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Because Every Vote Counted (Part 3): more aptly titled “To Ensure Every Vote Counted” July 2, 2020

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[Surprise! This is an expanded version of two more events I mention during classes on July 2nd: the anniversary of the birth of Supreme Court Justice Thurgood Marshall and the passage of the Civil Rights Act of 1964. ]

“The issue in this case is not whether declaring a war on illegal drugs is good public policy. The importance of ridding our society of such drugs is, by now, apparent to all…. Precisely because the need for action against the drug scourge is manifest, the need for vigilance against unconstitutional excess is great. History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure.”

 

– Supreme Court Justice Thurgood Marshall in the dissenting opinion on Skinner v. Railway Labor Executives Association, 489 U.S. 602 (1989)

 

Freedom. Liberty. Independence. We’ve already established that when Caesar Rodney cast his vote for independence, today in 1776, his vote did not extend freedom, liberty, or independence to all humans within his territory. But, that is not the end of today’s story. Exactly 132 years after Caesar Rodney’s famous ride to cast a vote for independence, a baby boy was born to a railroad porter named William and his wife Norma, a teacher. This son, a descendant of slaves on both sides, would spend his whole life working to extend those freedoms to all and today in 1964 (on his 56th birthday) he would receive a great “birthday present” in the form of the Civil Rights Act of 1964.

But, I’m getting ahead of myself.

Let’s go back to Baltimore, Maryland on July 2, 1908.

William and Norma Marshall named their son Thoroughgood, which he would later shorten it to Thurgood. The Marshalls were a Black family, the descendants of slaves. William and Norma taught their sons about the Constitution and the rule of law. William even took his sons to listen to court cases, which the Marshalls would then debate. Thurgood Marshall would later say that those early debates with his father turned him into a lawyer. But he wasn’t just any lawyer: he was the “winning-est” attorney in the history of the United States Supreme Court (SCOTUS), the first African-American United States Solicitor General, and the first African-American to Supreme Court Justice.

“If the Son shall make you free, ye shall be free indeed.”

 

The Gospel According to John  (8:36) and motto for Lincoln University (Oxford, Pennsylvania)

 

“Veritas et Utilitas (‘Truth and Service’)”

 

– motto for Howard University (Washington, D. C.)

 

“None of us got where we are solely by pulling ourselves up by our bootstraps. We got here because somebody – a parent, a teacher, an Ivy League crony or a few nuns – bent down and helped us pick up our boots.”

 

– Supreme Court Justice (and former NAACP chief counsel) Thurgood Marshall referencing his SCOTUS successor in a Newsweek interview (dated October 28, 1991)

 

By all accounts, Thurgood Marshall was an excellent student throughout high school (graduating third in his class), but started college as a bit of a prankster. He attended Lincoln University in Oxford, Pennsylvania (halfway between Philadelphia and Baltimore) and graduated cum laude with a Bachelor of Arts degree in American literature and philosophy. His peers included Langston Hughes and Cab Calloway, who would become internationally renowned artists. Thurgood Marshall would become just as celebrated as Hughes and Calloway, but rather than pursuing literature, he earned a law degree from Howard University School of Law, graduating first in his class, and proceeded to change the world.

During the Civil Rights Movement, he argued and won more cases (29 out of 32) before the country’s highest court than any other attorney. After an equally notable career as an appeals court judge – notable in part because Senators from the southern states held up his appointment, causing him to serve the first few months in recess, and also because once he was able to serve none of his cases were overturned – Thurgood Marshall served as United States Solicitor General (winning 14 out of 19 cases). He then returned to the Supreme Court – this time as its first African-American Justice; the first in 178 years.

Both of Thurgood Marshall’s alma maters (Lincoln University and Howard University) are historically black universities (HBCUs). It wasn’t as if he never considered attending a school that was not an HBCU; he didn’t have a choice – segregation prevented him from attending institutions of higher education like the University of Maryland School of Law. In what some might consider an interesting twist of fate, he would not only become known for arguing Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), a school segregation case he argued in his mid-forties, his first major victory working with the National Association for the Advancement of Colored People (NAACP) was also a school segregation case: against the University of Maryland School of Law. At the age of 26, Thurgood Marshall joined his mentor Charles Hamilton Houston in representing Donald Gaines Murray in Murray v. Pearson, 169 Md. 478, 182 A. 590 (1936). Murray had been denied acceptance to the University of Maryland because of his race. In both Murray v. Pearson and Brown v. Board, Thurgood Marshall challenged Plessy v. Ferguson, 3 U.S. 537 (1896), and the doctrine of “separate but equal.” He won both cases, but only the latter case completely overturned the legality of school segregation.

“What’s at stake here is more than the rights of my client. It’s the moral commitment stated in our country’s creed.”

 

– Thurgood Marshall, NAACP attorney for plaintiff in Murray v. Pearson, 169 Md. 478, 182 A. 590 (1936)

As I referenced before, the Civil Rights Act was signed into law today in 1964 by President Lyndon B. Johnson. It prohibited discrimination based on race, color, religion, sex, or national origin. It would also outlaw unequal application of voter registration requirements and racial segregation in schools, work environments, and public accommodations. It also expanded the definition of “all men” (as written in the second sentence of the “Declaration of Independence”) to include all people. Over the years, there would be several landmark cases that impacted the application of the Civil Rights Act of 1964. One of those cases was decided almost exactly 56 years later (on June 15, 2020), when SCOTUS upheld a portion of the Civil Rights Act (Title VII) as it relates to sexual orientation and gender identity. In a 6 -3 decision, the highest court in the country affirmed that it is unconstitutional for an employer to fire someone for being gay or transgender. Clarence Thomas, Thurgood Marshall’s successor in that he is the only other African-American to serve on the Supreme Court, was one of the 3 dissenters.

Thurgood Marshall believed the death penalty was unconstitutional (Furman v. Georgia, 408 U.S. 238 (1972)) and supported a woman’s right to choose (Roe v. Wade, 410 U.S. 113 (1973)). He is not only remembered as a champion of Civil Rights, his name and his work are often mentioned in the same breath as the names and efforts of Rev. Martin Luther King, Jr. and Malcolm X. The three men had different backgrounds and so worked in different ways, even in different spheres; and yet they had the same aim: to expand those “unalienable Rights” detailed in the “Declaration of Independence” and ratified by the Constitution of the United States of America.

A spirit of strong conviction (first 5 minutes only)

 

Electric… but not an Electrician

“Like many anniversary celebrations, the plan for 1987 takes particular events and holds them up as the source of all the very best that has followed. Patriotic feelings will surely swell, prompting proud proclamations of the wisdom, foresight, and sense of justice shared by the Framers and reflected in a written document now yellowed with age. This is unfortunate. Not the patriotism itself, but the tendency for the celebration to oversimplify, and overlook the many other events that have been instrumental to our achievements as a nation. The focus of this celebration invites a complacent belief that the vision of those who debated and compromised in Philadelphia yielded the ‘more perfect Union’ it is said we now enjoy.

 

 

I cannot accept this invitation, for I do not believe that the meaning of the Constitution was forever ‘fixed’ at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today. When contemporary Americans cite ‘The Constitution,’ they invoke a concept that is vastly different from what the Framers barely began to construct two centuries ago.

 

 – from speech given by Supreme Court Justice (and former NAACP chief counsel) Thurgood Marshall at The Annual Seminar of the San Francisco Patent and Trademark Law Association, Maui, Hawaii May 6, 1987

 

“And so we must be careful, when focusing on the events which took place in Philadelphia two centuries ago, that we not overlook the momentous events which followed, and thereby lose our proper sense of perspective. Otherwise, the odds are that for many Americans the bicentennial celebration will be little more than a blind pilgrimage to the shrine of the original document now stored in a vault in the National Archives. If we seek, instead, a sensitive understanding of the Constitution’s inherent defects, and its promising evolution through 200 years of history, the celebration of the “Miracle at Philadelphia” Bowen, Miracle at Philadelphia: The Story of the Constitutional Convention May to September 1787 (Boston 1966), will, in my view, be a far more meaningful and humbling experience. We will see that the true miracle was not the birth of the Constitution, but its life, a life nurtured through two turbulent centuries of our own making, and a life embodying much good fortune that was not.

 

Thus, in this bicentennial year, we may not all participate in the festivities with flag-waving fervor. Some may more quietly commemorate the suffering, struggle, and sacrifice that has triumphed over much of what was wrong with the original document, and observe the anniversary with hopes not realized and promises not fulfilled. I plan to celebrate the bicentennial of the Constitution as a living document, including the Bill of Rights and the other amendments protecting individual freedoms and human rights.”

 

– conclusion to the speech given by Supreme Court Justice (and former NAACP chief counsel) Thurgood Marshall at The Annual Seminar of the San Francisco Patent and Trademark Law Association, Maui, Hawaii May 6, 1987

 

 

### MOKSHA • MUKTI ###

 

 

 

Because Every Vote Counted (Part 2) July 2, 2020

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[While each sequence is slightly different on July 1st and 2nd, this is essentially an expanded version of the story I tell about Caesar Rodney’s Ride and why John Adams thought future generations would celebrate July 2nd.]

“You are the witness of all things, and are always totally free. The cause of your bondage (suffering) is that you see the witness as something other than this.”

Aşțāvakra Gītā 1.7 (“The Song of the Man with 8 Bends-In-His-Limbs”)

Freedom. Liberty. Independence. There are certain times a year when these ideas are front and center in the consciousness of people in and around the United States of America. We talk about them around Memorial Day and Veterans Day. We talk about them around the anniversaries of tragic events like 9/11. D-Day, and the attack on Pearl Harbor. In recent years, they’ve come up in conversations, debates, and arguments related to athletes protesting during the national anthem. I talk about these ideas all the time, as they are related to Eastern philosophies like yoga and Buddhism. And, of course, we talk about them as we approach the Fourth of July, a theoretical celebration of freedom, liberty, and independence. However, as I mentioned in yesterday’s post, most of these conversations about leave out a two big pieces of the discussion: (1) what people did to ensure the freedom, liberty, and independence (of some) and (2) all the people who were not included in that initial declaration of independence (and the subsequent revolution that followed).

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

 

– from “The Declaration of Independence” drafted by the Committee of Five and (eventually) signed by delegates of the Second Continental Congress

“The Declaration of Independence” was the formal announcement and explanation of the “Lee Resolution” (aka “The Resolution for Independence).” Its second sentence is often referenced as “one of the best-known sentences in the English language” and is possibly the most quoted sentence in American history. It provided justification for revolution and the building blocks for a new nation. It was, however, not completely true. While we may want to delude ourselves into thinking the founding fathers meant all humans when they signed off on the declaration – or even all males – the “all men” was very specific in that it meant “white men only.” And, if we are being honest, there was also a religious subtext which further restricted who would be granted the subsequently mentioned Rights. (Yes, yes, we can go around and around about religious freedom, but there was a definite assumption within the text that “all men,” see above, believed in one God – even if they had slightly different ways of worshiping said God.)

The Second Continental Congress would approve the resolution and the declaration unanimously, but it was never a sure thing. There was debate with the Committee of Five as to how to present their argument to the other delegates in a way that would sway things in their favor. Remember, everyone on the committee and every one of the delegates was, at the time, a subject of the Crown – meaning they were citizens of the British Commonwealth – and what they were proposing was straight-up treason. They knew this would be evidence of treason. Furthermore, they knew that they were placing their family, friends, and neighbors at great risk. They also thought freedom, liberty, and independence were worth the risk. So, they drafted the resolution and prepared to take a vote.

“If one thinks of oneself as free, one is free, and if one thinks of oneself as bound, one is bound. Here the saying is true, ‘Thinking makes it so.’”

 

Aşțāvakra Gītā 1.11 (“The Song of the Man with 8 Bends-In-His-Limbs”)

The vote was scheduled to take place in Philadelphia at the beginning of July 1776. There was one problem: a unanimous vote was not guaranteed. The Delaware territory was represented by Caesar Rodney, Thomas McKean, and George Read. Rodney and McKean were for independence; Reed was against. While this looks like a slam dunk on paper, Rodney was not in Philadelphia when the vote was announced. He was in Delaware, and if he didn’t vote, Delaware’s vote would not be counted.

If you talk about freedom, liberty, and independence, and then reference a significant horse ride, most people in America will think about Paul Revere and his midnight ride (of April 18, 1775). If you ask someone from Delaware, however, they might also mention Caesar Rodney, whose ride is depicted on the back of the “Delaware quarter.” Caesar Rodney was a life-long bachelor who spent his life in public service. He was a soldier, a lawyer, and a judge whose many roles included Brigadier General of Delaware Militia, Sheriff of Kent County, Justice of the Peace, and delegate and Speaker of the Colonial Assembly of the Delaware Counties (as was his grandfather before him). As I previously mentioned, Rodney was also delegate to the American Continental Congress and would eventually serve as President of Delaware. When Rodney heard the vote for independence had been called he was resolving Militia issues in Delaware, 70 – 80 miles away from Philadelphia depending on the route.

Keep in mind that this was before planes, trains, and automobiles. There were no paved roads or freeways as we know them today. Still, there is no indication that Caesar Rodney hesitated. He heard the call to adventure and set off to ensure freedom, liberty, and independence for his family, friends, neighbors, and future generations (of “men”). Some (including his brother) say he spent part of the trip in a carriage, which makes sense given the situation. However, he is depicted and remembered as riding his horse 70 – 80 miles from Monday, July 1, 1776 until later afternoon on Tuesday, July 2, 1776. He rode across muddy roads, rickety bridges, slippery cobblestones, and swollen streams. He endured extreme heat, dust, and thunderstorms. And he did it all while wearing a mask, in the form of a handkerchief, across the lower portion of his face.

Let me repeat that last part in case you missed it: He rode for two days, over rough terrain and in inclement weather while wearing a face mask.

“This Forenoon, Mr. Caesar Rodney, of the lower Counties on Delaware River, two Mr. Tilghmans from Maryland, were introduced to us…. Caesar Rodney is the oddest looking Man in the World. He is tall—thin and slender as a Reed—pale—his Face is not bigger than a large Apple. Yet there is Sense and Fire, Spirit, Wit and Humour in his Countenance.

 

He made himself very merry with Ruggles and his pretended Scruples and Timidities, at the last Congress.”

 

– from diary entry dated 1774. Saturday. Sept. 3, by John Adams

“[He was] remarkably genteel and elegant in his person, dress, and manners, had a great fund of wit and humor of the pleasing kind, so that his conversation was always bright & strong and Conducted by Wisdom… He always lived a bachelor, was generally Esteemed, and indeed very popular.”

 

– Thomas Rodney, in describing his older brother (after Caesar Rodney died)

Caesar Rodney suffered from asthma and facial cancer. The cancer would eventually kill him, but in the latter part of his life he was in a great deal of pain and the cancer ravaged his face. While there are no portraits of him, people like John Adams would write about him and (see above) describe him in letters and journals. Read that passage from John Adams diary again. Get a picture in your head of Caesar Rodney tired, dusty, and still wearing his boots and spurs – as well as a green handkerchief or scarf across his nose and mouth. Imagine such a man walking into a congressional assembly in order to cast his vote for independence.

“As I believe the voice of my constituents and all sensible and honest men is in favor of independence, and as my own judgment concurs with them, I give my vote for independence.”

 

– Caesar Rodney, Delaware delegate to the Second Continental Congress, July 2, 1776

When I teach on July 1st and 2nd, I tell the story of Caesar Rodney as we move through a sequence of poses inspired by Jivamukti Yoga. Jivamukti Yoga takes its name from the term “jivan-mukti,” a soul liberated while living. So, we are literally, physically, metaphorically, and energetically on the road/path to freedom. The poses would be good recovery poses if you had just spent two days riding on a horse and, when we are in the studio, the soundtrack features music that would have been popular back in the day. By “back in the day,” I mean today in 1776.

Delaware is known as “The First State” and therefore, when the United States Mint started its “50 State Quarters Program” it started with Delaware. If you look at the back of the Delaware quarter you will find an image of Caesar Rodney, riding his horse, in order to ensure the boon of freedom, liberty, and independence. Delaware school children learn about his ride to Philadelphia, sometimes in schools and/or school districts named after him. His name can also be found on town squares, parks, church monuments, streets, and various institutions. There are also statues, in Delaware and elsewhere. One of those statues, in Wilmington’s Rodney Square, was recently taken down by order of the mayor. (The city also removed a statue of Christopher Columbus and the state has removed “whipping posts” from city centers.) Part of the discussion” surrounding what to do with the statue from Rodney Square includes the idea of putting it in a museum and putting his (and Delaware’s) history into context.

“We cannot erase history, as painful as it may be, but we can certainly discuss history with each other and determine together what we value and what we feel is appropriate to memorialize. In this period of awakening for our City, State, and country, we should be listening more to each other and building a more just City and a better America.”

 

– Press Statement from Wilmington, Delaware Mayor Mike Purzycki regarding removal of statues and the related “overdue discussion”

Some of the historical context is included in the story above. Here’s a little more, and this is the part that directly relates to why the Wilmington statue was taken down.

Caesar Rodney was born in 1728, on family’s farm, “Poplar Grove” (now known as “Byfield”) on St. Jones Neck in East Dover Hundred, Kent County, Delaware. Both sides of his family were fairly prominent and Byfield was a successful 800-acre farm. It was successful, even described as “prosperous” farm that sold wheat and barley. Needless to say, there were slaves. At some point the farm expanded to 1,000 acres with at least 200 slaves. Caesar Rodney, named for his father, was the oldest of 8. His father died when he was 17 and while he “officially” became head of the household, he was also placed under a guardianship by the Delaware Orphan’s Court.

There was some debate about slavery in Delaware in 1767 (when Rodney was 39). While records indicate that he was on the side that wanted to end or limit slavery, a closer look implies that such a decision might have been in his family’s best financial interest. Caesar Rodney was 48 when he made that famous trek to Philadelphia – now, clearly and legally, a slave owner. While I am not sure when he made the provision, his last will and testament included provisions for the education of his nephew and instructions to free all of his slaves when he died, “or shortly thereafter.”

“I arrived in Congress (tho detained by thunder and rain) time enough to give my voice in the matter of independence… We have now got through the whole of the declaration and ordered it to be printed so that you will soon have the pleasure of seeing it.”

 

– from Caesar Rodney’s letter to his younger brother Thomas, dated July 4, 1776

Caesar Rodney cast the deciding vote on July 2, 1776 and signed the Declaration of Independence on August 2, 1776. (Yes, that’s correct.) Believe it or not, the “2nd” is very important in this history. In fact, on July 3, 1776, John Adams, who would go on to become president, spent the day writing letters – including the one quoted (below) to his wife Abigail Adams.

“But on the other Hand, the Delay of this Declaration to this Time, has many great Advantages attending it…. This will cement the Union, and avoid those Heats and perhaps Convulsions which might have been occasioned, by such a Declaration Six Months ago.

 

But the Day is past. The Second Day of July 1776, will be the most memorable Epocha, in the History of America.

 

I am apt to believe that it will be celebrated, by succeeding Generations, as the great anniversary Festival. It ought to be commemorated, as the Day of Deliverance by solemn Acts of Devotion to God Almighty. It ought to be solemnized with Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfires and Illuminations from one End of this Continent to the other from this Time forward forever more.

 

You will think me transported with Enthusiasm but I am not. — I am well aware of the Toil and Blood and Treasure, that it will cost Us to maintain this Declaration, and support and defend these States. — Yet through all the Gloom I can see the Rays of ravishing Light and Glory. I can see that the End is more than worth all the Means. And that Posterity will tryumph in that Days Transaction, even altho We should rue it, which I trust in God We shall not.”

 

– from letter John Adams wrote to Abigail Adams, with the heading “Philadelphia July 3d, 1776”

Now, if you’re wondering why we celebrate the 4th of July… you’ll have to come back on Saturday.

 

 

### LET FREEDOM RING ###