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09/07/2018

Michael Long on Thurgood Marshall on Originalism
Michael Ramsey

In the Los Angeles Times, Michael Long: Let's let Thurgood Marshall explain what's wrong with Brett Kavanaugh's originalism.  From the introduction:

Whenever a Supreme Court seat must be filled, we’re confronted with a fundamental battle over the meaning of the Constitution: Is it a living document, or can it only be plumbed for the founders’ “original intent”? [Ed.:  How about the document's "original meaning"?].  The so-called originalists have loudly praised President Trump’s nomination of Judge Brett Kavanaugh to replace Justice Anthony M. Kennedy. Their cheers, of course, signal a nominee they expect to tip the court in favor of their ideology.

It’s instructive before the confirmation hearings begin to hear from one of the most effective and articulate warriors on the other side: Justice Thurgood Marshall, legendary civil rights attorney and the first black justice on the high court.

And from later on:

In Marshall’s opinion, the Founding Fathers weren’t all that astute, and neither was the Constitution they penned in 1787. Marshall delivered that opinion, controversial in its time, during the nation’s bicentennial celebration of the historic document at a conference of attorneys on Maui, in Hawaii, in May 1987. His less than laudatory words stood in contrast to the praise for the Constitution offered earlier that year by President Reagan and retired Chief Justice Warren E. Burger.

...

“I do not believe that the meaning of the Constitution was forever ‘fixed’ at the Philadelphia Convention,” Marshall told the lawyers in Hawaii. “Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound.”

Marshall was critical of the men who wrote the Constitution because he saw their original intent as favoring a government that advanced slavery and prevented blacks and women from exercising the right to vote. The Constitution was thus “defective from the start,” he said, “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.”

(Via Real Clear Politics; the author is editor of Marshalling Justice: The Early Civil Right Letters of Thurgood Marshall.)

In my view this is one of the strongest (perhaps the strongest) of the arguments against originalism.  It does not even need to focus on the problems of slavery and voting discrimination in the founding era; one could simply argue that solutions for the eighteenth century are not solutions for today.

One response, represented by John McGinnis and Michael Rappaport's book Originalism and the Good Constitution, is to say that for the most part the framers' solutions are timeless and well-considered, and that the core problems of slavery and voting discrimination were remedied by the Reconstruction amendments and the Nineteenth Amendment.

Here I want to pursue a different reaction.  The Marshall-Long position is really two arguments:

(1) The original Constitution was bad; and

(2) Judges should write us a new one.

But (2) does not follow from (1).  The more obvious conclusion from (1) would seem to be that judges should not enforce the original Constitution and should leave most matters to the people acting through amendments or through the political branches.  Much more would need to be said about the superiority of judges as policymakers to get to position (2).  The "living constitution" rhetoric tends instead to disguise this challenge.