"jailing a rainbow: the marcus garvey case" by justin hansford

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Abstract: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1321527The relevance of narrative in the law continues to reemerge in legal scholarship. This article uses concepts from both Critical Race Theory and Law and Economics to reassess the conviction of Marcus Garvey, the Harlem Renaissance era civil rights activist. In this case, newly discovered evidence suggests that the manipulation of Garvey's legal narrative by his opponents played a larger role in his conviction than first thought; a role decisive enough to raise concerns of unethical judicial bias and warrant possible exoneration hearings.This paper argues that not only was Garvey unjustly convicted of mail fraud in 1923, but this injustice was also the culmination of an unholy alliance between Garvey's political rivals and Jim Crow era government officials. Together, the legal narrative they crafted contributed to Garvey's untimely death, tainted his legacy for decades, and helped to misshape the future of the 20th century struggle for racial justice.Many scholars have noted that legal narratives often subordinate the voices of people of color. However, this study goes further, exploring how unjust legal narratives have served to warp our collective cultural and historical narrative. This larger result has had a powerful impact on the course of political events in our country. In this case, Garvey's conviction and deportation facilitated the marginalization and silencing of his philosophy of racial justice, a strategy that focused primarily on economic empowerment for people of African descent throughout the world. As a result of the silencing of this voice, nearly a century later Blacks have obtained the political and social rights favored by Garvey's rivals, but as a whole still suffer from grave economic disparities worldwide.The federal judiciary has a storied legacy, being peopled by men and women who have defended and fought for our highest values as a nation. This case appears to be one of the sad exceptions to that rule. But most of all, it should serve as a cautionary tale to practitioners who must learn how to identify and fight the destructive use of legal narrative in contemporary contexts.

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NOTESJailing a Rainbow: the Marcus Garvey CaseJUSTIN HANSFORD * INTRODUCTION It may be true that Garvey fancied himself a Moses, if not a Messiah; that he deemed himself a man with a message to deliver, and believed that he needed ships for the deliverance of his people; but with this assumed, it remains true that if his gospel consisted in part of exhortations to buy worthless stock, accompanied by deceivingly false statements as to the worth thereof, he was guilty of a scheme or artifice to defraud . . . We need not delay to examine in detail the fraud scheme exhibited by practically uncontradicted evidence. Stripped of its appeal to the ambitions, emotions, or race consciousness of men of color, it was a simple and familiar device of which the object (as of so many others) was to ascertain how it could best unload upon the public its capital stock at the largest possible price. At this bar there is no attempt to justify the selling scheme practiced and proven; it was wholly without morality or legality. -- United States v. Garvey 1 The legal opinion above illustrates how a court opinion can construct a narrative that silences members of what Richard Delgado has called out-groups, defined as groups whose marginality defines the boundaries of the mainstream, whose voice and perspectivewhose consciousness has been suppressed, devalued, and abnormalized. 2 Ultimately, the unjust trial and conviction of Marcus Garvey was an attempt to silence and kill the powerful voice of an Outsider.

*

2010 Justin Hansford. All rights reserved. Justin Hansford is a 2007 graduate of Georgetown University Law Center, and a 2003 graduate of Howard University. He is currently a law clerk for the Honorable Damon J. Keith, Circuit Court Judge on the United States Court of Appeals for the Sixth Circuit. The author would like to thank the exceptional members of the Georgetown Journal of Modern Critical Race Perspectives for their continuous support of this law review article, including former member Tom Smith, and former editors-in-chief Hannah Alejandro and Temi Bennett, and current editor-in-chief Christina Bostick. Special thanks to Professor Emma Coleman Jordan for her continuous support for this project which began with her as an independent research project and later blossomed into its current form, and also Barbara Monroe, Collection Development Librarian at Georgetown University Law Center's Williams Library. 1 4 F.2d 974, 975 (2d Cir. 1925). 2 Richard Delgado, Storytelling for Oppositionists and Others: A Plea for Narrative, 87 MICH. L. REV. 2411, 2412 (1989). 1

Electronic copy available at: http://ssrn.com/abstract=1321527

In response, this work is an attempted resurrection, a last gasp attempt to bring to life once again the ideas and the memory of the leader of the largest mass movement for racial justice ever seen by people of African descent. Using the tools derived by Critical Race Theory scholars such as Derrick Bell, Mari Matsuda, Richard Delgado, Patricia Williams, and Charles Lawrence, I will attempt to retell the story of this advocate for racial justice, global economic justice, and human rights. In legal scholarship, narratives often appear as shorter, fictional stories and are usually told from a first-person point of view; they suspend disbelief for a short period of time in order to achieve certain illustrative and transformative objectives. Here, I present a longer, more extensively

footnoted narrative that chronicles Garveys rise and fall. It is an oppositional narrative, in the sense that it is meant to be juxtaposed with the more oppressive narrative constructed by Garveys opponents. Hopefully this will serve as a cautionary tale, illustrating both the importance of deliberative democracy and the power of narrative. Narrative has great power indeed. In spite of Garveys great accomplishments and vocation, were I to today ask random people of any ethnic background about Marcus Garvey, of the few who recognize the name, one might provide the following response: Garvey? Oh yeah, that Back to Africa guy, right? Didnt he have some crazy scheme to put Black people on a ship and send them to Africa to create some empire in the jungle or something? Well, thats pretty crazy! Thats why it never worked anyway. This respondent would not be wholly to blame for his or her ignorance of Garvey and his work. People tend to instinctively recite the stories they have been told about historical figures without too much reflection. In this case I think it is harmful to engage in such a reflexive dismissal of Marcus Garvey. There are many lessons to learn from his eventful life. Both he and his vision were intentionally and unjustly tarnished, degraded, and banished from the American narrative almost a century agoin large part due to the legal opinion above and the deportation of Marcus Garvey that 2

Electronic copy available at: http://ssrn.com/abstract=1321527

it effectuated. Unfortunately, this degradation and banishment have endured, in part because they were effectuated through the criminal justice system. This is profoundly unjust. The suppression of Garvey has not only been painful to him and his family; it has made all of our lives less rich. It has robbed us of an important part of our history. I myself never heard the name Marcus Garvey until I was about 15 years old. I was reading my favorite book, The

Autobiography of Malcolm X, and in the first chapter I read about how Malcolms father had been murdered for his involvement in Garveys organization. Like many people, I had gone through my entire public school education without ever hearing the name Marcus Garvey mentioned in any of my history classes. Intrigued, I went to the local public library to read about Garvey. The librarians directed me to Black Moses by David E. Cronon 3 . It was seen as a balanced treatment of the Garvey movement. This book presented Garvey as a well-meaning dreamer whose unrealistic plans were doomed to failure because of his ostentatiousness, incompetence in management, and general propensity for buffoonery. Is this an accurate telling of his story? If not, then why is Marcus Garveys life and career framed in this negative lighteither effectively dismissed as misguided and unrealistic, or mocked and reviled? The silence surrounding Garveys life does not come from irrelevance. During law school, I had the privilege of traveling to a variety of places throughout the Black Diaspora, as did Garvey onehundred years earlier. At that point in time, Garvey famously stated that wherever he went, he found that Black people were kicked about in all the communities where he found them around the world, always situated at the bottom of the social hierarchy. 4 Here in the first decade of the twenty-first century, I found through my own travels that from the favelas of Sao Paulo and Rio de3 4

See generally DAVID E. CRONON, BLACK MOSES (1960). Id. at 16 (quoting Marcus Garvey, The Negroes Greatest Enemy, CURRENT HIST., Sept. 1923, available at www.pbs.org/wgbh/amex/garvey/filmmore/ps_enemy.html.). 3

Janiero, Brazil, to the townships of Johannesburg, South Africa, to the shantytowns of Jamaica, wherever I found people of African descent around the world, they were indeed always at the bottom rung of the socio-economic ladder, and forced to survive in the most oppressive conditions imaginable. Garveys observation still rings true nearly a century later. So, why has the Garvey story remained silenced for so long? The answer provided in this article may shock, disappoint, and greatly disturb many readers. It will reveal how Garvey and his vision were both deliberately silenced, and how the law was used as the tool with which to do it. Further, it was not only Jim Crow racists who worked to silence Garvey and his vision. Fellow AfricanAmerican racial justice activists also aided in the silencing. Some may also rightfully ask the question, why now? Why is it important at this moment in history, with the rise of President Barack Obama and other historic happenings taking place? Why now attempt to bring about liberation through story re-telling? There has never been a better time. We are at a changing-of-the-guard moment in the racial justice movement, and perhaps at a new point in our history as a nation. Now more than ever it is time for us to reassess the leadership of our political community. Too often, our leaders resort to dirty and unfair political tactics, silencing and smearing their competition, as opposed to engaging in deliberative democratic dialogue, or testing their respective arguments equally in the marketplace of ideas. The Marcus Garvey story reminds us how catastrophic such activity can be when taken to the extreme. In addition, from a practical standpoint, I believe that Garveys vision to lessen global poverty would have created more economic and racial justice for people of color around the globe than political decolonization alone currently has. The realities uncovered by this study may be difficult for some to face. But the truth is, history is the best philosophy, and unless we learn the truth about the past, and pledge to heed the lessons 4

we find there, we are bound to repeat past mistakes. As Vincent Harding has articulated so well, there is a river of the Black freedom struggle, and for those of us who claim to be part of the struggle, it is our responsibility to tend to the river, and when possible, to clean up the parts that have been muddied by accident or on purpose, so that the river will be handed down as a source of strength to future generations. 5 This is an act of liberation through story re-telling. I. THE MARKETPLACE OF IDEAS FROM 1919 TO 1927 [The assassination of Malcolm X] was the most significant loss in the history of the Black Movement since Marcus Garvey was deported back in the 1920s From the Epilogue of The Autobiography o