THURGOOD MARSHALL has been called an old curmudgeon, an unrepenting liberal, a judicial maverick, and doubtless many other things by his critics. And he didn't calm things any with a recent speech in which he charged that the United States Constitution was ``defective from the start.''
What decent American would bash the supreme law of the land and the Founding Fathers all at once - particularly during this bicentennial year? Certainly not a jurist of the highest court!
Before branding Justice Marshall any further, however, it would be well to consider not only the context of his remarks but also the personal and professional history of the nation's first, and only, black member of the court.
Thurgood Marshall has been a life-long champion of equal justice for all Americans. He is concerned - and rightly so - that women, blacks, and ethnic minorities still face bias and degradation today. So when he believes that his brethren, or anybody else, reinforce discrimination - deliberately or not - he is impelled to speak out. He has done so on several occasions, publicly chiding fellow justices for rulings that, as he saw them, were insensitive to the rights of poor defendants, restrictive of press freedoms, and biased in favor of government authority over individual rights.
During a time of celebrations and parades and bicentennial banner-waving, it would be easy to lose sight of the Constitution's real significance, Mr. Marshall points out. He explains that the framers failed to adequately deal with racism and bigotry.
Is this unpatriotic?
Not at all. Marshall wants Americans to understand that it took two centuries of evolution to repudiate slavery and give all citizens ``equal protection under the law.''
It took a civil war and a trio of constitutional amendments - the 13th, 14th, and 15th - to establish the principle of full and fair justice, he said.
Marshall was not putting down the ``miracle at Philadelphia.'' But he says it must be seen in perspective:
``The true miracle was not the birth of the Constitution, but its life.''
He added that he hoped that this year's celebration will not be a ``blind pilgrimage to the shrine of the original document,'' but will inspire ``a sensitive understanding of the Constitution's inherent defects, and its promising evolution through 200 years of history.''
Do those sound like the words of a naysayer, a doom-caster?
Marshall is sometimes cantankerous. He has been known to be grumpy on the bench. But he is a staunch defender of the Constitution and the inherent rights it affords to all Americans.
Appointed 20 years ago to the high court by President Lyndon B. Johnson, Marshall had already had a distinguished career as a lawyer, civil rights leader, and appellate-court judge.
As director of the NAACP Legal Defense and Educational Fund, he argued - and won - the landmark school desegregation case, Brown v. Board of Education, in 1954. He also served the Johnson administration as solicitor general, representing the government in litigation before the Supreme Court.
Marshall's rulings on the high court have been consistent, almost without exception, with his commitment to individual rights - including affirmative action for blacks and other minorities, protections for prisoners and those accused of crimes, and support for the mentally handicapped. Through the years, he has staunchly opposed the death penalty. And he has been a strong advocate of the separation of church and state.
Marshall and Associate Justice William Brennan have long made up the liberal wing of the Supreme Court - vigorously dissenting to many key opinions that have characterized the conservative-leaning tribunal in recent years.
Son of a steward at an exclusive white country club and grandson of a slave, Marshall graduated from Howard Law School in the 1930s, a time when blacks and women were denied membership in many bar associations.
Marshall once told black law students that he was angered when people said that the poorest black youngster in the US South was better off than any black child in South Africa.
``So what?'' he said. ``We're not in South Africa; we're here.''
The voice of Thurgood Marshall may sometimes be raspy and abrasive. But it is worth listening to.
A Thursday column