Are Conservatives Ignoring/Supporting Slavery With Attacks On Marshall, Kagan?

Republicans, in an effort to attack U.S. Supreme Court nominee Elena Kagan, are declaring open season on anyone in their path: including the late, great Thurgood Marshall, the first black man to serve on the Court.

I had a chance to check out Media Matters for America to take in its research on an attack that conservatives are now engaging in as they attack Justice Marshall.

First, the background. Kagan, who clerked for Marshall, cited a statement by the former justice, who stated that the Constitution, as it was originally composed, was "defective." Right wingers have now begun to attack Marshall to try and suggest that he was some kind of an anti-American radical (a familiar tactic for conservatives who attack minorities). And, as is usually the case, Republicans are completely misguided about Marshall and have taken his comments out of context in a deliberate effort to portray him in the most negative light possible.

When Marshall talked about the Constitution as "defective" he did so because it permitted slavery and denied women the rights that they deserved. But, why would conservatives let the facts get in the way of a good smear.

Below is what Media Matters for America wrote as it documented the full context of what Marshall had to say.

Marshall: Original Constitution was "defective," required amendments to end slavery, guarantee women's suffrage. In his May 6, 1987 speech to the San Francisco Patent and Trademark Law Association, Marshall -- the first African-American Supreme Court justice -- stated:

I cannot accept this invitation, for 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.

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."

Marshall was not randomly attacking the Constitution as some black radical, who hated America. To the contrary, Marshall believed in the greatness of America to right wrongs over the course of time.

Historically, righting the wrongs has helped make the Constitution stronger today than it was when blacks were held as slaves and women were treated unfairly.

But, the fact that the Constitution allowed slavery and women to be treated as less than equal was lost on the mind of far-right talk show host Rush Limbaugh, who rarely wastes an opportunity to attack black people.

LIMBAUGH: I wanted to go even further, so here the last paragraph, we find out even more about Thurgood Marshall, who Elena Kagan idolized:

"During the year that marked the bicentennial of the Constitution, Justice Marshall gave a characteristically candid speech. He declared" -- this is a law review article that she wrote -- "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, that we hold as fundamental today.' The Constitution today, the Justice continued, contains a great deal to be proud of. '[B]ut the credit does not belong to the Framers. It belongs to those who refused to acquiesce in outdated notions of "liberty," "justice," and "equality,'" and who strived to better them.' The credit, in other words, belongs to people like Justice Marshall. As the many thousands who waited on the Supreme Court steps will know, our modem Constitution is his."

So, this is who Elena Kagan idolizes, Justice Marshall, who said the Constitution as originally drafted and conceived was 'defective,' and only over the course of 200 years with people like him on the Supreme Court had it become worth anything.

Notice the attempt to demonize Marshall and Kagan through Marshall?

Limbaugh seems to leave out the parts about slavery and women's rights.

Was this an oversight on his part?

Limbaugh is an individual conservatives love, who relishes taking a shot at a great man like Justice Thurgood Marshall who did so much for so many people.

I am no law scholar, but what Marshall said about the original Constitution being "defective" was right on the money, and is obvious.

Clarence Thomas Reminds Us Of The Pain Of Losing Thurgood Marshall

The more I think about it, it’s sad to think that someone who has done so little for civil rights (Clarence Thomas) replaced someone so great (Thurgood Marshall) who did so much for civil rights. It’s almost unforgivable that George H.W. Bush, in 1991, nominated Clarence Thomas to the Supreme Court to replace one of the important figures in black history, Thurgood Marshall.

Here is a lengthy excerpt from Wikipedia:

Marshall won his very first U.S. Supreme Court case, Chambers v. Florida, 309 U.S. 227 (1940), at the age of 32. That same year, he was appointed Chief Counsel for the NAACP. He argued many other cases before the Supreme Court, most of them successfully, including Smith v. Allwright, 321 U.S. 649 (1944); Shelley v. Kraemer, 334 U.S. 1 (1948); Sweatt v. Painter, 339 U.S. 629 (1950); and McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950). His most famous case as a lawyer was Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), the case in which the Supreme Court ruled that “separate but equal” public education was unconstitutional because it could never be truly equal. In total, Marshall won 29 out of the 32 cases he argued before the Supreme Court.

During the 1950s, Thurgood Marshall developed a friendly relationship with J. Edgar Hoover, the director of the Federal Bureau of Investigation. In 1956, for example, he privately praised Hoover’s campaign to discredit T.R.M. Howard, a maverick civil rights leader from Mississippi. During a national speaking tour, Howard had criticized the FBI’s failure to seriously investigate cases such as the 1955 killers of George W. Lee and Emmett Till. An FBI informant reported that Marshall had “no use for Howard and nothing would please him more than to see Howard completely crushed.” Ironically, two years earlier Howard had arranged for Marshall to deliver a well-received speech at a rally of his Regional Council of Negro Leadership in Mound Bayou, Mississippi only days before the Brown decision. ^[4]

President John F. Kennedy appointed Marshall to the United States Court of Appeals for the Second Circuit in 1961. A group of Democratic Party Senators led by Mississippi’s James Eastland held up his confirmation, so he served for the first several months under a recess appointment. Marshall remained on that court until 1965, when President Lyndon B. Johnson appointed him Solicitor General.

On June 13, 1967, President Johnson appointed Marshall to the Supreme Court following the retirement of Justice Tom C. Clark, saying that this was “the right thing to do, the right time to do it, the right man and the right place.” Marshall was confirmed as an Associate Justice by a Senate vote of 69-11 on August 31, 1967.^[5] He was the 96th person to hold the position, and the first African-American.

Meanwhile, Thomas fought against civil rights and continues to fight against civil rights.

From The Daily Voice:

In an 8-1 U.S. Supreme Court decision, Justice Clarence Thomas cast the lone vote against a key provision of the Voting Rights Act on Monday (June 22).

The Court, in Northwest Austin Municipal Utility District Number One v. Holder (PDF link) declined to overturn the 1965 Voting Rights Act that has often been challenged by conservative critics as unnecessary. Instead it avoided the “difficult” question about the constitutionality of the law. But the Court did allow a tiny Texas municipality to be exempted from a requirement to provide advance notice before making changes to its election procedures.

In his dissent, Thomas seemed to argue that the Voting Rights Act is no longer necessary because the explicit racial segregation of the Jim Crow era is gone.

”The violence, intimidation and subterfuge that led Congress to pass Section 5 and this court to uphold it no longer remains,” Thomas wrote. He admitted that in 1965, “Congress had every reason to conclude that States with a history of disenfranchising voters based on race would continue to do all they could to evade the constitutional ban on voting discrimination.” But, Thomas added, “The extensive pattern of discrimination that led the Court to previously uphold Section 5 . . . no longer exists…And the days of ‘grandfather clauses, property qualifications, ‘good character’ tests, and the requirement that registrants ‘understand’ or ‘interpret’ certain matter,’ are gone.”

Some things change, but other things remain the same.

It hurts to think this man replaced the great Thurgood Marshall.