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Yes, the Constitution, as Originally Drafted and Conceived, was 'Defective,' but that Document Still Does Not Empower Unelected, Imperfect Supreme Court Justices to do Whatever They Please

by Staff
May 18, 2010
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NEW YORK, ( -- Elena Kagan, President Obama's nominee to replace Supreme Court Justice Stevens, served as a law clerk to Justice Thurgood Marshall. Following the latter's death in 1993, Ms. Kagan penned an "In Memoriam" (71 Tex. L. Rev. 1125, 1130) where she wrote the following:

"...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 It belongs to those who refused to acquiesce in outdated notions of "liberty," "justice," and "equality," and who strived to better them.'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 modern Constitution is his."

Robert Peters, President of Morality in Media, commented:

In addition to Justice Marshall, the many others who refused to acquiesce in such "outdated notions" include President Abraham Lincoln, who issued the Emancipation Proclamation, President Franklin D. Roosevelt, who banned racial discrimination in hiring in all industrial facilities receiving federal contracts, President Harry Truman, who desegregated the American military, and Presidents Kennedy and Johnson, who provided leadership in the enactment of civil rights laws in the 1960s. Congress also enacted civil rights laws in the 1800s and in 1957 and approved the 13th, 14th and 15th Amendments to the Constitution. The latter Amendments also required ratification by the States.

Another aspect of Constitutional history left out of the "Memoriam" is that for a significant period of our nation's history, the Supreme Court was part of the problem. See, e.g., Dred Scott v. Sanford (1857), Slaughter-House Cases (1873), Civil Rights Cases (1883) and Plessy v. Ferguson (1896).

Neither the Constitution itself nor Constitutional history therefore justify the notion that it is up to five or more Supreme Court Justices to correct every perceived defect in acts of Congress, the Executive Branch, or State governments. In particular, there are at least two problems with the notion that it is the Supreme Court itself should have the final say on all constitutional matters.

First, this notion places the Court above the Constitution itself. And second, the Supreme Court has not been endued with greater wisdom and a grasp of the truth than other branches of government.

Justice Marshall is a case in point. Along with being a lion- heart in fighting the evils of racial segregation and discrimination, as a Supreme Court Justice he also voted to:

* Permit children under age 16 to view films (shown in theaters) that portray "brutality, criminal violence or depravity in such a manner as to be...likely to incite or encourage crime or delinquency on the part of young persons" (Interstate Circuit v. Dallas, 1968)

* Legalize possession of obscene materials (Stanley v. Georgia, 1969)

* Legalize "bottomless dancing" in bars (California v. LaRue, 1972)

* Legalize the sale of obscene materials (Miller v. California, 1973)

* Permit "adult businesses" to locate near residential zones (Young v. American Mini Theatres, 1976)

* Legalize broadcast indecency (FCC v. Pacifica Fdn., 1978)

* Permit "adult businesses" to locate near schools (Renton v. Playtime Theatres, 1986)

* Permit an "adult bookstore" found to be used as a place for prostitution and lewdness to remain open (Arcara v. Cloud Books, 1986)

* Permit a high school student to give a lewd speech at a school assembly (Bethel School District v. Fraser, 1986)

* Legalize obscene and indecent dial-a-porn communications (Sable Comm. of Calif. v. FCC, 1989)

* Legalize the possession of child pornography (Osborne v. Ohio, 1990)

* Legalize "totally nude dancing" in bars and peep show booths (Barnes v. Glen Theatre, 1991)

The above listing is not intended to discredit Justice Marshall's commendable and courageous work on behalf of racial justice, but rather to show that entrusting the well-being of our nation to activist Supreme Court Justices, without checks and balances, is and will continue to be a mistake of great proportions.

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