MARGARET H. MARSHALL
How will Massachusetts further the dream of equality?HE'D BEEN captured, beaten, and reenslaved. But Quock Walker would not back down. In 1783, Walker's criminal case against Nathaniel Jennison, the assailant who claimed to "own" him, came before the Supreme Judicial Court. At the time, slavery had existed in the Commonwealth for some 145 years. The Massachusetts Constitution, adopted in 1780, was a fledgling, untested document. Article 1 of the Massachusetts Constitution provided that "all men are born free and equal" but made no mention of race or of slavery.
Chief Justice William Cushing instructed the jury hearing the case that slavery is "wholly incompatible and repugnant" to the liberty and equality guarantees of the Massachusetts Constitution and "can no longer be tolerated in our government." He directed a verdict against Jennison. The conviction dealt a severe blow to Jennison. More important, it dealt a fatal blow to the institution of slavery itself in Massachusetts. The Walker case (really, a series of cases) may have abolished slavery in Massachusetts. It was perhaps the first judicial decision anywhere to declare that slavery violated constitutional guarantees of liberty -- this at a time when slavery was rampant in most other independent colonies and internationally. But it did not end segregation. In the 1849 case of Roberts v. City of Boston, the Supreme Judicial Court upheld public school segregation in Boston schools of black and white students. Five years later, by statute, the Legislature put an end to this segregation. Nationally, the progress toward racial equality was slower. In 1856, a full 73 years after the Walker decision, the US Supreme Court in the Dred Scott case held that enslaved black persons did not "enjoy the blessings of liberty" under the Federal Constitution but were "property," "like an ordinary article of merchandise." In 1896, well after the Civil War amendments to the Constitution, the Supreme Court decided Plessy v. Ferguson. Again, the great constitutional guarantees of equality were minced and fractured. The Plessy court held the segregationist practice of "separate but equal" public facilities for blacks and whites to be constitutional. The court reasoned that while the 14th Amendment guaranteed every citizen equal protection under law, it could not, "in the nature of things . . . have been intended to abolish distinctions based upon color." But the principle of equality under law, true equality, was too potent to be forever constrained by Plessy. In 1954, a group of parents and children from Kansas, South Carolina, Delaware, Virginia, and (in a separate case) Washington, D.C., challenged their states' "separate but equal" public education policies before the United States Supreme Court. Today we commonly refer to these cases as Brown v. Board of Education of Topeka. Brown overruled Plessy. By declaring that "separate educational facilities are inherently unequal," it sounded the death knell for our nation's disgraceful "Jim Crow" era of separate and decidedly unequal public facilities. In the wake of Brown, new laws outlawed racial discrimination, and litigants successfully fought to desegregate public libraries, parks, swimming pools, waiting rooms, and other facilities. This year, Law Day -- May 1, 2004 -- celebrates the 50th anniversary of Brown. It is a time to reflect how much we, as Massachusetts residents and as Americans, have done to further the dream of true equality under law. And on how much hard work still remains. Many barriers to equal justice persist, in society at large and in our courts. We must work together to encourage young people from all walks of life to enter government, law, and other professions so that these institutions better reflect the vibrant diversity of our communities. We need more lawyers willing and able to represent the legal needs of our least fortunate men, women, and children. We need user-friendly courts for the growing number of self-represented litigants. In the long run I know we will succeed, because the constitutional promise of fair and equal justice for all demands nothing less. Today, the vision of equality that inspired Quock Walker and the Brown plaintiffs has gripped the world. I grew up in South Africa under the brutal apartheid regime, where advocating racial equality was punished as a crime. Now, even as we celebrate the golden anniversary of Brown, South Africans mark the 10th anniversary of the fall of apartheid and the birth of their constitutional government. Countries as diverse as Canada and Germany, India and Slovenia, Italy and Japan have woven guarantees of human dignity and racial equality into their own constitutions, inspired by ours. And the march continues. I have heard it said that "compassion is a verb." The same may be said, I think, for equality.
The Honorable Margaret H. Marshall is chief justice of the Massachusetts Supreme Judicial Court. © Copyright 2004 Globe Newspaper Company.
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