Thurgood Marshall: Fighting for a Moral Society

By Smith, J. Clay, Jr. | Negro History Bulletin, January-December 2001 | Go to article overview

Thurgood Marshall: Fighting for a Moral Society


Smith, J. Clay, Jr., Negro History Bulletin


Proceedings presented before the annual meeting of the Association for the Study of African American Life and History, Inc., September 29, 2000, Washington, D.C.

This paper argues for the principles of Thurgood Marshall's aspiration for a moral society. The principles for a moral society require the nation to accept the historical and original reality that African Americans are as much a part of the heritage of America as whites because they fought and died in the American Revolution. This act allowed a culture and heritage of a nation to vest for all. Thus, the tie that binds the nation is a common mission, one that assures justice for all under the promise of the Fourteenth Amendment.

Much has been written about Thurgood Marshall. He was a genius. He was totally dedicated to the rule of law. One could ask, what if Marshall had applied his considerable talents to enterprises that brought upheaval to the world? What if Marshall was known not for good but for evil. We are fortunate that Marshall's core values were directed to moral enterprises. We are fortunate that Marshall was more than a lawyer. He was a philosopher that understood the forces of history and importance of a just and moral society for which he fought. (1)

For Marshall, to live in a moral society was to live in a society of freedom for all its citizens. Marshall believed in a free society as a natural right, confirmed as democratic by choice of a republican form of government cemented in the Constitution. He could not tolerate a promiscuous racist society. History and experience had taught Marshall that internal structures that insult individuals because of race, dashed human spirit, crippled imagination, lynched human flesh, denied the right to vote and allowed for unequal education was unwelcome conduct. (2)

Law and society must have appeared at odds to Marshall as he stepped into the hands of his teachers at Howard University School of Law in 1930. At the law school he realized that reliance on history by the courts often diminished the value of black people based on tradition, the application of methodology and interpretation of history that to often relegated black people to opprobrious classifications. (3)

Even when vigorous judicial dissents challenged decisions rejecting the applicability of the Equal Protection Clause of the Fourteenth Amendment of the Constitution, reference to history and tradition appear to influence the decision. For example, in Plessy v. Ferguson, decided in 1896, the lauded dissent by Justice John Marshall Harlan states that "[o]ur constitution is colorblind and neither knows nor tolerates classes among citizens. In respect to civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings of his color when his civil rights as guaranteed by the supreme law of the land are involved. Yet, Harlan's dissent made an interesting statement in history. The dissent implies that the domination of people of color could be a condition of permanency. In Justice Harlan's dissent he stated: "The white race deems itself to be the dominate race in this country. And so it is, in prestige, in achievement, in education, in wealth and in power. So, I doubt not, it will continue for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty." (4)

Justice Brown, writing for the majority of the Court in Plessy could easily have written the words quoted above in the second part of the Harlan dissent. Justice Brown did not believe that discrimination would be overcome by legislation, that social prejudice would ever be reversed by the law, but only by natural forces of choice. Justice Brown made clear, however, that should the black race rise in power and influence as it had during the Reconstruction era "and should enact a law in precisely similar terms" that would separate the races and empower people of color, he assumed that the white race "would not acquiesce. …

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