Marshallís Libertarian Moment
my titleís a bit misleading. Thurgood Marshall was a libertarian
about as much as Plato was a family advocate. The legacy for which
heís lauded (most gratingly by white social democrats gorged on
paternalism) is in direct conflict with libertarian principles.
One of Marshallís law clerks attributed chief responsibility to
him "for the idea that social reform, through the Courts in
the name of the Constitution, was both possible and desirable."
So what if these "reforms" spat in the face of American
constitutional order and perpetuated the caste-status of countless
black Americans? (Just to round things out, thereís Marshallís blatant
textual defiance, shared by William Brennan, in deeming "The
death penalty.a cruel and unusual punishment prohibited by the Eighth
and Fourteenth Amendments." Never mind that the latter amendment
mentions depriving individuals of "life." Constitutional
scholar Leonard Levy rightly observes in this context, "Brennan
and Thurgood Marshall corrupt the judicial process and discredit
it.") Marshall, however, stands out as an example of philosophical
contingency and individual action. His jurisprudence largely pivoted
on this relationship, specifically with regard to the role of government
and the nature of property rights.
turning point came during the student sit-ins at segregated restaurants.
Hundreds of students were arrested for trespassing, which is what
tends to happen when individuals refuse to exit land that doesnít
belong to them. Marshall at the time was the top attorney for the
NAACP Legal Defense and Education Fund. Present to hear Marshallís
reaction to defending the students was Derrick Bell (who goes on
to be a professorial victicrat, to use Larry Elderís excellent term):
"Thurgood stormed around the room proclaiming in a voice that
could be heard across Columbus Circle that he did not care what
anyone said, he was not going to represent a bunch of crazy colored
students who violated the sacred property rights of white folks
by going in their stores or lunch counters and refusing to leave
when ordered to do so."
impeccable logic. (I think the students were more misguided than
crazy, though.) Once one sobers up from the intoxicant of social
justice (which has a knack for begetting antisocial injustice),
the studentsí actions boiled down to criminal conduct, plain and
simple. Unfortunately, the studentsí indignation for state tyranny
eclipsed their respect for proprietary prerogative. Iím sure many
consider that disrespect a permissible and even commendable means
of achieving justice. The terrible irony is that those means helped
institutionalize injustice on a massive scale while convincing a
country that justice was served by doing so.
earlier support of property rights didnít endure and in fact he
facilitated his volte-face. Juan Williams describes the course of
events in his recent biography:
for strategies for defending the students, Marshall called a conference
of civil rights lawyers at Howard University on March 18 .
Most of the lawyers, like Marshall, were skeptical of finding any
legal basis for defense. The courts had long held that store owners
had the right to refuse to do business with anyone they chose not
young, activist staff, however, put forward the idea that a restaurant
had to deal with anyone who walked in the door, regardless of race,
under the Equal Protection Clause of the Fourteenth Amendment. And
Marshall became a convert when he began to consider that if racial
prejudice were enforced by the stateís police and courts, then it
Supreme Court went on to be converted, and private prejudice was
deemed state prejudice in Garner v. Louisiana (1961).
requires not legal profundity but literacy to discern the Equal
Protection Clause has no bearing on the prejudice of a restauranteur.
The sentence where that clause appears begins, "No State shall."
No less an activist justice than William O. Douglas recognized this
in his concurring opinion:
is, of course, state action that is prohibited by the Fourteenth
Amendment, not the actions of individuals. So far as the Fourteenth
Amendment is concerned, individuals can be as prejudiced and intolerant
as they like." He however went on to write regarding restaurants,
drugstores, etc.: "Though they are private enterprises, they
are public facilities in which the States may not enforce a policy
of racial segregation."
blurs the distinction between citizen and state, treating individuals
conducting commerce on private property as extensions of the state
(echoes of a certain ideology imposed on Italy, Germany, and elsewhere
during the first half of the twentieth century?). Brought to its
logical conclusion, this means homeowners cannot engage in discriminatory
conduct on their property, for instance posting a sign on oneís
lawn reading "Whites Not Allowed on This Land." After
all, if their racial prejudice were enforced by the stateís police
and courts (i.e., if a white trespasser were treated as such), that
would constitute state action. Like a restaurant license, title
to a house derives from the state; and surely a "public interest"
could be contrived against residential racial prejudice as it was
against commercial racial prejudice. (The Court did something akin
to this in the 1948 case of Shelley v. Kraemer, in which it was
held judicial enforcement of racially restrictive covenants in land
transactions violated the Equal Protection Clause. As an additional
nexus, Marshall was one of the attorneys that argued against the
covenantís legitimacy.) Douglasís exemption of individual conduct
from the Fourteenth Amendment, then, is vacuous.
decisions eroding property rights were to follow, and Marshall played
an important role in that erosion. Amalgamated Food Employees Union
Local 500 v. Logan Valley Plaza (1968) is emblematic. (Marshall
was now a member of the Supreme Court, previously serving on the
Second Circuit Court of Appeals and as Solicitor General.) The Court
had to decide the permissibility of picketing on a supermarketís
property located in a shopping mall. Marshallís majority opinion
held the First Amendment barred the supermarket from ejecting the
picketers, citing a rule from an earlier case:
more an owner, for his advantage, opens up his property for use
by the public in general, the more do his rights become circumscribed
by the statutory and constitutional rights of those who use it."
Hugo Black would have no truck with such sophistry: "[W]hether
this Court likes it or not, the Constitution recognizes and supports
the concept of private ownership of property." "These
pickets do have a constitutional right to speak about Weisí [the
supermarket owner] refusal to hire union labor," Black wrote,
"but they do not have a constitutional right to compel Weis
to furnish them a place to do so on its property." Indeed,
he went further and argued the Courtís action was a taking for which
just compensation was due under the Fifth Amendment: "[I]f
this Court is going to arrogate to itself the power to act as the
Governmentís agent to take a part of Weisí property to give to the
pickets for their use, the Court should also award Weis just compensation
for the property taken."
Garner and Amalgamated Food Employees, Marshall set forth the formula
that private property plus public purpose equals proprietary diminishment,
i.e., a disability is inflicted upon businessmen. I know a beekeeper
that harvests honey and sells it at a stand in front of his farm.
Under the said formula, if he kicked off Freedom for Bees activists
from his honey stand, itís no long shot some court would hold that
abridges the constitutional right of bee activists to picket on
his land. Stated more bluntly, the state would compel the beekeeper
to permit trespassing.
racial discrimination that prompted Marshallís conversion to coercive
property usage is grounded in the much broader premise that the
State can subordinate a rudimentary right to realize an objective,
in this instance ostensible social harmony and freedom of speech.
In their convenient detachment from the fallout of their haughty
holdings, judges can ignore how they have exacerbated social tension
and created a right to trespass both literally and figuratively
on property rights. (I guess that means I have the right to picket
on the property of and gain entrance to a womenís gym because the
proprietor has segregated me from fit bachelorettes.)
approach of that paradigmatic libertarian Murray Rothbard simplifies
this Byzantine subordination and promotes individual rights. In
his article on the flag-burning controversy ("The Flag Flap,"
The Free Market, October 1995), Rothbard quickly went to the heart
of the matter and argued, "[T]he entire problem can be resolved
by focusing.on the natural and integral right to private property
and its freedom of use." Applying this basic liberty, one discovers
people may destroy their own property or deliver an oration in protest,
but that does not entitle them to do so on the property of others.
The relationship is clear: "[F]ree speech or free press rights
are a subset, albeit an important one, of the rights of private
property: the right to hire, to own, to sell."
Tushnet, a Marshall law clerk and author of two studies on him,
observes that "Marshall was not a strong traditionalist, though
he felt traditionalismís pull." The pull is seen in Marshallís
initial aversion to defending the student trespassers. This was
harmonious with the Madisonian maxim that "Government is instituted
no less for protection of the property than of the persons of individuals."
At the forefront of civil rights litigation, Marshall was in a position
to promote the rights of black Americans in a liberal manner conducive
to justice. But instead of pursuing rollback of the massive statism
that had originally dispossessed blacks of the most elementary self-ownership
(i.e., slavery), Marshall sought to redirect statismís momentum
with the effect of advancing the Marxian prescription, "despotic
inroads on the rights of property." Juan Williamsís description
of Marshall as an "American Revolutionary" is therefore
accurate, although not in the sense he intends. (Marshall also took
an ahistorical, statist position in supporting what amounted to
gun prohibition: "I donít believe you have any right to carry
a gun, except for policemen and law enforcement officers. But I
donít see why anybody else needs a gun." Itís as if he were
oblivious to the fact that a salient method of racial subordination
in American history was deprivation of the right to bear arms. See
Stephen P. Halbrookís Freedmen, the Fourteenth Amendment, and the
Right to Bear Arms, 1866-1876 and The Second Amendment: Toward an
Afro-Americanist Reconsideration, Robert J. Cottrol and Raymond
T. Diamond, Georgetown Law Journal, December, 1991.)
Marshall had his libertarian moment. His failure to pursue it was
Kantor is a law student at Stetson University.