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"Jailing a Rainbow: The Marcus Garvey Case" by Justin Hansford

"Jailing a Rainbow: The Marcus Garvey Case" by Justin Hansford

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Abstract: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1321527
The relevance of narrative in the law continues to reemerge in legal scholarship. This article uses concepts from both Critical Race Theory and Law and Economics to reassess the conviction of Marcus Garvey, the Harlem Renaissance era civil rights activist. In this case, newly discovered evidence suggests that the manipulation of Garvey's legal narrative by his opponents played a larger role in his conviction than first thought; a role decisive enough to raise concerns of unethical judicial bias and warrant possible exoneration hearings.

This paper argues that not only was Garvey unjustly convicted of mail fraud in 1923, but this injustice was also the culmination of an unholy alliance between Garvey's political rivals and Jim Crow era government officials. Together, the legal narrative they crafted contributed to Garvey's untimely death, tainted his legacy for decades, and helped to misshape the future of the 20th century struggle for racial justice.

Many scholars have noted that legal narratives often subordinate the voices of people of color. However, this study goes further, exploring how unjust legal narratives have served to warp our collective cultural and historical narrative. This larger result has had a powerful impact on the course of political events in our country. In this case, Garvey's conviction and deportation facilitated the marginalization and silencing of his philosophy of racial justice, a strategy that focused primarily on economic empowerment for people of African descent throughout the world. As a result of the silencing of this voice, nearly a century later Blacks have obtained the political and social rights favored by Garvey's rivals, but as a whole still suffer from grave economic disparities worldwide.

The federal judiciary has a storied legacy, being peopled by men and women who have defended and fought for our highest values as a nation. This case appears to be one of the sad exceptions to that rule. But most of all, it should serve as a cautionary tale to practitioners who must learn how to identify and fight the destructive use of legal narrative in contemporary contexts.

Abstract: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1321527
The relevance of narrative in the law continues to reemerge in legal scholarship. This article uses concepts from both Critical Race Theory and Law and Economics to reassess the conviction of Marcus Garvey, the Harlem Renaissance era civil rights activist. In this case, newly discovered evidence suggests that the manipulation of Garvey's legal narrative by his opponents played a larger role in his conviction than first thought; a role decisive enough to raise concerns of unethical judicial bias and warrant possible exoneration hearings.

This paper argues that not only was Garvey unjustly convicted of mail fraud in 1923, but this injustice was also the culmination of an unholy alliance between Garvey's political rivals and Jim Crow era government officials. Together, the legal narrative they crafted contributed to Garvey's untimely death, tainted his legacy for decades, and helped to misshape the future of the 20th century struggle for racial justice.

Many scholars have noted that legal narratives often subordinate the voices of people of color. However, this study goes further, exploring how unjust legal narratives have served to warp our collective cultural and historical narrative. This larger result has had a powerful impact on the course of political events in our country. In this case, Garvey's conviction and deportation facilitated the marginalization and silencing of his philosophy of racial justice, a strategy that focused primarily on economic empowerment for people of African descent throughout the world. As a result of the silencing of this voice, nearly a century later Blacks have obtained the political and social rights favored by Garvey's rivals, but as a whole still suffer from grave economic disparities worldwide.

The federal judiciary has a storied legacy, being peopled by men and women who have defended and fought for our highest values as a nation. This case appears to be one of the sad exceptions to that rule. But most of all, it should serve as a cautionary tale to practitioners who must learn how to identify and fight the destructive use of legal narrative in contemporary contexts.

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Published by: Kwame Zulu Shabazz ☥☥☥ on Aug 13, 2011
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02/29/2012

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Electronic copy available at: http://ssrn.com/abstract=1321527
 
NOTES
 Jailing a Rainbow: the Marcus Garvey Case
 J
USTIN
H
 ANSFORD
*
 I
NTRODUCTION
 
“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 tothe 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 toascertain how ‘it could best unload upon the public its capital stock at the largest possible price. At this bar there is no attempt to justify the selling scheme practiced and proven; it was wholly without morality or legality.” -- United States v. Garvey 
1
 
 The legal opinion above illustrates how a court opinion can construct a narrative that silencesmembers 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 GeorgetownUniversity Law Center, and a 2003 graduate of Howard University. He is currently a law clerk forthe Honorable Damon J. Keith, Circuit Court Judge on the United States Court of Appeals for theSixth Circuit. The author would like to thank the exceptional members of the Georgetown Journalof 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 TemiBennett, 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 researchproject and later blossomed into its current form, and also Barbara Monroe, CollectionDevelopment 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 M
ICH
.
 
L.
 
EV 
. 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 againthe 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 toretell 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 froma first-person point of view; they suspend disbelief for a short period of time in order to achievecertain 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 sensethat it is meant to be juxtaposed with the more oppressive narrative constructed by Garvey’sopponents. 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 whorecognize 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 themto Africa to create some empire in the jungle or something? Well, that’s pretty crazy! That’s why itnever 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 toomuch reflection. In this case I think it is harmful to engage in such a reflexive dismissal of MarcusGarvey. There are many lessons to learn from his eventful life. Both he and his vision wereintentionally and unjustly tarnished, degraded, and banished from the American narrative almost acentury 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 thename 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 beenmurdered 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 librariansdirected me to
Black Moses 
by David E. Cronon
3
. It was seen as a “balanced” treatment of theGarvey 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 generalpropensity for buffoonery.Is this an accurate telling of his story? If not, then why is Marcus Garvey’s life and careerframed in this negative light—either effectively dismissed as misguided and unrealistic, or mockedand reviled? The silence surrounding Garvey’s life does not come from irrelevance. During law school, I hadthe 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, hefound that Black people were “kicked about” in all the communities where he found them aroundthe world, always situated at the bottom of the social hierarchy.
4
Here in the first decade of thetwenty-first century, I found through my own travels that from the favelas of Sao Paulo and Rio de
3
 
See generally 
D
 AVID
E.
 
C
RONON
,
 
B
LACK 
M
OSES
(1960).
 
4
 
Id 
. at 16 (quoting Marcus Garvey,
The Negroes Greatest Enemy 
, C
URRENT
H
IST
., Sept. 1923,
available at 
  www.pbs.org/wgbh/amex/garvey/filmmore/ps_enemy.html.).
3

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