Thurgood Marshall’s Libertarian Moment

by Myles Kantor

Ok, my title’s a bit misleading. Thurgood Marshall was a libertarian about as much as Plato was a family advocate. The legacy for which he’s lauded (most gratingly by white social democrats gorged on paternalism) is in direct conflict with libertarian principles. One of Marshall’s 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, there’s Marshall’s 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.

Marshall’s 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 doesn’t belong to them. Marshall at the time was the top attorney for the NAACP Legal Defense and Education Fund. Present to hear Marshall’s reaction to defending the students was Derrick Bell (who goes on to be a professorial victicrat, to use Larry Elder’s 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."

That’s 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 students’ actions boiled down to criminal conduct, plain and simple. Unfortunately, the students’ indignation for state tyranny eclipsed their respect for proprietary prerogative. I’m 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.

Marshall’s earlier support of property rights didn’t endure and in fact he facilitated his volte-face. Juan Williams describes the course of events in his recent biography:

"Looking for strategies for defending the students, Marshall called a conference of civil rights lawyers at Howard University on March 18 [1960]. 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 to serve.

Marshall’s 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 state’s police and courts, then it was unconstitutional."

The Supreme Court went on to be converted, and private prejudice was deemed state prejudice in Garner v. Louisiana (1961).

It 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:

"It 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."

This 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 one’s lawn reading "Whites Not Allowed on This Land." After all, if their racial prejudice were enforced by the state’s 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 covenant’s legitimacy.) Douglas’s exemption of individual conduct from the Fourteenth Amendment, then, is vacuous.

Further 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 supermarket’s property located in a shopping mall. Marshall’s majority opinion held the First Amendment barred the supermarket from ejecting the picketers, citing a rule from an earlier case:

"The 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."

Justice 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 Weis’ [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 Court’s 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 Government’s agent to take a part of Weis’ property to give to the pickets for their use, the Court should also award Weis just compensation for the property taken."

In 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, it’s 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.

The racial discrimination that prompted Marshall’s 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 women’s gym because the proprietor has segregated me from fit bachelorettes.)

The 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."

Mark Tushnet, a Marshall law clerk and author of two studies on him, observes that "Marshall was not a strong traditionalist, though he felt traditionalism’s pull." The pull is seen in Marshall’s 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 statism’s momentum with the effect of advancing the Marxian prescription, "despotic inroads on the rights of property." Juan Williams’s 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 don’t believe you have any right to carry a gun, except for policemen and law enforcement officers. But I don’t see why anybody else needs a gun." It’s 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. Halbrook’s 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.)

Thurgood Marshall had his libertarian moment. His failure to pursue it was everyone’s loss.

September 21, 2000

Myles Kantor is a law student at Stetson University.