Our Constitution has supported slavery and many laws have reinforced racial oppression. This reality makes it all the more remarkable that African American legal activists – like Pauli Murray and Thurgood Marshall – were able to use the Constitution and law as tools of liberation.
Rutgers professor Brittany Cooper recently described Murray as “Black, queer, feminist,” and “the most important legal scholar you’ve likely never heard of.” Murray’s legal activism began in 1940 when she was thrown off a Virginia public bus for sitting in the white section. She was refused entry into Harvard Law school, so instead attended Howard University Law School. Despite becoming a busy activist, participating in sit-ins at segregated restaurants, she still graduated first in her class as valedictorian.
In her senior thesis, Murray argued that segregation was inherently unconstitutional – that the concept of “separate but equal” as established in 1896 in Plessy v. Ferguson was illegitimate. This argument, though greeted by her classmates’ “hoots of derisive laughter,” guided the winning strategy in overturning Plessy in Brown v. Board of Education (1954). She was named a co-author by Ruth Bader Ginsburg in the brief for Reed v. Reed (1971) when the Equal Protection Clause was first applied by the Supreme Court to a sex discrimination case. Murray’s 1950 book, States’ Laws on Race and Color, was called the “bible” for the civil rights movement by Thurgood Marshall.
Similar to Murray, Marshall’s legal perspective was shaped by racism, as he was forced to sit in the back of the bus and was run out of southern towns by the KKK. As a founder of the NAACP Legal Defense and Education Fund he brought 32 cases before the Supreme Court, winning 29 of them! Much of his work was not merely about individual cases. Marshall created precedents that would shape the future of law.
Nicole Austin-Hillery, Director of The Brennan Center for Justice, explained that in “taking on these cases of Black men falsely accused of crimes in the South, he was trying to do more than prove their innocence…. He was trying to change the law so that precedence would be put into play. It was a long term game plan focused on changing the legal system of the future.” Today, as conservative forces are reversing many civil rights gains, let us honor Marshall and Murray by recommitting to use the law to further anti-racism work.
- Lesson #243: At a 1966 Washington, D.C., conference on women’s rights, Pauli Murray was one of about a dozen people to join Betty Friedan in founding the National Organization for Women. Much of her professional work involved the defense of women’s rights.
- Lesson #244: Kimberlé Crenshaw, a leading scholar of critical race theory, developed the theory of intersectionality. Some believe that Murray’s comparison of the legal distinctions between race and sex as categories was one of the most direct precursors to Crenshaw’s theory.
- Lesson #245: Thurgood Marshall, born in Baltimore on July 2, 1908, was a descendent of enslaved peoples on both sides of his family. He bore the burden of generations of oppression, able to attend Howard Law School thanks in part to his mother who pawned her wedding and engagement rings to pay the tuition.
- Lesson #246: In 1987, on the bicentennial of the ratification of the Constitution, Thurgood Marshall gave a speech in which he declared that “[t]he government they devised was defective from the start, requiring several amendments, a civil war, and major social transformations to attain the system of constitutional government and its respect for the freedoms and individual rights, we hold as fundamental today.” Despite the obvious truth of this statement, it was labelled “controversial.”
- Lesson #247: Michael Davis and Hunter Clark document Marshall’s ability to connect effectively with people and build trust. Jack Greenberg, Marshall’s successor at the Legal Defense and Educational Fund, said of Marshall, “He related to people, not abstract theories.” In the Harvard Law Review, Justice William J. Brennan Jr. wrote that Marshall knew “the storyteller’s art: the fluid voice, the mobile eyebrows, the pregnant pause and the wry smile.” John A. Powell, Director of the Haas Institute for a Fair and Inclusive Society at UC Berkeley added, “He argued cases throughout the south and had to stay in people’s homes because staying in a hotel was too dangerous. He had this vision of transforming society. We are not there by a long shot.”
- Lesson #248: Murray and Marshall are just two of many Black legal scholars who brought out the best in American law; Marian Wright Edelman, Lani Guinier, and Constance Baker Motley are just a few.