Today’s Bright Idea comes from Professor Mary Dudziak. Professor Dudziak is the Judge Edward J. and Ruey L. Guirado Professor of Law, History and Political Science at the University of Southern California. Her most recent book is Exporting American Dreams: Thurgood Marshall’s African Journey (Oxford, 2008). Many know of Thurgood Marshall’s role in U.S. politics and as a civil rights leader. Professor Dudziak’s book details Marshall’s experiences in Kenya where he helped write their constitution and found himself “himself protecting the rights of a new kind of minority: white landholders soon to lose political power.” “Before long, Marshall would become the Supreme Court Justice we remember him for. The life lessons he would take to his work on the Court included his African journey, which reinforced his faith in law and minority rights as a way to perfect democracy. Marshall would tell everyone about Kenya. But the story of his work in Kenya has never been told.” Professor Dudziak’s book tells that story.
Here is Professor Dudziak explaining what lead her to write Exporting American Dreams: Thurgood Marshall’s African Journey, and the adventures she had while researching it.
“When I did the constitution for Kenya,” Thurgood Marshall once told Juan Williams, “I looked over just about every constitution in the world to see what was good.” He pounded his fist on the table for emphasis, and added: “And there’s nothing that comes close to comparing with this one in the U.S. This one is the best I’ve ever seen.”
Yet Thurgood Marshall’s Bill of Rights for Kenya, long hidden away in a British archive, did not incorporate American clauses. Instead large portions were borrowed from the Universal Declaration of Human Rights, and new constitutions of Nigeria and Malaya were also important sources. This American civil rights lawyer, soon to become a Supreme Court Justice, embraced forward-looking social welfare rights, including rights to subsistence, education, and health care.
But how did Marshall end up in Kenya? This book started with a question that grew out of research on my first book, Cold War Civil Rights: Race and the Image of American Democracy. That work made it clear that American law has played a role in U.S. public diplomacy. The image of American constitutionalism and rights has been important to the construction of American identity around the world (something we learned again the hard way in the era of Abu Ghraib). To focus more on the story of American law in the world, my starting point was simply to follow American lawyers overseas. But then I learned that Thurgood Marshall participated in deliberations on an independence constitution for Kenya. Before long, Marshall’s work in Kenya became the focus of the book.
Exporting American Dreams tells the story of how Marshall came to work on the Kenya Constitution, and what he thought about it. The project combined all the things that make it so great to be a legal historian. It involved detective work that took me to three continents, but this time I would find myself not only in dusty foreign archives, but at one point on a hilarious journey with a Kenyan tour guide in an attempt to follow in Thurgood Marshall’s footsteps in that country. I had to learn new things, including law and politics in the colony and country of Kenya. And the research revealed unexpected paradoxes, including Marshall’s deep affection for Kenya’s first president, Jomo Kenyatta, even as he turned the Kenya Constitution into a tool for executive excess, rather than a limit on power. In contrast, Marshall held the framers of his own nation to a different standard, finding their own compromises over rights at the American founding to be unacceptable. And finally, it gave me an opportunity that so many writers yearn for: it was simply a great story.
The narrative is transnational, setting the Kenya story in the context of Marshall’s public life in the 1960s, when he transitioned from the NAACP Legal Defense Fund to the Second Circuit Court of Appeals, to Solicitor General, to Supreme Court. This is a dynamic part of his life, often given short shrift in treatments that focus on Marshall as a lawyer or Marshall as a Justice.
Marshall traveled to Africa for the first time on his trip to Kenya in January 1960. He would call it his homeland. As an advisor to indigenous Kenyan political leaders, he was the only non-British, non-Kenyan person to participate in the Lancaster House Conference on the Kenya Constitution in London soon afterward. He would return to Kenya in 1963, asked to travel to Africa by the State Department, as was Earl Warren and others, in an attempt to redress the damage to the American image around the world from the civil rights crisis in Birmingham, Alabama earlier that year. This was Marshall’s triumphant return as Kenya neared independence, but he was angered to learn that the new Constitution was not preventing discrimination against Kenya’s Asian minority.
In the midst of this work, Marshall also encountered changes in civil rights at home. The Greensboro lunch counter sit-ins began on February 1, 1960 as he was working on the Kenya constitution. While Marshall is often described as an opponent of the student movement, the story is more complicated, for he devoted most of his time in his final days at the LDF to raising funds to pay lawyers who would represent the thousands of students who had been arrested, and holding conferences of civil rights lawyers to develop legal theories to defend them. Marshall was afraid the students would be harmed in Southern jails, and he thought there was a safer path to social change, even as the 1960s seemed to reveal that sometimes change requires a conflagration. These intertwined African and American narratives reveal Marshall’s emphasis on law as a means of social change in the context of violence.
Marshall’s Bill of Rights for Kenya, annotated to illustrate the sources Marshall borrowed from,
is included as an Appendix to the book, making it available in the United States for the first time.