Remembering and redefining Thurgood Marshall
One of the chief preoccupations of the modern Conservative movement is fighting to redefine what Americans view as “normal.”
They have had remarkable success in this pursuit.
Terms that were once entirely mainstream — “liberal,” for example, was so common an adjective that Dwight Eisenhower described himself as one — have become epithets.
Another Republican, Teddy Roosevelt, described himself enthusiastically as a “progressive,” but conservatives have worked doggedly to make that label into a negative.
This disciplined interest in history and language were on display yesterday. Republicans were supposedly quizzing Supreme Court nominee Elena Kagan about her views of the law and the Constitution.
But they focused much of their time on the legacy of one of Kagan’s inspirations, legendary Supreme Court justice Thurgood Marshall.
Kagan clerked for Marshall before his retirement in 1991.
Sen. John Kyll (R-Arizona) argued that Marshall’s career and judicial philosophy were “not what I would consider to be mainstream.”
Dana Milbank, columnist for the Washington Post, collected these additional observations about Marshall’s term on the bench:
Sen. Jeff Sessions (Ala.), the ranking Republican on the panel, branded Marshall a “well-known activist.” Sen. Chuck Grassley (R-Iowa) said Marshall’s legal view “does not comport with the proper role of a judge or judicial method.” Sen. John Cornyn (R-Tex.) pronounced Marshall “a judicial activist” with a “judicial philosophy that concerns me.”
These are, put bluntly, remarkable assertions.
Justice Marshall was responsible for some of the most compelling and moral legal decisions of the modern era, fighting (to cite one example) for the desegregation of American schools.
As the first African American on the Supreme Court, he grappled for a quarter-century with some of the most profound changes our society has ever navigated — from the expansion of minority and women’s rights to the ending of Jim Crow.
It’s telling that of the 11 US Senators who voted against confirming Marshall, 10 were southern Democrats. The 11th dissenting vote — the only Republican to vote No — was Strom Thurmond, then a strident segregationist.
Race isn’t the main reason that modern conservatives dislike Marshall.
Their primary concern is that his judicial views stood in direct opposition to their essentially hagiographic view of the Founding Fathers.
Much of the Right’s legal philosophy is predicated on the idea that the Constitution is a sacred document, literally received wisdom that warrants little tampering or interpretation.
Here’s what Marshall had to say about that approach:
“[T]he government [the Founding Fathers] devised was defective from the start, requiring several amendments, a civil war, and major social transformations to attain the system of constitutional government and its respect for the freedoms and individual rights, we hold as fundamental today.”
Which of these views is outside the mainstream? Neither.
They both reflect the continuing (and healthy) tension between traditionalists and reformers.
The Right is correct that we should continue to harken back to the genius and inspiration of the thinkers who mapped our basic system of government, with its respect for freedom and individuality.
But thinkers like Marshall have wrestled courageously with the shortcomings of those original ideas, their implementation, and their adaptation to modern conditions.
I don’t find it at all problematic that Republicans disagree with Marshall — that’s perfectly fair and reasonable.
But their attempt to banish him to the fringe of American thought and experience? That’s wrong in principle and wrong on the facts.
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Marshall was a sincere and brilliant man Brian, but he was an activist judge and Justice in the contemporary sense of the word. I found a whole mess of info on that, but here’s a more concise distillation of his views-
“A pragmatic judicial activist, he was committed to making the U.S. Constitution work; most illustrative of his approach was his attempt to fashion a “sliding scale” interpretation of the Fourteenth Amendment’s equal protection clause that would weigh the objectives of the government against the nature and interests of the groups affected by the law. Marshall’s sliding scale was never adopted by the Supreme Court, though in several major civil rights cases of the 1970s the court echoed Marshall’s views. He was also adamantly opposed to capital punishment and generally favoured the rights of the national government over the rights of the states.”
That’s not a strict Constitutionalist from where I sit. IMO and to the best of my knowledge the job of the SCOTUS is to decide on the Constitutionality of law and decisions based on current law, not to interpret feelings, value or world law. That is where the problem lays and why the right will question anyone with even a hint of activism in their background.
Bret –
You are describing succinctly the conservative strict Constitutionalist point of view.
Justice Marshall espoused a more interpretive approach, to the Constitution and his role as a justice.
The two philosophies are at odds, obviously, but neither is “normal” or “mainstream.”
Meanwhile, one thing that’s clear from the Roberts court is that strict constitutionalists are also willing to be very “activist” — overturning long-standing legal precedents, rejecting congressional action, and overruling local laws and statutes.
Again, this isn’t wrong — it just is what it is.
–Brian, NCPR
I’ve never quite figured out why being or not being a strict Constitutionalist is germane to any discussion of what should or shouldn’t be done.
Strictly speaking, a strict Constitutionalist would never dare to amend the Constitution in any way, shape or form. Further, they would not presume to know the thoughts of any of the Founding Fathers. It would be like you trying to guess what I mean by what I just wrote.
How dare you!
Of course this presumption of what someone meant when they wrote something down goes on even in Christianity. Maybe you believe or maybe you don’t believe God wrote the Ten Commandments.
I think you will agree people have been arguing ever since what God meant. But maybe God didn’t mean anything other than exactly what was written in the Ten Commandments. Thou shalt not kill – period! Thou shalt not commit adultery – period!
It doesn’t say killing is okay as long as the government says it’s okay. It doesn’t say sex outside of marriage by two people who aren’t married is wrong. For there to be adultery, at least one person needs to be married. But we do like to tell each other what we think someone meant when they said or wrote something because it is fun and we think we like to thing we are smarter than the other fellow.
So strictly speaking, there is no such thing as a strict Constitutionalist.
It seems to be fair to observe that, from all perspectives, an “activist judge” is one who hold opinions, make decisions, that the observer doesnt like.
How was the “Citizens United” decision not an “activist court” decision? Show me the birth certificate of a corporation.
Marshall was pretty activist:
1. In his dissent in Board of Regents of State Colleges v. Roth, Marshall wrote “every citizen who applies for a government job is entitled to it unless the government can establish some reason for denying the employment.”
2. San Antonio School District v. Rodriguez dissent, Marshall said Equal Protection that Texas’ system of financing education through a property tax was unconstitutional because education was a “fundamental right’ guranteed by equal protection.” Telling states how they should finance educaiont seems pretty activist to me.
In determining if Marshall was within the mainstream it is important to look not just at his majority rulings, but also his dissenting poinions. Neither of the above opinions are, in my opinion, mainstream jurispudence.
“In his dissent in Board of Regents of State Colleges v. Roth, Marshall wrote “every citizen who applies for a government job is entitled to it unless the government can establish some reason for denying the employment.””
Yes, Marshall did write the above sentence. Marshall went on to say “Thus, when an application for public employment is denied or the contract of a government employee is not renewed, the government must say why, for it is only when the reasons underlying government action are known that citizens feel secure and protected against arbitrary government action.”
Sounds like something today’s Tea Party member would agree with.
Pete, a strict Constitutionalist look within the Constitution for the answer to the problem, not at foreign law, feelings, value or personal experience as a minority for instance. The Constitution provides all we need to do the job. Amendments are allowed and are discussed at length in the Founders records. It’s when we look at the Constitution and Bill of Rights and outmoded general suggestions written by a group of dumb hicks that didn’t even have TV that we run into problems.
Typo alert: the Arizona senator is Jon Kyl.
The phrase “activist judge” is ideologically meaningless. The justices on the present Court who most often vote to reverse precedents are Messrs Scalia and Thomas, the two most far right members of the bench.
If the Constitution really “provides all we need to do the job,” then we wouldn’t need an appellate judiciary in the first place. For a century, the federal Constitution was interpreted to permit state-enforced apartheid and human rights violations (or assaults on “liberty” and “freedom,” to use the right’s preferred words), so long as it was “only” the states doing it. Was this the proper interpretation of that Constitution or did someone like Justice Marshall really right the wrong interpretation?
And PNElba is right. The idea that a corporation has rights equivalent to a citizen is a grotesque perversion of the Constitution, which does NOT begin “We, the corporations, …”
Brian, the Constitution and BoR contains all we need, if it’s not there it’s not to be done-legally. There is a mechanism for change. Consider that even in the 1780’s slavery was a hot topic. The original wording included “…life, liberty and PROPERTY…” That was changed to “the pursuit of happiness” to allow for the demise of slavery and yet get the southern states to ratify the Constitution. It’s all there. We don’t need or can we legally, rather can the SCOTUS or any other court legally, look to other sources. Yeah, it get’s done but it ain’t right.
Hey, what is a corporation made up of? People? So a group of people have no right to speak? Better outlaw the ACLU Inc, NRA inc. , AARP Inc., AMA Inc., Handgun Control Inc, etc. That way the only people allowed to “speak” will be very wealthy, the press and politicians. Cool. That sounds like a recipe for success.
So where exactly in the Constitution does it say corporations (any corporation) are a person?
Bret, I see. The corporations are actually representing the “little people”. I own mutual funds, which means I own stock in hundreds of corporations. I’ve yet to have a single corporation email me and ask me if it’s alright to donate funds to a political cause. I own those shares because I expect the corporation to provide me with a profit, not to elect some politician that is going to insure the company gets a pass on some legislation. If you don’t like the stance of the NRA, ACLU, AARP, AMA etc. by all means don’t join.
A corporation is a group of people P. Do people have the right to speak or not?
One definition of a corporation: “A body that is granted a charter recognizing it as a separate legal entity having its own rights, privileges, and liabilities distinct from those of its members“.
The members of a corporation are people and have obviously have the individual right to speak. The “separate legal entity” is not a person but an institution and I would argue does not have the same rights as a natural person.
So the AARP Inc has no right to speak? The AMA Inc? The American Legion Inc.?
The problem is some people seem to want the big bad corps to shut up, but the good corps to be able to speak. I don’t see how that’s going to work.
AARP, AMA, American Legion all non-profit and have members that join because they agree with the non-profits political positions. Where exactly in the Constitution does it say a chartered body is a person?
Where does it say a group pf people can’t speak? You have a good point in the past post, but people are being represented.