Another Look at Our Founding Fathers and Their Product: A Response to Justice Thurgood Marshall

Notre Dame Journal of Law, Ethics & Public Policy Volume 4 Issue 1 Symposium on Civic Virtue Article 8 February 2014 Another Look at Our Founding Fathers and Their Product: A Response to Justice Thurgood Marshall Edward L. White III Follow this and additional works at: http://scholarship.law.nd.edu/ndjlepp Recommended Citation Edward L. White III, Another Look at Our Founding Fathers and Their Product: A Response to Justice Thurgood Marshall, 4 Notre Dame J.L. Ethics & Pub. Pol'y 73 (1990). Available at: http://scholarship.law.nd.edu/ndjlepp/vol4/iss1/8 This Commentary is brought to you for free and open access by the Notre Dame Journal of Law, Ethics & Public Policy at NDLScholarship. It has been accepted for inclusion in Notre Dame Journal of Law, Ethics & Public Policy by an authorized administrator of NDLScholarship. For more information, please contact . STUDENT COMMENTS ANOTHER LOOK AT OUR FOUNDING FATHERS AND THEIR PRODUCT: A RESPONSE TO JUSTICE THURGOOD MARSHALL EDWARD L. WHITE III* [T]he Constitution of the United States not only contained no guarantee in favor of slavery, but ... was in its letter and spirit an anti-slavery instrument, demanding the abolition of slavery as a condition of its own existence as the supreme law of the land.' Our Constitution was made only for a moral and religious people.2 It is wholly inadequate to the government of any other. INTRODUCTION During the bicentennial celebration of the United States Constitution,3 Justice Thurgood Marshall 4 announced that he * B.A. 1984, Stetson University; M.A. 1989, University of Florida; J.D. 1989, University of Notre Dame; Thos. J. White Scholar, 1987-89. To my wife and parents with love. 1. F. DOUGLASS, LIFE AND TIMES OF FREDERICK DOUGLASS 261 (1962) [hereinafter LIFE AND TIMES]. Douglass wrote the statement in his later life. It was a reversal of his previous position of "no union with slaveholders." Id. at 260-61. Douglass thought the federal government could abolish slavery if people, who used "their powers for the abolition of slavery, were voted into office." 2 F. DoucAss, THE LIFE AND WRITINGS OF FREDERICK DOUGLASS 468 (P. Foner ed. 1950) [hereinafter LIFE AND WRITINGS]. 2. 9 THE WORKS OF JOHN ADAMS 229 (C. Adams ed. 1854). 3. The bicentennial celebration will last from 1987 until 1991. The celebration is meant to "recall the achievements of our Founders and the knowledge and experience that inspired them, the nature of the government they established, its origins, its character, and its ends, and the rights and privileges of citizenship, as well as its attendant responsibilities." FIRST REPORT ON THE COMMISSION ON THE BICENTENNIAL OF THE UNITED STATES CONSTITUTION 6 (1985). Our Constitution was the first in which a people initiated a compact with a government. The Constitution was written to bind the people and the 74 NOTRE DAME JOURNAL OF L4 W, ETHICS & PUBLIC POLICY [Vol. 4 would not "participate in the festivities with flag-waving fervor. '"5 Instead, he would "quietly commemorate the suffering, struggle, and sacrifice that has triumphed over much of what '96 was wrong with the original document.... Justice Marshall made his comments on May 6, 1987, at the annual seminar of the San Francisco Patent and Trademark Law Association in Maui, Hawaii. 7 During the speech, Marshall stressed that he did not find the founding fathers' "wisdom, foresight, and sense of justice . . . particularly profound." 8 government to a contract whereby the people relinquished some of their natural rights to the government. At the same time, they reserved the rest of their rights for themselves. The government, in turn, provided the necessary order and security for the nation to remain peaceful and prosperous. If the government breached its contract with the people, the people could regain their natural rights and either return to the state of nature or enter into a compact with another government. See J. GOVERNMENT 122-28 (T. Cook ed. 1947). LOCKE, Two TREATISES OF 4. Thurgood Marshall is an Associate Justice on the United States Supreme Court. President Lyndon B. Johnson appointed him in 1967 to fill the seat vacated by Tom C. Clark. Before his appointment, Marshall was, among other things, Solicitor General of the United States as well as Counsel for the National Association for the Advancement of Colored People Legal Defense Fund. He is the first black to sit on the Court. Marshall's background sheds some light on his sensitivity toward slavery and the treatment of blacks in our society. On Marshall's life as an attorney, see R. BLAND, PRIVATE PRESSURE ON PUBLIC LAw: THE LEGAL CAREER OF JUSTICE THURGOOD MARSHALL (1973). 5. Because Marshall's speech has been printed verbatim in the Appendix to this student comment, the reader will be referred to the Appendix rather than to another source. Marshall, infra, at app. 129. Marshall's speech has been reprinted either completely or partially in numerous newspapers and periodicals. See, e.g., N.Y. Times, May 7, 1987, at A1, col. 4; Wash. Post, May 7, 1987, at Al, col. 1; Marshall, The Constitution: A Living Document, 30 How. L. J. 623 (1987); Marshall, The Constitution's Bicentennial: Commemorating the Wrong Document?, 40 VAND. L. REV. 1337 (1987); Marshall, Those the Constitution Left Out, 26JUDGES'J. 18 (1987). 6. Marshall, infra, at app. 129. Marshall stated that he will celebrate the Constitution's bicentennial as a "living document, including the Bill of Rights and the other amendments protecting individual freedoms and human rights." Id. at app. 130. 7. Id. at app. 125. Marshall's speech has produced favorable and unfavorable responses. For favorable replies, see N.Y. Times, Sept. 14, 1987, at A18, col. 1; Wash. Post,July 5, 1987, at D7, col. 1; id.,July 4, 1987, at A19, col. 1; id.,July 3, 1987, at A27, col. 1; id., May 18, 1987, at C3, col. 5; id., May 9, 1987, at A22, col. 1. For unfavorable responses, see Brownfeld, Constitution was a Spectacular Success of Founding Fathers, 47 HUMAN EVENTS 12 (July 18, 1987); NAT'L REv.,June 5, 1987, at 16; N.Y. Times, June 6, 1987, § 1, at 27, col. 1; Wash. Post, May 24, 1987, at A4, col. 3; id., May 14, 1987, at A25, col. 1; N.Y. Times, May 13, 1987, at D31, col. 1; Wash. Post, May 12, 1987, at A19, col. 1. 8. Marshall, infra, at app. 125. ANOTHER LOOK 1989] Moreover, he thought the framers devised a "defective" government, which required "several amendments, a civil war, and momentous social transformations to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today." 9 Marshall specifically faulted the framers for not considering the majority of American citizens when they crafted the Constitution.' o He underscored that the preamble's "We the People" only included free white males-blacks and women were excluded." The Justice further pointed out that the document sanctioned slavery in two places:12 in (...truncated)