"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."
--Supreme Court Justice Thurgood Marshall, 1908-1993, Remarks
delivered in speech on the "Framers/Founding Fathers", the U.S.
Constitution, and Slavery" on May 6, 1987 in Maui, Hawaii
THURGOOD MARSHALL, 1908-1993
Born in Baltimore, Maryland on July 2, 1908, Thurgood Marshall was the grandson of a slave. His father, William Marshall, instilled in him from youth an appreciation for the United States Constitution and the rule of law. After completing high school in 1925, Thurgood followed his brother, William Aubrey Marshall, at the historically black Lincoln University in Chester County, Pennsylvania.
His classmates at Lincoln included a distinguished group of future Black leaders such as the poet and author Langston Hughes, the future President of Ghana, Kwame Nkrumah, and musician Cab Calloway. Just before graduation, he married his first wife, Vivian “Buster” Burey. Their twenty-five year marriage ended with her death from cancer in 1955.
In 1930, he applied to the University of Maryland Law School, but was denied admission because he was Black. This was an event that was to haunt him and direct his future professional life. Thurgood sought admission and was accepted at the Howard University Law School that same year and came under the immediate influence of the dynamic new dean, Charles Hamilton Houston, who instilled in all of his students the desire to apply the tenets of the Constitution to all Americans.
Paramount in Houston’s outlook was the need to overturn the 1898 Supreme Court ruling, Plessy v. Ferguson which established the legal doctrine called, “separate but equal.” Marshall’s first major court case came in 1933 when he successfully sued the University of Maryland to admit a young African American Amherst University graduate named Donald Gaines Murray. Applauding Marshall’s victory, author H.L. Mencken wrote that the decision of denial by the University of Maryland Law School was “brutal and absurd,” and they should not object to the “presence among them of a self-respecting and ambitious young Afro-American well prepared for his studies by four years of hard work in a class A college.”
Thurgood Marshall followed his Howard University mentor, Charles Hamilton Houston to New York and later became Chief Counsel for the National Association for the Advancement of Colored People (NAACP). During this period, Mr. Marshall was asked by the United Nations and the United Kingdom to help draft the constitutions of the emerging African nations of Ghana and what is now Tanzania. It was felt that the person who so successfully fought for the rights of America’s oppressed minority would be the perfect person to ensure the rights of the White citizens in these two former European colonies. After amassing an impressive record of Supreme Court challenges to state-sponsored discrimination, including the landmark Brown v. Board decision in 1954, President John F. Kennedy appointed Thurgood Marshall to the U.S. Court of Appeals for the Second Circuit. In this capacity, he wrote over 150 decisions including support for the rights of immigrants, limiting government intrusion in cases involving illegal search and seizure, double jeopardy, and right to privacy issues. Biographers Michael Davis and Hunter Clark note that, “none of his (Marshall’s) 98 majority decisions was ever reversed by the Supreme Court.” In 1965 President Lyndon Johnson appointed Judge Marshall to the office of U.S. Solicitor General. Before his subsequent nomination to the United States Supreme Court in 1967, Thurgood Marshall won 14 of the 19 cases he argued before the Supreme Court on behalf of the government. Indeed, Thurgood Marshall represented and won more cases before the United States Supreme Court than any other American.
Until his retirement from the highest court in the land, Justice Marshall established a record for supporting the voiceless American. Having honed his skills since the case against the University of Maryland, he developed a profound sensitivity to injustice by way of the crucible of racial discrimination in this country. As an Associate Supreme Court Justice, Thurgood Marshall leaves a legacy that expands that early sensitivity to include all of America’s voiceless. Justice Marshall died on January 24, 1993.
His classmates at Lincoln included a distinguished group of future Black leaders such as the poet and author Langston Hughes, the future President of Ghana, Kwame Nkrumah, and musician Cab Calloway. Just before graduation, he married his first wife, Vivian “Buster” Burey. Their twenty-five year marriage ended with her death from cancer in 1955.
In 1930, he applied to the University of Maryland Law School, but was denied admission because he was Black. This was an event that was to haunt him and direct his future professional life. Thurgood sought admission and was accepted at the Howard University Law School that same year and came under the immediate influence of the dynamic new dean, Charles Hamilton Houston, who instilled in all of his students the desire to apply the tenets of the Constitution to all Americans.
Paramount in Houston’s outlook was the need to overturn the 1898 Supreme Court ruling, Plessy v. Ferguson which established the legal doctrine called, “separate but equal.” Marshall’s first major court case came in 1933 when he successfully sued the University of Maryland to admit a young African American Amherst University graduate named Donald Gaines Murray. Applauding Marshall’s victory, author H.L. Mencken wrote that the decision of denial by the University of Maryland Law School was “brutal and absurd,” and they should not object to the “presence among them of a self-respecting and ambitious young Afro-American well prepared for his studies by four years of hard work in a class A college.”
Thurgood Marshall followed his Howard University mentor, Charles Hamilton Houston to New York and later became Chief Counsel for the National Association for the Advancement of Colored People (NAACP). During this period, Mr. Marshall was asked by the United Nations and the United Kingdom to help draft the constitutions of the emerging African nations of Ghana and what is now Tanzania. It was felt that the person who so successfully fought for the rights of America’s oppressed minority would be the perfect person to ensure the rights of the White citizens in these two former European colonies. After amassing an impressive record of Supreme Court challenges to state-sponsored discrimination, including the landmark Brown v. Board decision in 1954, President John F. Kennedy appointed Thurgood Marshall to the U.S. Court of Appeals for the Second Circuit. In this capacity, he wrote over 150 decisions including support for the rights of immigrants, limiting government intrusion in cases involving illegal search and seizure, double jeopardy, and right to privacy issues. Biographers Michael Davis and Hunter Clark note that, “none of his (Marshall’s) 98 majority decisions was ever reversed by the Supreme Court.” In 1965 President Lyndon Johnson appointed Judge Marshall to the office of U.S. Solicitor General. Before his subsequent nomination to the United States Supreme Court in 1967, Thurgood Marshall won 14 of the 19 cases he argued before the Supreme Court on behalf of the government. Indeed, Thurgood Marshall represented and won more cases before the United States Supreme Court than any other American.
Until his retirement from the highest court in the land, Justice Marshall established a record for supporting the voiceless American. Having honed his skills since the case against the University of Maryland, he developed a profound sensitivity to injustice by way of the crucible of racial discrimination in this country. As an Associate Supreme Court Justice, Thurgood Marshall leaves a legacy that expands that early sensitivity to include all of America’s voiceless. Justice Marshall died on January 24, 1993.
