Thurgood Marshall’s Bicentennial Address

1. Thurgood Marshall’s Bicentennial Address The Constitution at 200 Years Old – A Reflection by Supreme Court Justice Thurgood Marshall in 1987

2. Who is Thurgood Marshall, and why are his remarks especially relevant to the discussion during the Constitution’s bicentennial celebration? • In 1954, Thurgood Marshall was the NAACP lawyer who successfully argued the case of Brown V. Board of Education, Topeka, KS before the Supreme Court. Not only did he win that case, he won over thirty others by arguing that the 14th Amendment had redefined citizenship rights for African-Americans and others. • Thurgood Marshall was appointed to the US Circuit Courts and eventually nominated for the Supreme Court by Lyndon Baines Johnson during the 1960s. • He is probably most famous for supporting minority and women’s rights in his rulings over a career that spanned decades. The affirmative action programs which were instituted in order to help minorities aspire to higher status in terms of leadership positions and economic equity were strongly supported by Thurgood Marshall.

3. How does Marshall characterize the “Founding Fathers?” • “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.” • “On a matter so basic as the right to vote, for example, Negro slaves were excluded, although they were counted for representational purposes at three-fifths each. Women did not gain the right to vote for over a hundred and thirty years. These omissions were intentional.” • “The effects of the Framers' compromise have remained for generations. They arose from the contradiction between guaranteeing liberty and justice to all, and denying both to Negroes.”

4. At the time the Constitution was written, who was included in the phrase, “We the People?” • White men of property, and very few others. • Women were not granted the right to vote, to hold office, or to secure their own property except on limited levels. • African-Americans were not ever counted as people on the most basic level, and as late as the 1850s Chief Justice Roger Taney emphasized the point in the Dred Scott case: “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.”

5. In what ways did the Constitution legitimize or encourage the institution of slavery in America? • The Three-Fifths Compromise allowed Southern States to have greater representation in Congress (for a price – higher taxation) because they held enslaved people in bondage. • The International Slave Trade was allowed to continue for another twenty years – until 1808. This was part of a compromise giving the Congress greater power to regulate trade. • Northerners benefited from the “carrying trade” and the tax on each slave imported into the country. Slavery was a means to raise revenue. • The basic principle of the fugitive slave laws to come was written into the document itself.

6. Does it contain the words slave or slavery? Why not? No, it does not. Neither the word slavery nor slave is included in this document. This is largely due to the obvious hypocrisy of establishing a country based politically on liberty and economically on slavery.

7. Who does Thurgood Marshall give much of the credit to for making the Constitution a workable, living document which has successfully served the United States of America? Thurgood Marshall gives credit to the men and women who have changed the Constitution over time: • The Antifederalists and dissenters who helped to add the Bill of Rights to the document. • The soldiers and leaders during the Civil War, who reinvented the Constitution with the passage of the 13th, 14th, and 15th Amendments.

8. Who does Thurgood Marshall give much of the credit to for making the Constitution a workable, living document which has successfully served the United States of America? • The Progressives who expanded the vote by passing the 17th Amendment – allowing the direct election of senators; the 19th Amendment – allowing women the right to vote; the 24th Amendment – ending the poll tax; and the 25th Amendment – granting voting rights in the District of Columbia; and the 26th Amendment – allowing 18 year olds to vote. • He goes on to state: “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. • Finally, he contends that the Constitution is a great document because it is a “living document” and it has supported justice because we changed it – not because of the Founding Fathers original notions.

9. Thurgood Marshall – First African American Supreme Court Justice Sandra Day O’Connor – First Woman Appointed to the Supreme Court What does Thurgood Marshall believe would shock the Founding Fathers in 1987? He and his fellow justice, Sandra Day O’Connor – whom they would not have envisioned.