In May 1987, Justice Thurgood Marshall delivered a speech at the annual seminar of the San Francisco Patent and Trademark Association. That year marked the two-hundredth anniversary of the Constitution’s drafting in Philadelphia, and celebrations were planned nationwide under the guidance of former Chief Justice Warren Burger, who had resigned from the court a year earlier to orchestrate the proceedings. But not everyone saw reason for patriotic rejoicing. As he did so often during his final years on the court, Marshall dissented.
“I cannot accept this invitation, for I do not believe that the meaning of the Constitution was forever ‘fixed’ at the Philadelphia Convention,” he told the audience. “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.”
Marshall’s own career was a testament to those changes. Even before joining the Supreme Court, he played a pivotal role as a civil rights lawyer in redefining and expanding the Constitution’s protections. “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,” he said. Instead of celebration, he counseled a more humble and sober reflection on how Americans had fought, lived, and died to create the modern Constitution.
Marshall’s argument is even more relevant today. The past three decades, which span my entire life, have shown the limits and flaws of the Constitution of 1787. Congress is a pale shadow of its past self. Between partisan gerrymandering of the House and widening geographic disparities in the Senate, the two chambers can barely be called “representative” of the people they ostensibly serve. The average legislator, beholden to the demands of loose campaign-finance laws, spends more time dialing for dollars than crafting major legislation or overseeing the executive branch.