Kite Flying & Other Games

Question (delivered sternly, cum drawl): Do you know who drafted the 13th Amendment to the Yew-nited States Constitution?

Answer (politely): No sir. I have looked it up time after time, but I just don't remember.

Q. Do you know from what provision of the prior law the language of this amendment was copied?

A. I do not.

Q. Why do you think that the framers of the original version of the first section of the 14th Amendment added the "necessary and proper" clause from Article 1, Section 8, to the "Privileges and Immunities" clause of Article 4, Section 2?

A. I don't know, sir.

The scene might have been a Southern county courthouse in the bad old days, with a white registrar administering a literacy test designed to confound even the best-educated Negro. Actually, the setting was a U.S. Senate chamber, and the Negro was Solicitor General Thurgood Marshall, who seeks to vote not in a Southern election but as an As sociate Justice of the Supreme Court.

With Marshall's nomination up for Senate confirmation, a few Southern members of the Judiciary Committee were having fun working him over. To be sure, Marshall has more disinterested critics--including some Northern lawyers and judges who find him delightful company but feel his performance as a federal appeals judge and as Solicitor General fell short of brilliance.

Ironically, the Yahoo-type hazing of Marshall made it more unlikely that any serious Senator would want to question him seriously. It made it all the more certain that his highly political appointment (not the first, of course, in Supreme Court history) would clear the Senate comfortably.

Marshall's chief inquisitor was South Carolina's Strom Thurmond, who posed 60 fine-print Constitutional questions. At one point, when asked about antebellum slave codes, Marshall lightened things by replying: "The so-called black codes ranged from a newly freed Negro not being able to own property or vote to a statute that prevented these Negroes from flying kites."

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