May 6, 1987 – Thurgood Marshall Delivers His Famous “Bicentennial Speech”

Thurgood Marshall, born in Baltimore, Maryland on July 2, 1908, was the first African American to serve on the U.S. Supreme Court.

As a child, he was punished for his school misbehavior by being forced to write out sections of the Constitution, which he later said piqued his interest in the document.

Marshall went to Lincoln University in Oxford, PA. Unable to attend nearby University of Maryland Law School because of their segregation policy, he enrolled in Howard University Law School in 1930. He was much influenced by the Harvard-educated dean of the law school, Charles Houston, who taught him that he had to be better than the average white lawyer to get a break on an even basis. Marshall took this advice seriously and came out at the head of his class every year. Houston also stressed the need to overturn the 1898 Supreme Court ruling, Plessy v. Ferguson which established the legal doctrine called “separate but equal.” Marshall would later do that also.

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Marshall began a legal career as counsel to the Baltimore Branch of the National Association for the Advancement of Colored People (NAACP). He joined the national legal staff in 1936 in New York (following his mentor Charles Houston) and in 1938 became Chief Legal Officer. In 1940, the NAACP created the Legal Defense and Education Fund, with Marshall as its Director and Counsel. One of Marshall duties was to travel to courtrooms in the Deep South to represent black clients who were often the victims of racist police and judges. Marshall was frequently threatened and once nearly lynched.

Beginning in the 1940s, Marshall battled with federal law enforcement officials for failing to protect the civil rights of black Americans in the South. After winning twenty-nine of the thirty-two civil rights cases that he brought before the U.S. Supreme Court, Marshall earned the reputation of “America’s outstanding civil rights lawyer.” The most famous case he argued was Brown v. Board of Education (1954), which outlawed segregation in public schools. In addition, the NAACP sent Marshall to Japan and Korea in 1951 to investigate complaints that African American soldiers convicted by U.S. Army courts-martial had not received fair trials. His appeal arguments led to reduced sentences for twenty-two of the forty soldiers.

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In 1954, President John F. Kennedy appointed Thurgood Marshall to the U.S. Court of Appeals for the Second Circuit. None of Marshall’s 98 majority decisions was ever reversed by the Supreme Court.

Marshall had a strained relationship with many black civil rights activists, who thought the slow pace of courtroom advocacy was not sufficient. (And indeed, it can be argued that the positive reception white Americans gave to Martin Luther King, Jr. was in reaction to his policy of non-violence as compared to the more strident members of civil rights campaigns in the Sixties. Had there not been more radical elements to the movement, King might never have achieved the recognition he received from whites hoping for moderation rather than retribution.)

In 1965 President Lyndon Johnson appointed Judge Marshall to the office of U.S. Solicitor General. In 1967 Johnson nominated him to the U.S. Supreme Court. He served on the high court until 1991, when he was forced by ill health to retire at age eighty-two. His seat was taken by the conservative Justice Clarence Thomas. Marshall died in January, 1993
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In 1987, Justice Marshall gave a speech as part of the constitutional bicentennial celebration. He attacked the celebration itself, disparaging the so-called “wisdom, foresight, and sense of justice exhibited by the Framers.” He said:

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 three fifths 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…”

This was also the view of many abolitionists prior to the Civil War. Abraham Lincoln tried to argue that the Framers had a nobler future in mind, but the evidence was mixed. In any event, Marshall apparently agreed with the position taken in the 1840s by William Lloyd Garrison, among others. You can read Marshall’s entire remarks from this speech here.

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