Limbaugh slams Kagan for quoting Marshall

Limbaugh: “This is who Elena Kagan idolizes, Justice Marshall, who said the Constitution as originally drafted and conceived was 'defective.'” On his May 10 program, Limbaugh attacked Kagan for her citation of Marshall:

LIMBAUGH: I wanted to go even further, so here the last paragraph, we find out even more about Thurgood Marshall, who Elena Kagan idolized:

“During the year that marked the bicentennial of the Constitution, Justice Marshall gave a characteristically candid speech. He declared” -- this is a law review article that she wrote -- “he declared that the Constitution, as originally drafted and conceived, was 'defective'; only over the course of 200 years had the nation 'attain[ed] the system of constitutional government, and its respect for . . . individual freedoms and human rights, that we hold as fundamental today.' The Constitution today, the Justice continued, contains a great deal to be proud of. '[B]ut 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 It belongs to those who refused to acquiesce in outdated notions of ”liberty," “justice,” and “equality,'” and who strived to better them.' The credit, in other words, belongs to people like Justice Marshall. As the many thousands who waited on the Supreme Court steps will know, our modem Constitution is his."

So, this is who Elena Kagan idolizes, Justice Marshall, who said the Constitution as originally drafted and conceived was 'defective,' and only over the course of 200 years with people like him on the Supreme Court had it become worth anything.

Marshall stated original Constitution was “defective” because it permitted slavery

Marshall: Original Constitution was “defective,” required amendments to end slavery, guarantee women's suffrage. In his May 6, 1987 speech to the San Francisco Patent and Trademark Law Association, Marshall -- the first African-American Supreme Court justice -- stated:

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, 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.

For a sense of the evolving nature of the Constitution we need look no further than the first three words of the document's preamble: 'We the People." When the Founding Fathers used this phrase in 1787, they did not have in mind the majority of America's citizens. “We the People” included, in the words of the Framers, “the whole Number of free Persons.” On a matter so basic as the right to vote, for example, Negro slaves were excluded, although they were counted for representational purposes at threefifths each. Women did not gain the right to vote for over a hundred and thirty years.

These omissions were intentional. The record of the Framers' debates on the slave question is especially clear: The Southern States acceded to the demands of the New England States for giving Congress broad power to regulate commerce, in exchange for the right to continue the slave trade. The economic interests of the regions coalesced: New Englanders engaged in the “carrying trade” would profit from transporting slaves from Africa as well as goods produced in America by slave labor. The perpetuation of slavery ensured the primary source of wealth in the Southern States.

Despite this clear understanding of the role slavery would play in the new republic, use of the words “slaves” and “slavery” was carefully avoided in the original document. Political representation in the lower House of Congress was to be based on the population of “free Persons” in each State, plus threefifths 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 selfevident truths “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Kagan cited Marshall's comments in tribute after his death. In a 1993 article in Texas Law Review following Marshall's death, Kagan wrote:

During the year that marked the bicentennial of the Constitution, Justice Marshall gave a characteristically candid speech. He declared that the Constitution, as originally drafted and conceived, was “defective”; only over the course of 200 years had the nation “attain[ed] the system of constitutional government, and its respect for . . . individual freedoms and human rights, we hold as fundamental today.” The Constitution today, the Justice continued, contains a great deal to be proud of. "[B]ut 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." The credit, in other words, belongs to people like Justice Marshall. As the many thousands who waited on the Supreme Court steps well knew, our modem Constitution is his.

President Bush and Secretaries Powell and Rice have made statements similar to Marshall's

Bush: “Moral vision” of abolitionists led them to “correct our Constitution.” In July 8, 2003, remarks made at Goree Island in Senegal, Bush said that the “moral vision” of abolitionists “caused Americans to examine our hearts, to correct our Constitution, and to teach our children the dignity and equality of every person of every race.” He added: “The racial bigotry fed by slavery did not end with slavery or with segregation. And many of the issues that still trouble America have roots in the bitter experience of other times.”

Rice: Slavery was the Constitution's “great birth defect.” At a July 19, 2008, event at the Council on Foreign Relations, former Secretary of State Condoleezza Rice said: “In our first Constitution, my ancestors were three-fifths of a man. What does that say about American democracy at its outset? I've said it's a great birth defect. And we have had to overcome a birth defect. And, like any birth defect, it continues to have an impact on us. It's why we have such a hard time talking about race, and dealing with race.”

Powell: “we could not live our Constitution truly unless we eliminated slavery.” During a July 10, 2003, interview on CNN's Larry King Live, former Secretary of State Colin Powell said: “It took us a while to recognize that we could not live our Constitution truly unless we eliminated slavery, and hundreds of thousands of young men fought a civil war to end slavery and then it took us a long time to get rid of the vestiges of slavery and we're still working on it to this very day.”

Limbaugh previously attacked Obama for comments similar to Marshall's

Obama in 2001: Fundamental flaw" of Constitution was that "[t]he Africans at the time were not considered as part of the polity." In a September 6, 2001, interview on Chicago public radio station WBEZ on a program titled “Slavery and the Constitution,” Obama explained that the “fundamental flaw” was that "[t]he Africans at the time were not considered as part of the polity that was of concern to the framers," and that the framers did not “see it as a moral problem involving persons of moral worth.” He also stated that the Constitution is “a remarkable political document that paved the way for where we are now.”

Limbaugh used “fundamental flaw” comment to attack Obama. On his October 27, 2008, broadcast, Limbaugh criticized Obama for saying that the Constitution reflected a “fundamental flaw,” while falsely accusing Obama of saying the flaw cannot “be fixed”: “How is he going to -- I asked this earlier -- how is he gonna place his hand on the Bible and swear that he, Barack Hussein Obama, will uphold the Constitution that he feels reflects the nation's fundamental flaw. Fundamental. When he talks about a fundamental flaw, he's not talking about a flaw that can be fixed. Fundamental means that this document is, from the get-go, wrong.”