This Article is a work of transnational legal history. Drawing upon new research in foreign archives, it sheds new light on the life of Thurgood Marshall, exploring for the first time an episode that he cared very deeply about: his work with African nationalists on an independence constitution for Kenya. The story is paradoxical, for Marshall, a civil rights legend in America, would seek to protect the rights of white landholders in Kenya who had gained their land through discriminatory land laws, but were soon to lose political power. In order to understand why Marshall would take pride in entrenching property rights gained through past injustice, the Article tells the story of the role of constitutional politics in Kenya’s independence. While Sub-Saharan Africa is often dismissed as a region with “constitutions without constitutionalism,” the Article argues that constitutionalism played an important role in Kenya’s independence. Against a backdrop of violence, adversaries in Kenya fought with each other not with guns but with constitutional clauses. The resulting Kenya Independence Constitution would not function as an American-style icon, but in that historical moment, constitutional politics aided a peaceful transition. In this context, Marshall built compromise into his bill of rights for Kenya to keep the parties together at the table.
Thurgood Marshall’s role in Kenya’s independence was limited, of course, but in following this story we gain an entirely new perspective on a major figure in American law. Before he began writing constitutional law as a Justice in the United States, Marshall played the role of a framer, crafting constitutional principles in the first instance. From the intersecting narratives of Marshall’s travels and Kenya’s constitutional development, we can also see constitutionalism at work in new ways, as constitutional politics functioned as a peace process. The Article also provides an historical example of a process more familiar in our own day: the role of American lawyers in constitution writing and nation building overseas.
Comparative and Foreign Law | Constitutional Law | Legal History
Date of this Version
Mary L. Dudziak, "Working toward Democracy: Thurgood Marshall and the Constitution of Kenya" (December 2006). University of Southern California Legal Studies Working Paper Series. Working Paper 9.