Does Kagan Think the Constitution is "Defective?"

Updated 3:54 p.m. Eastern Time

This morning, as we noted in an earlier post, Republican National Committee chairman Michael Steele said in a statement that Republicans should ask tough questions of Supreme Court nominee Elena Kagan because of her "opposition to allowing military recruiters access to her law school's campus, her endorsement of the liberal agenda and her support for statements suggesting that the Constitution 'as originally drafted and conceived, was "defective."'"

Which begs the question: Did Kagan endorse the notion that the Constitution was initially "defective?"

The answer, more or less, is yes - though the context is key.

In May of 1993, Kagan wrote an article in the Texas Law Review honoring Supreme Court Justice Thurgood Marshall, who died in January of that year.

"During the year that marked the bicentennial of the Constitution, Justice Marshall gave a characteristically candid speech," she wrote, according to the Washington Post. "He declared 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.'"

The full speech that Kagan was referencing is online, and is is now being picked up by blogs and traditional media outlets; reading it makes clear that Marshall did indeed see the original Constitution as defective, in large part because it treated African-Americans as less than a full person.

Here's the relevant section:

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 threefifths each. Women did not gain the right to vote for over a hundred and thirty years.

These omissions were intentional. The record of the Framers' debates on the slave question is especially clear: The Southern States acceded to the demands of the New England States for giving Congress broad power to regulate commerce, in exchange for the right to continue the slave trade. The economic interests of the regions coalesced: New Englanders engaged in the "carrying trade" would profit from transporting slaves from Africa as well as goods produced in America by slave labor. The perpetuation of slavery ensured the primary source of wealth in the Southern States.

Despite this clear understanding of the role slavery would play in the new republic, use of the words "slaves" and "slavery" was carefully avoided in the original document. Political representation in the lower House of Congress was to be based on the population of "free Persons" in each State, plus threefifths of all "other Persons." Moral principles against slavery, for those who had them, were compromised, with no explanation of the conflicting principles for which the American Revolutionary War had ostensibly been fought: the selfevident truths "that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

[W]hile Marshall pointed to constitutional amendments as redressing the wrongs of slavery, Kagan moves beyond that, contending that, "The credit, in other words, belongs to people like Justice Marshall. As the many thousands who waited on the Supreme Court steps well knew, our modern Constitution is his."

As much as Liberals want to make the concern Chairman Steele raised about Marshall and slavery, it isn't (and if it was, I'd note the Chairman admires Justice Marshall breaking barriers both as a lawyer and a justice, and helped rename BWI airport after him). It's about how Elena Kagan, who is being nominated for a lifetime appointment to the highest court in the land, views the role of the courts in our society. In the same law review article, Kagan endorses the view that the Court's primary role is to "show special solicitude" for people a judge has empathy for. Liberals would much rather talk about whose view she is endorsing rather than the substance of that view. That they would prefer to do so is unsurprising, because her view of the Court's primary mission is at odds with the majority of Americans.