Cleveland State University
The City of Cleveland finds itself in the middle of our world reckoning over race. Ever since the death of George Floyd on May 25th, the right and wrong sides of history have come into focus. More Confederate monuments have fallen stateside, of course. But how about those images
of British protesters throwing the statue of Edward Colston, a seventeenth-century slave trader, into the River Thames? And how about Bristol Beacon, the English concert hall which just three months ago changed its name from Colston Hall?
Paul Dolan, owner of the Cleveland Indians, just announced on Monday that: “[Indians is] a name that had its time, but this is not the time now, and certainly going forward, the name is no longer acceptable in our world.” He probably took note of the Washington Football Team, formerly known as the “Redskins.” Its owner, Dan Snyder, swore years ago that he would never change the name. But in July, several sponsors threatened to stop endorsing the team unless a name change was forthcoming. Later that same month he officially announced that the Native American racial slur would be dropped.
Cleveland-Marshall College of Law faces a similar reckoning. It is named for John Marshall, the fourth chief justice of the Supreme Court, (1801 – 1835). Early in his tenure he authored the majority opinion in Marbury v. Madison
(1803), which established judicial review. By giving the Court power to declare legislative acts and executive actions unconstitutional, he became a veritable unnamed co-author of all subsequent landmark decisions. Without Marbury
, there could be no Dred Scott
. It's hard to overstate his influence.
But the Virginian slave lord
owned 200 slaves and at one point auctioned off some of them to pay off his son’s debts. He heard roughly 50 cases involving slavery during his 34-year tenure as chief justice. His jurisprudence was always pro-slavery, even when stare decisis, the rule that judges should abide by decided cases and apply their rules, favored the Black litigant. Nor did public policy, insofar as it supported Black freedom, ever persuade Marshall to rule for the Negro.
John Adams said ours is a “government of laws and not of men.” The rule of law had replaced the divine right of kings. But what does “rule of law” mean?
A maxim of the rule of law states: “no one should be a judge in their own cause.” In other words, a judge shouldn’t decide a case if they have a conflict of interest. Marshall’s slaveholding conflict of interest is clear. And yet, of the 14 freedom suits that came before the Marshall court, Marshall himself wrote seven opinions.
These freedom suits concerned Black people living in Washington, D.C. As federal territory it was within Supreme Court jurisdiction. If Marshall had respected the rule of law in these cases, he would have applied Virginia or Maryland law to alleged slaves living in Washington. But Marshall repeatedly ignored stare decisis to rule against Black plaintiffs. He never construed statutes if doing so led to Black freedom. A couple of examples should suffice:
In Scott v. Negro London
(1806), Marshall reversed a jury verdict for Black freedom. London sued for freedom in Washington under a Virginia law prohibiting importation of slaves. A jury of twelve white men, some probably slaveholders, concluded London was free because he was illegally imported into the city. The trial court strictly construed Virginia slave law. As legal scholar Paul Finkelman observed: “This result was consistent with other decisions from American state courts of the period that strictly applied statutes regulating slavery and at the same time liberally construed the common law in favor of liberty.” Marshall, nevertheless, construed the statute for a pro-slavery result.
In Scott v. Negro Ben
(1810), Ben had been brought into Washington County, the section of D.C. that was then governed by Maryland law. Ben’s owner failed to properly register him. So Ben sued for freedom. The jury declared him free, since Ben’s owner hadn’t followed the statutory procedure. Marshall reversed. And yet Marshall admitted in his opinion that: “The act, in its expression, is certainly ambiguous, and the one construction or the other may be admitted, without great violence to the words which are employed.”
Marshall concedes that he could have decided the case either way because of its ambiguity. He could have resolved it in favor of liberty and natural rights. He could simply have let the jury verdict stand. But his double standard wad laid bare for all to see—natural rights for white litigants regarding contract and property law; total refusal to apply natural rights when it came to Black litigants. In fact, both of the above cases show how he lawlessly ignored a presumption of the common law called in favorem libertatis
(in favor of liberty)—people are free unless they are proven otherwise.
John Adams misspoke. Ours was a government of slaveholders. For Marshall’s Southern slave-lord faction dominated the federal government until the Civil War, thanks largely to the Three Fifths Clause. (U.S. Const. art. I, § 2, cl. 3) It engorged Southern political power, with 60% of the enslaved population counted towards Southern representation in Congress and in the Electoral College. Most presidents, therefore, were Virginian slave lords before the Civil War.
This summer George Floyd and Breonna Taylor reminded us that government has yet to overcome its slaveholding legacy. That legacy’s judicial prime mover is championed by the name of Cleveland’s public law school. On a Zoom call two weeks ago, the dean of Cleveland-Marshall assured me that CSU’s president and board of trustees would likely vote, next year, on whether to change “John Marshall.” They should emulate the school board of Falls Church, Virginia
, who just last week voted to take down the names of “Thomas Jefferson” and “George Mason” from its schools.
They voted down their native sons to get on the right side of history. Et tu,
Author Taru Taylor tried not to let law school interfere with his education. He's now in the process of unlearning how to think like a lawyer. Email him at email@example.com for further discussion of this piece or whatever.
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