A Joyful Practice

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

[Surprise! This is an expanded version of two more events I mention during classes on July 2^nd: 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 enslaved people on both sides, would spend his whole life working to extend those freedoms to all. Today in 1964, on his 56^th birthday, he received 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 enslaved people. William and Norma taught their sons about the Constitution and the rule of law. William Marshall even took his sons to listen to court cases, which the whole Marshall family 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.”

– quoted from 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.)

By all accounts, Thurgood Marshall was an excellent student throughout high school (graduating third in his class); however, he 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 both 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. His career as an appeals court judge was also notable – 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 notable because once he was able to serve none of his cases were overturned. After Thurgood Marshall served as United States Solicitor General (winning 14 out of 19 cases), he 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, in addition to becoming 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 later 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 was the only other African-American to serve on the Supreme Court at the time, was one of the 3 dissenters.

“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)

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)). In addition to being 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. 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.”

 – quoted from 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

“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.”

– quoted from the 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

Revised July 2, 2023.

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