Barack Obama's latest nominee to the U. S. Supreme Court is still making the rounds on Capitol Hill as the Senate prepares for confirmation hearings.
U.S. Solicitor General Elena Kagan, by all accounts an outstanding legal mind, is being questioned by some for never having been a judge, and her conservative foes voice the complaint that she will not be a "strict constructionist" when it comes to interpreting the Constitution.
By "strict constructionist" the detractors mean someone who, in their opinion, will interpret our sacred Constitution just as the Founding Fathers "intended."
Because you are going to hear a lot about that revered document in the coming weeks, I think it is important for us to note that just as the Founders were imperfect, so was that manuscript they produced and adopted as the foundation of our democratic republic.
I thought about this more as I heard a local radio commentator railing against the late Supreme Court Justice Thurgood Marshall who, in a speech in 1987, was making this same point much more eloquently than I.
When I reread that speech the other day, it occurred to me that every American -- especially those senators who will sit in judgment of Kagan, a woman who once clerked for Marshall -- ought to be familiar with what Marshall had to say during the 200th anniversary of the Constitution.
As the country prepared for a three-year-long celebration of that great event, Marshall reminded attendees at a law conference in Hawaii that, while the special anniversary would prompt patriotic feelings and "proud declarations of wisdom, foresight and a sense of justice shared by the Framers," there was a "tendency for the celebration to oversimplify and overlook the many other events that have been instrumental to our achievements as a nation."
He went on to say, "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."
Sound arrogant? Bold? Out-of-touch? Un-American?
Well, Marshall explained that the first three words in the preamble to the document, "We the people," did not include the majority of Americans. It specifically stated that it applied to "the whole Number of free Persons." But on the basic right to vote, he pointed out, the Framers excluded Negro slaves, although they were counted for the purpose of congressional representation (at three-fifths), and it would be 135 years before women gained that right.
In 1857, the infamous Dred Scott decision by the Supreme Court declared black people "property" and "beings of an inferior order, and altogether unfit to associate with the white race ...; and so far inferior, that they had no rights which the white man was bound to respect ...."
Referring to that writing by Chief Justice Roger Taney, Marshall said, "And, so, nearly seven decades after the Constitutional Convention, the Supreme Court reaffirmed the prevailing opinion of the Framers regarding the rights of Negroes in America. It took a bloody civil war before the 13th Amendment could be adopted to abolish slavery, though not the consequences slavery would have for future Americans."
He noted that, although the Union survived the Civil War, the original Constitution didn't.
"In its place arose a new, more promising basis for justice and equality, the 14th Amendment, ensuring protection of life, liberty and property of all persons against deprivations without due process, and guaranteeing equal protection of laws. And yet almost another century would pass before any significant recognition was obtained of the rights of black Americans to share equally even in such basic opportunities as education, housing and employment, and to have their votes counted, and counted equally."
The justice said, "What is striking is the role legal principles have played throughout America's history in determining the condition of Negroes. They were enslaved by law, emancipated by law, disenfranchised and segregated by law; and finally, they have begun to win equality by law."
Marshall concluded his remarks by saying, "I plan to celebrate the bicentennial of the Constitution as a living document, including the Bill of Rights and the other amendments protecting individual freedoms and human rights."
In addition to drafting and adopting the Constitution, the next best thing that the Framers did was to provide a mechanism to change it.
We should keep this in mind always, but especially as we move forward with confirming a new Supreme Court justice.
ABOUT THE WRITER
Bob Ray Sanders is a columnist for the Fort Worth Star-Telegram. He can be reached by e-mail at bobray@star-telegram.com.