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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. Garvey 1 The legal opinion above illustrates how a court opinion can construct a narrative that silences members of what Richard Delgado has called out-groups, defined as groups whose marginality defines the boundaries of the mainstream, whose voice and perspectivewhose consciousness has been suppressed, devalued, and abnormalized. 2 Ultimately, the unjust trial and conviction of Marcus Garvey was an attempt to silence and kill the powerful voice of an Outsider.

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

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

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

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

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

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

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

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

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

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


few thousand members grew into a national force that would boast a membership of nearly sixmillion 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.


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 reformas 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


See generally LAWRENCE OTIS GRAHAM, OUR KIND OF PEOPLE: INSIDE AMERICAS BLACK UPPER CLASS (2000) (chronicling the lives of Americas historically elite African American families). 14 See 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.

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 organizations 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). 17 See 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 organizations 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 NAACPs 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 AntiLynching 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. 18 See 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. 19 See id. at 204.


William B Hixton, Jr., Morrfield Story and the Defense of the Dyer Anti-Lynching Bill, 42 NEW ENGLAND Q., 65, 67 (1969).


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. Id. at 67. THEODORE KORNWEIBEL, JR., NO CRYSTAL STAIR: BLACK LIFE AND THE MESSENGER, 19171928, 46 (1976) [hereinafter KORNWEIBEL, NO CRYSTAL STAIR]. 24 JUDITH STEIN, THE WORLD OF MARCUS GARVEY 46 (1986). 25 Id. at 47. 26 KORNWEIBEL, NO CRYSTAL STAIR, supra note 23, at 186.
23 22


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 Randolphs 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-interestseven 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
27 24

See STEIN, supra note 24, at 52. 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 teachers 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 timemanual 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

LOUIS R. HARLAN, BOOKER T. WASHINGTON: THE MAKING OF A BLACK LEADER 1856-1900 10910 (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 Washingtons 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, Dubes 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 Washingtons 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 ideasthat 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

FRANKLIN & MOSS, supra note 6, at 304. Booker 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).



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 countrys 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 ones energies to uplift members of the Black Diaspora around the world, and to rely on Diasporic peoples for ones 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 campaignsthe success of each competitors 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 couldnt 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 1960s. 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 1920s 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 centurythe 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 willMarcus Garvey 38 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 Associationthe 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. Anns 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. Washingtons 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 doomif I may so call itof being a race leader dawned upon me. 40 Garvey famously stated, I asked, Where is the Black mans Government? Where is his King and

38 39


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 countrys 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 Garveys 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

MARCUS GARVEY AND THE VISION OF AFRICA 73 (John Henrik Clarke, ed., 1974). 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).



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 Garveys greatest and most fateful project of economic self-reliance. It was incorporated in 1919 capitalized with stock equivalent to five million of todays dollars. 47 Garvey organized the Black Star Line to be the ultimate expression of PanAfrican 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

MARTIN, supra note 39, at 33-34. See id. at 152. 48 At the time, no African state was governed by anyone of African descent, with the sole exception of Ethiopia.



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 purposeincluding 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 50

Marcus Garvey, Tricked By Officials While On Honeymoon, PITTSBURG COURIER, Apr. 12, 1930, at 3. 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 Garveys 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 Garveys 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 54

Id. at 103-04. 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 Garveys 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 organizingthey 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 coalitions 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

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 judges 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 groups 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

See Frank B. Cross, The Judiciary and Public Choice, 50 HASTINGS L.J. 355, 356 (1999). 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).



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--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 its position benefits the whole departments 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 medias 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 Garveys Black Star Line steamship company. The campaign, which used the blunt moniker Garvey Must Go!, provided a narrative to the government

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 Medias 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 NAACPs Director of Branches, and William Pickens, the NAACPs 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, Garveys 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, fullfledged 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 66

STEIN, supra note 24, at 161. See id. at 190. 67 WOLTERS, supra note 17, at 231. 24

that corresponded with Garveys risefrom 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 Garveys rise was the direct cause of the NAACPs decline during that period. 70 The socialist camp also had both ideological and practical reasons to desire Garveys demise. Ideologically, Garvey's glorification of communal self-help directly contradicted Randolph and Owens 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 Garveys UNIA members came from the AfricanAmerican 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 groups declining membership levels and ideological differences, both the lobbyists and the socialists stood to reap large financial awards from Garveys 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 competitors 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 69

STEIN, supra note 24, at 162. 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 Garveys 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 magazinethe publication edited by Briggsten 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 others 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


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 medias agenda-setting and priming effects. Agenda setting refers to the medias ability to direct the publics 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 editorin-chief of The Crisis, the NAACPs primary magazine publication, for its first 25 years of existence. From 1918 until Garveys 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 NAACPs Crisis and the Black socialists 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 82

Beale, supra note 64, at 402. Id. at 442. 27

Klux Kleagle. In a 1921 feature story on the Black Star Line, Cyril Briggss magazine The Crusader suggested that Garvey might be sued for fraud based on the endeavors 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 Garveys third annual international convention, and they were held only a few blocks down the street from Garveys 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 NAACPs 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,

83 84

See STEIN, supra note 24, at 162. 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 devils 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 Hoovers 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

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 Garveys 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.

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. Hoovers 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 92

Swire, supra note 62, at 1377. 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 Hoovers General Intelligence Division began taking extraordinary measures to arrest and deport Garvey. During the era of Woodrow Wilsons presidency, it certainly was no political misstep to silence an AfricanAmerican 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 Garveys 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

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.

FBI.gov, History of the FBI: Early Days: 1910-1921, http://www.fbi.gov/libref/historic/history/earlydays.htm (last visited May 20, 2008). 94 JOHN SPILLER ET AL., THE UNITED STATES: 1763-2000 at 131 (2005). 95 As 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).



personally disliked Garvey, assiduously trying to find ways to prosecute him under any remotely related law. One example of this is Hoovers attempt to prosecute Garvey under the Mann Act. 97 Garveys 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 Garveys 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 Hoovers 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

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. 98 See 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


Garveys 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 semiautonomous 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 Garveys intellectual competitors reached their highest level of stridency. In 1922, the Garvey Must Go! coalition made a direct appeal for Garveys 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 governments case against Marcus Garvey for

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.

103 104

FBI.gov, About Us - Quick Facts, http://www.fbi.gov/quickfacts.htm (last visited May 20, 2008). KORNWEIBEL, 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 Generals 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 Johnsons 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! campaigns 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 letters opening becomes more clear. It began by appealing to southern White views of race relations, asserting that Garvey was a menace to


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 Generals 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

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).

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 Garveys agitation that was ruining that harmony. The letter then went on to say that, on these grounds, Garveys 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 Garveys 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 Garveys followers lacked access to the ballot, the authorities


112 113

Letter from Pace, supra note 105.

Id. Id.


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 vicesselfishness 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 thatif indeed Garveys philosophy was the right one and theirs the wrong onetheir 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 Garveys 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.

This witchs 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


add to Garveys dismay, he would soon find that the coalitions 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 governments 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 opponents 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 imagethey 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 Garveys 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 Garveythey had to destroy his credibility. The United


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 Garveys flagship project was actually a money generating fraud preying on poor Blacks, the coalition may have predicted that they could destroy the credibility of Garveys 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 Garveys 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 Garveys mail fraud trial. Through this study, a picture emerges of U.S. District Court Judge Julian Macks susceptibility to the influence of the Garvey Must Go! coalition. That susceptibility manifested itself in Judge Macks 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 Garveys 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



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. 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 Garveys 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 Garveys 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

117 118

GRANT, supra note 56, at 326. 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 judges compensation. 126 This non-pecuniary income comes in the form of leisure time, prestige, the possibility of promotion, and the opportunity to actualize ones 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 Macks 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 Garveys primary arch-nemesis throughout his career, and many if
125 126

See Posner, supra note 60, at 4. Id. at 2. 127 Id. at 5. 128 Posner, supra note 60, at 3. 129 HARRY BARNARD, THE FORGING OF AN AMERICAN JEW: 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 Macks involvement with the NAACP arose out of his close kinship with their assimilationist philosophy for racial liberationthe direct antithesis to Garveys race first philosophy. Macks 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 judges susceptibility to capture by the Garvey Must Go! coalition, as, again, many of the coalitions most prominent members were NAACP officers at the time. It appears that Judge Macks contacts with the Garvey Must Go! campaign led to at least two separate acts inside the courtroom that constituted severe violations of Marcus Garveys right to a fair trial, and by themselves could constitute grounds for exonerating Garvey of his conviction. Those two violations are as follows:

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

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). 134 5 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 Garveys motion for recusal was filed on the basis of Judge Macks 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 Garveys role in the Black Star Line. Garvey argued that exposure to such propaganda against him had caused the judge to be unconsciously

See Berger v. United States, 255 U.S. 22 (1921). 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.



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 Garveys allegations of bias focused on Judge Macks 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, Garveys petition for recusal met the Berger substantiality requirement because of Judge Macks 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 NAACPs 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 Macks 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 NAACPs 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

140 141

Id. at 303. 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 courts 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.

Judge Macks failure to address perjured testimony by Schuyler Cargill, a key prosecution witness, provides another indication of Judge Macks 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 Dancys purchase of Black Star Line shares when the organization was near insolvency, depended on Cargills 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 BSLs 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

144 145

Berger, 255 U.S. 22, at 36. 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 Garveys 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 courts conviction of Garveys could have been expunged according to the perjury rules in effect at the time of Garveys 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 Macks 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

147 148

Id. 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, Kants categorical imperative also provides us a window into the unethical nature of the Garvey Must Go! campaigns influence on Judge Julian Mack. It seems highly likely that Judge Macks courtroom management was greatly affected by both his membership in the NAACPthe organization that hated Garvey mostand his eagerness to eliminate Garveys 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! coalitions 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 movements 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 powerit 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


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 centurythe civil rights based, domestic focused, integrationist, federal lobbying based theoretical framework of racial justice organizingcame to dominance because of its merit alone. We should then ask whether we need to find a different framework for the twenty-first centuryone 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


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).

Delgado, supra note 2, at 2415.


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, 1920a 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, Garveys lawyers would argue that the

Mari J. Matsuda, Public Response to Racist Speech: Considering the Victims Story, 87 MICH. L. REV. 2320 (1989). 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.).
155 156


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 Garveys 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 Garveys 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

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

158 159
160 161

Donald Morano, The Mail Fraud Statute: A Procrustean Bed, 14 J. MARSHALL L. REV. 45, 46 n.2 (1980-1981). Durland, 161 U.S. at 314. 162 Id.

Mail Fraud Act, ch. 321, 35 Stat. 35. 1130 (1909) (codified as amended at 18 U.S.C.A. 215). Durland v. United States, 161 U.S. 306, 315 (1896).


to cheat the stockholders. Certainly, the BSL officers engaged in unprofessional business practices that called the officers 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 Lines Board of Directors determined whether Garvey would receive the salary. 167 This decision, in turn, depended on the financial strength of Black Star

GRANT, supra note 56, at 168. 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).
163 164


Line at the time. 168 In addition, Garvey owned 200 shares of stock, which he purchased with his personal moneyso when the Black Star Line went under, Garvey faced great financial loss. 169 The premise of Garveys 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 peoples 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.

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
168 169

Id. Id. at 403.


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 ventures 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.

Durland, 161 U.S. at 312. See STEIN, supra note 24, at 70. 172 Id. at 70-71.
170 171


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 crisisalthough 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 crisisalthough 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 officers lack of experience in the shipping industry. For example, within three months of incorporating the Black Star Line, Garvey

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.


had amassed enough money to buy the companys 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 Thompsons 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

MARTIN, supra note 39, at 153. 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.
177 178


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 Lines 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 Thompsons 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 Silverstons 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 Lines success and the future existence of the Phyllis Wheatley, the letter was

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.


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 Garveys 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 governments harassment and Thompsons 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 Garveys 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.


Brief for the United States, Garvey v. United States, 4 F.2d 974 (2d Cir. 1925) (No. 66), in 6 THE MARCUS GARVEY 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.


V. READING BACK, READING BLACK AND THE APPELLATE OPINION In the aftermath of Garveys conviction, allegations of injustice were rife throughout the country. 191 The public, members of legal academia, and even some of Garveys 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

See STEIN, supra note 24, at 205. See id. at 205-06; see also Bernard Ryan, Jr., Marcus Mosiah Garvey Trial: 1923A 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 LAWS STORIES 189 (1996).
191 192


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 Garveys 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

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).


people. 198 The court takes Garveys 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 Garveys followers as wellthose 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 Garveys 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 Garveys 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 Garveys 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 argumentif Dancy cant 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. 199

at 975. 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 Garveys scheme to defraud. 200 Id. at 976.


[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 Garveys 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.

Id. at 975. GARVEY, supra note 41, at 178. 203 Id. at 179.
201 202


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 peoples thoughts was, What are we gonna do now? 204 Thus ended Marcus Garveys 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 Palmers anti-radical sentiment. However, when Attorney General John Sargent was appointed in 1925, he made it known that he did not approve of Hoovers 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 generals office after Garveys 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 Garveys behalf. 207

supra note 56, at 412. 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. Atty 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.



Garveys 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 Garveys prison term. When echoing that recommendation as to the commutation of Garveys 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 Garveys 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 Garveys 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 Garveys 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

MARTIN, supra note 39, at 200. 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.
208 209


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 Garveys economic communal self-help philosophy over the other available philosophies in the marketplace of ideas. Once Garvey was deported, his movementand by extension his philosophy of racial justicetook a blow from which it has not fully recovered unto this day. One could argue that, even without the governments 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 Garveys strategies had gained wide currency at the time of the Black Star Lines 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 todays money) provide ample evidence of Garveys 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 Garveys 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

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 Garveys 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.


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 NAACPs 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 Garveys separatist rhetoric, as well as his communal self-help orientation, put these groups at a decided disadvantage. As a result,

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 its 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).


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 NAACPs 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



line. Yet by 2005, 22.1 percent of African Americans fell below the poverty line compared to 8 percent of Whites.

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 worlds 20 poorest countries were located in Africa. 226 B. The Movement for Garveys 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 Presidents commutation of Garveys 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 Garveys pardon. In 1987, he held a House Judiciary Committee hearing that concluded that Garveys 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

Id. at 294. 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, ITS 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).


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 Rangles 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 Garveys 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 Clintons posthumous pardon restored Flippers 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 Garveys family, and indeed on the Black community as a whole.

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.


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 Jamaicas first political party, the Peoples 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 workers 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, Garveys 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 Garveys death had spread throughout the media. The condolences rolled in, but even more poignantly, hundreds of mainstream papers had printed obituaries of
GRANT, supra note 56, at 428. Id. at 431. 234 Id. at 434. 235 Id. at 449.
232 233


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 lifes work and results, all of this fed stories that greatly disturbed Garveyhe 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 Garveys 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.


See MARCUS GARVEY: LOOK FOR ME IN THE WHIRLWIND (PBS 1999), transcript available at http://www.pbs.org/wgbh/amex/garvey/filmmore/pt.html.