Balkinization: Constitutional Borrowing, circa 1960

Constitutional Borrowing, circa 1960

Mary L. Dudziak

In Thurgood Marshall’s office after his death, draped over an armchair in the morning sun, was a cloak made of monkey skin. The cloak was from Kenya, and was among the Justice’s most treasured possessions. For years, Marshall told his friends and his law clerks stories about Kenya. The cloak was a gift, he told them, from the time he was made an honorary tribal chief. But even those closest to Marshall knew little about the Kenya adventures he so keenly remembered.

This essay, forthcoming in Green Bag, illuminates Marshall’s work on a Bill of Rights for Kenya in the early 1960s as an exercise in constitutional borrowing.

When Marshall went to Kenya he "looked over just about every constitution in the world just to see what was good," and he told an interviewer that the United States Constitution was "the best I’ve ever seen." But at a conference in London on the Kenya constitution, he offered a draft bill of rights for Kenya that had no American constitutional language in it. The rights Marshall embraced as ideal, at least for an emerging African country, drew most extensively from the Universal Declaration of Human Rights, and parts were based on the constitutions of two newly independent countries, Nigeria and Malaya. Marshall’s American sensibility appeared in his document most clearly in his assumption that independent courts would enforce the bill of rights, and his emphasis on equality, something he still hoped to realize in his own country.

The essay is coming soon in Green Bag, and is posted on SSRN. The full story of Marshall’s work in Kenya is told in Exporting American Dreams: Thurgood Marshall’s African Journey (Oxford University Press, 2008), which includes Marshall's bill of rights for Kenya in an appendix. The Introduction to Exporting American Dreams can be downloaded here.

Labels: Africa

Posted 9:39 AM by Mary L. Dudziak [link]

Comments:

Skin from a monkey? An Anthropoidea cloak. Does anyone think that is strange?

# posted by

James W. Weirick : 10:16 AM

These are important documents, and posted timely, in many respects. Sometimes it is interesting to reread history writings a few decades later, occasionally drawing more clarity regarding the processes and tendencies. Some of the difficulties in Kenya even remind of the original Kerner report about US unrest, and the reinterpretation of that report published thirty years later.

# posted by

JohnLopresti : 12:32 PM

In light of johnlopresti's comment: the Kerner commission report plays a role in the book that this essay is related to. It is a book about Marshall in the 1960s, in Kenya and the United States. Marshall joined the Supreme Court in 1967, a year Robert L. Allen would call “an important turning point in the history of black America. It was a year of unprecedentedly massive and widespread urban revolts." The urban unrest of the late 1960s led to an examination of the nature of poverty and inequality in American cities, leading the Kerner Commission to write in 1968: "Our nation is moving toward two societies, one black, one white—separate and unequal."
Massive reforms called for in the Kerner report and other reports on American cities in the late 60s, were, of course, never adopted. Instead, many took Marshall's elevation to the Court as an indication that the racial progress he sought has already been achieved.

For anyone interested in the broader story about Marshall, book news can be found at: Exporting American Dreams

# posted by

Mary L. Dudziak : 11:22 AM

Mary,

Thank you so much for bringing our attention to this very interesting light on TM's Kenya excursion.

# posted by

Michael Sweney : 3:12 PM