Constitutional Opinions

Kagan’s Telepathy Standard

What would Thurgood Marshall do?

By 5.13.10

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Thurgood Marshall liked to tell "stories" and some of them were "pure camp," wrote Elena Kagan in her now-famous Texas Law Review article. She recalled his mimicking to "great comic effect" an oh-so-hilarious conversation with Prince Philip. "Do you care to hear my opinion of lawyers?" Prince Philip asked him. "Only," Marshall replied, "if you care to hear my opinion of princes."

The late British journalist Malcolm Muggeridge would have called this an exercise in wit "more mayoral than Voltairean." Even Kagan, whom Marshall nicknamed "Shorty," found the stories a little lame. "Thinking back, I'm not sure why we laughed so hard," she wrote. Sycophantic careerism comes to mind.

In any case, Americans are now hearing via Kagan Thurgood Marshall's campy opinion of the Constitution and the Founding Fathers. He regarded the former as "defective" and the latter as unwise.

Does Kagan agree with Marshall? She will say no at her confirmation hearings, but she clearly does. As she triumphantly ended her memorial piece about Marshall in the Texas Law Review, "our modern Constitution is his." If Republicans can't get "Shorty" on this one, they should call it a day. She has served up her contempt for the Constitution to them on a silver platter.

Our modern Constitution is his. So the criterion of judgment for justices is not even "empathy," as Obama asserts, but more like telepathy: What would Thurgood Marshall do? How would he rule on cases? What did he consider "just"?

So much for a written Constitution. If "our modern Constitution is his," then Marshall's putative thoughts on what constitutes a just and proper form of government for 300 million Americans are the only authoritative ones; those of its authors are irrelevant.

Though she will deny it in her confirmation hearings, she agrees with Marshall that a "defective" Constitution is to be changed not by amendment but by judicial activism. How could she plausibly deny this? How else did Marshall's "living" Constitution that she praises, which exists nowhere except in the minds and wills of liberal justices like him, come to trump the original text of the Constitution?

"Our modern Constitution is his" thanks to this straightforward judicial tyranny. It is a little late for her to present herself as a proponent of judicial restraint or even "pragmatism," as her fawning press coverage tries to emphasize. Pragmatism, by the way, is a trait of a politician, not a judge, and it will just mean that she rips up the Constitution a little more slowly.

Quoting Marshall with approval in her law review eulogy, she makes it clear that she considers the phony living Constitution to be a glorious substitute for the real one. Hence, the Constitution now "contains a great deal to be proud of," as Marshall put it. Michelle Obama couldn't have said it better. For the first time in his life, Thurgood Marshall was proud of his Constitution: "[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," Kagan quotes him as saying.

As if any reader could have missed Marshall's egotistical claim, Kagan punctuates it with the praise: "The credit, in other words, belongs to people like Justice Marshall." Kagan called his baldly unconstitutional view of the Supreme Court's role a "thing of glory."

Tens of millions of unborn babies have died under this "thing of glory." America is turning into a mindless, Godless, socialist mess because of this "thing of glory." Yet these out-of-control narcissists still claim a monopoly on justice and wise government. They alone will protect the "despised and disadvantaged," which Marshall invented out of thin air as the court's mandate. Writes Kagan: "It was the role of the courts, in interpreting the Constitution, to protect the people who went unprotected by every other organ of government…"

Great. That's very big of them. But who will protect the people against activists like the Marshalls and Kagans? Who will protect the people against arrogant-as-hell elitists on the court who feel entitled to trample upon constitutional rights in the name of a bogus enlightenment? This is tyranny, pure and simple, under which a whole people gradually becomes a servile class "despised and disadvantaged" by judges.   

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About the Author
George Neumayr, a contributing editor to The American Spectator, is co-author, with Phyllis Schlafly, of the new book, No Higher Power: Obama's War on Religious Freedom.