Here's an interesting approach to the nomination of Solicitor General Elena Kagan to the Supreme Court, based on her days as a clerk to Justice Thurgood Marshall:
Kagan quoted from a speech Marshall gave in 1987 in which he said the Constitution as originally conceived and drafted was “defective.” She quoted him as saying the Supreme Court's mission was to “show a special solicitude for the despised and the disadvantaged.”
“Does Kagan Still View Constitution ‘As Originally Drafted And Conceived' As ‘Defective'?” the RNC asked in its research document. “And Does Kagan Still Believe That The Supreme Court's Primary Mission Is To ‘Show A Special Solicitude For The Despised And Disadvantaged'?”
Sadly, The Hill doesn't give you the context of Marshall's speech. In what way was was Marshall saying the Constitution was defective?
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." United States Constitution, Art. 1, 52 (Sept. 17, 1787). 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 a hundred and thirty years. The 19th Amendment (ratified in 1920).
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.
I think it's fair to say that the Constitution was defective when originally written in that it allowed slavery and didn't allow women or black people to vote. The GOP, obviously, feels very differently.
In fact, the framers must have felt that the document was potentially in some way flawed, or they wouldn't have included a process with which to amend it.
-- A. Serwer
