Last December, Scene published my essay explaining why Cleveland State University should change the name of our public law school. I won’t rehash my entire argument here. But it bears repeating that the fourth chief justice of the U.S. Supreme Court, John Marshall, owned some 200 slaves and at one point auctioned off some of them to pay off his son’s debts.
Moreover, the Virginian slave lord subverted the rule of law. Even when statutes and precedents favored Black litigants, he always overruled the law whenever it conflicted with slaveholding interests.
It happens that Cleveland isn’t the only city with a law school named “Marshall.” The University of Illinois Chicago John Marshall Law School, and Atlanta’s John Marshall Law School, share our dubious distinction.
And then there were two.
For, on May 20th, The University of Illinois board of trustees voted to drop “John Marshall” from the law school. On July 1st it will henceforth be called The University of Illinois Chicago School of Law.
Mind you, The University of Illinois board overcame a significant hurdle. When The John Marshall Law School merged with The University of Illinois a couple of years ago, the University of Illinois agreed to keep the name “John Marshall” until August 2025.
The law school’s board decided to waive the agreement. And so the people of Chicago won’t have to endure, for another four years, a name that is no less infamous than the Confederate flag.
Make no mistake. “John Marshall” and the Confederate flag are cognate symbols. They diametrically oppose the rule of law.
This buzzword gets thrown around a lot, “the rule of law.” In fact, the editorial board of The Chicago Tribune, lamenting the decision to expunge John Marshall’s name, claimed that he championed the “rule of law”.
But did he really?
First and foremost, we should understand the rule of law in terms of the social contract.
The Declaration of Independence framed our social contract in terms of equality and the inalienable rights of life, liberty, and the pursuit of happiness… “That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.”
Alexander Hamilton in The Federalist Papers argued that The Constitution must be established by the voluntary consent of the whole people.
Of course, “We the People” was limited to propertied white men at first. But the social contract has since expanded. As I write in 2021, we have had millions of Black voters and women voters, a Black president, and we now have a Black female vice president.
The point is, the social contract is based on the consent of the people. Ultimately, the rule of law is defined by the informed consent of the citizenry.
Abraham Lincoln had meant to include Black people in the social contract when he said that our nation “was conceived in liberty, and dedicated to the proposition that all men are created equal.” Our sixteenth president was not perfect, but he was indisputably on the right side of history.
On the wrong side of history we find John Marshall and the Confederate flag, both standing for the proposition that white people are “more equal” than everybody else. Only white consent matters in their social contract. “Marshall” and the Stars and Bars symbolize a zero-sum game rigged for white people to win and for all other people to lose, especially Black people.
But the rule of law might still seem abstract to the reader.
And so I ask the reader to consider the rule of law from London’s point of view. In Scott v. Negro London (1806), London sued for freedom in Washington under a Virginia law prohibiting importation of slaves. A jury of twelve white men, some probably slaveholders, concluded London was free because he was illegally imported into the city. The trial court strictly construed Virginia slave law.
As legal scholar Paul Finkelman observed: “This result was consistent with other decisions from American state courts of the period that strictly applied statutes regulating slavery and at the same time liberally construed the common law in favor of liberty.” Marshall, nevertheless, reversed the jury verdict. He thus construed the statute for a pro-slavery result. In fact, he decided seven freedom suits and not one Black litigant ever succeeded.
Please pay close attention to what Finkelman just said. That Marshall was a pro-slavery extremist even by the standards of the early nineteenth century. Having read Finkelman’s Supreme Injustice, I can attest to that recurring theme throughout the book, of Marshall’s anti-Black and rabidly pro-slavery jurisprudence.
All this is to say that the movement to change schools named after John Marshall is not “cancel culture” run amok. The issue is not whether or not to “cancel” Marshall. The issue is whether or not he’s a symbol of the rule of law worthy to name our public law school. Especially now as our nation reckons with our not-so-distant past of slavery and genocide. Not to mention the City of Cleveland’s struggles with past and present segregation.
A couple of weeks ago, in light of the news out of Chicago, I asked the dean of Cleveland-Marshall about the time-frame regarding a possible name change. He told me to get back to him in September once the CSU board returns. “Marshall” yet and still graces the school’s entrance. Knowing what we now know about the man, our public law school may as well have a giant Confederate flag flying in front of it.
Author Taru Taylor tried not to let law school interfere with his education. He’s now in the process of unlearning how to think like a lawyer. Email him at [email protected] for further discussion of this piece or whatever.
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