Saturday, July 21, 2018

 Abstract

excerpted from: Sheryll Cashin, Civil Rights for the Twenty-first Century: Lessons from Justice Thurgood Marshall's Race-transcending Jurisprudence, 17 Lewis & Clark Law Review 973 (2013) (51 Footnotes) (Full Document)

 

Sheryll CashinBarack Obama's inauguration celebrations and recent commentary about what it means for America to elect a black president not once but twice, remind me of the generational transition that has taken place. A new generation of leadership has emerged, another has receded, and yet another has died. In contemplating the twentieth anniversary of Thurgood Marshall's death, I wish to pay homage to a passing breed of African-American leader, that commonly known among black elders as the “race man.” I also want to speak forthrightly about whether and how their brand of civil rights remains relevant in the twenty-first century.

First, what is a race man and was Justice Marshall such a man? In common parlance, a race man or race woman is simply someone “whose identity [is] clearly defined as Black,” and who acts to bring about the progression of black people. Most African-Americans of my father's generation smile when you say, “Oh, he's a race man.” They understand your meaning and, for them, this is a positive stereotype. Although I have not yet discovered who actually coined the term, often it is associated with W.E.B. DuBois, who was first among twentieth century race men in the minds of many.

Whatever its origin, the term is clearly grounded in a race consciousness that, in turn, was born of racial oppression. In their seminal study of South Side Chicago, Black Metropolis, published in 1945, sociologist St. Clair Drake and researcher Horace Cayton describe respectable “Race Men” and “Race Heroes” of the Bronzeville community who felt “impelled to prove to themselves continually that they [were] not the inferior creatures which their minority status implie[d].”

Frederick Douglass, W.E.B. DuBois, Booker T. Washington. Later, Martin Luther King, Jr. and Malcolm X. Perhaps today, the Reverends Jesse Jackson, Sr. and Al Sharpton. These names have been associated with the term “race man” and the connotation varies depending on the person being referenced. Thurgood Marshall's name does not usually appear in any lists of prototypical race warriors. And yet, Marshall in his life, his insistent voice, and his clear achievements in liberating black people from the shackles of Jim Crow subordination, was the quintessential twentieth century race man. Certainly his jurisprudence was colored by his race-man tendencies, in the most positive sense of the term. But I am going to argue that he also brought a race transcending vision of universal human dignity to the law. First, let me explain the source of Thurgood Marshall's race consciousness.

It began, or evolved, at Lincoln University. While at Lincoln, he befriended an older student who would become the poet laureate of the Negro community, Langston Hughes. Some of my fondest memories of clerking for the Justice are the stories he would tell me of going to Greenwich Village with Hughes to party with a “hip” literary crowd. I was surprised though, when one day, he told me forthrightly that it was Hughes who stimulated his race consciousness. When Marshall was an undergraduate, the Lincoln faculty was completely white, and he admitted to me that he had been doubtful about whether to integrate the faculty.

This was a part of Marshall's past with which I was not familiar. It was stunning for me to contemplate that the chief oral advocate in Brown v. Board of Education had once voted with fellow students against integrating the Lincoln faculty. “Hughes convinced me to change my mind,” he told me. After an unpleasant encounter at a segregated movie theatre, Hughes had confronted Marshall about his lax attitude regarding race issues. Through several intense conversations with Hughes, he began to see Negro faculty not just as a positive but an imperative and he personally led a second successful referendum on the question.

His consciousness was piqued even more when he entered Howard Law School under the tutelage of Charles Hamilton Houston, the epitome of a race man. Houston, the valedictorian of his class at Amherst, graduate of Harvard Law School, and a former member of the Harvard Law Review, became Dean of Howard Law and intentionally sought to remake it as an engine of social change. Marshall always said in his chambers that he did not “get serious” until he entered Howard. At the time, he was talking about his commitment to academics, but I also think he was talking about his commitment to “the race.” Houston was clearly a seminal influence in his life. At Howard, Marshall embraced the twin values of Houston and earlier generations of race men. First, excellence. Houston, the valedictorian, demanded that his students excel and become thoroughly competent masters of the law. Marshall followed his example, worked harder than he ever had in his life, and ultimately graduated first in his class. Second, agitation. “The social justification for the Negro lawyer,” Houston argued, “is the service he can render the race as an interpreter and proponent of its rights and aspiration[s].” He hammered this idea into his students; as lawyers they would be social engineers or else they would be parasites.

Marshall's early partnership with Houston and storied success as a civil rights lawyer clearly fulfilled Houston's vision. But this model of civil rights advocate they invented was not preordained and they sometimes encountered resistance within the black community. Since the first African landed involuntarily in this country in 1619, each generation has had to choose how and whether to take up the race's struggle. One of my diary entries underscores the choice involved:

Justice Marshall spoke of “old man Houston”--Charles Hamilton Houston's father. “Old man Houston used to say, ‘You guys are trying to save all the colored folks, uplift the Negro race. We both believe in it, but I have a different method. I believe in saving one at a time and as soon as I get through with this one (pointing to self), I will work on somebody else.”’

. . .

Of course, Marshall's race-man perspective also compelled him to be an ardent advocate for other disadvantaged groups. For him, the Negro was a miner's canary for the nation. He spoke explicitly of the linkage between “minority” and “majority” rights in a speech he gave to the Second Circuit judicial conference in 1989:
History teaches that when the Supreme Court has been willing to shortchange the equality rights of minority groups, other basic personal civil liberties like the rights of free speech and to personal security against unreasonable searches and seizures are also threatened.

He continued, “We forget at our peril [the historical lesson that] . . . the fates of equal rights and liberty rights are inexorably intertwined.”

Thurgood Marshall's commitment to uplift his own people led him to espouse an equal opportunity vision for the Reconstruction Amendments, particularly in the realm of education. In his majestic dissent in San Antonio Independent School District v. Rodriguez, he spoke of “the right of every American to an equal start in life, so far as the provision of . . . education is concerned.” His experiences with racism and racial segregation also led him to reject any caste system. Indeed, for him the central principle animating the Reconstruction Amendments was to eradicate any state actions that relegated human beings to second-class citizenship. For this reason, he was by far the most consistent advocate on the Court for the poor.

His brand of race-transcending equal justice can be seen in his dissent in Kadrmas v. Dickinson Public Schools, a case in which the Court upheld a North Dakota statute that authorized some school districts to charge fees for school bus services. “The intent of the Fourteenth Amendment was to abolish caste legislation[,]” he argued. “When state action has the predictable tendency to entrap the poor and create a permanent underclass, that intent is frustrated.” Once again, it took a race man's realist perspective to comprehend how a bus fee could entrap poor folks. A man who had personally experienced impecuniosity and worked for and among poor people, understood how even a modest fee was a very real barrier to education for children like Sarita Kadrmas.

In a series of opinions, Marshall argued for heightened scrutiny under the Equal Protection Clause of any conditions that suggested caste status. These opinions suggest a view that “no one should be deprived, without good reason, of adequate education, police protection, food, shelter, or medical care.” “Certainly Marshall believed that poor people could not be deprived of access to the basic institutions of a democratic society, including the political process, the judicial process, and education.”

Marshall's jurisprudence seems anachronistic in an era when displays of “empathy” by judges or judicial appointees are derided by conservatives as inappropriate. He believed that the courts were supposed to aggressively promote equal opportunity and equal justice. And a litany of non-black, non-poor litigants benefited from this vision, including “prisoners, minors, older people, . . . persons with disabilities, Native Americans, members of religious minorities, immigrants . . ., fathers, women, . . . students, . . . protestors, and members of racial minorities.”

While Marshall's activist vision of equal justice was not embraced by the Rehnquist Court and also has no traction with the Roberts Court, politics in America may be catching up with his vision. The multi-racial, multi-class coalition that supported President Obama is premised on the kind of optimistic, equal opportunity vision that Justice Marshall had for the law. As Obama suggested in his second inaugural address, “We the People” includes an array of folks, from striving immigrants to gays and lesbians seeking to marry to poor, huddled masses struggling to get into and stay in the middle class. Obama also spoke of the need for this rainbow of humanity to engage in “collective action” for the greater good.

African-Americans heartened by Obama's presidency seem to accept that Obama cannot and should not be a “race” man. They understand that winning elections necessitates finding common ground. After all, it is rather hard to be a voter, let alone a center-left black president, today. The political landscape is fraught with peril and obstructions. A majority of whites vote republican and even larger majorities of people of color vote democratic. Partisan gerrymandering renders the U.S. House of Representatives unrepresentative of popular vote counts. Senate rules or those who would abuse them enable ideological purity to subordinate the common good. What should a civil rights or progressive advocate do? The courts seem an even less propitious forum for advancing social justice than do legislatures.

Justice Marshall's race-transcending jurisprudence, like Obama's race-straddling politics, offers a vision for twenty-first century civil rights and progressive policy advocacy. In a bewilderingly diverse future, none of us can afford to be single-issue or single-constituency people. Justice Marshall ultimately seemed to understand that. His race-transcending ju[HD] risprudence displayed concern for the equality interests of all human beings who struggle. Advocates necessarily must pursue a justice that routes out all forms of caste or exclusion. As Dr. King famously wrote in his letter from Birmingham: “Injustice anywhere is a threat to justice everywhere.” In order to be relevant or successful in the twenty-first century, a civil rights agenda must resonate across many identity boundaries.

The new frontier in civil rights work in the twenty-first century will be strategies that overtly attempt to bring struggling whites into the civil rights tent. Thus far in civil rights discourse, the ticket to entry under that rubric was that you had to diverge somehow from the privileged position of white males. Centuries of civil rights struggle focused on affording to people who were not white males the same public and private goods that white men received. Admittedly, asking civil rights advocates to consider how to bring working class whites, including white males, into the civil rights tent may be discomfiting to progressives. It bears emphasis that Marshall's vision of equality under the Reconstruction Amendments was premised on economic and social progress “for all of our people.” In opinion polls, ordinary whites express pessimism about their life chances that people of color, perhaps cheered by Obama's election, are less apt to harbor. Indeed, most whites perceive anti-white bias as a bigger social problem than anti-black bias.

This poses a serious dilemma for advocates and political parties that need to get to 55% in order to govern. As Dr. King said in explaining his vision of a future Beloved Community, the end of the civil rights movement was reconciliation, the kind of racial transcendence that Marshall's equality analysis reflected. The most enduring of civil rights victories were won because of the moral salience of the cry for universal human dignity. The positive corollary to the late Derrick Bell's influential interest-convergence critique is that when the interests of whites and people of color do converge, the country has witnessed great leaps forward in equality guarantees. Because of demographic change and the common indignities of the Great Recession, I believe the country is ripe for another quantum leap forward. Elsewhere I have written about the language and overt practice necessary for bringing more whites into the progressive fold. In this work I have focused on the theory and practice of multiracial coalition building as a mechanism for achieving common ground and the common good. I call on civil rights advocates to pursue strategies that encourage, rather than discourage, multiracial alliances. In the realm of affirmative action, for example, that might mean seeking markers other than race to achieve diverse classrooms and work places. Marshall's life-long commitment to the ideal of integration, like Dr. King's commitment to the creation of the Beloved Community, is premised on the idea that equality means real inclusion in American society. I could offer a laundry list of public policies necessary to achieving that, from fair-share affordable housing, to inclusionary zoning, to school integration, and dismantling our current system of mass incarceration. In that list, I would also include constitutional protection for same-sex marriage and the passage of comprehensive immigration reform. None of this will come to pass without powerful, multiracial alliances.

Fortunately, changing demographics and rising interracial intimacy are enhancing possibilities for culturally dexterous whites and progressive people of color to form such coalitions. The peril with demographic and cultural change is that those who fear it inevitably mount resistance. Unfortunately it is often easier to exploit racial fears than to transcend them. Throughout American history, economic elites used racial categories and racism to drive a wedge between working class whites and people of color they might ally with. In the colonial era indentured servitude gave way to white freedom and black slavery so that white servants no longer had incentive to join blacks in revolt. In the late-nineteenth century, Jim Crow laws proliferated when a biracial farmers' alliance threatened to change unfair financial policies imposed by elites. And the GOP devised a cynical, race-coded southern strategy that broke up the multiracial alliance that made the New Deal possible. Given this history and its current manifestations, intentional efforts are sorely need[HD] ed to begin to rebuild trust among “we the people” and to recapture a sense of collective will to protect the common good.

The good news for progressive advocates is that most Americans of every color believe in the ideals of racial and economic fairness. The bad news is that they never get to stop working to make these ideals real for ordinary people. Justice Marshall understood that the fight for justice is never over. When the City of Baltimore erected a statue of him in 1980, he said at the unveiling: “I just want to be sure that when you see this statue, you won't think that's the end of it. I won't have it that way. There's too much work to be done.”

I am sure that were he still with us he would have said the same thing at the naming of an airport after him. And were he here, he would have offered a similar observation about Obama's Second Inaugural. Oh, he would have been tickled, I think, at this dramatic acceleration of the possibilities for his people. But after the celebrations Marshall would say “this is not the end of it. There's [still] too much work to be done.” And it is my hope that the next generation, those who currently suffer the challenges of law school, will heed his message and choose to engage in the justice issues of their time.


Professor of Law, Georgetown University Law Center, and former Law Clerk to Justice Thurgood Marshall. 

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