans these days.

  • PST

    I don’t think the critics, including “Henry Clay,” read Marshall’s speech or understood his point. Otherwise Mr. Clay would not have said:

    “Rather than Marshall’s condescension, the Founders deserve our praise for setting in motion a natural rights republic that would liberate the slaves, promote economic liberty, and ultimately save the world from the twin tyrannies of Nazism and Communism.”

    Marshall’s speech isn’t about bashing the founding fathers, although the imperfection of their work is an important premise. His speech is that the original constitution was only a “setting in motion,” and that the bicentennial should celebrate the process by which we have improved it. His penultimate paragraph sums this up:

    “And so we must be careful, when focusing on the events which took place in Philadelphia two centuries ago, that we not overlook the momentous events which followed, and thereby lose our proper sense of perspective. Otherwise, the odds are that for many Americans the bicentennial celebration will be little more than a blind pilgrimage to the shrine of the original document now stored in a vault in the National Archives. If we seek, instead, a sensitive understanding of the Constitution’s inherent defects, and its promising evolution through 200 years of history, the celebration of the “Miracle at Philadelphia” will, in my view, be a far more meaningful and humbling experience. We will see that the true miracle was not the birth of the Constitution, but its life, a life nurtured through two turbulent centuries of our own making, and a life embodying much good fortune that was not.”

    It is worth noting, too, that Mr. Clay’s observation that the men who adopted the constitution “did not, as claimed by Taney and other later pro-slavery partisans, argue that slavery was a positive good” tends to disprove his argument. Decade by decade attitudes in much of the South moved toward viewing slavery as a positive good for both the black and white races. The constitution did not just freeze an unsatisfactory status quo — it was consistent with slavery expanding and becoming more entrenched in the economic and ideological life of the southern states. Many of the founders may have hoped it would fade away, but they left that as mere wishful thinking, doing nothing to make it happen. One can argue that the exigencies of politics in 1787 made it impossible to avoid this result, but the constitution is not flawless just because there are explanations for its flaws.

  • tequilamockingbird

    Oh, please. Not another deification of the *Founding Fathers*. They were a bunch of white, slave-owning politicians. The Republic they founded has scrambled through a civil war and 27 amendments to their perfect constitution to become Imperial Rome in decline. Big whoop.