Thursday, May 13, 2010

Is Elana Kagan an Originalist?

Here is a quote from the late Justice Thurogood Marshall, whom Kagan served as clerk:
“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 the 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. They could not have imagined, nor would they have accepted, that the document they were drafting would one day be construed by a Supreme Court to which had been appointed a woman and the descendant of an African slave. “We the people” no longer enslave, but 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 It belongs to those who refused to acquiesce in outdated notions of “liberty,” “justice” and “equality,” and who strived to better them.”
From the beginning of these comments, Justice Marshall was wrong. The meaning of the Constitution was fixed, as it is a contract between the People and the form of government they chose. The terms of a contract do not change by whim or expediency of the moment. The wisdom of the framers was profound, because for the first time in the history of mankind a people chose to be ruled by just laws that protected the individual and his right to his own life, liberty, and pursuit of happiness. For the first time, the person, property, and mind of man was to be respected, and not subordinated to the collective or the ruling class by the use of brute force. Deficiencies in our government were, and are, a result of human imperfection. There have always been, and there always will be, men who seek to enrich themselves at the expense of others through force and abuse of the law. The federal government, through the Supreme Court, upheld slavery. The federal government, through the Supreme Court, upheld segregation. That slavery and segregation took so long to be removed from our society is not a deficiency in our founding, but rather a result of an elitist mind-set of those who would presume to rule.

Marshall’s statement: “’We the people’ no longer enslave, but 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 It belongs to those who refused to acquiesce in outdated notions of “liberty,” “justice” and “equality,” and who strived to better them” is troubling. What did Justice Marshall mean, exactly? What is outdated about these terms? Words have specific and ordinary meanings. To suggest that the founders’ intent of the words they used in the Declaration and Constitution are somehow outdated, and therefore invalid, is fallacious. The men who refused to accept slavery were not, and are not, men of the left, regardless of what Justice Marshall thought of himself and those of his political persuasion. They were men who upheld the Declaration and the Constitution, and who held the framers and their original intent in the highest place of honor.

Should there be any doubt about Marshall’s (and by extraction, Kagan’s) position on original intent, racism, fairness, liberty, justice, equality, etc. etc., one only need examine a quote attributed to him by Justice William O. Douglas: “You guys have been practicing discrimination for years. Now it is our turn.”

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