Reflections on the Bicentennial of the U.S. Constitution

Thurgood Marshall
1987

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[The first black justice of the Supreme Court denounces the Founders for failing to abolish slavery. — TGW]
 

Like many anniversary celebrations, the plan for 1987 takes particular events and holds them up as the source of all the very best that has followed…. This is unfortunate…. The focus of this celebration invites a complacent belief that the vision of those who debated and compromised in Philadelphia yielded the "more perfect Union" it is said we now enjoy.

I cannot accept this invitation, for 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 they 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, that we hold as fundamental today. When contemporary Americans cite "The Constitution," they invoke a concept that is vastly different from what the Framers barely began to construct two centuries ago….

Political representation in the lower House of Congress was to be based on the population of "free Persons" in each State, plus three fifths of all "other Persons." Moral principles against slavery, for those who had them, were compromised, with no explanation of the conflicting principles for which the American Revolutionary War had ostensibly been fought: the self-evident truths "that all men are created equal…."

Writing for the Supreme Court in 1857, Chief Justice Taney penned the following passage in the Dred Scott case, on the issue of whether, in the eyes of the Framers, slaves were "constituent members of the sovereignty," and were to be included among "We the People":

"We think they are not, and that they are not included, and were not intended to be included…. They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race …; and so far inferior, that they had no rights which the white man was bound to respect; and that the Negro might justly and lawfully be reduced to slavery for his benefit…."

[From "Reflections on the Bicentennial of the U.S. Constitution," Harvard Law Review 101 (November 1987), 1-4.]