Vanderbilt Law Review

First Page



Thurgood Marshall sits as an Associate Justice on the United States Supreme Court, the only black person ever to do so. Before taking that office he served as the Solicitor General of the United States and as a judge on the United States Court of Appeals for the Second Circuit. In these offices he has been called upon to bring his powers of judgment to bear on a multitude of matters concerning this Nation's Constitution. His views on the Constitution, therefore, cannot be easily dismissed.

The 200th anniversary of the Constitution was not only a time of celebration, but also a time of widespread political debate over the meaning of the Constitution's text and whether it should be construed in keeping with the "original intent" of the Framers. Justice Marshall chose this time to sound a discordant note to the self congratulatory theme of the bicentennial celebration. In a speech before the San Francisco Patent and Trademark Law Association, Justice Marshall presented a simple theme: That the Constitution as originally written was profoundly racist.

That the Constitution is a racist document is a powerful statement and one demanding close scrutiny, especially since the Constitution does not explicitly mention slavery and race and deals squarely with the issue of slavery in only three places. Article I, section 2, clause 3 apportioned direct or capitation taxes and membership in the House of Representatives in accordance with population, but counted a slave as only three-fifths of a person. Article I, section 9, clause 1 forbade Congress to limit the importation of slaves until 1808, a period of twenty years.

Article IV, section 2, clause 3 provided that fugitive slaves who escaped into another state would be returned to their owners.' Historians universally concede that this treatment of slavery was the result of compromise between pro- slavery and antislavery forces at the Constitutional Convention, represented largely by Southern and Northern States respectively. Without this compromise, the new Constitution and the union of states that it represented might not have been possible.This Article is intended to examine Justice Marshall's position that, because of the manner in which the Constitution dealt with the matter of race and slavery, the Constitution was "defective from the start."

Part II of this Article contrasts Justice Marshall's position on the framing of the Constitution with the positions of his critics.

Part III argues that Justice Marshall's position is defensible even on broader grounds than he articulated, for to a significant extent the role that slavery played in the compromise that produced the Constitution cemented political control of the federal government in the hands of the slave states. Part IV suggests some implications of the constitutional compromise on slavery for the study of the Constitution and American law.