One of the talking points that have emerged from the right about Elena Kagan is that she views the Constitution as defective. This is based on a Thurgood Marshall quote that Kagan used in an article she wrote in 1993. Rush Limbaugh ran with this point today, and the problem is that by defending the original Constitution both Limbaugh and the RNC are endorsing slavery.
RNC chairman Michael Steele used the “defective” talking point in his statement about the Kagan nomination, “Given Kagan’s 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,’ you can expect Senate Republicans to respectfully raise serious and tough questions to ensure the American people can thoroughly and thoughtfully examine Kagan’s qualifications and legal philosophy before she is confirmed to a lifetime appointment.”
This was also picked up on by Rush Limbaugh:
Limbaugh said, “This is who Elena Kagan idolizes. Justice Marshall who said the Constitution as originally drafted and conceived is defective, and only after 200 years of people on the court like him did it become worth anything.” As usual, Limbaugh doesn’t concern himself with the truth as he sticks to the GOP talking point. The “crack” RNC research team parsed the quote from Marshall.
Here is the full quote from Justice Marshall’s 1987 speech, “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.”
Marshall was discussing slavery, and how the Constitution was flawed from the start on the issue, because without compromise the Constitution would have never been agreed upon, “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.”
The Constitution was defective on the issue of slavery, hence the Civil War. The RNC and Limbaugh were engaging in a lie of omission. If they really believe that the original Constitution was perfect, they are not only supporting slavery, but taking away the right to vote from women, and they are opposing presidential terms limits to name limits. They are also opposed to the direct election of United States Senators, and the limits on congressional pay increases, and allowing citizens to vote at the age of 18.
By citing Marshall, Kagan affirmed her belief in the Constitution as a living document. The age old debate over whether or not the Constitution is dynamic or static should have been enough for the right. No, they had to go the extra mile and foolishly claim that Kagan believes that the Constitution is defective. This implies that she is a judicial activist, which is fine with the right as long as the court is undertaking conservative activism, but the end result of their argument is that by endorsing the original Constitution, Limbaugh and the RNC have endorsed slavery. I guess this is the America that they long for a return to.
Mr. Easley is the founder/managing editor and Senior White House and Congressional correspondent for PoliticusUSA. Jason has a Bachelor’s Degree in Political Science. His graduate work focused on public policy, with a specialization in social reform movements.
Awards and Professional Memberships
Member of the Society of Professional Journalists and The American Political Science Association