Thomas Jefferson was not a strict constructionist when it came to the Constitution.
The essential founder could not have been clearer on that point: "We have not yet so far perfected our constitutions as to venture to make them unchangeable," Jefferson wrote to John Cartwright two years before his death.
"The real friends of the Constitution in its federal form, if they wish it to be immortal, should be attentive, by amendments, to make it keep pace with the advance of the age in science and experience," the author of the Declaration of Independence and the third president explained to Robert J. Garnett in that same year.
It was a restatement of the principle he had outlined some years earlier in a letter to Samuel Kercheval, where Jefferson explained: "I know also that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed and manners and opinions change with the change of circumstances, institutions must advance also and keep pace with the times."
So who carried the mantle of Jefferson when the Senate Judiciary Committee gathered Tuesday to consider the confirmation of the latest nominee to sit on the bench of the high court that considers the Constitution?
It was Solicitor General Elena Kagan, the nominee, who stated the Jeffersonian principle when she declared that, "The constitutional law that we live under does develop over time."
“In [some] cases," Kagan explained, "the original intent is unlikely to solve the question, and that might be…because we live in a world that’s very different from the world in which the framers lived."
In a departure from previous confirmation hearings, Kagan was open and unapologetic in declaring that the Constitution should be seen as an evolving document. Remarkably, and impressively, she pushed back aggressively against Republicans who have attacked statements by former Supreme Court Justice Thurgood Marshall, for who she once clerked, about flaws in the construct and character of an initial document that imagined African-Americans as less than full human beings.
Highlighting the remarks by the nation’s first African-American justice about "defects" in the Constitution as it was originally formulated, Arizona Senator John Kyl has been arguing that "Justice Marshall’s judicial philosophy is not what I would consider to be mainstream," while Arizona Senator Jeff Sessions has pushed the precept that Marshall is a "well-known activist."
But Kagan countered with an argument that: “When Thurgood Marshall said this was a defective Constitution, he was talking about [the fact that] this was a Constitution that talked about slaves as three-fifths of [a person]—and the Fourteenth Amendment changed that."
Pressing the point, she cited the Supreme Court’s Brown v. Board of Education decision as an example of how the court could and should re-evaluate its approach to the Constitution.
Kagan’s view did not go over well with some of her Republican inquisitors.
“It sounds like she may believe in an expansive role where judges have an ability to impose their will on the American people without their consent,” grumbled Texas Senator John Cornyn. “I’m very concerned about that.”
Cornyn has a right to his opinion. But no one should imagine that he, or Kyl, or Sessions, are arguing on behalf of the original intents of the founders. In fact, they are at odds with Jefferson, while it is Kagan who is keeping faith with the founder.
"The idea that institutions established for the use of the nation cannot be touched nor modified even to make them answer their end because of rights gratuitously supposed in those employed to manage them in trust for the public, may perhaps be a salutary provision against the abuses of a monarch but is most absurd against the nation itself," wrote the third president. "Yet our lawyers and priests generally inculcate this doctrine and suppose that preceding generations held the earth more freely than we do, had a right to impose laws on us unalterable by ourselves, and that we in like manner can make laws and impose burdens on future generations which they will have no right to alter; in fine, that the earth belongs to the dead and not the living."
To make his point perfectly clear, Jefferson explained in a letter to Madison, the essential author of the Constitution, that he held to "this principle, that the earth belongs to the living and not to the dead…"