Slaves were first brought to the colonies in 1670 and the institution of slavery flourished within the United States for 270 years until the Emancipation Proclamation of 1863.
Prior to this historic pronouncement, issued by President Abraham Lincoln, there were many instances of laws and rulings that were designed to deny African-Americans equal rights. For example, in 1705, the Virginia legislature passed a law that effectively equated Negro, Mulatto and Indian slaves as real estate with no legal rights or legal identity. This was in comparison to states like Massachusetts and Vermont that guaranteed the equal rights to all of its citizens. In addition, on a number of instances, Supreme Court decisions upheld the widespread belief in the inherent inferiority of Blacks.
The famous Dred Scott Decision of 1856 validated the belief that slaves were to be treated separately. Dred Scott was a slave who lived with his owner in the free states of Illinois and Wisconsin. When his owner died in 1843, Scott sued for his freedom. The Supreme Court eventually heard the arguments and in 1857 decided that an African-American slave or free had no constitutional rights.
In the words of Chief Justice Roger Brooke Taney, “People of African descent are beings of an inferior order and are altogether unfit to associate with the white race in social or political relations, and are so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and legally be reduced to slavery for his benefit.”
To reclaim the inherent rights of all U.S. citizens, the thirteenth, fourteenth and fifteenth amendment to the U.S. Constitution were passed beginning in 1868. They were as follows:
Passed by Congress January 31, 1865. Ratified December 6, 1865.
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Passed by Congress June 13, 1866. Ratified July 9, 1868.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Passed by Congress February 26, 1869. Ratified February 3, 1870.
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude--
These amendments were passed to protect the rights of the newly freed slaves during the post-Civil War era. It was Jim Crow that was effectively employed to subvert these newly-held rights. It was into such a racially charged environment that Marshall was born. His grandfather was born into slavery.
In spite of these additional guarantees written into the constitution, the Supreme Court once again ruled in favor of segregation. In 1892, Homer Plessey, one-eighth African-American, purchased a first-class ticket on the East Louisiana Railroad with the intention of challenging state law. He was ordered into a “black car;” he refused and was subsequently thrown off the train and convicted of violating the law. The Supreme Court heard the legal arguments in 1895 and during the next year voted 7-1 against his appeal. In the Court’s opinion, as written by Justice Henry B. Brown, “Legislation is powerless to eradicate social instincts or to abolish distinctions based upon physical differences and the attempt to do so can only result in accentuating the difficulties of the present situation.” In his descent, Justice John Marshall Harlan wrote, “…U.S. government laws must protect all citizens.” The nation would endure sixty more years of such racial discrimination and segregation.
America at the time of Marshall’s birth had a population of eighty-nine million and was composed of forty-six states. Ten percent of the population was African-American and in Baltimore, African-Americans constituted twenty percent of the population. Jim Crow was evident everywhere. Additionally, less than half the population of the country enjoyed full legal rights; this was before woman’s suffrage. In addition, child labor was very common with workers as young as seven or eight years old – making as little as ten cents per day.
The Marshall family valued education. Willie Marshall taught his children tolerance and pride in their black heritage. Norma graduated college – an unusual achievement for a woman, especially being African-American. There were limited expectations for a young black person seeking a college education. The most that could be hoped for was a professional career such as medicine, dentistry and teaching. Even within these professions, the graduate could not hope to serve the white community. In order to further understand the obstacles felt by African-Americans, especially males, in that era, it should be kept in mind that between 1889 and 1918 there were 2500 lynchings in the United States with 15 of those reported in the state of Maryland. There were race riots in Atlanta, Georgia in 1906 and Springfield, Illinois in 1908. This was the daunting environment into which Marshall was born.
In spite of these fierce and uncompromising racist attitudes, there were African-Americans courageous enough to stand their ground in opposition. One of these was W.E.B. Du Bois who founded the Niagara Movement for the purpose of opposing segregation and the oppression of black people. This organization ultimately failed, but he went on to merge with like organizations to found the National Association of the Advancement of Colored People (NAACP).
The Marshall family moved to New York’s Harlem in 1910. In this regard, Marshall vividly remembered a banner that read, “This part of 135th Street guaranteed against Negro invasion.” He started working when he was only seven years old. The family eventually returned to Baltimore where the racial tension was exceedingly high and the city was highly segregated. At that time, there were no toilet facilities of any kind available to African-Americans.
Marshall was severely impacted by these brutal realities as he was growing up. In particular, he remembered a story out of Washington D.C. in which two African-American males accosted a white woman and grabbed her umbrella. As a consequence, the woman’s husband and his friends decided to lynch the two men. The mob of white vigilantes roamed the streets indiscriminately attacking any blacks they found. The unforgiving nature of existence that Marshall had to endure as a child made him a “tough kid” by his own admission.
In response to these aspects of daily life, his parents emphasized black heritage and his mother, especially, inculcated the idea of standing up against racism. Marshall did not apply himself in school and often got into trouble. On one of these occasions, his punishment was to memorize the U.S. Constitution. By the time he left school he knew it by heart. Ironically, this punishment inadvertently exposed him to the egalitarian nature of the nation’s premier document and its potential to improve the social condition. He ultimately became its undying advocate.
Marshall entered Lincoln University in 1925 in Oxford, Pennsylvania. He was enamored of his social life and at one point was threatened with suspension. The famed poet Langston Hughes was a senior at the University at that time and intervened on Marshall’s behalf. He eventually decided to apply himself enough to pass.
On September 4, 1929, Marshall married Vivian Buster Burey. It was her influence that helped Marshall begin to apply himself. It was at this point that he developed an interest in the law and finally decided to enter law school. According to him, “My father never told me to become a lawyer. But, he turned me into one by teaching me to argue, to prove every statement I made and by challenging my logic in every point.”
He applied to the University of Maryland and was denied acceptance on account of race. He entered Howard University in Washington D.C. There, he was greatly influenced by Charles Hamilton Houston who brought to his class such notable figures as Clarence Darrow and Felix Frankfurter. The class also took field trips to police stations, courtrooms, and mental asylums. Houston emphasized that a lawyer wages battle in court and needs to be a social engineer. According to his mentor, “We’ve got to turn this whole thing around. And the black man has got to do it; nobody’s going to do it for you.” Marshall was ultimately convinced by this logic and understood where his professional life would lead him.
In 1933, he became a licensed attorney. His attempt at starting his own legal business; however, was daunting since the nation was in the grips of a Depression in which one out of three workers was unemployed. He did not even have access to the local Bar Association - he was denied membership on account of his race. Marshall was not deterred by these difficulties; instead, he used the court library to gain access to the legal books so essential in a lawyer’s career. Finally, in 1934, he was hired by the NAACP.
It was in this role that Marshall, as lead attorney, presented the evidence to Earl Warren’s Supreme Court to support the argument that a separate but “equal” education was unconstitutional in the renowned case of Brown et al. v. the Board of Education of Topeka, Kansas in 1954. He was, of course, successful in this endeavor. Marshall and his team of lawyers had worked for four years to perfect their case.
On account of his illustrious career at the Bar and as an avid supporter of civil rights, Marshall was appointed to the Supreme Court by President Lyndon B. Johnson on October 2, 1967. Marshall resigned from the Supreme Court on October 1, 1991 having resided on the court through six different presidential administrations. Ironically, his position was filled by Clarence Thomas appointed by President George Bush. Thomas, an avowed conservative, holds views on matters of social equality and justice that run counter to those of Marshall. Marshall was not terribly happy regarding this choice. He died on January 24, 1993.
In a commencement address delivered at the University of Virginia on May 21, 1978, Marshall demonstrated his profound commitment to the Constitution. The following is an excerpt from that speech.
“The democratizing aspects of the Constitution cannot be overstated. For me, its cardinal principle is that all persons stand in a position of equality before the law. The Constitution gives to each and every one of you an equal right to your own opinions and to participate in the process of your own governance. These are precious rights that we must continually strive to preserve, and whose promise we must seek to attain. There are still far too many persons in this country who cannot participate as equals in the processes of Government – persons too poor, too ignorant, persons discriminated against by other people for no good reason. But our ideal, the ideal of our Constitution, is to eliminate these barriers to the aspirations of all Americans to participate fully in our government and society. We have realized it far better than most countries, but we still have a long way to travel and we must continue to strive in that direction.”