At a time when a group nostalgically calling itself the Tea Party is wreaking havoc on the political scene and people are walking around wearing tricorn hats and spouting Patrick Henry bromides, Republican Party Chairman Michael Steele has reminded us of the flaws in our original Constitution and in its framers. He has also undermined the idea that the document—as originally written—represents a perfect divination of law and governance. For that we thank you, Chairman.
In a statement released May 13, Steele famously warned that Solicitor General Elena Kagan's endorsement of language in a speech by Supreme Court Justice Thurgood Marshall (for whom Kagan clerked), in which Marshall stated that the Constitution as originally written was "defective," was just another reason for Republicans to seriously question her nomination. Obviously, when Steele signed off on the statement, he had no idea that Kagan was quoting Marshall, or that Marshall's 1987 speech, given at the time of the Constitution's bicentennial, is one of the most eloquent and most important commentaries ever made about the document.
I'm assuming, because Steele is a lawyer who attended a fine law school, that he does know what in the original Constitution might have inspired Marshall's comments. After all, everyone knows about the three-fifths compromise: While "free Persons" and indentured servants would be counted in their entirety for purposes of political representation, "all other Persons" (that's delicate framers-speak for "slaves") would be counted as three fifths, or a mere fraction of a person (Article I, Section 2). The original Constitution, while never using the word "slavery," also provided for the following:
— "The . . . Importation of . . . persons" (that's framers-speak for the international slave trade) would be permitted to continue until 1808, "but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person" (Article 1, Section 9).
— "No Person held to Service or Labour in one State, . . . " (that's framers-speak for slaves and indentured servants) " . . . escaping into another, shall . . . be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due" (Article IV, Section 2). Meaning, you can run but you can't hide.
Steele's gaffe reminds us that not every irrational partisan action will rally the masses; some will just make you look silly. But more important, Steele has unwittingly provided an opportunity for Americans to take a look back at the original Constitution and the men who framed it. It's worth remembering that the founding fathers were not paragons of virtue. They were flawed men—many of them brilliant, but many of them also slaveholders. And all of them were politicians to the core.
We should support, uphold and respect the Constitution—the amended Constitution. And, as Thurgood Marshall cautioned, we should be mindful of the dangers of overromanticizing the work of the men who wrote the original document in 1787. Wearing a powdered wig and a tricorn hat brings us no closer to political or moral purity today than it did the founding fathers 223 years ago. We should thank Michael Steele for, however unintentionally, reminding his party and the entire country of this fact.
Sherrilyn A. Ifill is a professor of law at the University of Maryland and a regular contributor to The Root.