by Mary L. Dudziak. Oxford and New York: Oxford University Press, 2008. 272pp. Hardcover. $24.95/£13.99. ISBN: 9780195329018.
Reviewed by Julie Novkov, University at Albany, SUNY. E-mail: jnovkov [at] albany.edu.
Mary Dudziak’s EXPORTING AMERICAN DREAMS: THURGOOD MARSHALL’S AFRICAN JOURNEY connects two stories – the American path from civil rights reform to the national institutional and cultural rejection of racial transformation and the Kenyan path from the boundless possibility and hope of independence to the rise to power of the repressive regime of Daniel arap Moi. The stories parallel each other loosely through their tragic arcs, particularly in the assassinations of movement visionaries Martin Luther King, Jr. on the balcony of a Memphis hotel in 1968 and Tom Mboya on the streets of Nairobi in 1969. But Dudziak puts the stories into dialogue with each other through the person of Thurgood Marshall, who bridged historic events in both nations through his own struggles to facilitate the triumph of the rule of law and the ideal of democratic governance with guarantees for full participation and protection of minority rights.
Marshall was already a prominent international figure when he made his first visit to colonial Kenya in 1960. He was sponsored by the American Committee on Africa as an American constitutional expert and potential advisor to Kenyan nationalists preparing to negotiate independence (p.33). Drawing implicitly on her earlier fine work, Dudziak carefully situates Marshall in his complicated role as a simultaneous Western expert, internationally known heroic rights advocate, and symbol of the transformation of American democracy. As an advisor, Marshall quickly surveyed the situation and identified the core constitutional dilemma as fundamentally different than that of the United States: the Kenyan black majority had to create a constitutional system that would fairly allocate rights and protections for their racial minorities, but the most problematic racial minority was the post-colonial white population, who maintained control over the best land and controlled an overwhelming share of Kenya’s financial and material resources. When a London conference was organized in 1960 to develop a constitution for Kenya and plan for the transfer of power to Africans, Marshall was the only participant who was neither Kenyan nor British (p.46). He worked with the Kenyan delegation and experienced the emerging Cold War tensions between nationalist leaders that began to structure Kenyan national politics before a nation existed. Drawing from the Universal Declaration of Human Rights, the Malayan Independence Constitution, the Nigerian Independence Constitution, and his broad knowledge of American law, Marshall developed a Bill of Rights that he proposed for consideration at the conference. (Dudziak includes this [*864] fascinating document, published for the first time in its entirety, as the book’s appendix.)
Dudziak’s narrative proceeds by deftly interweaving the historical events of the 1960s in the United States and Kenya, with Marshall as the focal point and link. In the early 1960s, the sit-in movement began to gain adherents; Dudziak describes Marshall’s ambivalence toward those who engaged in intentional lawbreaking and sought to avoid legal consequences as well as his discomfort with the role of teenagers and children in the protests (pp.82-89). As Marshall made the transition from civil rights lawyer to state actor, Kenya moved toward independence. Marshall, now a federal judge, traveled internationally to send a message of the United States’ commitment to civil rights reform despite the shocking and widely publicized violence in Birmingham. In his African travels, Marshall went to Kenya in part to reflect the United States’ commitment to a democratic and independent state, but also to check on the precarious status of his bill of rights, which was not effectively protecting the rights and security of the Indian minority. While he personally berated Kenya’s leaders for not respecting property rights (appalling his more staid white companion from the US Civil Rights Commission), he nonetheless returned to Kenya with his wife Cissy to celebrate independence in December of 1963 (pp.123-124, 128).
Dudziak chronicles Marshall’s complex response to the increasing turmoil of the late 1960s, noting that Marshall’s rejection of Black Power was not based in a simple conflation of the movement with violence. Rather, she argues, Marshall maintained faith in law’s ability to operate as a reformist and potentially transformative force, although unlike many liberal reformers, Marshall did not believe that legal progress and reform were inevitable or that American ideals of equality and liberty were destined to advance (pp.140-141). As the situation in the United States deteriorated, the Johnson administration continued to support the Kenyan regime despite growing evidence of discrimination against Asians and President Jomo Kenyatta’s tightening of political restrictions on his opponents. By the end of the decade, Marshall had ascended to the US Supreme Court, but movement leaders Martin Luther King, Jr. and Tom Mboya had been assassinated and the dream of nonviolent reform that hewed fundamentally to the rule of law seemed to have shattered.
Dudziak’s epilogue poignantly describes Marshall’s later years, as he watched his colleagues dismantle the hopeful vision of equality he had convinced the Court to adopt in BROWN and resisted acknowledging the swift slide of the Kenyan state toward authoritarianism. In 1987, the seventy-nine year old Justice and lifelong servant of the Constitution demanded that the nation acknowledge the Constitution’s original sins of accepting slavery and excluding women from civic membership. He argued that fidelity to the Constitution should be based in the contingent and always contested but fleetingly attainable moments of transformation locked within the document understood as a living connection to ideals. In the end, Dudziak explains, “Marshall held on firmly to a memory of a time when he had helped frame a constitution that [*865] made a colony a nation” (p.172), fulfilling his own highest aspirational conceptions of how the power of law could be used but refusing to accept the subsequent failure of those aspirations. Perhaps the failure he had struggled so hard to prevent in his own nation prevented him from confronting it elsewhere.
Dudziak’s book avoids telling the story as simple or one-sided. Marshall is heroic in his steadfast championing of law as the source for rights and change, but his intelligence and courage do not enable him to keep abreast of the rapid cultural changes in the United States in the late 1960s or the political and structural changes in Kenya during the same years. Nonetheless, Dudziak does not present him as a figure whom history had passed; rather she shows how his encounter with the phenomenon of Black Power can be seen as genuine engagement and disagreement rather than a rejection based in incomprehension. Her sensitive portrayal of Marshall’s struggles on the Court juxtaposed against his maintenance of an ideal vision of Kenya gives a sense of Marshall’s own complex negotiation of the relationship between the different historical legacies of racial domination and political and constitutional authority.
The book does not seek to arbitrate the contentious debate over Marshall’s relationship to the civil rights protest movements of the early and late 1960s. Nor does it draw independent conclusions about the tactical and principled choices of US civil rights leaders or the leaders of the Kenyan independence movement, relying rather on the largely separate bodies of historical work concerning each movement. The true genius, rather, is in using Marshall as both a concrete and conceptual link between the two movements. Focusing on Marshall enables Dudziak to make two sterling contributions. First, Dudziak thoughtfully addresses Marshall’s position as a symbol not only of black civil rights advancement but also as the embodiment of the American civic commitment to democracy. This analysis links American racial politics with American foreign policy at the core and opens a swath of subsidiary questions for research about how American racial policies shaped, responded to, and ultimately became integrated with American Cold War politics internally and internationally. Second, the selection of Marshall as the central figure raises painful but necessary questions about the rule of law and its capacity to foster and protect justice. Marshall confronted Black Power’s challenge to the state and its theorists’ identification of rule of law as a mere mask for racialized and politicized power relations. Yet he simultaneously closed his eyes to the Kenyan state’s conscious choice to embrace power at the expense of the rule of law and went so far as to praise Kenyatta’s continued fidelity to rights in the face of concrete repression. Does critical race theory’s analysis of law as a tool for reconfiguring power relations coupled with its pessimism about the possibilities for ever achieving racial justice provide a better framework? Or is it necessary, as Mari Matsuda once wrote (1992), to hold the view that the law is the fundamental source of both the most deeply rooted and ineradicable unjust hierarchies of power and our only realistic hope for transformation? [*866]
EXPORTING AMERICAN DREAMS is a thought provoking and painstakingly researched journey through a crucial transformational moment in two nations’ histories. In reflecting closely on Thurgood Marshall’s triumphs and failures in both nations and with both movements, we are invited to reflect on the potentials and core limits on liberalism, democracy, and law as paths to transformation and justice. The invitation seems particularly apt in an era when the United States is once again confronting its own legacy of racial subordination and grappling with questions around nation building and external threat. It is hard at the end of the book not to be frustrated on Marshall’s behalf as well as with Marshall himself. But it is much harder to know who among the contemporary American political and judicial elite might play a role similar to Marshall’s in struggling fiercely to integrate a commitment to the rule of law, to American ideals of liberty and equality, and to the dream of dismantling unjust hierarchies here and abroad.
Matsuda, Mari. 1992. “When the First Quail Calls: Multiple Consciousness as Jurisprudential Method.” 14 WOMEN’S RIGHTS LAW REPORTER 297-306.
BROWN v. BOARD OF EDUCATION, 347 US 483 (1954).
© Copyright 2008 by the author, Julie Novkov.