We rely on the Supreme Court to defend the Constitution from the endless assaults on it that chip away our liberty. Too bad Supreme Court Justices don’t have a higher opinion of the document. Ruth Bader Ginsberg has denounced it, recommending instead the socialist constitution of South Africa. The odious Stephen Breyer appears to attack it at every opportunity (e.g., here, here, and here). Now we hear this from swing vote Anthony Kennedy:
Supreme Court Justice Anthony Kennedy, speaking at the annual conference of the Ninth U.S. Circuit Court of Appeals in Monterey, waxed eloquent on the deficiencies of the Constitution and implied that those who believe in the original intent of the Constitution by swearing fealty to the original, literal meaning are misguided.
Most of Kennedy’s nearly hour-long speech focused on the Magna Carta, originally signed in 1215 and due for its 800th anniversary next year. But he couldn’t resist taking a swipe at the Constitution, noting, “The Constitution of the United States is a flawed document,” its “thinly veiled language… basically reaffirmed the legality of slavery.” Kennedy was referencing the section of the Constitution in which each slave was defined as three-fifths of a person in the estimation of how many congressional delegates each state was allotted. He added that the soldiers who died in the Civil War were “one of the things it cost for having a Constitution that was flawed.”
At the time the Constitution was written, the economy of the southern states was totally reliant on slave labor. A constitution forbidding slavery would never have held the nation together, because no southern state would have agreed to it.
As liberals tend to forget, slavery was a nearly ubiquitous feature of civilization throughout the world until it was largely ended by Anglo-Saxons in the 19th century, the British navy playing a major role.
Presenting a constitution forbidding slavery in 18th century America would have been a waste of everyone’s time.
That doesn’t mean the Constitution is flawed. It means that it sometimes needs to be amended to keep pace with changing times — as it has been. This is a relatively superficial process, very different from proclaiming the whole thing to be flawed and rejecting it in favor of a “living constitution” that says whatever the prevailing majority wants it to say at any given moment.
Unsurprisingly, the main person the Supremes need to defend the Constitution against also regards it as “deeply flawed.”
Don’t count on Kennedy to stop him.