"Jailing a Rainbow: The Marcus Garvey Case" by Justin Hansford
-
Upload
kwame-zulu-shabazz- -
Category
Documents
-
view
230 -
download
3
description
Transcript of "Jailing a Rainbow: The Marcus Garvey Case" by Justin Hansford
Electronic copy available at: http://ssrn.com/abstract=1321527
NOTES
Jailing a Rainbow: the Marcus Garvey Case
JUSTIN 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. Garvey1 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 perspective—whose 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 Garvey’s 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 Garvey’s
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 Garvey’s 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? Didn’t 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, that’s pretty crazy! That’s 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 ago—in large part due to the legal opinion above and the deportation of Marcus Garvey that
2
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 Malcolm’s father had been
murdered for his involvement in Garvey’s 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. Cronon3. 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 Garvey’s life and career
framed in this negative light—either effectively dismissed as misguided and unrealistic, or mocked
and reviled?
The silence surrounding Garvey’s 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 one-
hundred 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 de
3 See generally DAVID E. CRONON, BLACK MOSES (1960). 4 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. Garvey’s 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 African-
American 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 Garvey’s 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 of Malcolm X.
This uniquely African-American story begins at a particular time and place in the larger
American narrative. In 1917 the United States entered World War I and enlisted over four-million
soldiers into active duty. The loss of so many able bodied men created a huge void in the labor
market and, suddenly, the country found itself dependent on African Americans to fill the labor
shortage, especially in the manufacture of ammunition and steel products in the North.6 In what
would later be known as “The Great Migration,” nearly one-million African Americans migrated
north in order to find employment in this new northern economy, simultaneously bolstered by the
hope of escaping Jim Crow violence.7
As the migration of African Americans to the north increased, so did White hostility to the new
economic competition they presented.8 The Ku Klux Klan, previously a small band of a few
thousand Southern misfits, suddenly entered a new era of prominence. The small organization of a
5 See generally VINCENT HARDING, THERE IS A RIVER: THE BLACK STRUGGLE FOR FREEDOM IN AMERICA (1993). 6 See JOHN HOPE FRANKLIN & ALFRED A. MOSS, JR., FROM SLAVERY TO FREEDOM: A HISTORY OF AFRICAN AMERICANS 377 (8th ed. 2000) (1947). 7 See generally NICHOLAS LEMANN, THE PROMISED LAND: THE GREAT BLACK MIGRATION AND HOW IT CHANGED AMERICA (1992) (discussing the great impact of this migration on American life). 8 FRANKLIN & MOSS, supra note 6, at 348.
5
few thousand members grew into a national force that would boast a membership of nearly six-
million by 1925.9 This type of massive hate-based organizing allowed White Supremacists
throughout the country to embark on a re-energized campaign of terrorism and violence. Lynchings
became more frequent, climbing from 38 in 1917 to over 70 in 1919.10 This 70 included 11 people
who were burned alive publicly.11 That summer, the violence was so bloody that this three-month
period would later become known as “the Red Summer of 1919.”12
At this critical juncture in African-American history, a crisis of leadership emerged. The war and
the great migration of hundreds of thousands of African Americans to the northern states brought
African Americans a new economic and political power that they had not seen since reconstruction,
and they needed new leadership in order to focus this power. As 350,000 African American enlisted
men came home from fighting for “freedom and democracy” in Europe, they became more
assertive in securing the same rights for themselves in their own communities. When White
Supremacy responded to this assertiveness with lynching, rioting, and terrorism, African Americans
agreed that their newfound leverage had to be marshaled into a comprehensive racial liberation
project. But what strategies and concrete goals would they prioritize in their liberation struggle?
Three different strategies separately gained footing amongst the African-American leadership of
the time: lobbyist reform, socialism, and communal self-help. However, instead of seeking to reach
agreement or create a joint strategy that could incorporate the best of each perspective, the leader of
each group took a personal stake in the ultimate success of his respective view, and this theoretical
disagreement soon became a competition. Our cast of characters draws from these three groups
and their competition for leadership in this marketplace of ideas.
9See SUSAN S. LANG, EXTREMIST GROUPS IN AMERICA 44 (1990). 10 See ROBERT H. ZIEGER, AMERICA’S GREAT WAR: WORLD WAR I AND THE AMERICAN EXPERIENCE 128 (2001). 11 FRANKLIN & MOSS, supra note 6, at 385. 12 See id.
6
A. The Lobbyist Reformers
The first group emerged from the highest class of the Black community, those who had
managed to accumulate a small degree of wealth after the end of legal enslavement in 1865.13
Although already having attained a comfortable life, they were still degraded by segregation and the
accompanying insinuation that even the wealthiest African American was a second-class citizen
compared to the poorest White person. For this group, integration was the central goal of the
African-American liberation movement because it would secure for them the dignity of being seen
as equal to Whites.
Lobbyist reformers of this period believed in other racial justice goals as well (such as ending the
practice of lynching, for example). However, members of this group were generally disinclined to
advocate for any radical change. As a result, no matter the goal, they were defined by their firm
belief that change could be best achieved through legal reform—as opposed to revolutionary change
that would topple the present social order. To obtain this legal reform, they depended on their
political lobbying ability, using their control of African-American media outlets and their access to
sympathetic and wealthy Whites as tools to influence public opinion and raise capital.
The preeminent organization representing the lobbyist reformers was the National Association
for the Advancement of Colored People (“NAACP”). It was founded in 1910 in response to the
1908 race riots in Springfield, Illinois.14 Appalled by the riots, a group of activists called a meeting to
13 See generally LAWRENCE OTIS GRAHAM, OUR KIND OF PEOPLE: INSIDE AMERICA’S BLACK UPPER CLASS (2000) (chronicling the lives of America’s historically elite African American families). 14See generally LANGSTON HUGHES, FIGHT FOR FREEDOM: THE STORY OF THE NAACP (1962) (accounting an incident where a White woman falsely accused a Black man of rape, a bloodthirsty White mob raided second-hand stores, secured guns, axes, and other weapons, and attacked the nearby African-American community). They destroyed 24 African-American businesses, drove over 40 Black families from their homes, and randomly lynched two men-an innocent Black barber behind his barbershop and an eighty-four year old African-American man who had been married to a White woman. Id. The alleged leaders of the mob went unpunished. Id. All of this happened on
7
discuss ways to stem the rising tide of racial violence. Sixty White American and seven African
American leaders emerged from this meeting to establish the NAACP.15 Soon thereafter, the
NAACP established its national office in New York City and named a board of directors as well as
the first NAACP president, Moorfield Storey, a constitutional lawyer and former president of the
American Bar Association.
The only African American among the organization's initial group of executives was W.E.B.
DuBois, the prodigious sociologist, educator, historian, writer, editor, poet, and scholar who would
work over seventy years as an advocate for the rights of African Americans. At that time, DuBois
believed that social change could be accomplished by developing a small group of college-educated
Blacks whom he called "the Talented Tenth.” 16 They represented the elites who had access to
university education. Through the NAACP, DuBois hoped to cultivate the energy of this vanguard
and direct it towards the pursuit of civil rights goals.
Also during this era, the NAACP would eschew race consciousness and African American unity
as a divisive philosophy. Instead it would embrace integration as the goal that would unify all
Americans in the joint pursuit of a just society. For this reason, DuBois often later wondered aloud
whether the majority White character of the organization’s leadership led it to prioritize “interest
converging” assimilationist goals over other strategies that might have been just as important to
African-American empowerment.17
the centennial of Abraham Lincoln's birthday. Id. Later, before a grand jury, the woman admitted that she had been severely beaten by a White man and that the Black man she accused had had no connection with the incident. Id. 15 See FRANKLIN & MOSS, supra note 6, at 353. 16 See generally W.E.B. DuBois, The Talented Tenth, in THE NEGRO PROBLEM: A SERIES OF ARTICLES BY REPRESENTATIVE NEGROES OF TODAY, 33-75 (1903) (arguing for the development of exceptional African American leadership to fight Jim Crow segregation). 17See RAYMOND WOLTERS, DUBOIS AND HIS RIVALS 231, 238 (2002); see also Derrick A. Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 HARV. L. REV. 518 (1980). The concept of “interest convergence” generally states that African-American political interests are only
8
Like many of the organization’s leaders, W.E.B. DuBois focused on political empowerment.
The NAACP became a “pressure group,” focusing on using its considerable political leverage and
social capital to lobby the government to ensure equal rights for African Americans.18 The NAACP
believed that racial justice could be achieved once African Americans obtained the civil and political
rights previously secured for them only in a dejure sense by the Thirteenth, Fourteenth, and Fifteenth
Amendments to the Constitution, and the organization aggressively lobbied to secure these rights.
The NAACP’s Dyer Anti-Lynching campaign provides a good illustration of its focus on legal
reform. Beginning in 1916, DuBois, White, and then General Secretary James Weldon Johnson
worked tirelessly to pass an anti-lynching congressional bill.19 Later proposed in Congress by
Representative L.C. Dyer in 1918, this bill was an attempt to reduce the extremely high number of
lynchings that were happening nationwide by increasing the penalty imposed on officials who failed
to protect Black citizens from lynch mobs. With the help of NAACP President Storey, the
organization “began to receive support from those not previously noted for sympathy to the colored
race.”20 The list of supporters included President Woodrow Wilson (who had earlier spoken
approvingly of the racist movie “Birth of a Nation”), Attorney General Mitchell Palmer (who
spearheaded a group of aggressive anti-immigrant onslaughts dubbed “The Palmer Raids”), and the
governors of segregationist states (including Georgia and Tennessee).21 Although the Dyer Anti-
Lynching Bill never made it past the Senate, this campaign “set the pattern the Association would
later follow in lobbying in Congress,” and established that the NAACP felt it could develop
relationships with federal government officials and use this as its strategy to achieve racial justice for legitimized in the mainstream when they also serve to further the interests of the majority. See generally id. 18See WOLTERS, supra note 17, at 205. For example, then assistant secretary and later General Secretary Walter White was a well-known socialite, who at one point was said to be “a first-name friend of at least five of the nine justices” of the Supreme Court. Id. 19See id. at 204. 20 William B Hixton, Jr., Morrfield Story and the Defense of the Dyer Anti-Lynching Bill, 42 NEW ENGLAND Q., 65, 67 (1969). 21 Id.
9
African Americans.22
B. The Black Socialists
As the Russian revolution began in October 1917, some African Americans also began to
embrace socialism in the hopes that, if widely adopted, it could change the dynamics of racial and
economic oppression in the United States. The broad range of proponents included both
conservative labor organizers who believed that union organizing could provide that change and
radical Marxists who thought only an armed socialist revolution would bring about racial and
economic justice. A. Phillip Randolph and Chandler Owen, publishers of The Messenger magazine, a
prominent Black socialist magazine, spearheaded the use of more conventional union based
strategies. Cyril Briggs, leader of the African Blood Brotherhood (“ABB”), and publisher of The
Crusader, represented the more radical Marxist view.23
A. Phillip Randolph and Chandler Owen met while both were college students in New York
City. They became instant friends: “[W]hile Randolph introduced Owen to Marx and socialism,
Owen encouraged Randolph to read Lester Ward and other American sociologists of the
academy.”24 Together they joined the Socialist Party of America in 1916. Later in 1917, they
formed The Messenger, which they billed as “The Only Radical Negro Magazine in America.”25 In
1925 Randolph would go on to organize the Brotherhood of Sleeping Car Porters and Maids, which
was the first union to provide membership to African Americans.26 It was a significant step towards
securing economic rights for African-American workers who had historically been excluded from
mainstream labor unions.
22 Id. at 67. 23 THEODORE KORNWEIBEL, JR., NO CRYSTAL STAIR: BLACK LIFE AND THE MESSENGER, 1917-1928, 46 (1976) [hereinafter KORNWEIBEL, NO CRYSTAL STAIR]. 24 JUDITH STEIN, THE WORLD OF MARCUS GARVEY 46 (1986). 25 Id. at 47. 26KORNWEIBEL, NO CRYSTAL STAIR, supra note 23, at 186.
10
Around the time that The Messenger was formed in 1917, Cyril Briggs founded a new
organization, the ABB.27 This organization, composed of young internationalist minded Black
intellectuals, followed a protocol that resembled a secret fraternal order. In 1918 Briggs went on to
publish a monthly magazine called The Crusader, which addressed a variety of issues ranging from a
Marxist analysis of global economics to endorsements for A. Phillip Randolph’s campaign for a seat
in the New York State Assembly on the Socialist Party ticket.28
Briggs argued that armed struggle was the most effective method of achieving economic
justice.29 He and the ABB hoped to create a “great Pan-African army” that would “attack colonial
plantations.”30 Randolph and Owen, on the other hand, focused on more pragmatic projects that
the working class could begin implementing immediately in their search for economic justice.
Unfortunately, neither armed socialist struggle nor unionization would ultimately secure economic
justice for the masses of African Americans in the twentieth century.
C. The Communal Self-Helpers
A third interest group also focused on securing economic justice for African Americans, but it
took a different approach. It did not believe that lobbying for legal reform, unionizing, or
revolution would bring about racial justice in society. Instead, this third group believed that
everyone simply acted rationally in his or her own self-interests—even racist Whites. They argued
that only through communal self-help would the newly freed slaves overcome the plight of
economic injustice.
This new group of thinkers believed that Blacks should use industrial education and economic
communal self-help to maximize their own wealth and economic independence. This group valued
27See STEIN, supra note 24, at 52. 24 See id. at 52. 29 See id. at 52-53. 30 Id.
11
coalition building, but the widespread existence of racial hostility against African Americans
militated against partnership with other ethnic groups during that period. As a result, they instead
focused on building coalitions with other African descendants throughout the African Diaspora.
They believed that once they all attained economic independence, Whites, being rational actors,
would acknowledge the accomplishments of African descendants and respect their civil and social
human rights accordingly.
Booker T. Washington, who was born into slavery in 1856, became the leading practitioner of
the communal self-help philosophy, as well as the preeminent leader of the African American
community from the late nineteenth century until his death in 1915. In 1881, Washington became
the first principal of the newly created Tuskegee Normal and Industrial Institute (now Tuskegee
University) in Tuskegee, Alabama.31 Tuskegee Institute provided its students with an academic
education and housed a teacher’s college, but in general the institution placed more emphasis on
providing vocational training in trades such as carpentry, masonry, and domestic work.32
Washington valued the "industrial" education that would help his students obtain the only types of
jobs available to African Americans in the South at that time—manual labor jobs. He hoped that
this school would be the first step towards economic communal self-help for his students, and he
promoted similar institutions throughout the African Diaspora.33 A great rift grew between Dubois
and Washington due to their opposing ideological positions. Dubois accused Washington of
31 LOUIS R. HARLAN, BOOKER T. WASHINGTON: THE MAKING OF A BLACK LEADER 1856-1900 109-10 (1972). 32 Id. at 113, 124-25. 33 See John L. Dube and Booker T. Washington: Ohlange and Tuskegee, http://www.oberlin.edu/external/EOG/Dube/Booker%20essay.htm (last visited May 9, 2008). In 1897, Washington met with Rev. John L. Dube, a South African activist, writer, and educator. Dube was inspired by Washington’s initiatives, and after meeting Washington in 1897, he returned to South Africa and founded the Zulu Christian Industrial Institute (1901), renamed the Ohlange Institute. Like Tuskegee, Dube’s Ohlange Institute focused on improving Blacks’ labor efficiency and increasing the skills of Black laborers.
12
preaching, “a gospel of Work and Money to such an extent as apparently almost completely to
overshadow the higher aims of life.”34
Aside from his industrial education program, Booker T. Washington also founded the National
Negro Business League in 1900 in order to promote the wealth maximization of African Americans
throughout the country through commercial endeavors. A statement from Washington’s last annual
address to the League illuminates the purpose behind the organization, as well as his own racial
justice strategy: “At the bottom of education, at the bottom of politics, even at the bottom of
religion itself there must be for our race, as for all races an economic foundation, economic
prosperity, economic independence.”35
D. The Marketplace of Ideas
The diversity of approaches during this period created a “marketplace of ideas” for Blacks
looking to achieve liberation from Jim Crow era racial injustice. Although the concept of a
marketplace of ideas dates back to the writings of John Stuart Mill in the nineteenth century, its
ascendancy in American jurisprudence and general political thought is widely held to have originated
with Supreme Court Justice Oliver Wendell Holmes Jr.’s dissent in Abrams v. U.S.36 Although Justice
Holmes never actually used the term “marketplace of ideas,” he left a huge fingerprint on the First
Amendment when he stated that “the ultimate good desired is better reached by a free trade in
ideas—that the best test of truth is the power of the thought to get itself accepted in the
competition of the market.”37 By conceptualizing public discourse as a marketplace where the best
34 FRANKLIN & MOSS, supra note 6, at 304. 35Booker T. Washington, Annual Address, 1915, Annual Conference Proceedings and Organizational Records, 1900-1919, Records of the National Negro Business League, http://lcweb2.loc.gov:8081/ammem/amrlhtml/dtnegbus.html (last visited May 9, 2008). 36 Charles R. Lawrence III, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 DUKE L.J. 431, n.132. 37 Abrams v. United States, 250 U.S. 616, 630 (1919).
13
ideas gain ascendancy on their own merit, Holmes provided one of the fundamental rationales for
freedom of expression.
In the context of post-WWI America, public deliberation within the Black community
necessarily focused on liberation strategies that could help these people survive the racial violence
and economic vulnerability that they faced on a daily basis in Jim Crow segregation. The country’s
power brokers could not participate in this market, because they were the purveyors of the very
segregation and racial terrorism that was targeted for change. The only consumers in this trade were
the members of the African-American community. Through their organizational membership and
donations, these consumers could support, or purchase, one of three products: the lobbyist
reformers protest product, the Black socialists revolutionary or labor union product, or the
communal self-helpers’ economic self-empowerment product. Whether or not each formation was
ideologically mutually exclusive from the others, all the players involved believed them to be, and
consequently only one would gain acceptance as the most legitimate strategy for emancipatory
struggle in Black America over the course of the coming decades.
In principle, no group should have been concerned about the prominence of their strategy.
Their only interest should have been the application of whichever strategy worked best to help end
Jim Crow segregation. However, political debate is rarely so self-effacing, and as mentioned above,
all three groups soon took personal stakes in their own approaches, each hoping that his alone
would be the group to end Jim Crow.
To be sure, the three groups had solid ideological and practical justifications for their bitter
rivalry. On the ideological level, each of the three camps had a worldview that mandated adherence
to a conception of self that excluded the others’. For Garveyites, the self was interpreted to mean
the Black Diaspora. To foster self-uplift and self-reliance meant to devote one’s energies to uplift
members of the Black Diaspora around the world, and to rely on Diasporic peoples for one’s own
14
economic, educational, and spiritual needs. In contrast, the Black socialists conceived of the self as
the transracial working class proletariat. Their goal was to have workers of the world unite in an
effort to topple Global Capitalism. For DuBois, the self was the talented tenth; he focused on the
development of a vanguard of black leaders who he believed would pave the way for the rest of the
Black population by using their elite talents to fight for racial justice.
On a practical level, the three camps were in direct competition with each other for limited
resources. Even in Harlem, where all three of these movements were based, there was only so much
money available for financial contributions to racial justice campaigns—the success of each
competitor’s campaign was literally taking money out of the pockets of the members of the other
camps. Also, because organizational membership was an identity marker, community members were
loath to join more than one. This created a direct competition for members, loyalty, and money that
helped the three groups to feel as if they were players in a zero-sum winner-take-all competition.
The situation soon deteriorated to a point where the groups not only disliked each other, but threw
all hopes of cooperation out the window in a wild attempt to destroy each other.
Many contemporary observers voice the same confusion: Why couldn’t they work together and
find agreement on the many points of commonality inherent in their joint endeavor to end Jim
Crow segregation? Indeed, the same could be asked of the rift between Black Militants and
traditional civil rights organizations in the 1960’s. While true unity may be forever evasive, one of
the functions of history is to give us an opportunity to learn from the mistakes of the past and not
repeat them. Thus, this work should serve as a cautionary tale to racial justice advocates who
diverge on the question of strategy with their contemporaries to never allow disagreement to turn
into self-destruction.
In the 1920’s the stakes were high. To prevail would mean achieving ultimate preeminence in
the most significant public policy choice of the collective African American community in the
15
twentieth century—the choice of what strategy it would pursue in the push to achieve liberation
from Jim Crow era segregation and oppression. Although this stage of candidates seemed crowded,
one voice, for a short time, rose above all the others and mobilized the masses of African Americans
on a scale that has never been achieved before or since. That voice was the voice of Marcus Garvey.
II. THE STORY OF MARCUS GARVEY AND THE BLACK STAR LINE STEAMSHIP CORPORATION
“Up you mighty race, you can accomplish what you will”—Marcus Garvey38
This section provides a glimpse of the meteoric rise of Marcus Garvey and the organizations that
he founded, the Black Star Line Steamship Corporation, and the Universal Negro Improvement
Association—the largest membership organization of people of African descent ever assembled.
A. Marcus Garvey and the Universal Negro Improvement Association
Marcus Garvey, an ideological disciple of Booker T. Washington, also subscribed to the
communal self-help model of racial liberation. Garvey grew up in St. Ann’s Bay, Jamaica. He spent
his youth studying to become a printer. In his early twenties he could not find steady work in
Jamaica, so he traveled throughout Europe, South America, and Central America searching for
employment.39 During his travels, he came across Booker T. Washington’s famous autobiography,
“Up from Slavery,” and it changed his life. Garvey once said, “I read Up from Slavery, by Booker T.
Washington, and then my doom—if I may so call it—of being a race leader dawned upon me.”40
Garvey famously stated, “I asked, ‘Where is the Black man’s Government?’ ‘Where is his King and
38 Delgado, supra note 2, at 71. 39 TONY MARTIN, RACE FIRST: THE IDEOLOGICAL AND ORGANIZATIONAL STRUGGLES OF MARCUS GARVEY AND THE UNIVERSAL NEGRO IMPROVEMENT ASSOCIATION 3-5 (1976). 40 1 THE PHILOSOPHY AND OPINIONS OF MARCUS GARVEY 126 (Amy Jacques Garvey ed., 1986).
16
his kingdom?’ ‘Where is his President, his country, and his ambassador, his army, his navy, his men
of big affairs?’ I could not find them, and then I declared, ‘I will help to make them.’”41
Immediately, Garvey returned to Jamaica and founded the Universal Negro Improvement
Association (UNIA) in 1914. He hoped the UNIA would unite African descendants around the
world into one political body that could advocate for self-determination and economic justice.42
While traveling the world, Garvey had observed that people of African descent always found
themselves at the bottom of every country’s socio-economic ladder. He was determined to ensure
that Black people would not continue to be kicked about by all the other races and nations of the
world.43
Garvey’s “brain was afire” with enthusiasm, so he visited the United States to discuss with
Washington his plans to build a Tuskegee-style institution in Jamaica in 1916.44 Unfortunately,
Washington died before Garvey could reach him. However, Garvey decided to continue his visit
and ultimately chartered his first international chapter of UNIA in Harlem. By 1921, the UNIA had
expanded to 900 branches with a membership of nearly 6 million, with chapters in 40 countries and
in 41 U.S. states.45
B. The Black Star Line Steamship Corporation
Garvey was one of the first Black leaders to articulate a powerful vision of Black political and
economic independence. Like Washington, Garvey believed that Black people throughout the world
could best achieve racial justice by maximizing their own wealth. Garvey and Washington expressed
41 MARCUS GARVEY AND THE VISION OF AFRICA 73 (John Henrik Clarke, ed., 1974). 42 MARTIN, supra note 39, at 6. 43 See id. at 74. 44 Id. at 281. 45 Id. at 361-373. Comparatively, in 1923 the ABB of the Black Socialists Camp had 3,000 members nationwide; and the NAACP at its height during the era had 350 Chapters with 100,000 members. See THEODORE KORNWEIBEL, JR., SEEING RED: FEDERAL CAMPAIGNS AGAINST BLACK MILITANCY 1919-1925 100-131 (1998).
17
their belief through their commitment to communal self-help, imploring Blacks to seek economic
independence before seeking civil rights and integration.
In accordance with the prioritization of economic independence, Booker T. Washington created
the National Negro Business League. This organization supported Black businesses exclusively and
engaged in lobbying. Similarly, Garvey created the Negro Factories Corporation in 1919 using
slogans such as “Race First” and “Africa for the Africans, at home and abroad.” The Negro
Factories Corporation later gave birth to a plethora of small businesses, including “Universal
Laundries, a Universal Millinery Store, Universal Restaurants, Universal Grocery Stores, as well as a
hotel, tailoring establishment, doll factory and printing press.”46
The Black Star Line Steamship Corporation was Garvey’s greatest and most fateful project of
economic self-reliance. It was incorporated in 1919 capitalized with stock equivalent to five million
of today’s dollars.47 Garvey organized the Black Star Line to be the ultimate expression of Pan-
African communal self-help. It would facilitate trade and immigration among Blacks in Africa, the
Caribbean, and the United States, and transport some Blacks to Liberia in hopes of forming an
independent, Black-governed state, not unlike the Jewish-governed state of Israel.48
In the process, Garvey believed that the Black Star Line would positively influence the dignity
and self-esteem of Blacks throughout the Diaspora by proving that Blacks could manage
monumental endeavors independently. During this era of colonialism and Jim Crow, only a few
decades removed from legal enslavement, many people of African descent were illiterate,
impoverished, and regarded as less than human by most nations. Although some observers
misinterpreted his rhetoric as Black supremacist in nature, Garvey merely helped to inspire in this
46 MARTIN, supra note 39, at 33-34. 47 See id. at 152. 48 At the time, no African state was governed by anyone of African descent, with the sole exception of Ethiopia.
18
community a pride in their heritage that had been absent up to that point. Garvey once commented
that, “I thought if we could launch our ships and have our own Black captains and officers, our race,
too, would be respected in the mercantile and commercial world, thereby adding appreciative dignity
to our downtrodden people.”49
A Black-owned shipping company had never existed before. In contrast, the British White Star
Line had ruled the seas since 1863, maintaining its luster even after the sinking of its most famous
ship, the Titanic. Irish businessmen had created the Green Star Line, and Polish businessmen had
begun the Polish Navigation Steamship Company. The founding of the Black Star Line was a
psychological statement to Blacks worldwide that, if they wished, they could achieve the great
attainments of other peoples around the world.
Everyone connected with the Black Star Line understood its higher purpose—including both
employees and stockholders. Often employees would work without asking for payment, simply
because they knew that the Black Star Line was part of a greater plan to uplift the Black Diaspora.50
The stockholders generally contributed in the hopes that they could see the project come into
fruition, not to reap financial profit for themselves. In the beginning, Garvey solicited funds as
donations and turned to selling stocks later when the District Attorney urged him to incorporate the
business.51 Garvey then appealed to the same people (UNIA members) for stocks as he did for
donations. Consequently, it seems that even the sales of stock were more like philanthropic
contributions than profit driven investments. As one investor said, “Colored people do not always
think in dimes and dollars. . . . If Garvey fails and we all loose [sic] our money it is our business.”52
49 Marcus Garvey, Tricked By Officials While On Honeymoon, PITTSBURG COURIER, Apr. 12, 1930, at 3. 50 See STEIN, supra note 24, at 92. 51 Brief for the United States, Garvey v. United States, 4 F.2d 974 (2d Cir. 1925) (No. 66), in 6 THE MARCUS GARVEY AND UNIVERSAL NEGRO IMPROVEMENT ASSOCIATION PAPERS 49-50 (Robert Hill ed., 1989). 52 STEIN, supra note 24, at 101.
19
The Black Star Line was a new kind of enterprise in the Black community; in its emphasis on
joint ownership and community empowerment, today it would be called “social entrepreneurship.”
Many of Garvey’s advertisements did not appeal to profits, but instead appealed to the creation of
economic independence for the Black community as a whole. Even though other steamship
corporations offered higher returns for investors, Garvey countered that “The Black Star Line . . . is
owned by the people and is a movement for the people, which tends to their ultimate betterment,”
whereas the other enterprises were led by “selfish capitalistic Negroes.”53 Garvey did not “dangle
the promise of profit but emphasized the grim reminder that Blacks lacked alternatives.”54 Garvey’s
statement was that, in a Jim Crow segregated country, Blacks should create their own economic
opportunities and gain support from Blacks in other parts of the world if they ever expected to
obtain economic self-sufficiency, dignity, and true racial justice.
In an environment where the sea was the only mode of intercontinental transportation, and
where Black merchants, passengers, and seamen were routinely subjected to discrimination, the
Black Star Line project was met with wild enthusiasm everywhere it went.55 Whether shipping
whiskey to Cuba, coconuts from Jamaica, or just passing through the Panama Canal, the Black Star
Line encountered cheering crowds and was “showered with flowers and fruit” as it received pledges
of support from local businessmen and political dignitaries.56 It was an idea that had captured the
imagination of the world.
By the beginning of the 1920s, it had become clear that the ideological fate of the lobbyist
reformers, the Black socialists, and the communal self-helpers would ultimately turn on the success
or failure of this venture. Because they refused to deliberate with each other, all three groups helped
53 Id. at 103-04. 54 Id. at 133. 55 MARTIN, supra note 39, at 152. 56 COLIN GRANT, NEGRO WITH A HAT: THE RISE AND FALL OF MARCUS GARVEY 229 (2008).
20
to create an environment of mutual exclusion. For example, if a potential NAACP member
expressed too much agreement with a Garvey solution in the company of Dubois, he risked great
censure.57 And of course, in Garvey’s view, if the Black Star Line was successful, its millions of
supporters would have no need to explore the other liberation strategies of protesting the federal
government or union organizing—they could simply hitch their stars to the Black Star Line and the
independent economic vision it heralded.
Facing such high stakes, the lobbyist reformers and the Black socialists decided not to leave the
outcome to chance.
III. WHEN INTEREST GROUPS COLLIDE: THE GARVEY MUST GO! CAMPAIGN
The emergence of Marcus Garvey and the Black Star Line intensified the competition amongst
African-American leaders who held competing visions of community empowerment. When faced
with the imminent success of the communal self-help philosophy through the organ of the Black
Star Line, instead of entering a debate with Garvey, the lobbyist reformers and the Black socialists
decided that they could no longer let Black people choose freely from amongst the three
alternatives. They decided to form a coalition and lobby the government to remove Garvey and the
Black Star Line from the marketplace of ideas.
This section chronicles that effort. After reviewing the public choice theories that best elucidate
the coalition’s sources of influence, I analyze step-by-step each of the specific tactics that the Garvey
Must Go! coalition used to leverage its power. The coalition rejected the idea of democratic
deliberation, and instead skillfully influenced the media narrative and the justice system in order to
unfairly eliminate their competitor from the marketplace of ideas.
A. A Theory of Influence: Public Choice Theory Revisited
57 See infra note 90.
21
The Law and Economics concept of Public Choice Theory is instructive as we seek to
understand the dynamics that gave the coalition the power to have such a decisive influence on the
course of events here. The essential premise of public choice theory is that all actors are motivated
by self-interest, including governmental actors.58 Historically, legal scholars have focused on the
self-interest based voting of legislators looking to maximize their reelection prospects, or lobbying
by special interest groups looking to maximize their financial interests. These activities are referred
to as “rent seeking” activity, or the extracting of “rents” from the government.59 However, more
recent scholarship has expanded the focus of public choice theory to include self-interested judicial
and governmental agency behavior.
In the judicial context, public choice theorists argue that judicial behavior is often the result of a
judge’s attempt to satisfy his or her own interests.60 Usually the interests the judge furthers are
ideological ones. This leaves room for a special interest group’s lobbying efforts to gain traction by
appealing to the special interests of judges. In fact, moral deliberations aside, some studies assert
that if a political group desires governmental protection from market competition, judicial capture is
actually a more effective tactic than legislative lobbying because it is more anonymous and
manageable. “There is no countervailing power of public opinion or public vote in courts . . . [and]
factions must take Congress and the President as they find them but may strategically choose to
litigate in front of a favorably ideological panel of the appellate courts.”61
58 See Frank B. Cross, The Judiciary and Public Choice, 50 HASTINGS L.J. 355, 356 (1999). 59 Id. at 356 (defining “rent” as government provided protection from competition in a given marketplace). 60 See Richard A. Posner, What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does), 3 S. CT. ECON. REV. 1 (1993). 61 Cross, supra note 58, at 368; see also Lawrence B. Solum, The Virtues and Vices of a Judge: An Aristotelian Guide to Judicial Selection, 61 S. CAL. L. REV. 1735, 1735 (1988) (mentioning the reaction to legal realism and politics that may influence judicial decisions).
22
Public choice theorists also argue that governmental agency based lobbying can be effective as
well. Agencies may have an interest in expanding their own budget, maximizing their own flexibility
vis-à-vis other institutions, or increasing their own prestige.62 As a result, special interest groups can
most effectively influence a governmental agency when they appeal to its broader entity wide
interests, as opposed to the interests of one individual in its multilevel chain of command. Other
public choice studies reinforce this view by suggesting that the influence of a special interest group is
greatest when it’s position benefits the whole department’s appearance of efficiency. Narratives that
1) oppose changes to the status quo; 2) have narrow goals with a low degree of negative political
visibility; or 3) have the ability to enlist sympathetic actors from the other branches of the
government, are all therefore appealing to agency decision makers.63
Still another aspect of public choice theory reflects on the media’s impact on democracy.64 The
impact of the media is multiplied considerably when the special interest groups own media outlets
and can deliberately publish stories in order to further their particular lobbying campaigns. This
allows groups to craft narratives on a variety of subjects that ultimately function to serve their own
interests.
All of these dynamics came into play when the other two camps of Black leadership decided to
form a coalition and campaign against Marcus Garvey’s Black Star Line steamship company. The
campaign, which used the blunt moniker “Garvey Must Go!,” provided a narrative to the government
62 See Peter P. Swire, A Theory of Disclosure for Security and Competitive Reasons: Open Source, Proprietary Software, and Government Systems, 42 HOUS. L. REV. 1333, 1377 (2006); see also George J. Stigler, The Theory of Economic Regulation, 1 BELL J. ECON. & MGMT. SCI. 3 (1971). 63 See Denise D. Fort, Restoring the Rio Grande: A Case Study in Environmental Federalism, 28 ENVTL. L. 15, 48 (1998). 64 See generally Sara Sun Beale, The News Media’s Influence on Criminal Justice Policy: How Driven News Promotes Punitiveness, 48 WM. & MARY L. REV. 397 (2006) (discussing how news media coverage influences courts in the area of criminal law).
23
that allowed it to prosecute, convict, and deport Garvey, while at the same time legitimizing the
attack through its control of the Black press.
B. A Step-by-Step Analysis of the Garvey Must Go! Campaign
The leadership of the opposition coalition consisted of A. Phillip Randolph and Chandler
Owen, both socialist leaders, Reverend Robert Bagnall, the NAACP’s Director of Branches, and
William Pickens, the NAACP’s Field Secretary. Together they formed “The Friends of Negro
Freedom,” an organization that lasted from 1920 to 1923.65 This organization would become the
driving force of the “Garvey Must Go!” campaign. However, both Cyril Briggs of the ABB and
W.E.B. DuBois of the NAACP also played leading roles in the attack on Garvey.66
1. Motives
All of the coalition members were driven by a combination of ideological, practical, financial,
and personal motives. W.E.B. DuBois and the NAACP had been engaged in an ideological struggle
against the communal self-helpers for years, going back to the time of Booker T. Washington.
Because Garvey represented that legacy, the lobbyist reformers saw him as their ideological
opponent from the beginning. In addition, Garvey’s nationalist, race conscious, and Pan-Africanist
beliefs put him even more directly at odds with the integrationist, color-blind, and domestic-minded
NAACP leadership. The NAACP believed that African Americans wanted to be “Americans, full-
fledged Americans, with all the rights of other American citizens,” and any philosophy that sought
to go beyond American borders was generally not viewed favorably.67 Even more, from a practical
perspective, the NAACP and the lobbyist reformers had noticed a steady decline in membership
65 STEIN, supra note 24, at 161. 66See id. at 190. 67 WOLTERS, supra note 17, at 231.
24
that corresponded with Garvey’s rise—from 100,000 in 1919 to 30,000 by the end of the 1920s.68
“Nearly 200 of the 449 branches of 1920 were dormant by 1923.”69 NAACP leaders like Reverend
Bagnall thought that Garvey’s rise was the direct cause of the NAACP’s decline during that period.70
The socialist camp also had both ideological and practical reasons to desire Garvey’s demise.
Ideologically, Garvey's glorification of communal self-help directly contradicted Randolph and
Owen’s belief in democratic socialism. The Black socialists felt that “Garvey was misleading the
Black masses into thinking that racial unity, rather than interracial, working-class solidarity, was the
key to progress.”71 On a practical level, many of Garvey’s UNIA members came from the African-
American working class, and Black socialists wanted that constituency for themselves. By
mobilizing the masses behind his program, Garvey was diverting the Black socialists’ primary
constituency and leading that constituency in the opposite ideological direction.72
Aside from each group’s declining membership levels and ideological differences, both the
lobbyists and the socialists stood to reap large financial awards from Garvey’s demise. Garvey was
the leading organizer of his time, and by dominating the philanthropic market he was also taking
donation money directly out of his competitor’s pockets. While the NAACP solicited funds to
defend race riot victims and The Messenger peddled five-dollar liberty bonds to keep their magazine in
business, Garvey was receiving millions of dollars in contributions to Black Star Line.73 In the
words of one critic, Garvey was receiving “money in stacks” and thereby “[was] killing . . . the
contribution market” for the other activists.74
68 STEIN, supra note 24, at 162. 69 Id. 70 See id. at 161-62. 71 WOLTERS, supra note 17, at 161. 72 See id. 73 STEIN, supra note 24, at 71. 74 Interview by Charles Mowbray White Chandler Owen and A. Philip Randolph, editors and publishers of The Messenger (Negro) and leaders of the Negro Socialist Party of the Bronx and
25
Finally, the coalition was also buttressed by personal animosities. DuBois and Garvey seemed
like polar opposites on many levels, and this may have been a reason why they regularly traded
insults.75 Garvey felt that DuBois, a Harvard-educated, light skinned lover of opera music, looked
down on Garvey because he was a self-educated, dark skinned immigrant. Indeed, the politics of
class and skin color seemed to play a role in Garvey’s nasty conflict with the socialists as well. For
example, over time the existing personal tension between Cyril Briggs and Marcus Garvey had
matured into a full-blown feud, and skin color based insults were traded between the two activists.
In August 1921, Briggs attempted a minor coup by organizing a group to propose a formal
endorsement of communism at the UNIA international convention.76 Garvey discovered the plot
and foiled Briggs’ efforts, calling the light skinned Briggs “A White man . . . who claims to be a
Negro,” prompting Briggs to subsequently have Garvey arrested and tried for criminal libel.77
In the next issue of The Crusader magazine—the publication edited by Briggs—ten of the sixteen
editorials criticized Garvey.78 The articles levied a variety of charges against Garvey. One article
claimed that Garvey had maliciously left his wife; another claimed that two Black Star Line ships had
never existed, and one even claimed that Garvey had “raped a little White girl.”79 For this last
statement, Briggs was later arrested on a criminal libel charges filed by Garvey.80 These rising
tensions fueled the flames of the rivalry.
Harlem, in Manhattan, N.Y. (Aug. 10, 1920), in 2 THE MARCUS GARVEY AND UNIVERSAL NEGRO IMPROVEMENT ASSOCIATION PAPERS 609-12 (Robert A. Hill ed., 1986). 75 There is a famous story of how Garvey and DuBois once crossed each other’s path in a hotel lobby. As Garvey exited an elevator and DuBois entered, “Garvey recognized DuBois and ‘his eyes flew wide open, stepping aside,’ while DuBois, ignoring Garvey, ‘looking straight forward, head uplifted, and nostrils quivering, marched into the elevator.’” In the Black press the next day, headlines read “DuBois and Garvey Meet! No Blood Is Shed!” See GRANT, supra note 56, at 298. 76 MARTIN, supra note 39, at 239. 77 Id. at 240. 78 Id. 79 Id. at 241. 80 Id.
26
STEP 1: MANIPULATING THE MEDIA NARRATIVE
The coalition began its campaign to discredit Garvey in the media. This was a sound tactical
decision on their part. Data collected from hundreds of experimental simulations and surveys have
confirmed that the media does indeed have considerable influence over public opinion.81 The
primary mechanisms for this influence are the media’s “agenda-setting” and “priming” effects.
Agenda setting refers to the media’s “ability to direct the public’s attention to certain issues,” while
priming describes its “ability to affect the criteria by which viewers judge public policies, public
officials, or candidates for office.”82
The “Garvey Must Go!” campaign was well positioned to mount an effective media campaign.
Most of the coalition members were editors or contributing writers to influential African-American
newspapers and magazines. As director of publications for the NAACP, DuBois presided as editor-
in-chief of The Crisis, the NAACP’s primary magazine publication, for its first 25 years of existence.
From 1918 until Garvey’s conviction, Cyril Briggs was editor-in-chief of The Crusader, the primary
media organ for the ABB. Owen and Randolph had founded The Messenger in 1917. They edited it
together until 1923. Together, all of these journalists turned anti-Garvey enthusiasts had the ability
to significantly impact the public discourse.
The “Garvey Must Go!” coalition used their ability effectively. Between 1921 and 1924, its
publications released a succession of newspaper articles that put Garvey under increased scrutiny.
Both the NAACP’s Crisis and the Black socialist’s The Messenger would publish over five articles
apiece criticizing Marcus Garvey during this time period. The vituperative contents of these
publications are clear from the titles. For example, a 1922 article from The Messenger contained the
headline: “Marcus Garvey! The Black Imperial Wizard Becomes Messenger Boy of the White Klu
81 Beale, supra note 64, at 402. 82 Id. at 442.
27
Klux Kleagle.” In a 1921 feature story on the Black Star Line, Cyril Briggs’s magazine The Crusader
suggested that Garvey might be sued for fraud based on the endeavor’s economic failure.83 This
article in particular disclosed information that federal investigators would later use in their efforts to
charge Garvey with mail fraud.
In addition to the use of their own newspaper outlets, the coalition members also held a series of
public meetings in August of 1922 where “Each critic took his turn on successive Sundays to attack
Garvey.”84 The meetings were scheduled to coincide with Garvey’s third annual international
convention, and they were held only a few blocks down the street from Garvey’s Liberty Hall, the
site of the convention itself.85 First, Pickens held a meeting on “What to do when Negro leaders
league with Negro lynchers,” then the following Sunday Randolph took his turn, followed by
Reverend Bagnall, who compared Garvey to Judas Iscariot.86 Their refrain remained the same
throughout, “Garvey must go. The sooner the better.”87
2. Crossing the Line: Getting Personal
The situation took a decidedly ugly turn as the feud progressed. In a 1923 issue of Century
Magazine, a mainstream publication with a mostly White audience, DuBois referred to Garvey as a
“little, fat, Black man; ugly, but with intelligent eyes and a big head.” An article by the NAACP’s
Reverend Bagnall entitled, “The Madness of Marcus Garvey,” published in The Messenger magazine,
described Garvey as “A Negro of unmixed stock, squat, stocky, fat and sleek, with protruding jaws,
83See STEIN, supra note 24, at 162. 84 Id. at 161. 85 GRANT, supra note 56, at 336. 86 STEIN, supra note 24, at 161. 87 Id.
28
and heavy jowls, small bright pig like eyes and a rather bull-dog-like face.”88 The magazine even
included a picture of Garvey with a devil’s horns.
In addition to the demeaning physical descriptions that speak to the latent colorism and self
hatred present in the very organizations purporting to lead the racial justice movements of the time,
the criticisms of the coalition also began to take on a decidedly nativist turn. In the same article in
The Messenger, Owen lambasted Garvey for “fool talk that emanates from a blustering West Indian
demagogue.” He announced that he was “firing the opening gun in a campaign to drive Garvey and
Garveyism in all its sinister viciousness from the American soil.” DuBois had often characterized
Garvey as a leader of only “the West Indian peasantry,” and remarked how “his movement had
languished until at last with the increased migration from the West Indies during the war he
succeeded in establishing a strong nucleus.”89 These editorials attempted to paint Garvey as an
outsider, separate from the general African American community, making him less worthy as a
leader of the African American masses, and more vulnerable to J. Edgar Hoover’s targeted
harassments.
In another editorial in The Crisis, entitled “Lunatic or Traitor,” DuBois attempted to redefine
Garvey as “the most dangerous enemy of the Negro race in America and in the world,” stating that
Garvey “is either a lunatic or a traitor. . . . Every man who apologizes for or defends Marcus Garvey
from this day forth writes himself down as unworthy of countenance of decent Americans. As for
Garvey himself, this open ally of the Ku Klux Klan should be locked up or sent home.”90
Where members of the coalition had substantive disagreements with Garvey, it can be argued
that they had a right to voice their opposition. However, held to the Kantian “categorical
88 Robert W. Bagnall, The Madness of Marcus Garvey, THE MESSENGER, March 1923, accessible at http://historymatters.gmu.edu/d/5120. 89 W.E.B. DuBois, Marcus Garvey, THE CRISIS, Dec. 1920, at 58-60. 90 W.E.B. DuBois, Lunatic or Traitor, THE CRISIS, May 1924, at 8-9.
29
imperative,” these attacks stand on shaky ethical ground indeed. If in every policy disagreement our
leaders engaged in these types of attacks, and consequently if we effectively chose our leadership
based upon the effectiveness of their personal attacks against their opponents, we greatly diminish
the quality of our politics. Is this what happened in the twentieth century? Was the Black political
agenda chosen not through reasoned deliberation but through cannibalistic personal attack?
We may never fully know the answer to this question, but we know that in this case, the political
attacks based on Garvey’s ancestry and his physical appearance had nothing to do with the
soundness of his agenda for Black liberation. Still, these attacks created narratives that would
separate people from Garvey not based on his platform, but by pandering to their basest prejudices.
STEP 2: SUPPORTING AND LEGITIMIZING J. EDGAR HOOVER’S VIEW OF MARCUS GARVEY
The “Garvey Must Go!” coalition did not need to engage in much lobbying in order to persuade
the federal government to put Garvey under surveillance and pursue charges against him. Indeed,
the federal government had already begun to do so. But why? The easy answer is simple racism on
behalf of Hoover and the government. However, public choice studies suggest that government
agencies above all else seek to increase their own power or prestige.91 In this case, the agency actors
received direct political and practical rewards for their pursuit of Garvey.
In 1919, U.S. Attorney General Mitchell Palmer put twenty-four-year-old J. Edgar Hoover in
charge of a new division of the Justice Department's Bureau of Investigation, the General
Intelligence Division. Hoover’s responsibility was to gather evidence on radicals and immigrant
groups that Palmer feared would propagate communism throughout the country.92 Immediately, the
U.S. Justice and Immigration Departments conducted a series of controversial raids against alleged
91 Swire, supra note 62, at 1377. 92 PBS.org, People & Events: J. Edgar Hoover, http://www.pbs.org/wgbh/amex/garvey/peopleevents/p_hoover.html (last visited May 20, 2008).
30
communists and leaders of the radical left in the United States that came to be known as the Palmer
Raids.
The division that Hoover led was small and weak at the time. The entire Bureau of Investigation
had around 300 special agents to patrol the entire country.93 Still, by January 1920, through the use
of infiltrators, wiretaps, and sabotage, Palmer and Hoover had organized the largest set of mass
arrests in U.S. history, rounding up approximately 10,000 leftists and activists under the Espionage
Act of 1917 and the Sedition Act of 1918.94 Most of the immigrants who were arrested quickly
found themselves deported.
It was in this atmosphere of fear of radical immigrants that J. Edgar Hoover’s General
Intelligence Division began taking extraordinary measures to arrest and deport Garvey. During the
era of Woodrow Wilson’s presidency, it certainly was no political misstep to silence an African-
American agitator.95 In a 1919 correspondence, Hoover spoke of Garvey in the following terms:
[Garvey is] particularly active among the radical elements in New York City in agitating the Negro movement. Unfortunately, however, he has not as yet violated any federal law whereby he could be proceeded against on the grounds of being an undesirable alien, from the point of view of deportation. It occurs to me, however, from the attached clipping that there might be some proceeding against him for fraud in connection with his Black Star Line propaganda.96
In addition to this memo, written years before Garvey’s arrest, there is other evidence to support
the generally held belief that Hoover followed through on his intention to deport Garvey by
pursuing him more assiduously than a neutral investigator would. It also appears that Hoover
93 FBI.gov, History of the FBI: Early Days: 1910-1921, http://www.fbi.gov/libref/historic/history/earlydays.htm (last visited May 20, 2008). 94JOHN SPILLER ET AL., THE UNITED STATES: 1763-2000 at 131 (2005). 95As noted previously, Woodrow Wilson is generally regarded as one of the most racist Presidents of all time. After watching the Klu Klux Klan celebrating movie “Birth of a Nation,” he famously stated, “It is like writing history with lightning, my only regret is that it is all so terribly true.” For more information, see Tim Dirks, The Birth of a Nation (1915) (reviewing Epic Film, THE BIRTH OF A NATION (1915), http://www.filmsite.org/birt.html (last visited May 20, 2008). 96 Memorandum from J. Edgar Hoover to Special Agent Ridgely (Oct. 11, 1919), available at http://www.pbs.org/wgbh/amex/garvey/filmmore/ps_fbi.html.
31
personally disliked Garvey, assiduously trying to find ways to prosecute him under any remotely
related law. One example of this is Hoover’s attempt to prosecute Garvey under the Mann Act.97
Garvey’s marriage to Amy Ashwood failed in April 1920, and shortly thereafter he had retained Amy
Jacques, his future wife, as his private secretary to accompany him on his travels. When Garvey
traveled to Washington with Jacques, Hoover would post an observer outside of Garvey’s hotel to
peek through the window, in an extraordinary effort to catch Garvey engaging in “immoral acts”
that would bring him under the purview of the statute.98
In August 1921, Hoover made another attempt. As Garvey returned to the country after a trip
abroad, he was denied re-entry into United States by the State Department “in view of the activities
of Garvey in political and race agitation . . . ”99 In 1924 Hoover tried once again, charging Garvey
with tax fraud, even though Garvey admitted to having made a mistake in his filing and offered to
properly repay any back taxes.100
Over the next few years, largely under Hoover's direction, Federal Bureau of Investigation (FBI)
officers reported on UNIA activities in a variety of cities and the pursuit of Garvey broadened to
include seven other federal agencies.101 The prosecution of Marcus Garvey was an effective part of
Hoover’s effort to increase the power, flexibility, and scope of his own career, as well as that of his
young agency. Hoover was named deputy head of the Bureau of Investigation in 1921, and after
97 White-Slave Traffic Act, 18 U.S.C.A. § 2421 (1910) et seq. The White-Slave Traffic Act of 1910, also known as the Mann Act, banned the interstate transport of women for “immoral purposes.” Although designed to prohibit so-called “white slavery,” it mostly served to criminalize travel by unmarried couples who were targeted by the law. 98See STEIN, supra note 24, at 190. 99 MARTIN, supra note 39, at 184. 100 5 MARCUS GARVEY, THE MARCUS GARVEY AND UNIVERSAL NEGRO IMPROVEMENT ASSOCIATION PAPERS 286 (Robert Hill ed., University of California Press 1987). 101 See PBS.org, Marcus Garvey: Look for me in the Whirlwind, http://www.pbs.org/wgbh/amex/garvey/filmmore/pt.html (last visited April 18, 2009).
32
Garvey’s arrest and conviction, Hoover was named director of the Bureau of Investigation in 1924.
By that time, the Bureau had approximately 650 employees, including 441 special agents.
Because of several highly publicized convictions of public personalities like Garvey, the Bureau's
power and prestige grew, and it was soon renamed the Federal Bureau of Investigation in 1935.
During this time period, the Bureau “transformed itself, with little congressional interference, from a
relatively insignificant component of the Justice Department into a large, bureaucratized, and semi-
autonomous agency . . . ”102 Today the FBI has over 56 field offices and 400 satellite offices around
the world, and a budget of nearly six billion dollars.103 Hoover himself would serve as director of
the FBI for the rest of his life, a career that spanned 48 years.
3. Crossing the Line: A Letter to the Attorney General
Although Hoover had already begun his pursuit of Garvey, the investigations peaked in intensity
only after the attacks from Garvey’s intellectual competitors reached their highest level of stridency.
In 1922, the “Garvey Must Go!” coalition made a direct appeal for Garvey’s arrest in a letter delivered
to then U.S. Attorney General, Harry Daugherty. Eight members of the “Friends of Negro
Freedom,” including Owen, Pickens, and Bagnall, all signed the letter.104 It urged the Attorney
General to “use his full influence completely to disband and extirpate this vicious movement,” and
implored him to “vigorously and speedily push the government’s case against Marcus Garvey for
102 Theodore Kornweibel, Jr., Introduction to FEDERAL SURVEILLANCE OF AFRO-AMERICANS (1917: THE FIRST WORLD WAR, THE RED SCARE, AND THE GARVEY MOVEMENT, at x (Theodore Kornweibel, Jr. ed., 1986), available at http://www.lexisnexis.com/documents/academic/upa_cis/1359_FedSurzveillAfroAms.pdf. 103 FBI.gov, About Us - Quick Facts, http://www.fbi.gov/quickfacts.htm (last visited May 20, 2008). 104KORNWEIBEL, NO CRYSTAL STAIR, supra note 23, at 141-142.
33
using the mails to defraud.”105 It amounted to a twenty-nine paragraph legal brief requesting that
the federal government prosecute Marcus Garvey.106
Even though Briggs had been attempting to convince the United States Postmaster General to
prosecute Garvey on mail fraud charges since 1921, this letter, signed by eight influential leaders of
the Black community and directed to the Attorney General’s office, had more force.107 The letter
states in the opening, “The signers of this appeal represent no particular political . . . faction. They
have no personal ends or partisan interests to serve.” In reality, the signatures of two high level
NAACP representatives, Bagnall and Pickens, and NAACP Secretary John Nail, James Weldon
Johnson’s father-in-law, “made the petition appear to be an NAACP brief against Garvey.”108 It was
a primary document representing the full maturation of the “Garvey Must Go!” campaign’s attempt to
direct the path of the law by providing the government with a scandalous legal narrative that it could
use to pursue Garvey through the courts.109
Public choice theory illustrates that lobbying groups can affect agency action when the cause
they support poses no threat to the status quo.110 By depicting Garvey as an agitator who supported
radical changes to that status quo, the “Garvey Must Go!” coalition could effectively position itself as
the less threatening sector of African-American leadership. In so doing, it could then frame
opposition to Garvey as a way for the government to ensure maintenance of the status quo.
Guided by this analysis, the relevance of the letter’s opening becomes more clear. It began by
appealing to southern White views of race relations, asserting that Garvey was a “menace” to 105 See also Letter from Harry H. Pace et al., to Harry M. Daugherty, United States Attorney-General, available at http://www.pbs.org/wgbh/amex/garvey/filmmore/ps_go.html (last visited May 20, 2008). 106 The signatories also included members of the Urban League, and other business leaders who had established relationships with The Messenger magazine. Neither DuBois nor Randolph would agree to sign off on the letter. 107 At the time, what would later become the FBI was a subsidiary of the Department of Justice, under the purview of the Attorney General’s office. STEIN, supra note 24, at 190. 108 Id. at 167. 109 See MARTIN, supra note 39, at 325-27 (chronicling various inflammatory aspects of the letter). 110 Fort, supra note 63, at 48.
34
hitherto “harmonious race relationships,” and accusing him of stirring up “hatred of the White
race,” by seeking to “arouse ill feeling between the races.”111 Both the lobbyists and the socialists
had spent years involved in media and legal campaigns trying to end lynching, as well as other
manifestation of racial violence. It seems unlikely that they felt that the current state of race
relations in the 1920s was “harmonious.” However, the above assertion made at the beginning of
the letter appealed to the common view held by segregationists at the time that the status quo was a
state of racial harmony with Jim Crow segregation as the natural order of things. According to this
letter, it was only Garvey’s agitation that was ruining that “harmony.”
The letter then went on to say that, on these grounds, Garvey’s “future meetings should be
carefully watched by officers of the law and infractions promptly and severely punished.” This
phrase conveyed to the Attorney General that the government could feel free to perform intrusive
surveillance of the Garvey movement without any fear that such misconduct might come under fire
from the Black press or from other organs of the Black political leadership of the time. Armed with
this knowledge, Hoover went forward with a massive surveillance program of Garvey, one which
would serve as preparation for the COINTELPRO surveillance of Black activists including Dr.
Martin Luther King and others in the 1960s and 70s.
The letter also objected to Garvey’s movement on the grounds that it consisted of “the most
primitive and ignorant of West Indian and American Negroes,” in the process playing to mainstream
class prejudices and anti-immigrant views.112 Finally, the letter ended by adding, “The government
should note that the Garvey followers are for the most part voteless.”113 With this statement, the
writers insinuate that because many of Garvey’s followers lacked access to the ballot, the authorities
111 Letter from Pace, supra note 105. 112 Id. 113 Id.
35
and elected officials could proceed against him without having to fear any political backlash that
would endanger their political fortunes in the next election.
In the case of the Garvey Must Go! coalition, for them to have initiated such an attack implies that
they held one of two vices—selfishness or lack of humility. Either they were so self-interested that
they were willing to join forces with Jim Crow era government officials in order to eliminate their
main competitor regardless of the effect it would have on the liberation movement; or, they were so
certain that they were right, that they were blinded to the fact that—if indeed Garvey’s philosophy
was the right one and theirs the wrong one—their complicity in his destruction would have dire
long-lasting consequences. As stated above, the alternative they did not indulge was an open,
reasoned debate with Garvey. The valuable tool of deliberative democracy, which allows us to
reason with one another in an effort to find mutually satisfactory means to political ends, was
missing from this political debate. Shunning deliberation here led to dire consequences.
Because of my love and respect for DuBois, Randolph, and Owen, I believe that theirs was an
error of humility and not an exercise in selfishness. In other words, it seems likely that they were so
certain that their positions were correct that they felt justified in using subterfuge to eliminate the
possibility that Garvey’s wrongheaded idea would rule the day. However, the Black community did
have a right to free choice, to freely determine whether they wanted to follow Garvey, or DuBois, or
Randolph. By pursuing Garvey with an eye towards having him jailed or deported, the actions of
the U.S. Government and the “Garvey Must Go!” coalition took away that basic freedom to choose.
That was a profound crime indeed.
STEP 3: BIASING THE LEGAL NARRATIVE
This witch’s brew of political intrigue is what ultimately led Garvey to court with the future of
the Black Star Line and the communal self-help idea for racial liberation hanging in the balance. To
36
add to Garvey’s dismay, he would soon find that the coalition’s influence would extend into the
courtroom itself.
To fully understand how the “Garvey Must Go!” coalition influenced the federal district court, one
should first consider the reasons that the coalition chose to do so. Judicial influence, if it can be
accomplished, is one of the most effective methods of influencing public policy. Although media
and federal agency influence affected public opinion and the government’s investigation,
respectively, only through judicial capture could the campaign have had Garvey jailed, deported, or
both. By extending their campaign to the judiciary, the “Garvey Must Go!” coalition ensured that this
rivalry would put their opponent’s own personal well being and freedom in peril. But why did they
choose the judiciary as the venue where they would attempt to inflict the final blow to Garvey and
his philosophy?
First, they chose the judiciary because it was the most clandestine mode of governmental
interference they could seek. As one scholar noted, “Typical factions have some concern about
their own public image—they may depend on the public as consumers or for contributions. Special
interest appeals to the legislature or agencies may appear to be . . . seeking quasi-corrupt political
favors.”114 In the context of this particular case, it is clear that Garvey’s competitors would have
ruined their own careers if they had openly appealed to Jim Crow government officials in the hopes
of eliminating a fellow Black leader from political competition. However, the lack of transparency
provided by the judicial process ensured that the coalition could cloak their actions and thus
maintain the respect of their constituency.
Second, apparently the coalition knew that, in order to eliminate their competition, they would
have to do more than simply imprison Garvey—they had to destroy his credibility. The United
114 Cross, supra note 58, at 373-74.
37
States government has prosecuted many African-American leaders on criminal charges.115
Generally, the Black community has continued to support its leaders and has been inclined to see
the government indictments as manifestations of racial injustice. If Garvey went to prison for tax
evasion or violation of the Mann Act, it is possible that the community might have rallied around
him even more in response. In contrast, by manufacturing an indictment alleging that Garvey’s
flagship project was actually a money generating fraud preying on poor Blacks, the coalition may
have predicted that they could destroy the credibility of Garvey’s vision in the eyes of his followers,
leaving them no option but to follow their direction instead. Though they had already attacked his
credibility through their publications, they might have believed that the legitimacy of a judicial
opinion would justify their accusations.
For many years, historians have doubted the legality of Garvey’s conviction.116 This next section
examines the merits of those doubts by conducting a legal analysis and investigation of the facts
leading up to and comprising Garvey’s mail fraud trial. Through this study, a picture emerges of
U.S. District Court Judge Julian Mack’s susceptibility to the influence of the “Garvey Must Go!”
coalition. That susceptibility manifested itself in Judge Mack’s failure to properly recuse himself
from the trial, as well as his failure to confront the issue of a prosecution witness’ admission of
perjury and statement that his perjury was suborned by the prosecuting attorney. Combined with a
review of the insufficiency of the evidence underlying Garvey’s conviction, the totality of the
circumstances strongly suggests that Garvey was wrongly convicted of mail fraud.
4. Crossing the Line: The Saga of Judge Julian Mack
115 For example, on February 9, 1951, DuBois himself was indicted as an unregistered foreign agent as a result of his anti-war and African liberation activities. See GERALD HORNE, BLACK AND RED: W.E.B. DUBOIS AND THE AFRO-AMERICAN RESPONSE TO THE COLD WAR, 1944-1963 151 (1986). 116 See CRONON, supra note 3, at 116 (1969); MARTIN, supra note 39.
38
In February 1922, Black Star Line President Marcus Garvey, Vice President Orlando Thompson,
Treasurer George Tobias, and Secretary Elie Garcia were all indicted for mail fraud.117 Immediately
after the indictment, the government seized all the books and records of both the UNIA and the
Black Star Line.118 The prosecutors then mailed questionnaires to all 35,000 Black Star Line
stockholders in the hopes of accumulating evidence.119 This only added to the fanfare of this trial,
which was one of the first modern celebrity trials involving an Black activist.
The trial did not itself begin until over a year later in May 1923, when Judge Julian Mack was
finally obtained to preside over the U.S. District Court case.120 The litigation began in an uproar as
Garvey dismissed his attorneys when they encouraged him to cop a plea.121 Garvey felt the lawyers
were setting him up for a trap.122 It is true that, from the outset of the trial, the courtroom seemed
hostile and scornful of Garvey. It is noted that “[s]everal times Judge Mack jokingly remarked that
he was having to conduct a regular law school for Garvey’s benefit,” as Garvey was representing
himself. 123 Even though there were four defendants, Garvey appeared to be the primary target, as
the prosecutor famously admonished the jury during his closing argument, “Gentlemen, will you let
the Tiger loose?”124
Judge Julian Mack plays a central role in this narrative, because it is his unique personality that
throws the legitimacy of Garvey’s conviction into question. Although a biased ruling from a federal
court is thought to be rare due to the lifetime appointment of federal judges, public choice theory
117 GRANT, supra note 56, at 326. 118 GARVEY, supra note 41, at 145. 119 Id. at 146. 120 The lengthy interval between the indictment and the actual trial indicates that the prosecutor may have had the opportunity to hand pick Judge Mack, waiting for him to become available so to speak. If so, this was an effective tactic. 121 GRANT, supra note 56, at 368. 122 MARTIN, supra note 39, at 191-92. 123 See generally CRONON, supra note 3. 124 GARVEY, supra note 41, at 147.
39
suggests such unfairness is possible because everyone is a rational utility maximizer, including federal
judges.125 Richard Posner, a public choice theorist and federal judge, produced a study that detailed
the “nonpecuniary income” that accounts for a large portion of a federal judge’s compensation.126
This non-pecuniary income comes in the form of leisure time, prestige, the possibility of promotion,
and the opportunity to actualize one’s values or ideology in society.127.
Also of note is the influence of ideology. While Posner asserts that only “a small minority” of
judges “have a visionary or crusading bent,”128 the evidence suggests that Judge Mack was one of
these few. He was known for his enthusiastic dedication to causes. Benjamin Cohen, the well
known jurist, once noted concerning Judge Mack, “He did not merely lend his name to movements,
he was active, a doer . . . [he would help] not half-heartedly, but wholeheartedly.”129 Additionally,
Judge Learned Hand, another renowned judge, was dismayed by the public interest activism of his
colleague Judge Mack. Judge Hand felt that this activism sometimes put Judge Mack’s neutrality in
question.130
Particularly relevant to this case is the fact that Judge Mack ideologically sympathized with the
NAACP, maintained a membership in the organization, and made financial contributions to the
organization.131 Moreover, Judge Mack participated “in meetings that finally led to the formation of
the National Association for the Advancement of Colored People,” and he “presided” at early
meetings “addressed by the militant intellectual W.E.B. DuBois."132 This point is key, because
remember the NAACP was the Garvey’s primary arch-nemesis throughout his career, and many if
125 See Posner, supra note 60, at 4. 126 Id. at 2. 127 Id. at 5. 128 Posner, supra note 60, at 3. 129 HARRY BARNARD, THE FORGING OF AN AMERICAN JEW: THE LIFE AND TIMES OF JUDGE JULIAN W. MACK 307 (New York: Herzl Press 1974). 130 Id. at 143. 131 Id. at 77, 113. 132 Id.
40
not most of the members of the Garvey Must Go! coalition were NAACP officers at the time of the
trial.
Judge Mack’s involvement with the NAACP arose out of his close kinship with their
assimilationist philosophy for racial liberation—the direct antithesis to Garvey’s “race first”
philosophy. Mack’s commitment to complete assimilationism led him to later insist that his own
American Jewish community could achieve racial liberation by itself assimilating completely into
American culture and society.133
The NAACP also may have taken action to capitalize on Judge Mack's susceptibility to capture.
For example, on the day before the trial was set to begin Judge Mack received a mysterious
correspondence from James Weldon Johnson, Secretary of the NAACP, in relation to the Garvey
case.134 Regardless of the contents of that correspondence, the mere existence of such contacts
between the NAACP and Judge Mack speak to the judge’s susceptibility to capture by the Garvey
Must Go! coalition, as, again, many of the coalition’s most prominent members were NAACP
officers at the time.
It appears that Judge Mack’s contacts with the Garvey Must Go! campaign led to at least two
separate acts inside the courtroom that constituted severe violations of Marcus Garvey’s right to a
fair trial, and by themselves could constitute grounds for exonerating Garvey of his conviction.
Those two violations are as follows:
COURTROOM VIOLATION 1: JUDGE MACK WRONGFULLY FAILED TO RECUSE HIMSELF BY COMMITTING A LIE OF
OMISSION
At trial, Garvey presented a petition for Judge Mack to recuse himself from the case. Judge
Mack wrongfully denied the petition. Only three years before this trial, the Supreme Court handed 133 David Levering Lewis, Parallels and Divergences: Assimilationist Strategies of Afro-American and Jewish Elites From 1910 to the Early 1930s, 71 J. AM. HIST. 543, 554 (1984). 1345 MARCUS GARVEY, THE MARCUS GARVEY AND UNIVERSAL NEGRO IMPROVEMENT ASSOCIATION PAPERS, supra note 100, AT 286.
41
down a landmark decision on judicial disqualification, Berger v. United States.135 In Berger, the trial
judge publicly revealed that he had a personal bias against people of German ancestry. The
defendants, who were of German descent, filed an affidavit alleging personal bias and prejudice, and
the judge was indeed found biased. The Court in Berger articulated that in order for judicial bias to
be sufficient for recusal, the bias “must be based upon something other than the rulings in the
case.”136 This “extra-judicial” requirement for recusal thereafter became one of the bedrock notions
of judicial disqualification.137 The Berger Court further enunciated the recusal standard as requiring
the recusal petition to state reasons that are “not frivolous or fanciful, but substantial and
formidable, and they must have had a relation to the attitude” of the judge in question, giving “fair
support to the charge of a bent of mind that may prevent or impede impartiality.”138
Garvey’s motion for recusal was filed on the basis of Judge Mack’s “membership in and
affiliation with the National Association for the Advancement of Colored People.”139 Although the
NAACP was not technically a party to the case, it was one of the leading entities that demanded the
investigation and loudly proclaimed the allegations that spurred the government to file charges.
Additionally, Garvey included in his petition the full letter written to the attorney general advocating
for his indictment in which four of the eight signatories (Harry Pace, John Nail, Robert Bagnall, and
William Pickens) currently held office in the NAACP. Garvey also asserted that Judge Mack
financially contributed to the NAACP and regularly subscribed to The Crisis magazine which, as of
that date, had published five incendiary articles about Garvey’s role in the Black Star Line. Garvey
argued that exposure to such propaganda against him had caused the judge to be “unconsciously
135 See Berger v. United States, 255 U.S. 22 (1921). 136 Id. at 31. 137 Denelle Waynick, Judicial Qualification: The Quest for Impartiality and Integrity, 33 HOW. L.J. 449, 451 (1991). 138 Berger, 255 U.S. 22, at 33-34. 139 GARVEY, supra note 41, at 301-02.
42
swayed to the side of the Government against this petitioner,” prejudicing him in “the very issues of
which will come before your honor in this trial.”140
Because Garvey’s allegations of bias focused on Judge Mack’s membership in and related
activities supporting the NAACP, the allegations were founded on something other than the rulings
in the case, and thus satisfied the Berger extra-judicial requirement. Furthermore, Garvey’s petition
for recusal met the Berger substantiality requirement because of Judge Mack’s heavy involvement in
the NAACP, as he even participated in founding meetings of the organization.
In denying the petition for recusal, Judge Mack admitted that he contributed to the NAACP and
read its magazine, but refused to confirm his membership within the NAACP. He disclosed that he
read the NAACP’s journal, The Crisis magazine, asserting that he had only “perhaps glanced at the
headlines.”141 However, Judge Mack then contended that if newspaper articles can be found to
persuade judges, then a judge, unlike the jury, would never be allowed to read the newspapers.142
Additionally, he argued that his affiliation with the NAACP only showed “extreme friendliness
toward the colored people because of a very strong feeling that colored people need the extreme
friendliness of every fair minded person.”143
Notwithstanding Judge Mack’s verbal assurances, the fact of his active affiliation and support of
the NAACP satisfies the extra-judicial and substantiality requirements of the Berger test for recusal.
Moreover, his lack of candor about his significant involvement in the NAACP’s founding and
growth is highly unethical and would likely be considered to rise to the level of perjury if such an
omission was made in witness testimony. It indeed speaks to the level of corruption prevalent in the
Jim Crow justice system to think that this recusal matter did not even come up for review. It is our
140 Id. at 303. 141 Id. 142 See BARNARD, supra note 129, at 172. 143 Id. at 174.
43
fair expectation that, normally, judges are held to an even higher standard of ethical conduct than
mere witnesses due to their high position in the court. Here the judge was held to a lesser standard.
Once it is found that a judge should have recused himself, but did not do so, what next? As
stated in Berger, “The remedy by appeal is inadequate. It comes after the trial and if prejudice [has]
exist[ed] it has worked its evil and a judgment of it in a reviewing tribunal is precarious. It goes
there fortified by presumptions, and nothing can be more elusive of estimate or decision than a
disposition of a mind in which there is a personal ingredient.”144 In other words, an appellate
decision based on a biased trial at a lower court is necessarily tarnished by that lower court’s
conclusions and assumptions. In such a situation, expungement of the district court decision itself
appears to be the only valid resolution. Such is the situation in this case.
COURTROOM VIOLATION 2: JUDGE MACK ERRED IN NOT ADDRESSING PERJURED TESTIMONY BY A PROSECUTION
WITNESS Judge Mack’s failure to address perjured testimony by Schuyler Cargill, a key prosecution
witness, provides another indication of Judge Mack’s bias in this case. The sole count on which the
government convicted Garvey, the allegation that Garvey caused to be mailed a letter soliciting
Benny Dancy’s purchase of Black Star Line shares when the organization was near insolvency,
depended on Cargill’s testimony.
Under cross-examination, Schuyler Cargill, a 19-year-old office boy, represented himself as the
Black Star Line employee who had mailed the letter to Dancy.145 Cargill was the only witness who
testified that he was an actual participant in the BSL’s sending of false advertisements by U.S. mail.
Often, he contradicted himself during his testimony. Later in his cross-examination, he admitted
that the prosecutor, Maxwell Mattuck, had told him to lie on the stand.146
144 Berger, 255 U.S. 22, at 36. 145 GARVEY, supra note 41, at 358 n. 28. 146 Id., at 172.
44
Specifically, Mattuck instructed Cargill to say that he had worked for the Black Star Line in 1919
and 1920. However, when the cross examination revealed that Cargill did not even know who was
the supervisor of the mailing division during those times, he admitted reluctantly that the prosecutor
had told him to mention those dates.147
At the time of Garvey’s trial, the perjury rule authorized courts to grant a new trial, if one could
prove that a witness willfully and deliberately had testified falsely.148 Because Cargill willfully and
deliberately testified falsely at least as to the years he had worked for the Black Star Line, and
because Judge Mack failed to strike this testimony, or to instruct the jury to disregard it, or grant a
new trial, the district court’s conviction of Garvey’s could have been expunged according to the
perjury rules in effect at the time of Garvey’s trial.
Garvey, as a layman representing himself, likely was not aware of the possibility that the false
testimony could have been so prejudicial that it might have necessitated the need for a new trial or
have resulted in an expungment of his conviction. Also, Judge Mack erred by altogether ignoring
both the perjury and the subornation of perjury that Cargill admitted to on the witness stand. To
correct Judge Mack’s error, a new trial may have been necessary.149
5. Garvey Must Go!: A Moral Crisis?
Although the jury found all of the other defendants not guilty on all counts, it did not “let the
Tiger loose.” It found Garvey guilty on one count of mail fraud. He was given the maximum
147 Id. 148 See Smith v. Mitchell, 221 P. 964, 967 (Cal. Ct. App. 1923); see also Randall v. Packard, 36 N.E. 823, 825 (N.Y. 1894). 149 “New trials have been granted also when . . . the witnesses for the prevailing party are manifestly shewn to have committed perjury.” Although there was no Supreme Court case law or federal statute specifically outlining a rule for a new trial as a remedy for subornation of perjury at the time, it was known that perjury could be a sufficient basis for ordering a new trial, as shown by this argument by Roscoe Pound, one of the preeminent legal scholars of the era. ROSCOE POUND, READINGS ON THE HISTORY AND SYSTEM OF THE COMMON LAW, 326 (1904).
45
penalty under the law, five years imprisonment and a $1,000 fine. In 1925 the U.S. Court of Appeals
for the Second Circuit affirmed the district court judgment.
In this situation, Kant’s “categorical imperative” also provides us a window into the unethical
nature of the Garvey Must Go! campaign’s influence on Judge Julian Mack. It seems highly likely that
Judge Mack’s courtroom management was greatly affected by both his membership in the
NAACP—the organization that hated Garvey most—and his eagerness to eliminate Garvey’s
ideology from competition. If so, not only was the judicial system degraded, but from a broader
perspective, this means that the ultimate triumph of the lobbyists and the civil rights discourse
throughout the twentieth century in the end turned on the Garvey Must Go! coalition’s access to a
prominent judge and its ability to get him to subscribe to their narrative. This is a very disturbing
development for a number of philosophical reasons.
Again, following the reasoning of the categorical imperative, let us consider what would be the
effect if this type of activity became universal. If a liberation movement’s leaders are chosen by
virtue of their access to prominent protectors of the status quo, there is an essential contradiction.
The protectors of the status quo will never grant a great deal of access to those that seriously
threaten their grip on power—it would be against their self interests to do so. So, if this type of
political competition rules the day, only those who have agendas that pose the least threat to the
holders of the status quo will find themselves in leadership positions in marginalized communities.
For subordinated peoples who will not obtain meaningful equality unless the status quo is changed,
this is a completely untenable position. And it is indeed greatly saddening to think that the direction
of the twentieth century liberation movement might have been founded on the basis of such an
unethical power play, as opposed to democratic deliberation.
IV. A COUNTERSTORYTELLING OF THE GARVEY CASE
46
Counterstories . . . can open new windows into reality, showing us that there are possibilities for life other than the ones we live. They enrich imagination and teach that by combining elements from the story and current reality, we may
construct a new world richer than either alone.150
A. Legal Storytelling
Critical Race Theorists have often utilized narratives in their scholarship, and have generally
stood at the forefront of the movement to develop narrative as a legitimate methodological tool for
legal scholars.151 A number of solid reasons support their use of this tool. Richard Delgado argues
that the use of narratives by outgroups is transformative, in part because it invades the
consciousness of the dominant majority and attacks their complacency.152 As long as policy-making
power is in the hands of the majority, this is an important way to change circumstances.
This case should provoke a re-examination of the view that the dominant social justice narrative
of the twentieth century—the civil rights based, domestic focused, integrationist, federal lobbying
based theoretical framework of racial justice organizing—came to dominance because of its merit
alone. We should then ask whether we need to find a different framework for the twenty-first
century—one that we can measure against others, and choose based on its merits alone.
Delgado argues that narratives can serve as a means of “psychic self-preservation” for
outgroups.153 Marginalized groups, like the millions of adherents to Garveyism around the world,
often internalize their very marginalization and blame themselves for their failings. Storytelling
“provides a cure by helping us to understand that our failings are not always our fault; that they
often result from historic and present-day oppression.”154 In this case, a re-telling of the Garvey
narrative may provide a salve for the psychic wounds of those who believe that true liberation
150 Delgado, supra note 2, at 2415. 151 See Darren L. Hutchinson, Critical Race Histories: In and Out, 53 AM. U. L. REV. 1187, 1207 (2004). 152 Delgado, supra note 2, at 2415. 153 Id. at 2436. 154 Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space, 1 ASIAN L.J. 1, 31 n.137 (1994).
47
comes not from lobbyist political goals or a commitment to the civil rights discourse, but instead
from creating a more communal sense of self and fighting against global poverty among third world
peoples.
This analysis also builds upon the technique employed by Mari Matsuda in her groundbreaking
work on racist speech, in which she effectively utilized storytelling alongside proposals for legal
alternatives to the presently inadequate laws against racist hate speech.155 Like Professor Matsuda, I
recognize that the presence or absence of a legal response to an injustice is in reality a larger
statement about “the relative value of different human lives,” about who is or is not “a valued
member of our polity.”156 Accordingly, the exoneration of Marcus Garvey would be a good first
step towards recognizing that people of African descent have lives that are valued by American
society, regardless of their particular strand of political belief.
A Counter Narrative of the Black Star Line: Mail Fraud
In February 1922, Garvey and the three other Black Star Line officers faced two indictments
that together contained 13 counts. The government eventually won a conviction against only
Garvey, based on only one of the 13 counts against him. This count alleged that Garvey committed
mail fraud by causing a letter to be mailed to Benny Dancy on December 20, 1920—a letter which
encouraged Dancy to buy stock in the Black Star Line, even though the Black Star Line at the time
had no ships, was near ruin, and would never obtain any more ships or return to solvency. The mail
fraud statute required: (1) the existence of a scheme to defraud, and (2) the use of the U.S. mail to
effectuate or attempt to effectuate the scheme.157 On appeal, Garvey’s lawyers would argue that the
155 Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim’s Story, 87 MICH. L. REV. 2320 (1989). 156 Id. at 2322. 157 See United States v. Young, 232 U.S. 155, 161 (1914) (“There is a distinction between the [old and the new provisions], and the elements of an offense under [the 1909 amendment] are (a) a scheme devised or intended to be devised to defraud, or for obtaining money or property by means of false pretenses, and, (b) for the purpose of executing such scheme or attempting to do so, the placing of any letter in any post office of the United States to be sent or delivered by the Post office Establishment.”).
48
trial court had not established the second element, the use of the mails to effectuate the scheme.
However, choosing to make this argument was a grave mistake. In fact the government did present
sufficient evidence for the second element, but in this case, it did not present adequate evidence to
satisfy the first element – the existence of a scheme to defraud.
Although Garvey’s case largely turned on the question of this first element, whether his activity
qualified as a scheme of fraud, it is difficult to identify a precise statutory definition for fraud here
because of the exceptionally wide net cast by the ambiguous terms of Section 215 of the Mail Fraud
Act and its language prohibiting a “scheme or artifice to defraud.”158 Before Garvey’s trial, the
Durland case provided the authoritative definition of “a scheme to defraud.”159 At that time, Durland
was “by far the most important of the decisions” in mail fraud jurisprudence.160
In Durland, the Court established that a scheme to defraud requires intent to defraud, which in
turn requires knowledge of the fraud. In two clear statements, Durland set forth the intent
requirement. It declared that “the significant fact is the intent and purpose.”161 The Court also
stated: “If the testimony had shown that . . . the defendant, as its President, had entered in good
faith upon that business . . . no conviction could be sustained, no matter how visionary might seem
the scheme.”162
LEGAL POINT 1: THE BLACK STAR LINE WAS NOT A SCHEME TO DEFRAUD BECAUSE GARVEY HAD NO INTENT TO
DEFRAUD
In Garvey's case, the Durland analysis of whether the first element of the claim (the existence of
a scheme to defraud) was satisfied turned on whether the Black Star Line enterprise was created with
the intent to defraud, or whether the Black Star Line advertisements were mailed with an the intent
158 Mail Fraud Act, ch. 321, 35 Stat. 35. 1130 (1909) (codified as amended at 18 U.S.C.A. § 215). 159 Durland v. United States, 161 U.S. 306, 315 (1896). 160 Donald Morano, The Mail Fraud Statute: A Procrustean Bed, 14 J. MARSHALL L. REV. 45, 46 n.2 (1980-1981). 161 Durland, 161 U.S. at 314. 162 Id.
49
to cheat the stockholders. Certainly, the BSL officers engaged in unprofessional business practices
that called the officer’s judgment into question. For example, Black Star Line accountants lost one
of the accounting ledgers; UNIA newspaper or restaurant business funds were sometimes used to
pay back debts for the fledging Black Star Line;163 and the Black Star Line purchased ships without
expert consultation or sufficient inspection, which led to huge losses.164 However, regardless of the
impropriety of these acts, none of them could be understood to fulfill the legal definition of fraud
pursuant to this statute.165 Instead, the poor business practices were merely mistakes from which
none of the defendants benefited.
The larger question is, what motive did Garvey have to create a scheme to defraud? After
confiscating the Black Star Line accounting records, the government found that Garvey took no
money for his own personal use, and personal enrichment was not even alleged in the indictment.166
If Garvey did not gain financially from the sale of the stock, what motive did he have to commit
fraud? Although personal enrichment was not an element of the mail fraud statute, it is unlikely that
the drafters contemplated that a fraud scheme in which someone would run an expensive, time
consuming operation, such as a shipping company, for no personal benefit would fall under the
statute's purview.
Indeed, Garvey had many financial incentives for making the Black Star Line a success. He was
supposed to receive a salary of $10,000 a year from Black Star Line, which never materialized once it
went into financial decline. The Black Star Line’s Board of Directors determined whether Garvey
would receive the salary.167 This decision, in turn, depended on the financial strength of Black Star
163 GRANT, supra note 56, at 168. 164 11 THE MARCUS GARVEY AND UNIVERSAL NEGRO IMPROVEMENT ASSOCIATION PAPERS 49 (Robert Hill ed. 1989). 165 WOLTERS, supra note 17, at 165; see also E. FRANKLIN FRAIZER, The Garvey Movement, Opportunity 4, November 1926, at 346, reprinted in 2 THE MAKING OF BLACK AMERICA 204 (August Meier & Elliott Rudwick eds., 1969). 166 See generally Salary Accounts of Marcus Garvey, in 5 THE MARCUS GARVEY AND UNIVERSAL NEGRO IMPROVEMENT ASSOCIATION PAPERS, supra note 100, at 371. 167 Statement by Elie Garcia (Jan. 13, 1922), in 4 THE MARCUS GARVEY AND UNIVERSAL NEGRO IMPROVEMENT ASSOCIATION PAPERS 393 (Robert Hill, ed., 1985).
50
Line at the time.168 In addition, Garvey owned 200 shares of stock, which he purchased with his
personal money—so when the Black Star Line went under, Garvey faced great financial loss.169
The premise of Garvey’s conviction was that he intended to run the Black Star Line in a way
that would cause it to never gain in value, yet in spite of this sell stock at an inflated price. However,
because Garvey had so much of his personal financial fate invested in the project, by purposefully
ruining the Black Star Line, Garvey would have lost thousands of dollars and gained nothing.
Without any financial incentive, prosecutors would have the court believe that Garvey built this
entire organization as one big practical joke, or out of mean spiritedness alone.
Garvey's reputation as a Black leader turned on the success or failure of the Black Star Line.
This leadership position was his chosen vocation. After a lifetime of working to reach the level of
prominence he had attained, for Garvey to purposefully seek the failure of the Black Star Line
would, in effect, be to pursue his own demise. After his release from prison, Garvey spent the rest
of his life fighting for Black people’s rights until his death. It is unreasonable to assume that Garvey
would have attempted to sabotage his career and waste the money of the African American masses,
with no personal financial benefit to himself, when his commitment to racial leadership never waned
even after his conviction and deportation. The most reasonable conclusion is that Garvey did not
run the Black Star Line with fraudulent intent or aforethought.
LEGAL POINT 2: GARVEY COULD NOT HAVE KNOWN THAT HIS LETTER WAS MISLEADING BECAUSE THE BLACK STAR
LINE’S FAILURE RESULTED FROM CIRCUMSTANCES HE COULD NOT HAVE BEEN AWARE OF
One would assume that to intend to devise a scheme to defraud, the defendant must know that
fraud is happening. This is the case whether or not the defendant actually controls the alleged
fraudulent act. Indeed, in the seminal case, Durland, the indictment at issue turned on such a
question of knowledge. The question before the Court was whether the defendant was “trying to
168 Id. 169 Id. at 403.
51
entrap the unwary, and to secure money from them on the faith of a scheme glittering and attractive
in form, yet unreal and deceptive in fact, and known to him to be such.170 However, there is no
evidence that Garvey knew that the Black Star Line advertisement would mislead people, or that the
statements would turn out to be untrue. When Garvey made statements regarding his confidence in
future success, he had little control over the vagaries of the market that would ensure the venture’s
economic failures. And when Garvey made statements as to the progress of the organization while
he was abroad, he had no way of knowing that his aides had utterly failed to fulfill their duties back
at home.
B. Retelling the Story
1. The Market Downturn
During World War I (1914-1918), rates for ocean transportation rose as high as 1,250 percent,
and shipping companies made huge profits.171 One shipping executive testified in front of the
Senate that ‘anybody experienced or inexperienced in the shipping trade could make money.’172 It
was not unreasonable for Garvey to believe that Blacks could make these profits as well as anyone
else. Thus, the creation of a Black steamship company did not, in and of itself, constitute an
unrealistic entrepreneurial vision, and certainly not a fraudulent act.
However, by the time Garvey began the Black Star Line in May 1919, he could not have known
that it was possibly the worst time in history to enter that industry. It appeared to be the perfect
time to get into that business; when the war ended the military powers had surplus ships that they
were trying to cheaply unload on the public. In a little over a year from its inception, the Black Star
Line had acquired two ships and was up and running.
170 Durland, 161 U.S. at 312. 171 See STEIN, supra note 24, at 70. 172 Id. at 70-71.
52
Unfortunately, in 1922, The U.S. Shipping Board would announce a loss of $51 billion, followed
by a loss of $44 billion in 1923.173 In fact, President Warren Harding introduced the Ship Subsidy
Bill in February 1922, proposing that Congress subsidize the U.S. Shipping Board to reduce
government operating costs.174 Opening a shipping company during this time might have been the
equivalent to opening a mortgage company on the cusp of the U.S. housing crisis—although it may
have seemed like a great idea only three years ago, by the time Garvey filed all his papers and opened
for business, the industry had collapsed, and he never even had a sporting chance.
Many other shipping lines also failed during these years, including the Polish Navigation
Steamship Company.175 Many of these still ran advertisements until the end. Yet, none of these
other lines were sued for fraud based on their overconfident advertisements, primarily because the
market fluctuations that determined their fate were not foreseeable.176 Only the Black Star Line
leader, Garvey, was indicted for continuing to engage in advertising during the market downturn.
This is the equivalent of a U.S. mortgage company continuing to run commercials during the
housing crisis—although the commercials may be overly optimistic or unwise, such dogged
optimism does constitute a crime punishable by five years of imprisonment.
2. Predators From All Sides
In addition to succumbing to market fluctuations, the Black Star Line also fell victim to
predators who sought to take advantage of Garvey and his officer’s lack of experience in the
shipping industry. For example, within three months of incorporating the Black Star Line, Garvey
173 Speech by Marcus Garvey (Apr.13, 1923), in 5 THE MARCUS GARVEY AND UNIVERSAL NEGRO IMPROVEMENT ASSOCIATION PAPERS, supra note 100, at 292 n.1. 174 Henry Lincoln Johnson, Report of Closing Address to the Jury (June 14, 1923) in 5 THE MARCUS GARVEY AND UNIVERSAL NEGRO IMPROVEMENT ASSOCIATION PAPERS, supra note 100, at 323, 329 n.10. 175 Letter from E.B. Knox to Sen. Charles Deneen (Mar. 28, 1927), http://www.marcusgarvey.com/wmview.php?ArtID=328. 176 STEIN, supra note 24, at 186.
53
had amassed enough money to buy the company’s first ship, the Yarmouth.177 The Black Star Line
paid $165,000 for this ship on September 17, 1919, through a deal arranged by Joshua Cockburn,
one of the few Black men qualified to be a ship captain at the time. Garvey did know that Cockburn
received a kickback of “about $1,600” for making this deal from the seller of the ship himself; nor
did Garvey know that he had paid $165,000 for a ship which one of the other officers judged not to
be worth “a penny more than $25,000.”178 The Yarmouth proved a disaster. After the Yarmouth
suffered constant malfunctions that called for expensive repairs, a U.S. Marshall sold it in November
1921 for $1,625.179 Yet Cockburn was not the only officer who cheated Black Star Line. Elie
Garcia, the Black Star Line secretary, was also convicted of larceny for stealing from UNIA.180 The
economic failure of the Black Star Line was in large part due to these treasonous acts by its officers,
which Garvey also could not have foreseen.
The unfortunate fate of the Phyllis Wheatley ship is another example of the unforeseeable
misfortune that ultimately sunk the Black Star Line. The Black Star Line had been working on a deal
for a new ship for some time when, at the annual Black Star Line convention in January 1921,
Orlando Thompson, the company vice president, announced the near completion of negotiations to
purchase the S.S. Tennyson.181 This was a British vessel that Garvey planned to rename in honor of
the African American poet Phyllis Wheatley and use to make a transatlantic run to Africa. Based on
Thompson’s assurances that the ship was fit to make such a trip, in early February 1921, Garvey left
for the Caribbean and Central America to help obtain the money for this ship purchase by selling
177 MARTIN, supra note 39, at 153. 178 Cockburn admitted this during cross-examination. See 5 THE MARCUS GARVEY AND UNIVERSAL NEGRO IMPROVEMENT ASSOCIATION PAPERS, supra note 100, at 329 n.5; MARTIN, supra note 39, at 153. 179 Brief for the United States, Garvey v. United States, 4 F.2d 974 (2d Cir. 1925) (No. 66), in 6 THE MARCUS GARVEY AND UNIVERSAL NEGRO IMPROVEMENT ASSOCIATION PAPERS, supra note 51, at 49, 54. 180 Eli[e] Garcia, Auditor-General U.N.I.A., Convicted for Larceny of Funds of the Organization, NEGRO WORLD, Mar. 24, 1923, reprinted in 5 THE MARCUS GARVEY AND UNIVERSAL NEGRO IMPROVEMENT ASSOCIATION PAPERS, supra note 100, at 283. 181 CRONON, supra note 3, at 94.
54
Black Star Line stock.182 Garvey entered, as an exhibit at trial, a letter that he received in June 1921
while he was abroad (which Orlando Thompson admitted to writing) that informed Garvey that the
Phyllis Wheatley had already been purchased.183 Unfortunately, Thompson had lied to Garvey. He
failed to disclose that negotiations had actually broken down that March. At that time, Thompson
hired Anthony Silverston, a White operator of “a questionable one-man ship exchange” to complete
the purchase on Black Star Line’s behalf, thereby avoiding the racial prejudice that Thompson
believed was hampering the deal.184 Thompson gave Silverston more than $20,000 in Black Star
Line deposit money, but Silverston only deposited $12,500 with the shipping board, absconding with
the rest.185 Once these facts came to light, a warrant was issued for Thompson’s arrest. Yet
Thompson never faced full prosecution.186
Meanwhile, the state department denied Garvey re-entry into the U.S. “in view of the activities
of Garvey in political and race agitation.”187 He was not able to re-enter the country until August,
and upon his arrival Garvey immediately revoked Silverston’s power of attorney with the Black Star
Line. However, by that time the majority of the damage had been done. Garvey was ultimately
convicted of mail fraud for sending an advertisement to Benny Dancy in December 1920 allegedly
inviting him to buy stock in the Black Star Line and urging him to ride back to Africa on the Phyllis
Wheatley, a ship that the advertisement held would be soon purchased. The prosecution argued
that, because the Black Star Line letter to Dancy contained an exhortation to buy more stock in light
of the Black Star Line’s success and the future existence of the Phyllis Wheatley, the letter was
182 Id. (explaining that “Thompson . . . reported that the corporation would soon complete a purchase agreement for the S.S. Tennyson, a British vessel reportedly large enough for the transatlantic run to Africa . . .”). 183 Speech by Marcus Garvey (June 17, 1923), reprinted in 5 THE MARCUS GARVEY AND UNIVERSAL NEGRO IMPROVEMENT ASSOCIATION PAPERS, supra note 100, at 359. 184 CRONON, supra note 3, at 95. 185 Id. at 96; MARTIN, supra note 39, at 161. 186 MARTIN, supra note 39, at 161. 187 Id. at 184.
55
fraudulent because the Black Star Line would never again set sail, or even own another ship.188 In
addition, the government declared:
What could be more fraudulent than this advertisement which appeared in Garvey’s paper, the “Negro World” on March 26th 1921? "BLACK STAR LINE. Passengers and freight for Monrovia, Africa. By S/S PHYLLIS WHEATLEY. Sailing on or about April 25th. Book your baggage now."189
As indicated above, if Garvey did personally approve of these advertisements, he did so from
overseas, and he did so because he reasonably believed that Black Star Line had already purchased
the ship. He held these beliefs based on what his officers told him and based on the fact that Black
Star Line had already paid the full deposit sum to the buying agent. If not for the government’s
harassment and Thompson’s deception, Garvey would have been able to return to the U.S. and stop
the misleading advertisements from being issued.
In the end, most of the money was returned to those who bought passages or stock in the
Phyllis Wheatley. Those who did not receive refunds did not ask for them because they wanted the
money to support Black Star Line in the event that the venture would materialize sometime in the
future.190 However, none of Garvey’s supporters could undo the damage that had already been
done by the Black Star Line officers.
Unfortunately, this counter-narrative was never told effectively in the courtroom, so the
declining market, the thievery from within the organization, and the general honesty shown by
Garvey in spite of these conditions were non-factors in the trial.
188 Brief for the United States, Garvey v. United States, 4 F.2d 974 (2d Cir. 1925) (No. 66), in 6 THE MARCUS GARVEY AND UNIVERSAL NEGRO IMPROVEMENT ASSOCIATION PAPERS, supra note 51, at 49, 55-57, 60-62. 189 Report by Special Agent Mortimer J. Davis (Jan. 14, 1922), in 4 THE MARCUS GARVEY AND UNIVERSAL NEGRO ASSOCIATION PAPERS, supra note 167, at 355, 359. 190 Id. at 350.
56
V. “READING BACK, READING BLACK” AND THE APPELLATE OPINION
In the aftermath of Garvey’s conviction, allegations of injustice were rife throughout the
country.191 The public, members of legal academia, and even some of Garvey’s own political
opponents of the time confessed they did not think he should have been convicted and given the
maximum sentence.192 Many felt that the decision would be overturned through the appellate
process.
Nonetheless, the Garvey Must Go! coalition achieved its goal in the U.S. Court of Appeals for the
Second Circuit, as the appellate judges (Henry Rogers, Charles Hough and Learned Hand) affirmed
Garvey's conviction. The court reached its decision a mere two weeks after the appellate arguments
were heard, even though the trial lasted over five weeks and the lower court record to be reviewed
consisted of a voluminous 4,000 pages.193
A close look at the content of the opinion demonstrates that the narrative constructed by the
Second Circuit was tinged with bias. While no evidence exists to prove that the coalition ever
directly influenced the appellate judges, Garvey still faced a tainted appellate review because the
appellate ruling was based on the lower court's biased trial. Even more, this appellate decision
served to silence and subordinate both Garvey and the larger Black community.
An important aspect of legal storytelling involves analyzing the narrative constructed by the
court in its attempt to assign an ultimate and authoritative meaning to the facts of the case.194 In his
article, Reading Back, Reading Black, Law Professor Bennett Capers outlines a framework for rereading
judicial opinions that illuminates the way that racial hierarchy is upheld through the use of rhetoric
191 See STEIN, supra note 24, at 205. 192 See id. at 205-06; see also Bernard Ryan, Jr., Marcus Mosiah Garvey Trial: 1923—A Loss in Money but a Gain in Soul!, http://law.jrank.org/pages/2844/Marcus-Mosiah-Garvey-Trial-1923--Loss-in-Money-but-Gain-in-Soul.html (last accessed Aug. 8, 2008). 193 BARNARD, supra note 129, at 148, 178. 194 See Stanford Levinston, The Rhetoric of the Judicial Opinion, in LAW’S STORIES 189 (1996).
57
and legal storytelling from the bench.195 According to Capers, “reading black” involves “rereading
that reads not only contextually, but also critically, sensitive to the stated and the unstated, the
revealed and the concealed, and the meaning to be gleaned from both . . . particularly attuned to the
frequencies and registers of race.”196
In the Garvey case, a contextual reading reveals that the opinion serves at least three purposes:
to delegitimize Garvey’s philosophies, to persuade the audience that his ideas were unrealistic and
impossible so no one will bother to try them again, and to reinforce stereotypes and societal racial
hierarchies.
Before the opinion even begins, the headnotes initialize the process of delegitimizing the idea of
the Black Star Line and Garvey both, asserting that
[W]hile there center around Garvey other associations or corporations having for their object the uplift and advancement of the negro race, the entire scheme of uplift was used to persuade negroes . . . to buy shares of stock in the Black Star Line at $5 per share, when the defendants well knew . . . that said shares were not and in all human probability never could be worth $5 each or any other sum of money.197
Not only does the note presumptuously assume that the Black Star Line could never be worth any
sum of money “in all human probability,” but it goes on to condemn every project Garvey had ever
done in his career as some type of pretext designed only to help his sale of Black Star Line stock at
$5 per share.
The actual opinion then begins by mocking Garvey and making light of his lifetime of activism,
asserting, “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 he needed ships for the deliverance of his
195 See, e.g., Devon W. Carbado, (E)racing the Fourth Amendment, 100 MICH. L. REV. 946, 1007 (2002); see also Paul Butler, The Case of the Speluncean Explorers: Revisited, 112 HARV. L. REV. 1917 (1999). See generally I. Bennett Capers, Reading Back, Reading Black, 35 HOFSTRA L. REV. 9 (2006) (demonstrating that scholars have engaged in forms of rereading of judicial opinions). 196 Capers, supra note 195, at 12. 197 Garvey v. United States, 4 F.2d 974, 975 (2d Cir. 1925).
58
people.”198 The court takes Garvey’s program of liberation and redefines it as nothing but the
unrealistic daydream of a fool.
In addition to presenting Garvey as a scam artist at worst and a delusional buffoon at best, and
presenting the Black Star Line as a worthless scheme, the opinion manages to denigrate Garvey’s
followers as well—those who the court is purportedly attempting to protect from victimization.199
It does so by explicitly reinforcing the basest stereotypes of Blacks as overly emotional and ignorant.
Benny Dancy, one of Garvey’s supporters who apparently purchased 53 shares of stock, is the
putative victim of the crime. The entire case depended on his testimony. However, he is described
in the opinion as “a man evidently both emotional and ignorant,” and a misunderstanding between
Dancy and Garvey during cross-examination is quoted word for word in another attempt at
mockingly judging his “caliber.”200
Dancy is presented as a synecdoche of all of Garvey’s followers, who in general are characterized
as children who are too ignorant and emotional to be trusted. This narrative supports the story
crafted by the Garvey Must Go! campaign at its basest, when it asserted that Garvey’s following
consisted of only the most ignorant, backwards Blacks of foreign ancestry. However, in the case of
Dancy, it is illogical for the court to make this argument—if Dancy can’t be trusted to know
whether or not the envelope sent to him was empty, how can he be trusted to know whether or not
he had received the envelope from Garvey at all? Remember, Dancy was the purported victim of
the crime, and also the only witness who actually saw the supposedly fraudulent advertisement, and
so the whole case turned on the testimony of this “emotional and ignorant” witness.
After disposing of Dancy in a conclusory fashion, the court declares:
198 Id. at 975. 199 This stance, in and of itself, was looked upon with great skepticism by African Americans, as the same court which refused to prosecution lynching cases such around the nation were suddenly in a rush to protect African Americans from Garvey’s “scheme to defraud.” 200 Id. at 976.
59
[E]xhibited by practically uncontradicted evidence . . . stripped of its appeal to the ambitions, emotions, or race consciousness of men of color, [the scheme] 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.201
As a first step towards revoking the edict of silence placed upon Garvey, here is a good place to
lift up his voice: in The Philosophies and Opinions of Marcus Garvey, Garvey himself made two
arguments in rebuttal to this holding. First, Garvey reminds readers the Black Star Line never put its
stock up for public offering. Instead, the Black Star Line offered its stock only to its constituency
and members of its organization, and refused to increase profit by offering stock to the broader
general public.202 Secondly, the court failed to explain why it decided to “strip” the project of its
motivating appeal to the emotions and race consciousness of people of color. As Garvey argued,
“let us strip the Christian religion of its moral, ethical appeals and emotions and we have robbery,
pocket-picketing and virtual hold-ups in the name of Christ every Sunday by way of appeals for
financial support.”203
What impact can a circuit court opinion and a Westlaw head note have on the legacy of one of
the most prodigious activists for racial justice in the history of our nation? We must remember that
public opinion, if repeated often enough, becomes historical narrative. And many supposedly
“objective” scholars, and even many pro-Garvey scholars, have been guilty of unquestioningly
internalizing the perspective of the court and accepting the veracity of the narrative above. Many
are quick to point to Garvey’s “incompetence” at business matters as an explanation of what went
wrong with the Black Star Line. In reality, both the counter-narrative of the history of the Black
Star Line and a “reading Black” of the appellate opinion should help bring the light the true nature
of the coordinated effort to manipulate and sully the story of Garvey and the Black Star Line.
201 Id. at 975. 202 GARVEY, supra note 41, at 178. 203 Id. at 179.
60
VI. REFLECTIONS “On December 3, 1927, Marcus Garvey, snappily dressed in a light brown checkered suit and carrying his trademark silver-headed Malacca cane, stepped out of a police car and into the rain. Nearly a thousand supporters had come out in the New Orleans drizzle to pay their last respects to their leader before his forced departure into exile. As he made his way up the gangway to the SS Saramacca, his supporters cried and waved from under their black umbrellas and long coats. After his stirring farewell speech, Garvey waved a handkerchief as the Saramacca started to steam down the Mississippi. One attendant remembers “they was just waving, waving, waving, and crying and waving . . . it was just like you was losing your own, or losing yourself . . . what was uppermost in people’s thoughts was, ‘What are we
gonna do now?’”204
Thus ended Marcus Garvey’s sojourn on American shores. The closure of this chapter also
brings us to a dramatic turning point in the narrative of race relations in post World War I America.
The sections above demonstrate that it did not have to be this way: the investigation, prosecution,
and conviction of Marcus Garvey was politically motivated, influenced by the skillful use of
narrative, and in the end, unjust.
The Garvey Must Go! campaign holds a great amount of responsibility for this; it most notably
influenced the case by appealing to Attorney General Mitchell Palmer’s anti-radical sentiment.
However, when Attorney General John Sargent was appointed in 1925, he made it known that he
did not approve of Hoover’s overzealous investigative tactics, and he gave less credence to the
opinions of the Garvey Must Go! coalition members.205
Consequently, when letters of protest from angry Garvey supporters flooded the attorney
general’s office after Garvey’s conviction, Sargent reconsidered the case based on the facts.206
Sargent soon thereafter informed President Calvin Coolidge that “an enormous petition” signed by
“over seventy thousand Negroes” was presented to the Department of Justice on Garvey’s behalf.207
204GRANT, supra note 56, at 412. 205 See law.jrank.org, John Garibaldi Sargent, http://law.jrank.org/pages/10006/Sargent-John-Garibaldi.html (last visited on May 9, 2007). 206 4 THE MARCUS GARVEY AND UNIVERSAL NEGRO IMPROVEMENT ASSOCIATION PAPERS, supra note 167 at 390. 207 Letter from John Sargent, U.S. Att’y Gen., to Calvin Coolidge, President of the United States (Jan. 27, 1926), printed in 6 THE MARCUS GARVEY AND UNIVERSAL NEGRO IMPROVEMENT ASSOCIATION PAPERS, supra note 51, at 313-14.
61
Garvey’s purported victims argued that Garvey had not defrauded them, and that his conviction was
a miscarriage of justice.208 Eventually Sargent recommended the commutation of Marcus Garvey’s
prison term.
When echoing that recommendation as to the commutation of Garvey’s sentence, the United
States pardon attorney, James Finch, stated that, “It is believed that the further incarceration of this
man will serve no good purpose, but to the contrary as having a bad effect upon Garvey’s followers
who comprise a large portion of the colored population of this country, they regarding it as an act of
suppression of the laudable and proper ambitions of the race and as a discrimination against Garvey
because he is a Negro . . . it is suggested that the sentence be commuted to expire at once.”209 In
response, President Coolidge commuted Garvey’s sentence in 1927, and he was immediately
deported as an undesirable alien under the applicable law of the time.210
A. The Political and Economic Impact of Garvey’s Deportation
Perhaps the most pernicious aspect of the Garvey conviction and deportation was the resulting
effect it had on the marketplace of ideas. When Garvey entered prison, the communal self-help
camp had garnered worldwide support. UNIA reported a membership of over six million, including
“814 ‘domestic’ branches, 215 ‘foreign’ branches, and 91 ‘new’ ones . . . for a grand total of
1,120.”211 However, once Garvey was imprisoned and deported, division arose among the
leadership as various members jockeyed for power. In 1929, the organization split in two, and this
schism would ultimately precipitate its demise.212
208 MARTIN, supra note 39, at 200. 209 James Finch, Recommendation (Nov. 12, 1927), available at http://www.marcusgarvey.com/wmview.php?ArtID=234&term=recommendation%20by%20james%20finch. 210 MARTIN, supra note 39, at 200. 211 Id. at 14-15. 212 CRONON, supra note 3, at 154.
62
By jailing Garvey and essentially destroying this movement, the Garvey Must Go! coalition, Judge
Julian Mack, and the U.S. government that he represented, for all practical purposes denied people
of African descent the opportunity to democratically decide whether or not they favored Garvey’s
economic communal self-help philosophy over the other available philosophies in the marketplace
of ideas. Once Garvey was deported, his movement—and by extension his philosophy of racial
justice—took a blow from which it has not fully recovered unto this day.
One could argue that, even without the government’s conviction of Garvey, the increasingly
separatist rhetoric and continual business failures of the Black Star Line would have eventually
undermined it. However, such a view fails to consider that if Garvey's conviction had not ended the
Black Star Line, the enterprise may have continued to create spin offs or stimulated other
economically successful independent Black enterprises.213 Also, remember that Garvey’s strategies
had gained wide currency at the time of the Black Star Line’s demise. If membership or financial
contributions to a movement can be used as a determination of political support in the absence of a
balloting process, then the six million members of UNIA and the accumulation of millions of dollars
in Black Star Line stock sales (in today’s money) provide ample evidence of Garvey’s ascendancy in
the marketplace of ideas.214 His conviction and eventual deportation essentially brought all of this
accumulated effort to no effect.
In the marketplace of ideas at the time of Garvey’s demise, all that remained were the Marxists
and the lobbyist reformers. Competition between the two remained tight for a short time as African
American interest in labor rights expanded during the Great Depression. However, eventually the
213 Even with its economic failure in tow, the BSL spawned the short lived “Black Cross Navigation and Trading Company.” For more information on this endeavor, see 5 THE MARCUS GARVEY AND UNIVERSAL NEGRO IMPROVEMENT ASSOCIATION PAPERS, supra note 100, at 575. 214 See MARTIN, supra note 39. In addition, even after Garvey’s Trial Court Conviction, he created another steamship line, The Black Cross Navigation and Trading Company, which also raised hundreds of thousands of dollars in stock. For more information on this successor steamship line, see generally 5 THE MARCUS GARVEY AND UNIVERSAL NEGRO IMPROVEMENT ASSOCIATION PAPERS 575, supra note 100.
63
enduring anti-communist sentiment of the era doomed the Marxist camp. By the 1950s, integration
had become the dominant goal of the Black activist community.
As the African American struggle for freedom gained momentum after the Brown v. Board of
Education decision in 1954, the lobbyist reform model had already become firmly entrenched.
Consequently, the attainment of political and civil rights quickly became the central goal of the
liberation movement. For example, by 1946 the NAACP had grown from a 100,000 member
organization with 355 chapters into a broadly based organization with 450,000 members and 1,073
branches.215 One of the NAACP’s central organizers, Ella Baker, went on to play an instrumental
role in the formation of other significant civil rights groups between the late 1940s and early 1960s.
These organizations included the Southern Christian Leadership Conference (SCLC),216 founded in
1957, and the Student Non-violent Coordinating Committee (SNCC), founded in 1960.217 Together
with the Congress of Racial Equality (CORE),218 these three groups joined with the NAACP to lead
and organize the famous “Civil Rights Movement” of the 1950s and 1960s.
Other groups that emphasized accumulating land or economic power in the communal self-help
tradition, such as the Nation of Islam (NOI) and the Black Panther Party, were quickly marginalized
and labeled as radical by the mainstream. Indeed, the inheritance of Garvey’s separatist rhetoric, as
well as his communal self-help orientation, put these groups at a decided disadvantage. As a result,
215 Simon Topping, Supporting our Friends and Defeating Our Enemies: Militancy and Nonpartisanship in the NAACP, 1936–1948, 89 J. AFR.-AM. HIST. 17 (2004). 216 The SCLC was not an individual membership organization. It would coalition with other groups to organize specific activities. See Aldon Morris, The Black Church in the Civil Rights Movement: The SCLC as the Decentralized, Radical Arm of the Black Church, in DISRUPTIVE RELIGION: THE FORCE OF FAITH IN SOCIAL MOVEMENT 29, 38-39 (Christian Smith ed., 1996) (explaining that the SCLC, consisted of 36 executive leadership staff, had 32 of those positions filled by Black Preachers, and was closely related to the NAACP); see ALDON D. MORRIS, THE ORIGINS OF THE CIVIL RIGHTS MOVEMENT: BLACK COMMUNITIES ORGANIZING FOR CHANGE 87 (1984). 217 See FRANCESCA POLLETTA, FREEDOM IS AN ENDLESS MEETING: DEMOCRACY IN AMERICAN SOCIAL MOVEMENTS 246 n.14 (2002) (“SNCC was not a membership organization. It had a small staff and a number of people who volunteered with it. . .”). 218 Founded in 1942, CORE was also an organization with very little African American presence in its leadership during it’s early years. At its height in 1964, CORE had an estimated 3,000 to 5,000 members, with a mailing list of up to 70,000 “associate members.” See AUGUST MEIER & ELLIOT RUDWICK, CORE: A STUDY IN THE CIVIL RIGHTS MOVEMENT 1942-1968 224-25 (1973).
64
these groups had a much smaller membership base than the lobbyist organizations did throughout
the last half of the twentieth century. For example, the NOI, at its height in 1965, claimed a
membership of around 40,000.219 And at its peak in 1969, before government repression began to
decimate the organization, the Black Panther Party had an estimated membership of 5,000.220 In
contrast, by the 1970s the NAACP’s membership had swelled to 580,000 members, with over 1,600
branches.221
This theoretical monopoly of the civil rights discourse had far reaching consequences. The
struggle for social and political rights overshadowed the struggle for economic rights during the
most intense years of agitation. The energy put into social and political rights paid dividends with
the passage of the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the enforcement of
various state and local laws against hate crimes.
However, economic inequality still frames the life experience of many Blacks in the lower
socioeconomic class. In 2005, African Americans earned a median income of $30,858; whereas
White Americans earned a median income of $48,554.222 The situation has degenerated today with
the specter of the current financial crisis. Twenty-five percent of African Americans receive their
income from the receipt of food stamps, while merely 6.6 percent of White America's income comes
from this welfare program.223 Even more, it appears that the economic disparities are widening
every year. In the year 2000, 19.3 percent of Blacks and 7.1 percent of Whites fell below the poverty
219 See WINSTON A. GRADY-WILLIS, CHALLENGING U.S. APARTHEID: ATLANTA AND BLACK STRUGGLES FOR HUMAN RIGHTS, 1969-1977 67 (2006). 220 ROBERT JUSTIN GOLDSTEIN, POLITICAL REPRESSION IN MODERN AMERICA: 1870-1976 524 (2001), quoted in WARD CHURCHILL & JIM VANDER WALL, THE COINTELPRO PAPERS: DOCUMENTS FROM THE FBI’S SECRET WARS AGAINST DISSENT IN THE UNITED STATES 357 n.66 (2002). However, the Black Panther’s weekly newspaper claimed a readership of over one hundred thousand. Id. 221 See E.J. KAHN, JR., FAR-FLUNG AND FOOTLOOSE: PIECES FROM THE NEW YORKER, 1937-1978 98 (1979). 222 INFORMATION PUBLICATIONS, BLACK AMERICANS: A STATISTICAL SOURCEBOOK 263 (2007). 223 Id. at 270.
65
line. Yet by 2005, 22.1 percent of African Americans fell below the poverty line compared to 8
percent of Whites. 224
As the movement for racial justice spread throughout the African Diaspora during the 1950s
and 1960s, Blacks in the Caribbean and on the African continent joined African Americans in calling
first and foremost for political and social freedom. Most African countries gained their political
independence between 1956 and 1968, a time period which corresponds with the African American
movement for political inclusion and civil rights.225 However, very few of those independence
movements included a plan for economic independence. Today, most Black people around the
world have the right to vote, as well as other civil rights, but many still lack access to basic human
necessities such as clean water and decent housing. As recently as 2004, with the exception of East
Timor and Afghanistan, the world’s 20 poorest countries were located in Africa.226
B. The Movement for Garvey’s Exoneration
There is another important postscript to this story. In recent years, many have called on the U.S.
government to exonerate Marcus Garvey from his conviction if it was indeed unjust. In addition to
the President’s commutation of Garvey’s sentence, members of the legislative branch have also
clamored for a posthumous pardon of the charges against him. For many years, Harlem
Congressman Charles Rangle has led the congressional call for Garvey’s pardon. In 1987, he held a
House Judiciary Committee hearing that concluded that Garvey’s conviction was “unjust and
unwarranted,” a conclusion supported by all of the historians who have studied Garvey and the
circumstances surrounding the mail fraud trial.227 Since that hearing, Rangle has consistently
224 Id. at 294. 2251956: Sudan, Morocco, Tunisia; 1957: Ghana; 1958: Guinea; 1960: Cameroon, Togo, Mali, Senegal, Madagascar, Congo, Somalia, Benin, Niger, Burkina Faso, Cote d’ Ivoire, Chad, Central African Republic, Congo Brazzaville, Gabon, Nigeria, Mauritania. See generally, ARTHUR LEWIN, AFRICA IS NOT A COUNTRY, IT’S A CONTINENT (1991). 226 See CENTRAL INTELLIGENCE AGENCY, THE WORLD FACTBOOK (2004), available at https://www.cia.gov/library/publications/the-world-factbook/rankorder/2004rank.html). 227 Mail Fraud Charges Against Marcus Garvey: Hearing before the Subcomm. on Criminal Justice, 100th Cong. (1987).
66
introduced legislation that would ask the President to grant Garvey a posthumous pardon.228 Such
legislation is before Congress even today, with multiple co-sponsors.229
Local governments have made similar calls for posthumous justice for Garvey. The city councils
of Los Angeles, California, Hartford, Connecticut, and Fort Lauderhill, Florida, to name a few, have
passed resolutions agreeing with Congressman Rangle’s assertion that Garvey was wrongly
convicted, and that he should receive a posthumous pardon.230 If local governments, the federal
legislature, and the executive branch all unanimously take issue with the decision handed down in
the Garvey case, it is an indication that a posthumous pardon, expungement, or at least a judicial
review of Garvey’s conviction would not be unwarranted.
Such an act would not be without precedent. The first posthumous pardon in the United States
was granted in 1999 by President Bill Clinton when he posthumously pardoned Henry O. Flipper.
Flipper was born into slavery and became the first Black American cadet to graduate from West
Point. Flipper was charged with embezzling Army funds, although he steadfastly maintained that he
had been framed. Although he was acquitted of those charges, he was still court-martialed and
dishonorably discharged in 1881 for “conduct unbecoming an officer.”231 Clinton’s posthumous
pardon restored Flipper’s good name and dignity, two possessions that remain invaluable to a
person even after death. Similarly, by exonerating Garvey, the U.S. government can take an
important step towards healing the wound of indignity that has been inflicted on Garvey’s family,
and indeed on the Black community as a whole.
228 See Charles Rangel, Marcus Garvey: A Star on the Rise, http://www.house.gov/apps/list/hearing/ny15_rangel/opedgarvey.html (last visited May 20, 2008). 229 Id.; see also H.R. Con. Res. 24, 110th Cong. (2007), available at http://www.opencongress.org/bill/111-hc44/text. 230 See generally Press Release, UNIA-ACL.org, Los Angeles City Council Votes Unanimously to Exonerate Marcus Mosiah Garvey (May 8, 2006), http://www.unia-acl.org/div451/images/UNIA_Press_Release_LA_Res.pdf (announcing the Los Angeles City Council resolution for the exoneration of Marcus Garvey). 231 See generally Rowan Scarborough, First Black West Point Graduate To Get Pardon-118 Years Later, WASH. TIMES, Feb. 19, 1999, at A8; Clinton pardons 1st Black West Point Graduate Henry O. Flipper 117 Yrs. After Wrongful Discharge, JET, Mar. 8, 1999, at 4.
67
CONCLUSION After his deportation in 1927, Garvey would never again set foot on American soil. He returned
to Jamaica and attempted to keep his fledgling organization afloat while at the same time becoming
engaged in Jamaican politics. He formed Jamaica’s first political party, the People’s Political Party,
ran for local office, and won a position as a local councilor in Kingston in 1928.232 However,
Garvey ran on a populist platform, focusing on issues such as worker’s rights and aid to the poor.
This greatly disturbed the moneyed classes of Jamaica, who wielded much political power during
that period. Consequently, Garvey was opposed by the local media organs and soundly defeated in
his bid to obtain higher office in 1930.233
In his absence, the UNIA, formerly an organization of millions, had soon lost its driving force.
After several failed attempts to reignite the movement from Jamaica, Garvey went to England in
1935 in an effort to reclaim his lost magic.234 Garvey remained productive during this period,
publishing Black Man magazine for almost five years and, in 1938, founding a short lived institution
called “The School of African Philosophy” in the hopes of teaching his organizing strategies to
future racial justice advocates. However, in London, Garvey’s work suffered from his distance from
the center of the action in Harlem, and he often faced severe bouts of pneumonia and bronchitis
due to the damp chill of the icy London winters. In January 1940 Garvey suffered a stroke that left
him paralyzed down the right side of his body and impaired his ability to write or give public
speeches.235
By May of that year, Garvey had been moving steadily along the road to recovery. However, on
May 18th, incorrect reports of Garvey’s death had spread throughout the media. The condolences
rolled in, but even more poignantly, hundreds of mainstream papers had printed obituaries of
232 GRANT, supra note 56, at 428. 233 Id. at 431. 234 Id. at 434. 235 Id. at 449.
68
69
Garvey, many quite unflattering. Garvey became engrossed in the reading of his own narrative as
retold by friend and foe alike. Pictures of himself with deep black borders, cursory summations of
his life’s work and results, all of this fed stories that greatly disturbed Garvey—he knew the
narratives being created of him were sometimes quite wrong and unfair, but the reality must have
struck him that, ultimately, he had little power over the way his story would be told.
It is widely held that later that month Garvey read an obituary of himself in the Chicago
Defender, a Black-owned newspaper, reporting that he had died “broke, alone, and unpopular.” It
was while reading this obituary that Garvey let out a loud moan and suffered another stroke, this
one being fatal.236
Garvey’s story is a testament to the power of narrative to imprison and kill people, and even to
warp their legacies. As lawyers, judges, scholars, and activists, we all must take seriously our charge
to handle with care the narratives we help to construct everyday.
236 See MARCUS GARVEY: LOOK FOR ME IN THE WHIRLWIND (PBS 1999), transcript available at http://www.pbs.org/wgbh/amex/garvey/filmmore/pt.html.