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Tilting at Windmills

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May 10, 2010

RNC TARGETS KAGAN'S THURGOOD MARSHALL QUOTES.... It's simply not realistic to think the Republican National Committee would be gracious and classy upon learning of President Obama nominating Elena Kagan for the Supreme Court. But with all of the potential areas of attack, this RNC argument seems especially misguided, even for the RNC.

Republicans are questioning Elena Kagan's ties to a liberal icon and the nation's first African American Supreme Court justice, Thurgood Marshall.

In its first memo to reporters since Kagan's nomination to the high court became public, the Republican National Committee highlighted Kagan's tribute to Marshall in a 1993 law review article published shortly after his death.

Kagan quoted from a speech Marshall gave in 1987 in which he said the Constitution as originally conceived and drafted was "defective." She quoted him as saying the Supreme Court's mission was to "show a special solicitude for the despised and the disadvantaged."

This, as far as the RNC is concerned, is some kind of outrage.

But that's foolish. Thurgood Marshall's description of the Constitution as "defective" was hardly shocking -- it was defective. Let me give the RNC an example: the Constitution defined slaves as three-fifths of a person. It was a morally indefensible and disgusting "flaw" in the Constitution that needed fixing. It was, after all, what Marshall was referring to in the speech Kagan quoted.

(Fortunately, we now have the13th Amendment. Maybe the RNC has heard of it.)

Indeed, the amendment process itself reflects the basic reality that the framers of the Constitution recognized that it was a flawed framework that would need to be revised over time. By one reasoning, anytime anyone recommends approval of a constitutional amendment, they're effectively characterizing the existing Constitution as inadequate and in need of improvement.

And yet, there's the RNC's new research document, asking, "Does Kagan Still View Constitution 'As Originally Drafted And Conceived' As 'Defective'?"

Kagan, of course, clerked for Thurgood Marshall, and has long considered him a hero. That she would publish a tribute to the Supreme Court giant and quote one of his speeches is hardly the stuff of controversy.

Chances are, the Republican National Committee is just throwing the kitchen sink at Kagan, hoping something will stick. But using Thurgood Marshall to go after her is offensive and dumb.

Steve Benen 11:10 AM Permalink | Trackbacks | Comments (43)

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If it weren't for Thurgood Marshall we wouldn't have that eminent jurist Clarence Thomas on the Supreme Court so I guess he did do some good after all...

Posted by: Wingnut Wilson on May 10, 2010 at 11:16 AM | PERMALINK

offensive and dumb.... the GOP motto for the 2010 elections?

Posted by: MikeBoyScout on May 10, 2010 at 11:21 AM | PERMALINK

They really believe they're strict constructionists. They also believe they accept a full literal interpretation of every aspect of the Bible. Neither is true, of course.

Posted by: shortstop on May 10, 2010 at 11:26 AM | PERMALINK

No surprise here. Of course, the RNC would infer racial bias and liberal agenda in their first volley of criticism. Next up- "friend" of Obama, Kagan's "elite" education, her urban upbringing, religion, gender, and questioning her sexual orientation- not necessarily in that order. That's how they roll.

Posted by: Carol A. on May 10, 2010 at 11:27 AM | PERMALINK

And let's not forget the dog whistle qualities of attempting to tightly couple Kagan with Marshall.

How long until the RNC comment about Kagan is carried with pictures of Kagan, Marshall and Obama?

4, 3, 2, ...

Posted by: MikeBoyScout on May 10, 2010 at 11:30 AM | PERMALINK

"Let me give the RNC an example: the Constitution defined slaves as three-fifths of a person."

What did you want the Constitution to say? Slaves should be counted as five-fifths of a person?

My preference would have been to not treat slaves as a person at all.

Those comments have nothig to do with evils of slavery. They have to do with representation in Congress.

Posted by: neil wilson on May 10, 2010 at 11:31 AM | PERMALINK

Two dog whistles for the price of one! Very economical use of words. With one press release, they can stoke the Konstatootionalist Teanut Militia crew, the people who think the Constitution consists of the (slightly redrafted) Second and Tenth Amendments plus a handful of sentence fragments pasted together with some stuff they read on a blog somewhere and the racists and,/i> the neoconfederates who know exactly what the Thirteenth, Fourteenth and Fifteenth Amendments say and think they are all evil.

Put the two groups together and there's the whole Republican base for you, duly energized.

Posted by: Another Steve on May 10, 2010 at 11:33 AM | PERMALINK

Ah, but the Constitution *IS* defective because it needs amending to outlaw abortion and prevent gay marriage. But that's something else entirely....

Posted by: Eeyore on May 10, 2010 at 11:34 AM | PERMALINK

One often hears it said that "the Constitution defined slaves as three-fifths of a person."

In actuality, the Constitution effectively defined slaves as being negative three-fifths of a person, as each slave in being increased the political clout of a slave state by 3/5 of a person. This worked against, rather than for the slave, by that quantity.

Posted by: low-tech cyclist on May 10, 2010 at 11:34 AM | PERMALINK

After all, it has been amended 27 times. The founding fathers recognized that it was deficient and passed the first ten amendments in 1791.

Posted by: wordtypist on May 10, 2010 at 11:35 AM | PERMALINK

Let me give the RNC an example: the Constitution defined slaves as three-fifths of a person.

Actually, it didn't; indeed, nowhere in the original Constitution will you find the word "slave," let alone a definition. The Three-Fifths Rule was about the basis for representation and assessments on the states only, and carefully avoided the mention of slaves. The really serious defect of the original Constitution with regard to slavery was that it allowed it to exist at all--essentially by tacitly deferring to the states. That was what the Thirteenth Amendment corrected.

Posted by: David in Nashville on May 10, 2010 at 11:37 AM | PERMALINK

Republicans have neutralized the charge of "racism" to the point where they're now free to invert reality and charge civil rights icons with it. There's really no downside here at all. Republicans get the dog whistle, Democrats play defense, and the white working class gets hypnotized into thinking Republicans care about them. The anti-ACORN jihad showed how the process works like a charm.

Posted by: walt on May 10, 2010 at 11:39 AM | PERMALINK

What low-tech cyclist just said, far more eloquently than I could have. The very fact that non-voting slaves, whose interests were diametrically opposed to those of voting whites, counted towards representation in the House and electoral college was the problem, and it would have been *worse* had it been a four-fifths or five-fifths rule. That, and enshrining the institution of chattel slavery at all.

Whenever someone trots out the three-fifths rule as an example of injustice in the original Constitution, I tend to think that either (a) they haven't given much thought to the actual problematic aspects of the original Constitution, or (b) they're using cheap rhetoric to sway people in group (a).

It's a terrible example, and we should quit using it.

Posted by: Brock on May 10, 2010 at 11:43 AM | PERMALINK

Technically speaking, ALL of the amendments after the Bill of Rights are acknowledgments that the Constitution was "defective". And for the mother of all "defectives," we have Prohibition and its repeal.

Posted by: artsmith on May 10, 2010 at 11:44 AM | PERMALINK

"Chances are, the Republican National Committee is just throwing the kitchen sink at Kagan, hoping something will stick. But using Thurgood Marshall to go after her is offensive and dumb."

It's not just throwing the kitchen sink. It's a deliberate attempt to infuse race into the nomination process. You can be sure EVERYTHING the GOP does will be tainted with race to appeal to their hardcore base. Fear over national security of several years ago have morphed into a race-based fear.

Posted by: SaintZak on May 10, 2010 at 11:45 AM | PERMALINK

I hate to play the "The Founders would do this if they were here" game, but I think it safe to say the Founders would largely agree with proposition that the Constitution was defective. Which is why, for starters, they made provision for future generations to be able to revise it. And not just future generations, as artsmith points out so cogently above. It does not take a lot of digging to find the general view of the delegates that they had done the best they could under the circumstances. I'm not sure any of them could be described as happy at the conclusion of the process.

Posted by: Roddy McCorley on May 10, 2010 at 11:48 AM | PERMALINK

The RNC not only is using Thurgood Marshall to go after Kagan. It is using Jesus Christ as well. "Solicitude for the despised and the disadvantaged" was central to the Christian savior's inclusive ministry. "Offensive and dumb" is right, Steve. But we can expect Fox News, ostensible champion of Christianity, to run with it anyway.

Posted by: Jerry Elsea on May 10, 2010 at 11:49 AM | PERMALINK

Well, they have to use the dog whistle. After all, calling her a n*gg*r loving jew b*tch is way too crude for the new, enlightend version of the GOP.

Posted by: dcsusie on May 10, 2010 at 11:53 AM | PERMALINK

What part of "The RNC are shameless, heartless bastards" don't you understand? If you have no other arguments you resort to ad hominem attacks, racism, and gay bashing. This isn’t news.

Posted by: Midwest Yahoo on May 10, 2010 at 12:01 PM | PERMALINK

Many on the right would argue that had not the 10th Amendment been added, the original Constitution would have been defective.

Cue, wall to wall guesting of Pat Buchanan on MSNBC, today. He has been virulent against Marshall. George Will is no better.

Posted by: berttheclock on May 10, 2010 at 12:03 PM | PERMALINK

"After all, calling her a n*gg*r loving jew b*tch is way too crude for the new, enlightend version of the GOP."

I hope you are being snarky, because the current Grand Old Baggers state this stuff openly

Posted by: phalamir on May 10, 2010 at 12:03 PM | PERMALINK

Ah, but the Constitution *IS* defective because it needs amending to outlaw abortion and prevent gay marriage. But that's something else entirely....

You forgot flag burning, which nearly destroyed our democracy in the 20th century. The right-wingers will complain if they discover she prefers wheat bread to white, or vice-versa.

Posted by: qwerty on May 10, 2010 at 12:05 PM | PERMALINK

The right should be dancing in the streets with this nomination. They could use this nomination to prove they aren't the "party of no" while supporting a new Justice who clearly moves the court even further to the right. A win/win. But alas, they will still break out every disgusting tactic in the book, since it's all they know how to do at this point and they have an ignorant base to pander to.

Posted by: tommybones on May 10, 2010 at 12:17 PM | PERMALINK

New litmus test for future conservative nominees

Was the constitution defective?
[Insert writhing here]

Posted by: koreyel on May 10, 2010 at 12:20 PM | PERMALINK
(Fortunately, we now have the13th Amendment. Maybe the RNC has heard of it.)
Oh, they've heard of it. They just don't approve of it... Posted by: Bernard Gilroy on May 10, 2010 at 12:24 PM | PERMALINK

Was this memo approved by Michael Steele?

If it was, he really is a boot lickin', watermelon eatin' sambo.

If it wasn't it just proves his earlier statement that the Republican party has absolutely nothing to offer black folks.

I have to think that even that token black Republican pundit (I forget his name) who pops up on the Ed show to defend Sarah Palin would be appalled at the political tone deafness of such a memo.

Actually, he probably thinks that blacks as 3/5 of person is toally reasonable.

Posted by: Winkandanod on May 10, 2010 at 12:27 PM | PERMALINK

"offensive and dumb" - that's the base they're trying to impress!

Posted by: neil b. on May 10, 2010 at 12:35 PM | PERMALINK

An interesting aside to that "3/5ths of a person" is the unveiling of a statue to York at Lewis and Clark College in Portland. York was Clark's personal slave who went with him on the expedition. During that adventure, he was allowed to carry a loaded weapon and vote with the other members of the party. However, at the end, when Clark returned home, he refused York's request that he be given his freedom. There are, also, letters from Clark speaking about having to punish him for his insolence. Finally some needed recognition for York and, I don't believe the statue is even in 3/5ths scale.

Posted by: berttheclock on May 10, 2010 at 12:35 PM | PERMALINK

Uh.. how about the Bill of Rights? They were not part of the original constitution. But were added later because some Founders wanted to make sure certain rights were spelled out.

So YES, the original constitution was "defective" from that point of view.

Plus one could note that every amendment since then has been an effort to correct deficiencies in the original constitution... Otherwise we would still have slavery, women would not have the right to vote, the voting age would be 21... etc etc etc.

Even the founders did not think the constitution would last longer than 20 years... because they KNEW the world changed and thought the constitution should change with it...

Posted by: KurtRex1453 on May 10, 2010 at 12:45 PM | PERMALINK

Yes, KurtRex, and, for the Libertarians, their beloved 10th Amendment corrected that defect. Even Goldwater used the 10th Amendment argument to renounce the Voting Rights and Voting Acts. Somehow, the "strict constructionists" forget the Bill of Rights were not originally part of the Constitution.

Posted by: berttheclock on May 10, 2010 at 12:50 PM | PERMALINK

Fortunately, we now have the13th Amendment. Maybe the RNC has heard of it.

Ummm...no. They've only heard of the Second Amendment and the First Amendment as it applies to corporate personhood and funding political campaigns. Once in a while they dredge up the Tenth.

Posted by: DCTransplant on May 10, 2010 at 12:58 PM | PERMALINK

biblical inerrancy, constitutional inerrancy, reagan inerrancy. There, you're a republican.

Posted by: Patrick on May 10, 2010 at 1:11 PM | PERMALINK

What they are counting on is that most Americans won't get past the words defective and constitution to learn the context behind the quote - and that he is referring to Slavery. Probably a fair assumption. Expect to hear the word defective to be uttered a hell of a lot between now and the end of the Summer.

Posted by: jomo on May 10, 2010 at 1:13 PM | PERMALINK

"Actually, it didn't; indeed, nowhere in the original Constitution will you find the word 'slave,' let alone a definition. The Three-Fifths Rule was about the basis for representation and assessments on the states only, and carefully avoided the mention of slaves. The really serious defect of the original Constitution with regard to slavery was that it allowed it to exist at all--essentially by tacitly deferring to the states. That was what the Thirteenth Amendment corrected."

For what it's worth, the Constitution did provide that Congress could not, prior to 1808, prohibit "the Migration or Importation of such persons as any of the States now existing shall think proper to admit." That seems to be an explicit acknowledgment that slavery would continue. But I agree that the three-fifths rule in and of itself was not demeaning to the slaves.

Posted by: Steve H in SLC on May 10, 2010 at 1:33 PM | PERMALINK

This seems like a pretty simple statement: Kagan says Marshall believes the Constitution should protect the individual rights of those who have been abandoned by all other organs of government. Thurgood Marshall http://usspost.com/thurgood-marshall-9534/

Posted by: susan on May 10, 2010 at 2:15 PM | PERMALINK

Well, they have to use the dog whistle. After all, calling her a n*gg*r loving jew b*tch is way too crude for the new, enlightend version of the GOP.

Also hard to square with her hiring record at Harvard Law.

Posted by: drkrick on May 10, 2010 at 2:25 PM | PERMALINK

Ok, so the RNC has come out against the 14th amendment (due process and extending the bill of rights to the states) and I suppose the 13th (which banned slavery). Interesting.

Does the RNC hate freedom?

Posted by: Measure for Measure on May 10, 2010 at 2:30 PM | PERMALINK

"Does the RNC hate freedom?"
Posted by: Measure for Measure on May 10, 2010 at 2:30 PM

I think it's been clear for a while that the answer to that is: "Depends on whose."

Posted by: smartalek on May 10, 2010 at 3:14 PM | PERMALINK

Please read up on the writing of the Constitution, such as "The Business of Next May." The 3/5th rule was for the counting of persons for purposes of representatives in Congress. The South, particularly South Carolina, wanted each slave to count as a ful person. At the time, the majority its population was slaves. This effectively would have doubled the weight of South in Congress and the electoral college. The North obviously opposed it as it weakened them politically versus the South due to the North's declining population of slaves. The 3/5th compromise was not about saying a slave was equal to 3/5ths of a human, but would count to 3/ths of a person for proportional representation. The more specificlly pro-slavery language was the fugitive slave clause in Article IV, although the Founders were so embarrassed and shamed they went to great lengths to avoid the use of the word "slave." "2. ...No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due.(This clause superseded by Amendment XIII)"[11]

Posted by: sherparick on May 10, 2010 at 3:50 PM | PERMALINK

Weren't the Bill of Rights originally drafted as part of a deal in order to get the Constitution ratified? That means, of course, that 'as originally drafted and conceived' the Constitution was considered defective by some of the Founders.

Why do Republicans hate the United States of America?

Posted by: josef on May 10, 2010 at 4:00 PM | PERMALINK

"Let me give the RNC an example: the Constitution defined slaves as three-fifths of a person." . . . What did you want the Constitution to say? Slaves should be counted as five-fifths of a person? . . . My preference would have been to not treat slaves as a person at all. . . Those comments have nothig to do with evils of slavery. They have to do with representation in Congress.

Concern Troll hall of fame nominee!

Whenever someone trots out the three-fifths rule as an example of injustice in the original Constitution, I tend to think that either (a) they haven't given much thought to the actual problematic aspects of the original Constitution, or (b) they're using cheap rhetoric to sway people in group (a) . . . It's a terrible example, and we should quit using it.

. . . And two nominees on the same thread!

Seriously, anything you can say that points out how stupid this talking point is works perfectly well. And this thread has plenty of good ones.

Posted by: Midland on May 10, 2010 at 5:52 PM | PERMALINK

To wingnut Wilson please don't blame one of the worst jurist, Clarence Thomas, to ever sit on the Court on one of the best.

Posted by: Rob14or15 on May 11, 2010 at 4:37 AM | PERMALINK

If kagan is worth for this post, he shall be appointed otherwise its it will call as bias decision.

Posted by: bad credit loan on October 13, 2010 at 7:52 AM | PERMALINK




 

 

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