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Reflections on the Bicentennial of the United States ConstitutionAuthor(s): Thurgood MarshallSource:

Harvard Law Review,

Vol. 101, No. 1 (Nov., 1987), pp. 1-5Published by: The Harvard Law Review AssociationStable URL:

http://www.jstor.org/stable/1341223

Accessed: 21/06/2010 16:42

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VOLUME101 NOVEMBER1987NUMBER1

HARVARD

LAW

REVIEW|

COMMENTARY

REFLECTIONSON THEBICENTENNIAL OFTHEUNITEDSTATESCONSTITUTION*

Thurgood Marshall**The year

I987

marks the

200th

aniniversaryof the United StatesConstitution.ACommissionhas been establishedtocoordinate thecelebration. The officialmeetings, essaycontests,and festivities havebegun.The planned commemorationwillspanthree years, andIam told

I987

is "dedicated to the memory of theFounders and the documentthey draftedinPhiladelphia."' Weare to "recall theachievements ofour Founders and the knowledge and experience that inspired them,thenature of the government they established,its origins, itschar-acter, and its ends, and the rights andprivilegesofcitizenship,aswell asits attendantresponsibilities."2Like many anniversary celebrations,the plan for

I987

takes par-ticularevents and holds them up asthe source ofall theverybestthathas followed. Patriotic feelings will surely swell, promptingproud proclamations of the wisdom, foresight,and sense of justiceshared by the framers and reflectedin a written document now yel-lowed with age. This is unfortunate-not the patriotismitself,butthe tendency for the celebration to oversimplify,andoverlook themanyotherevents thathave been instrumental toour achievementsas anation. The focusofthis celebration invites a complacentbelief

*Text of a speech delivered by Justice ThurgoodMarshall at the Annual Seminarof theSan Francisco Patent and Trademark Law AssociationinMaui, Hawaii,onMay 6,

I987.

Footnotes areasthey appearinthe original text of JusticeMarshall's speech, exceptforchangesmadebytheHarvard Law Reviewto conform citations to

HARVARDLAWREVIEWASSOCIATION,A

UNIFORMSYSTEM OFCITATION

(I4th ed.

I986).

**AssociateJustice,United StatesSupremeCourt.

1COMMISSIONONTHE BICENTENNIAL OFTHEUNITED STATESCONSTITUTION,PREPARA-TION FOR ACOMMEMORATION:FIRST FULL YEAR'S REPORT

6 (Sept.

I986).

COMMISSION ONTHEBICENTENNIALOF THE UNITEDSTATESCONSTITUTION,FIRSTREPORT

6 (Sept.

985).I

HARVARDLAWRE VIEW [Vol.

IoI: I

that thevisionof thosewho debatedandcompromisedinPhiladelphiayielded the"moreperfectUnion"it is said we now enjoy.I cannot acceptthis invitation, forI do not believe that themean-ing of theConstitutionwas forever"fixed" at thePhiladelphiaCon-vention.Nor doI find thewisdom, foresight,and sense of justiceexhibited bythe framersparticularlyprofound.To thecontrary,thegovernmenttheydevised was defective from the start, requiringsev-eral amendments,acivilwar,and momentoussocial transformationto attain the systemofconstitutionalgovernment,and itsrespectforthe individualfreedomsand humanrights,that we hold asfunda-mentaltoday. WhencontemporaryAmericanscite "The Constitu-tion,"they invokeaconceptthatisvastlydifferentfrom what theframers barely began toconstructtwocenturiesago.For a senseof the evolvingnatureof the Constitutionwe needlook no further than thefirstthree wordsof the document'spreamble:"WethePeople."WhentheFoundingFathers used thisphrasein

I787,

theydid not haveinmind themajority of America'scitizens."WethePeople"included,in the words of theframers,"thewholeNumber of free Persons.

Onamatter so basicas therighttovote,forexample,Negro slaveswere excluded, althoughtheywere countedforrepresentationalpurposes

at three-fifthseach.Womendid notgaintherightto vote for overa hundred and thirty years.4These omissions were intentional.The recordof the framers' de-batesonthe slave questionis especiallyclear: the Southernstatesacceded to thedemandsof the New Englandstatesforgiving Congressbroadpowertoregulatecommerce,inexchangefor therightto con-tinue theslave trade.The economic interestsof the regions coalesced:NewEnglanders engagedinthe"carryingtrade" wouldprofitfromtransportingslaves from Africa aswell as goodsproducedinAmericaby slave labor. Theperpetuationof slaveryensured theprimarysource of wealth in theSouthern states.Despitethis clear understandingof the role slavery would playinthenew republic, use of the words"slaves"and "slavery"was carefullyavoided inthe original document.Political representationinthe lowerHouse of Congress wasto be basedon the populationof "freePersons"ineach state,plus three-fifthsof all "other Persons.

Moral principlesagainstslavery, for thosewho had them, were compromised,with noexplanationofthe conflictingprinciplesfor whichthe American Rev-olutionary War hadostensibly beenfought: theself-evidenttruths"that allmen are created equal, thatthey are endowedby their Creator

3U.S.

CONST.art.

cl.

See id.amend. XIX(ratifiedin

I920).

SId. art.

I, ? 2,

cl.