Thurgood Marshall, Elena Kagan, and Our Constitution Today 10MAI10

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Before President Obama even finished announcing Elena Kagan as his Supreme Court nominee, the Republican National Committee (RNC) was up with an attack memo questioning Kagan's commitment to our Constitution, asking, ominously, whether she "still views the Constitution 'as originally drafted and conceived' as 'defective'?" This time progressives should do more than play defense, we must turn the tables and win the fight over our Nation's charter.

In terms of Solicitor General Kagan's views on the Constitution, the RNC had to look long and hard to find something to attack. What they came up with, in dubious taste, is a tribute Kagan delivered on the death of Justice Thurgood Marshall, for whom Kagan clerked. Kagan writes poignantly of the great Justice, who argued Brown v. Board of Education, served, like Kagan, as U.S. Solicitor General, then became in 1967 the first African American to serve on the Supreme Court. She rightly calls Marshall "the most important -- and probably the greatest -- lawyer of the twentieth century." And she notes that Marshall, the great grandson of a slave, viewed the Constitution, which as originally drafted allowed slavery to flourish in the American south, as "defective," at least in that regard.

Kagan quotes a speech delivered by Justice Marshall on the Bicentennial of our Constitution that chronicles the arc of our constitutional progress. Marshall notes that it "took a bloody civil war before the Thirteenth Amendment could be adopted to abolish slavery." He hails the Fourteenth Amendment for "ensuring protection of life, liberty and property of all persons," but explains that it took almost a century for those rights to be meaningfully enforced in this country. He declares his intention to celebrate the bicentennial of the Constitution by recognizing that "several amendments, a civil war, and [a] momentous social transformation" were necessary to "attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today."

Not only is this history unimpeachable, it is hard to imagine anyone living Marshall's life seeing the Constitution differently. If Marshall's speech can be critiqued it is for this one reason: the great Justice seemed unable or unwilling, in this instance, to acknowledge the genius of our founders in many areas, while also critiquing their undeniable flaws such as the willingness to acquiesce to slavery. General Kagan clearly is able to see both the founders' genius and their flaws. In a powerful speech of her own delivered in 2007at West Point, then-Dean Kagan spoke to the cadets about the Constitution and the rule of law. Kagan explained that in a bold break from all prior world and military history, our 1787 founders demanded in Article VI of the U.S. Constitution that military officers and every other government official swear loyalty not to a General or a President, but to the Constitution. Kagan called fidelity to the Constitution and the rule of law "the foundation stone of our society," and she gave powerful examples of what fidelity to the Constitution and the law entails.

It is in this insistence that we revere both our founders as well as the generations of Americans who have fought tirelessly for passage of 27 Amendments that have helped create a "more perfect union" that Kagan and progressives have the chance to win the debate with conservatives and take back the Constitution. At the tea parties, in the attempts by states including Virginia to "nullify" health care, and in parts of the originalism jurisprudence of conservatives on the Roberts Court, there is strong sense of nostalgia for the unamended Constitution and the ideas of our founding, even when those ideas have been repudiated by subsequent constitutional history and overruled or limited by constitutional Amendments. The biggest difference between conservatives and liberals on the Supreme Court today is not the silly dispute about whether the Constitution is living or dead, it's about how much weight to accord the Amendments that have been ratified over the past 200 years. Conservatives tend to treat the Amendments -- particularly the post-Civil War 13th, 14th and 15th Amendments and the 19th Amendment, which secured political equality for women - as tinkering around the constitutional edges; liberals think these Amendments changed the entire fabric of the document.

Not only is this a powerful and accurate story, but polling done by The Mellman Group for Constitutional Accountability Center demonstrates that it is a winning story. Mellman tested the traditional progressive argument that constitutional principles must be applied in light of current circumstances against the conservative message that judges should "act according to the original meaning of the Constitution's text." The conservative message was favored by the American public by a margin of 54% to 42%. Then Mellman tested the conservative "original meaning" message against a progressive argument that judges must faithfully interpret the entire Constitution, "including all the Amendments passed over the last 200 years." This argument not only captures the most justifiable and important aspect of the idea of a "living" Constitution, but it also happens to crush the conservative "original meaning" argument 59% to 34%. This represents a 36% swing towards the progressive side of the argument simply because the idea of constitutional change is rooted in the amendment process.

The RNC's attack on Elena Kagan's views on the Constitution is thin and predictable. The progressive response needs to be fulsome and new.