Our nation is learning how to think about racism in terms of schools, sports teams, hospitals and the like. How not to attack this or that person as “racist” or “not antiracist enough.” Hence institutional racism. For once, we are asking the fundamental social question: Cui bono? (Who benefits?) As we follow the money, our inquiry concerning racism leads us to today’s ruling class that trace their roots to the English gentry who founded the Virginia Company (1607) and the Massachusetts Bay Company (1629) etc. Caste and class define our zero-sum society. Occupy Wall Street made clear that the 1 percent are its masters.
This essay discusses our courts of law as epitomes of institutional racism. John Adams defined the rule of law: “ours is a government of laws and not of men.” But ours, really, is a government of laws as construed by wealthy white men. Former Chief Justice John Marshall, owner of 200 slaves, is a big reason why.
My previous essay for the American Constitution Society on Marshall explains how he violated the rule of law—no one should judge their own cause. His slaveholding conflict of interest corrupted his jurisprudence. This sequel discusses another rule of law—that law shall not arbitrarily take the property of A and give it to B. Unjust enrichment is the legal term. According to Black’s Law Dictionary: “‘Unjust enrichment’ of a person occurs when he has and retains money or benefits which in justice and equity belong to another.” Marshall systematically violated unjust enrichment with regard to Black labor and slaveholders.
We must remember that slavery at the turn of the nineteenth century brimmed with ambiguity. Every person was lawfully understood to have property in their own labor. Neither the common law, or judge-made law, nor the Constitution ever accepted slavery. The notion that a person could own another person as property was always unconstitutional. Slavery was tolerated, of course, but only within the narrow context of local positive law. Slave statutes were unlawful even though they were tolerated.
Moreover, in the first few decades of the republic, many Black people did have the right to due process. Freedom suits abounded. But Marshall lawlessly ignored their common law right to the presumption of freedom. He violated the rule of law by arbitrarily taking the property (labor) of the Negro and giving it to the slaveholder. Meanwhile, concerning white men, Marshall equated property rights with natural rights.
His double standard thus set the paradigm of institutional racism in our courts that persists to this day. His jurisprudence conduced to the unjust enrichment of slave lords at the expense of Black people. Ralph Waldo Emerson is on point: “Every great institution is the lengthened shadow of a single man. His character determines the character of the organization.”
The U.S. legal system is the lengthened shadow of the fourth chief justice of the Supreme Court, John Marshall (1801 – ’35). The Virginian slave lord based his judicial decisions on a double standard—privilege for wealthy white men like him; no rights to speak of for anybody else. He construed natural rights, or the “unalienable Rights” spelled out in The Declaration of Independence, as if they were the class privileges of the 56 men who signed the document, 41 of whom were fellow slave lords.
He equated natural rights with property rights. He thus disenfranchised what we now call “the 99 percent.” This included the majority of white men and women who were mostly without landed property, enslaved Negroes whom he framed as chattels or real estate, and American Indians displaced from their lands.
The American Revolution was a counter-revolution in that Ben Franklin & co. largely reacted against two existential threats to the slave societies of the South. First, the Somerset case of 1772, in which Lord Mansfield held that slavery was unjust. More specifically, he held that common law prohibits slavery and slavery is so “odious” that only local positive law can support it. Second, Lord Dunmore’s Proclamation of 1775, whereby the governor of Virginia declared that every Negro would be free who joined the British Army in their fight against American rebellion.
Somerset was part of the common law from the day it was decided on June 22, 1772. It defined the law of the land regarding slavery. Somerset therefore set the standard against which to measure the lawlessness of Marshall’s proslavery jurisprudence. Moreover, Marshall defied the Ninth Amendment rule of construction that mandates that judges not “deny or disparage” the rights “retained by the people.”
The rest of this essay will explore three of Marshall’s judicial decisions. These, taken together, show how he arbitrarily took from the Negro and gave to the slaveholder. He thus systematically deranged the rule of law in terms of unjust enrichment. Meanwhile, he protected wealthy white men by way of natural law. No doubt the Dred Scott majority decision best expresses the racist underpinning of American law: “the negro has no rights which white men are bound to respect.” But by the 1850s the South had framed slavery as a positive good. Whereas, at the turn of the nineteenth century, even Southern slave lords understood it to be a necessary evil. Alas, Marshall laid the groundwork for which Dred Scott was a culmination.
Three cases highlight how he did it. In 1805 he established a rule of constitutional construction known as the Fisher rule. Five years later, he applied the rule’s natural-rights content to propertied white-male litigants. That same year, he refused to apply the rule to a Black man who petitioned for freedom. This judicial trilogy showcases the double standard that is the essence of institutional racism.
The Fisher rule
In favorem libertatis (in favor of liberty) denotes a presumption of the common law—people are free unless they are proven otherwise. It’s similar to the accused person’s presumption of innocence, which imposes the burden of persuasion on the prosecutor. The prosecutor must prove, beyond a reasonable doubt, that the defendant is guilty of crime. Likewise, in favorem libertatis imposed the burden of persuasion on the supposed slaveholder. They had to prove that the Negro in question was a slave, much like medieval feudal lords were burdened with proving that a person was a villein or serf. According to the common law, all persons are presumed free. The slave is a creature of statute. As we’ll see, Marshall lawlessly presumed that Negroes were slaves.
One of the Constitution’s moral objectives echoes this legal maxim: “to secure the Blessings of Liberty to ourselves and our Posterity.” The Preamble thus states our libertarian values. It provides a moral framework for the Constitution. It establishes We the People as constitutional protagonists. But it is not binding law. For that we must turn to the Ninth Amendment and to the judge-made Fisher rule.
The Ninth Amendment is a rule of constitutional construction. It states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Among the rights retained by the people are—“Life, Liberty, and the Pursuit of Happiness.” The Declaration of Independence also based government legitimacy on the informed consent of the people. The Declaration thus speaks the language of natural law, or the set of moral principles that grounds the rights of the people and authorizes government.
Glittering generalities aside, the United States tolerated slavery then and it tolerates segregation now. The common law prohibited slavery. Natural law abhorred it. Before the Thirteenth Amendment, the Constitution spoke of “Service or Labour,” but not slavery. Nevertheless, slavery persisted until 1865, and beyond. Despite the Fisher rule.
United States v Fisher, 6 U.S. 358 (1805) was a bankruptcy case by which John Marshall established a rule of construction that defaults to natural rights. He insisted that judges defer to legislators. But when the legislature enacts a statute that defies natural law, or subverts the common law, they must do so clearly and plainly. The Court held: “Where fundamental principles are overthrown, when the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects.”
The Ninth Amendment provides the reference for the Fisher rule. Lysander Spooner, abolitionist lawyer and author of The Unconstitutionality of Slavery (1845), drew out the Fisher rule’s natural-law implications. Spooner first of all insisted that we infer “legislative intention” from the legal meanings of the words of the statute. Statutory construction is more about semantic inquiry than subjective intent.
Nor does Spooner limit the Fisher rule to statutes. It applies to the Constitution. And since the Constitution is “the supreme Law of the Land,” the Fisher rule applies to it and to all laws pursuant to it. (U.S. Const. art. VI) Spooner elaborates:
First, that no intention in violation of natural justice and natural right (like that to sanction slavery), can be ascribed to the constitution, unless that intention be expressed in terms that are legally competent to express such an intention; and, second, that no terms, except those that are plenary, express, explicit, distinct, unequivocal, and to which no other meaning can be given, are legally competent to authorise or sanction anything contrary to natural right.
Spooner thus explained what Marshall meant by irresistible clearness. In short, the Fisher rule mandates that, when in doubt as to statutory meaning, judge or jury must default to liberty and equity. But Marshall willingly used the Fisher rule only for wealthy white men. He decided Fisher only four years into his 34-year tenure on the Court and thus early set the Court’s pattern, of invoking natural rights for propertied white people. But not for the Negro, nor for anyone else.
Fletcher v Peck
Fletcher v Peck, 10 U.S. 87 (1810) involved a land-grant scandal. Corrupt Georgian legislators had enacted the Yazoo Land Act in 1795. Even though state legislators had been bribed, good-faith purchasers bought lands in what later became Mississippi and Alabama. A subsequent state legislature passed a statute to rescind the grant and to nullify the land contracts pursuant to it. The Supreme Court ruled that the statutory repeal was unconstitutional, therefore the land contracts were valid. Marshall reasoned that the legislature had passed an “ex post facto Law” and had impaired “the Obligation of Contracts.” (U.S. Const. art. I, § 10, cl. 1)
Marshall didn’t stop there. He concluded by way of natural rights: “When, then, a law is in its nature a contract, when absolute rights have vested under that contract, a repeal of the law cannot divest those rights; and the act of annulling them, if legitimate, is rendered so by a power applicable to the case of every individual in the community.” [my italics]
The plaintiff, Robert Fletcher, had purchased 15,000 acres from the defendant, John Peck, in 1803 for $3,000 (about $60,000 today). The litigants were wealthy white men, from the South no less. Little surprise that Marshall invoked natural rights. Natural law has a prominent place in courts where the litigants are of the 1 percent class and their disputes turn on contract law or property law. The Court reserves “absolute rights” for the likes of Fletcher and Peck. And it redefined the law of the land in terms of slave lords’ unjust enrichment at the expense of Negroes like Ben.
Scott v Negro Ben
Recall that Somerset became part of the common law on June 22, 1772. Lord Mansfield had held that: “Slavery is so odious that nothing can be suffered to support it but positive law.”
The common law provided the norms against which the Constitution and statutes pursuant to it were tested. In fact, the Seventh Amendment incorporates the common law explicitly. From July 4, 1776 until today, American law has more or less been a continuation of the common law that was established as early as the Magna Carta in 1215. The common law never countenanced slavery. The Constitution’s framers studiously avoided any mention of slavery, at least until 1865. And yet slavery was permitted in the colonies that just four years after Somerset became the United States of America.
Slave laws did overrule the common law. But only within local context. Even so, the common-law default was Black freedom. In favorem libertatis. By the time Marshall heard Scott v Negro Ben, 10 U.S. 3 (1810), Somerset was still the law of the land. Fisher too. Therefore, Marshall should have applied the Fisher rule to the petitioner for freedom in this case. He did the opposite.
Maryland law required that slaveholders new to the state register their slaves, in due time, with certain public officials. Newly arrived slaveholders were to follow statutory procedures to keep their slaves. Sabret Scott, the defendant in this case, failed to do so. The plaintiff, a Negro named Ben, sued for his freedom. He won. The jury set him free, having evidently followed the logic of in favorem libertatis. Mr. Scott had failed to prove Ben a slave. Yet Marshall reversed.
Remember the Fisher rule: whenever a statute that subverts the common law is unclear, we must strictly construe the statute in favor of liberty and equity. Any statute that overrules the common law must do so with irresistible clearness. Slavery was prohibited by common law. Therefore, all slave statutes, as “odious” creatures of positive law, had to meet the standard of irresistible clearness.
This Maryland’s slave statute failed to do. Marshall himself said so in the opinion: “The act, in its expression, is certainly ambiguous, and the one construction or the other may be admitted, without great violence to the words which are employed.”
The Fisher rule mandated the lawful next step for Marshall to take. He took the lawless step. Instead of resolving the ambiguity in favorem libertatis, he resolved it in favor of slavery. He reversed the jury verdict!
John Marshall used the Fisher rule to hold that Fletcher and Peck enjoyed natural rights to contract. That same year, he lawlessly refused to use the Fisher rule regarding Ben’s right to the presumption of freedom. Nor was Scott v Negro Ben a one-off case. Marshall held court in some 50 cases involving slavery. He was always proslavery. He systematically took property from the Negro and gave it to the slaveholder. The “Great Chief Justice” thus set the paradigm of institutional racism in our courts that later culminated in Dred Scott. Two centuries and a decade after he decided Fletcher v Peck and Scott v Negro Ben, four officers of the courts of Minneapolis extrajudicially murdered a man, in broad daylight, named George Floyd.
This double standard—natural rights for wealthy white men; presumptive slavery for Negroes—is the essence of institutional racism. Our courts conduce to due process for white men and their unjust enrichment at the expense of Negroes. Presumptive slavery for Negroes then; presumptive guilt for “African Americans” now. The Court lawlessly denied Black presumed freedom. It now lawlessly denies Black presumed innocence. Negro Ben foreshadowed George Floyd and Breonna Taylor.
The doctrine of unjust enrichment reminds me of the old Bugs Bunny cartoon where a gangster counts out money to his partner. “One for you, one for me. Two for you, one-two for me. Three for you, one-two-three for me.” He gives $3 to his partner and keeps $6 for himself. Substitute the 1 percent for the six-dollar gangster. Then substitute the American Negro for the three-dollar gangster suckered out of his just deserts. There you have it, the dynamics of institutional racism. Indeed, substitute the 99 percent for the three-dollar gangster and our zero-sum society becomes clear.
Editor’s Note: Taru Taylor has helped spearhead efforts to re-name law schools named after Former Chief Justice John Marshall, a key architect of the United State’s constitutional system who owned 200 slaves. CELDF has signed onto the calls for law schools to rename themselves and reconnect with their white supremacist pasts. Taru prefers that every American citizen have “The Buck Stops Here” placard that President Truman imperially had on his desk. He does occasional I Ching readings and thinks them less arbitrary than most court decisions. Email him at email@example.com for further discussion if so moved. We are excited to publish his guest blog.