Micheal Steele, who I can’t believe I’m defending because I not a fan, is being criticized for Colbert King of the Post for an “incredibly idiotic criticism” of Elena Kagan. Kagan, cited Thurgood Marshall’s statement that “ the Constitution, as originally drafted and conceived, was “defective”; only over the course of 200 years had the nation “attain[ed] the system of constitutional government, and its respect for… individual freedoms and human rights, we hold as fundamental today.” Steele then criticized Kagan for saying that the Constitution as draft was “defective.” King thinks Steele is “idiotic” for suggesting that the Constitution wasn’t defective as written and the whips out the KKK card and wonder why Steele doesn’t join the KKK.
No one would think that Colbert King is a deep thinker. But we ought to consider Thurgood Marshall’s argument because Marshall’s argument is flawed:
I do not believe 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.” 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 130 years. These omissions were intentional.
Yes, those omissions were intentional. The world was a far different place 300 years ago. There was incredible amounts of inequality, and yet at the same time, Americans as a whole were some of the most free people on Earth.
But injustices in 1787 does not mean the Constitution was somehow defective. The Framers themselves foresaw the necessity to amend the Constitution. The Constitution was set up to set flexible and to change with the times. The correct way to change the Constitution is contained in Article V of the Constitution itself. Somehow Marshall omits the possibility that the Constitution itself contemplates that it might and should be amended.
The Framers didn’t think the Constitution would be set in stone—they saw the need for it to be amended and changed. Why Marshall omitted that material fact is not clear. I believe he didn’t want to be constrained by the actual language of the Constitution and so he argued that Framers had no great insight. That way, it was easier to twist the text of the Constitution to mean what you want it to mean instead of relying on the amendment process laid out in Article V.
