The Founders

Only a fool would disagree with a Supreme Court Justice about the Constitution.
As Will Durant once said in a similar situation: we proceed.
Elena Kagan’s confirmation brought up a lot of discussion of one of her mentors, Justice Thurgood Marshall. On the occasion of the bicentennial of the Constitution, Justice Marshall gave a speech which contains several ideas that I have heard from my liberal friends over the years.
The New York Times selected this as a summary of his remarks. ''I do not believe that the meaning of the Constitution was forever 'fixed' at the Philadelphia Convention,'' the 78-year-old Justice said. ''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.''
This seems to me to be a bit like criticizing Isaac Newton because he wasn’t Albert Einstein. Newton said, and I’m sure Einstein agreed, “if I have seen further than others it is because I have stood on the shoulders of giants.” Marshall seems be of the opinion that he sees further than others and it is because they were too short.
I can certainly understand that American History would look different to a black person than it does to me. But I think that Justice Marshall constructed a pretty weak straw man when he set out to prove that the constitution that they wrote in 1787 was not perfect.
Marshall is correct that it was “defective from the start.” Did they claim that it was free of defects? Well, let’s see, did they include a process for amending it? Yes, and it has been used twenty seven times – so far. Clearly they never intended that the meaning of the constitution should be “forever ‘fixed’ at the Philadelphia Convention.”
Apparently Justice Marshall thinks that their great crime was allowing the continuation of slavery. It seems to me that a legitimate criticism should include an alternate pathway that would have gotten us here quicker or with less pain. He doesn’t actually propose how they might have done it otherwise. But like a lot of other people he seems to think that the founders chose between having the Constitution that they made and having another one which abolished slavery. But that wasn’t their choice. Their choice was between having the Constitution they made - which included structures that led to the abolition of slavery “four score and seven” years later - and NOT HAVING the imaginary one that abolished slavery immediately.
He goes on for a long time about how inadequate their work was. They left slavery in place, no vote for women, … and he says that, “While the Union survived the civil war, the Constitution did not. In its place arose a new, more promising basis for justice and equality, the 14th Amendment, ensuring protection of the life, liberty, and property of all persons against deprivations without due process, and guaranteeing equal protection of the laws.”
Justice Marshall saw the 14th amendment as replacing the Constitution. I see it as part of the continuing development of the Constitution. Certainly the 1787 document did not put in place what we have now. Nothing could have then. The 14th amendment is a very good thing, but by its very nature it is a modification of, not a replacement for, the Constitution.
I am unabashedly impressed with the founders. I do not think that my appreciation of them justifies the epithet I once received from a liberal friend that “I was always kissing their …”. But I do think that they produced a really fine piece of work. (I realize that that is not a very risky position to take.) I see the Constitution as the instrument which gave form to the nation and, among other things, held it together long enough to allow it to develop those “mystic chords of memory” that Lincoln called on to win the civil war and abolish slavery.