International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Spring 2013 Issue



Thurgood Marshall and the Infamous Role of Slavery in the United States: a Rule of Law Comparison With Italy and With Europe

Thurgood Marshall

By: Professor Giuseppe Tucci

In the reading room of Harvard Law School, the visitor's attention is often attracted to a photograph hanging on the central wall; it shows a march of black people, made up of a multitude of men and women, and leading it, next to a young woman, can be seen a man wearing a white raincoat, whose appearance and determined attitude are striking. The caption tells us that the march started out from the United States Courthouse of Birmingham, Alabama, in 1956, and that the man leading it was Thurgood Marshall. He was a complex personality, first a lawyer and then Justice of the United States Supreme Court, who, in the 20thCentury had a greater influence than anybody else on relations between the different ethnic groups in the United States and who fought against the various forms of segregation laid down in the laws of the different States.

In the history of US constitutionalism, every justice of the U.S. Supreme Court is remembered for having made some contribution to the constitutional law of the United States. However, the human and institutional of Thurgood Marshall is a unique one because he, as a militant jurist, made his greatest contribution to the development of U.S. constitutional law even before becoming the first African-American justice of the Supreme Court.

Three years after graduating from the Howard Law School in Washington, D.C., in 1933, Marshall met his mentor, Charles Hamilton Houston, a graduate of Harvard Law School and head of the legal office of the National Association for the Advancement of Colored People(NAACP). The NAACP was founded in 1909 by W.E.B. Du Bois, the first African-American to receive a Ph.D. degree from Harvard University. He was a key figure in the history of U.S. culture in the 20th Century and, as we shall see later, protagonist in a matter completely different from that of Justice  Marshall.

It is worth mentioning, for a better understanding of events that would otherwise be inexplicable, that the first African-American student to be elected President of the Harvard Law Review was Barack Obama, now President of the United States, whose writings and speeches, so different from the trite media language of our current politicians, contain many subjects evoked by Thurgood Marshall.

While working for the - NAACP from 1936 to 1961, Marshall fought against the principles of racial segregation and succeeded in transforming U.S. constitutional law. His triumph, after the victories won with the Supreme Court decisions that invalidated legal segregation in the fields of ownership of property and transport, was Brown v. Board of Education, the 1954 decision that abolished legal segregation in public schools.

That decision invalidated the "separate but equal doctrine" in state public schools, negating the constitutional justification drawn up by the same Supreme Court fifty years earlier in Plessy v. Ferguson. However, in U.S. constitutional history, Brown was much more than a decision but rather a social, political and cultural event that became the symbol of the possibilities and limitations of democracy in the U.S., and a landmark for the organization of subsequent fights against segregation and inequality in general.

Marshall left the NAACP in 1961, when, during the Kennedy administration, he accepted an appointment by new President John F. Kennedy as judge of the federal Court of Appeals -in New York. After he had worked in that court for four years, President Lyndon Johnson appointed him Solicitor General of the United States, which required him to argue cases for the United States government in the Supreme Court. Then, in 1967, President Johnson appointed him Associate Justice of the U.S. Supreme Court.

As we shall see later, Marshall often thought of his experience as a lawyer defending interests and values that transcended the particular aspects of a specific case and involved issues of a general and universal nature that related to the entire system of government and society.

As comparable Italian experiences teach us, if we want to talk about contributions familiar to us as Italians, the "fight for rights" calls for different strategies from the ones that can win when strictly individual interests are being defended and requires a kind of lawyer that is capable of playing a social role, in which the battle in court goes hand in hand with pressing for legislative action.

This experience is relevant for the current situation in our European countries, where an irreversible transformation into multiethnic situations is taking place, the management of which requires the law to take up an educational function in order to combat irrational fears and urges of so-called civil society, which sometimes lead to new forms of racism.

Marshall's contribution as justice of the U.S. Supreme Court was very important, especially during the earlier period of his tenure. This was because it was only until 1972 that he could work with the progressive majority of the Court.  From that date on, since the majority of the Court appointees were conservatives appointed by President Richard Nixon, his contributions were practically reduced to numerous and significant dissenting opinions.

During his work, Marshall always paid attention to many kinds of social discrimination and not just racial ones. This was further confirmation that the mentality behind discrimination, whether political, trade union, or related to religion or disability, -is always the same. Therefore, even as a judge and as a justice, he fought firmly for freedom of expression, for the rights of women, and for the right to complete and conscious sexual liberty. At the same time he opposed the death penalty, economic inequality and police brutality. This particular experience is also of great relevance for Europeans since, in our current historic-social situation, various forms of discrimination are playing a role and assuming a completely new significance in a society where public opinion seems to be easily influenced by power groups that find fertile ground in the widespread feelings of insecurity related to the transformations caused by new mass migration phenomena.Hence the need to learn more about the juridical strategies of complex matters relating to discrimination and inequality, such as the U.S. Civil Rights Movement, of which Justice Marshall was one of the important protagonists, though certainly not the only one.

Marshall's contributions are not academic in the strict sense. They are thoughts that arose, in the early days, from the training activities he carried out in the legal organization of which he was a part for nearly thirty years and, later, from the experience he gained as a Supreme Court Justice. The historical and institutional situation he lived in was unlike ours but the very fact that it differs from our individual national experience and from the European experience of fundamental and/or inviolable rights makes the comparison useful and relevant, particularly if we take into account the new inequalities and new prejudices that the whole heritage of basic rights in Italy and Europe now has to cope with.

During the celebration of the bicentenary of the Constitution of the United States, which fell in 1987, Justice Marshall, who had sat on the Supreme Court for twenty years, went against the tide with a contribution published in the Harvard Law Review-  in 1987 that certainly deserves careful study.

Sustained by a keen sense of history and a thorough knowledge of the specialized works devoted to the subject, including the contributions of John Hope Franklin, Marshall rejected the position of  some people, taking advantage of the historic anniversary, arguing for a return to the "original intent" of the Constitutional Convention in interpreting the Constitution, (something like Sidney Sonnino's idea of returning to the Albertine Statute), Marshall’s position was like that of more progressive jurists, first and foremost his colleague and friend, William J. Brennan, who considered that argument - too restrictive. The attempt to restrict the Constitution to what might have been the perspectives of the members of the Constitutional Convention under such different historic and social conditions, Marshall described as “arrogance disguised as humility.”

Based on the significance of his experience and the dramatic history of the community he belonged to and within which he continued to fight, Marshall refused to celebrate the anniversary of the birth of the Constitution of the United States and the system of government that the Constitutional Convention designed when drafting it.On the contrary, Marshall recalled, that system of government and - as we would say, using European language - that draft adopted by the Constitutional Convention in the picturesque Independence Hallin Philadelphia, was terribly inadequate right from the start and needed a number of amendments, a civil war and terrible social unrest before it actually came to respect those freedoms and those human rights that are known today as "Fundamental Rights", or "Inviolable Rights", to use the wording of Article 2 of the Italian Constitution.

The famous "We the People"- introduction to the U.S. Constitutionof 1787, insisted Marshall, did not include women, who only got the vote 130 years later in the United States - and only in 1945 in Italy, because of Fascism - and did not include the black slaves because the maintenance of slavery was a specific political compromise, accepted by the authors of the Constitution themselves. In fact the southern states only accepted the requests by the states of New England to recognize the power of Congress to regulate the entire area of trade in exchange for the right of southern states to continue the institution of slavery. And it was precisely the northern states that were able both to profit from the actual slave trade and to organize trade in goods produced by slave labor in the southern states. Even though the Declaration of Independence of 1776 ("That all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty and the pursuit of Happiness") was inspired by ethical-religious principles, those principles continued to act as an "appeal to Heaven" even in U.S. civil society. Suffice it to think of people like Antoine Bénézet (1713-1784) and Thomas Clarkson (1760-1846).

This tradition led to the abolition of legal trade in slaves by the English law of 1807, which was also celebrated in Europe on the occasion of its bicentenary in order to "wish away" new and similar phenomena of our times. However, in the United States that law only led to the official prohibition of importing slaves in 1808 but not to the abolition of slavery.

Still in 1857, in the famous case of Dred Scott v. Sandorf, the US Supreme Court, in Judge Taney's grounds for the judgment, confirmed the choice of the Founding Fathers, specifying that the African blacks were not to be considered as legal persons but only as the object of the right of ownership and that, as such, they could be bought and sold. Nobody could ever doubt the constitutional correctness of this opinion, at least from the point of view of the strictest and most rigid kind of legal formalism, although it was precisely such formalistic short-sightedness that led to the war of secession, the American Civil War.

So there had to be a bloody civil war before the 13th amendment was adopted for the purpose of abolishing slavery, but not the actual consequences of slavery. And even after the abolition of slavery, the  14th amendment was needed to provide a new basis for the demands for justice and equality, guaranteeing the protection of the life, liberty and property of all persons against any deprival of such rights without due process of law and guaranteeing equal protection of rights. Another century was still needed before significant recognition of the rights of American blacks to equality in the important sectors of school, work, and residence and in the field of political rights was obtained. Progress has been dramatic and is destined to continue uninterrupted.

The men that met in Philadelphia in 1787 to draft the Constitution, concluded Marshall, could never have envisaged, and would never have agreed to, the document drafted by them being interpreted by a Supreme Court whose members included a woman and the descendant of an African slave.

Therefore the merit for this great change in the meaning of  "We the People" does not lie with the U.S. Founding Fathers but with the people that refused to accept the traditional interpretation of ideas like "Liberty", "Justice " and "Equality " and that, on the contrary, fought to give those words a broader meaning. What needed to be celebrated was therefore the bicentenary of the Constitution as a "living document", which included the Bill of Rightsand the other amendments made to protect individual freedom and fundamental rights.

All things considered, the concept of the text of the US Constitution as an ongoing process and not as a formula that crystallized clearly defined values for once and for all — a factor, as we shall see, not unlike Italian tradition and common to all constituent processes — was expressed by Marshall with great clarity, which took into account the dramatic history of the United States and, in particular, of the community from which he came.

It is not possible, or even advisable, to mention all the subjects dealt with in Justice Marshall's reflections. Suffice it to bear in mind that the collection of his writings includes a first part, devoted to his work as a lawyer in some of the most famous legal cases in which he played a leading role; a second part, devoted to his scientific contributions and to his thoughts as a lawyer; a third part, devoted to his writings as a judge; a fourth part, devoted to his judicial opinions, very often dissenting opinions; and a fifth part, devoted to his reminiscences, embodied in the transcript of an interview given by Marshall in 1977 to Ed Erwin on behalf of the Columbia Oral History Research Office.

In addition to the work already mentioned, only a few of these works will be taken into consideration for the beginning of a comparison with the Italian situation regarding fundamental or inviolable rights, both within the field of our local experience and in the European situation with which the Italian experience is now firmly linked.

In a talk given to the students and professors of the School of – Law -of Washington University -in 1967, Marshall, still the Solicitor General of the United States, dealt with the problem of the relations between the law and the demand for equality, taking into account both the synergism between the law and social networks and the promotion of reforms through the law by means of existing legal instruments and the different roles the lawyer plays in society.

First, Marshall gave a brief exegesis of the School Segregation Cases, from Dred Scott to Brown, to remind his listeners that the demand for equality not only required victories in court but also legislative action, which in fact occurred with the Civil Rights Acts - of 1957, 1960 and 1964, and the Voting Rights Act of 1965.A right was often, Marshall added, the response to social changes but, as shown by the case law examined by him, it could even alter the factors that act on society because it could change matters for the better and could have an educational function.- Lastly, concluded Marshall, the objectives mentioned above could only be achieved if the role of the lawyers changed. They were often looked on by the excluded minorities, including the poor, as part of the oppressors in society. But who would represent those interests against the strong elements? The solution was the organization of groups and the setting up of an offer of legal services that enabled lawyers to be social reformers in their daily practice.

Another contribution by Marshall, published in the New York University Law Review - in 1969, dealt with the organization of group work for pursuing the aims of justice.  It was a lecture given at the New York University School of Law and was preceded by similar contributions by other Supreme Court justices, aimed at clarifying the meaning of the Bill of Rightsand the 12th, 14th and 15th Amendments.

Marshall immediately explained that organized groups had become necessary precisely in order to transform those great constitutional pronouncements into social and economic progress for everybody, because otherwise they would have remained mere expressions of ideals of the US society - ideals that, unfortunately, had only rarely been achieved in the course of the country's history.

Marshall put forward a different kind of demand for organized justice from that usually made by US trade unions that were typically aimed at satisfying only wage demands, because such justice needed to undertake social responsibilities going far beyond the defense of specific interests, since it was the lawyer that defended the civil rights "...of all men, present and future.” This is a great problem that is arising in Italy and Europe today, because the great tradition of legal services offered by the historic mass organizations needs to reinvent itself in ways that can meet the needs of the new outcasts, the immigrants.

Among the many problems dealt with in the writings of Justice Marshall there are two that should be mentioned, to give the truest possible picture of his personality. Although these problems differ from each other they are both relevant to the current experience that Italy, like the other countries of Europe, is going through, having to deal with the fears arising from their transformation into multiethnic societies and seeing the prejudices fuelled by those fears spreading within their territories.

The first problem concerns the death penalty and is dealt with in a speech by Marshall published in 1986 in the Columbia Law Review. Marshall was always a consistent supporter of the abolition of the death penalty in the United States, for reasons of principle and for technical reasons. When he was a law student he assisted his teacher, Charles Hamiliton- Houston in preparing the defense of a man accused of killing a white woman in Virginia. He continued working on cases related to the application of the death penalty during the entire period when he acted as Chief Counsel for the National Association for the Advancement of Colored People (NAACP). He was therefore able to use his experience, unique for a Supreme Court justice, to conduct his fight against a legal principle that he considered contrary to the most basic human rights.

In 1972 the Supreme Court ruled the death penalty to be unconstitutional. Marshall, like his colleague Justice Brennan, made a significant contribution to that position. The same Supreme Court changed its opinion four years later, with a policy that was never accepted by neither Justice Marshall or Justice Brennan. In a speech already mentioned several times, Marshall, who had been a Supreme Court justice for twenty years, took note of a position that seemed no longer open to change, and concentrated on two paradoxes that could be found during trials resulting in the death sentence: the fewer guarantees of the defendant's right of defense in those particular trials and the excessive delay that often occurred in the review of such sentences.

During his speech, and also in a subsequent contribution in 1990, Marshall stressed the lack of preparation and inexperience of the lawyers and the Courts involved in such trials, pointing out that, apart from opposition to the death penalty, as long as it was practiced it was the duty of judges, lawyers and public officials in general to guarantee the condemned man at least the same quality of defense that was guaranteed to other defendants.

The death penalty is still the subject of debate in the United States. Attitudes range from rejection of that institution on principle to diversified positions reflected in the case law of the Supreme Court, which, in spite of many dissenting opinions, continues to recognize the constitutionality of that form of penalty. In a case decided in April 2008, the Supreme Court recognized the full constitutionality of the use of a lethal injection for death penalty convictions by the United States government and by 36 states.

An important  side issue in decisions about the death penalty is a second debate on the legitimacy and the correctness of referring to foreign law, international law and even comparative law by the Supreme Court for justifying its decisions. As we shall explain in more detail later, this is an extremely important problem for the future of fundamental rights and for the possibility of achieving, through dialogue between Supreme Courts, a globalization of rights that could regulate and correct the effects of economic globalization.

Another of Justice Marshall's many contributions, which today is attracting the attention of Italian and European observers, is his analysis of the dynamics of the race riots. In 1943 Justice Marshall made an important contribution and gave it a title that recalled the terrible episodes of racial hatred being perpetrated in Europe.- Examining the dynamics of the start and continuation of the bloody race riot in Detroit in June of that year, Mar­shall recalled that the origin of the riot was, as always happens, the absurd behavior of the local authorities and particularly of the police, who wanted to apply the law in a completely unequal way, according to whether their action was against white or colored citizens. It is no coincidence that the reference to the famous principle that is engraved on the pediment of the United States Supreme Court (Equal Justice under Law), is the title of the first contribution of the collection of his writings and is the leitmotif of all the strategy he followed, starting in the early forties.

As already mentioned more than once, the historical and institutional situation that Justice Marshall lived in was very different from ours, but it is just that difference, whether from our individual national experience or from the whole European experience in the field of fundamental rights, that makes the comparison extremely useful and relevant, particularly if we take into account the new inequalities and new prejudices that are opposing the whole heritage of fundamental and/or inviolable rights in Italy and in Europe.

However, this comparison with the Italian experience and the European situation with regard to fundamental rights needs further clarification.

Inevitably, in fact, due to the characteristics of our specific historic experience on this subject, we have to take into account both the subject of the "... cultural, religious and humanistic inheritance of Europe, from which the universal values of the human person, freedom, democracy, equality and the rule of law have developed,” as specified in the Preamble to the Treaty of Lisbon on the European Union, and the different and more specific question of the protection of Fundamental Rights within each State. This was done in the post-Second World War period by means of rigid constitutions that the states themselves, especially those like Italy and Germany, which had known the barbarisms of Nazi-Fascism, adopted through the work of freely elected constituent assemblies.

With regard to the European cultural, religious and humanistic heritage from which the universal values of the inviolable and inalienable rights of the human person developed, the most immediate standards of comparison with the problems put forward in the thoughts of Justice Marshall is, in 18th Century European Enlightenment, the Neapolitans school of natural law and the historical and philosophical foundation of the Rights of Man, to which it gave rise.-This developed particularly through the work of Gaetano Filangieri , who belonged to that school and his work The Science of Legislation, published in Naples, in six volumes, between 1780 and 1791.

Referring the reader to the specialist works on the history of juridical thought for further study, we would like to stress here that it was precisely by referring to the exemplary nature of the United States Revolution that Filangieri, on the one hand, described the central role of the rights of man as the foundation justifying the entire structure of the state, anticipating the most advanced forms of modern constitutionalism and, on the other, mercilessly criticized the legitimization of slavery, in tones similar to those used by Justice Marshall on the occasion of the bicentenary of the U.S. Constitution.

With regard to the first of the profiles discussed above, it should be remembered that - Filangieri and the School to which he belonged held that fundamental rights were recognized and guaranteed, not created, by the law; that if they were denied the whole structure of the State was delegitimized; that their exercise could not be suspended for any reason of public utility; and that their recognition was the true guiding star, not just in relations between individuals but in relations between individuals and States and in mutual relations between States.



It can be seen that the great problems that 21st century jurists, and not just theoretical jurists, have to deal with as a matter of routine, and to which they try, in concrete judicial practice, to give the same replies developed by the 18th Century natural law theory in the name of the authority of reason alone, are formulated in terms of legal rationalism.

If, for Filangieri, there was no question about the central importance of fundamental rights in justifying the whole juridical experience, there is also, to return to the reasons impassionedly put forward by Justice Marshall, no question about their universal nature, in the sense that either fundamental rights are guaranteed and recognized for all, and therefore practiced as universal rights without any exceptions, or they are reduced to mere cynical formulas, the only purpose of which is to disguise the baser interests of social groups or of privileged individuals.

"Free citizens of an independent America” warned - Filangieri, “you are too virtuous and enlightened to ignore the fact that by conquering the right to govern yourselves you have, in the eyes of the universe, taken on the duty of being wiser, more moderate and happier than all other peoples. At the tribunal of humanity you will account for all the sophisms that your errors could produce against liberty. Guard yourselves therefore against embarrassing its defenders and making its enemies talk.” And then, with specific reference to slavery: "... while humanity everywhere is calling for its rights, the European part of America is full of slaves; not only is the legislation silent about this abuse but it protects this infamous commerce; and through this vast area of this vast continent it is possible to find only one small region of heroes who wanted to escape the pangs of this injustice and the scandal of posterity. Only Pennsylvania has no slaves.”

When read in the light of the experience of the twenty-first century and so, of course, with hindsight, the reflections on slavery of Justice Marshall and of Filangieri give us two serious lessons that explain the practical reasons why it is so important to reflect on two authors that are separated in time - the Neapolitan nobleman and the descendant of American slaves - but who share those cultural and humanistic heritages that form the basis for the universal values of the inviolable and inalienable Rights of Man.

The first lesson is that the universal and binding nature of the Rights of Man cannot be bartered for any so-called practical advantage, even for reasons of public interest, such as safety, as shown by contemporary experiences, particularly for Italy, which are still in course and to which we shall get back later.

The second lesson takes a long-term, but no less important, view. No revolutionary break creates the Promised Land, even when crowned with success and, as in the case of the United States, sanctioned by a Constitution that, thanks to its exemplary nature, has become an important watershed. Great constitutional experiences are valid not merely and not so much because of the choices contained in the document that puts them into effect, which are the result of inevitable political and institutional compromises, but because of the processes that they succeed in setting in motion.

This is a problem that needs focus in order to better understand Justice Marshall's positions. It is also a problem that should be considered in relation to another revolution, not in the 18th but in the 20th century: the Russian revolution of 1917, which was not inspired by the doctrine of inviolable or fundamental rights but so-called class criticism, taken to extremes by the leader of that revolutionary movement. It was experienced in Italy and also in the United States by personalities like W.E.B. Du Bois, as the exemplary event of a new epoch in the name of the fight against imperialism.

If we move from the field of European cultural, religious and humanistic heritage and go on to consider how that heritage influenced the drafting of constitutions in Europe after the Second World War — especially Germany and Italy — the disparity with the U.S. constitutional experience is so obvious as to make any comparison almost futile unless we consider each constitution as a historical document and not as a living document, to use the expression so dear to Justice Marshall.

In fact, the United States Constitution aimed at achieving the ideals typical of 18th Century universalism even though, as discussed earlier, it carried in its bosom the poisoned fruit of the legitimization of slavery in a country that European Enlightenment thinkers, and especially Filangieri, regarded as the land of the free men.

To quote a concrete example that could make comparison easier, the Italian Constitution is based prominently on liberal-socialist thinking, for which the centrality of freedom of the individual does not just mean the protection and inviolability of an individual space, but also social freedom and thus a commitment to participation in collective life. It also reflects the influence of J. Maritain and of French Catholic thinking, which emphasizes a democracy that takes the "human being", no longer just the individual, as the basis and purpose of the entire legal system, recognizing for the person a multiplicity of civil and political rights and of those new social rights needed for guaranteeing full fulfillment of the person, whether individually or as part of the social formations where his or her personality unfolds.

In the drafting of Article 2 of the Italian Constitution, particularly in its final and current version, a dominant role was played by the democratic Catholic tradition, in particular by Giuseppe Dossetti, Giorgio La Pira - and  Aldo Moro. It was Pira and Dossetti who drafted the first report on the article in question, which later became the basis for an agreement with the other members present at the Constituent Assembly, while Moro made some of the most important speeches during the long debate that led to the final drafting of the provision in question with characteristics intended to have a significant influence on the subsequent development of the Italian system.

The socialist element participated in the debate, with another Introduction by Lelio Basso, which contributed to the autonomous Article 3 and the particular regulation of the principle of equality laid down in that provision. This regulation was always integrated, even in the subsequent evolutionary interpretation given to the provision, with the preceding Article 2 and with the basic democratic choice contained in Article 1, with which the fundamental principles start. - More than 60 years after the Italian constitutional text came into force it can certainly be said that the interpretation of the three provisions has developed jointly and that they have integrated in turn with each other in their concrete applications.

Finally, with Article 2, needs to be considered together with the following Article 3 and the preceding Article 1. The Assembly members left to the future the regulation of the "inviolable" rights, characterized by a strong social connection. This was done in such a way that for the “ Person” (Persona) in the Italian Constitution for whom the inviolable rights of man are guaranteed and recognized, both as an individual and in the social formations where his or her personality unfolds, there is no longer a separation between rights and duties, since that separation has been superseded by the unbreakable bond between inviolable rights and the principle of solidarity.

If, aside from the text of the separate provisions, we take the dimension of the constitutional text to be a "living document " and therefore a constituent process, even in Italy, 60 years after the entry into force of the Constitution, we can consider that the evolutionary interpretation and integration of Article 2 has been positive, particularly considering the great novelties that the reference to that provision has witnessed in very recent times.

It should be pointed out that Article 1 of the Italian Constitution constitutes one of fundamental principles, the drafters of which, particularly the large political parties participating in the Assembly, conceived as a "living document,” that is to say as a draft intended to regulate a process of development of the Italian legal system in the future. This awareness can clearly be seen during the preparatory work of the Constituent Assembly and has become the best key for interpreting the role of the provision in question.

When the introductory debate on the draft Constitution drawn up by the 75 member Commission started in the Constituent Assembly, one of the most authoritative jurists participating in that debate, Piero Calamandrei, proposed that the aspirations planned for implementation in the future, and the social rights that could not be implemented in the particular legal situation of the time, should be included in a preamble. Otherwise, the Constitution would become something like the Labor Charter of the corporative fascist period, which, as we know, was not a law, but merely a directive for future laws. This proposal was rejected because, as other qualified representatives noted in their objections, constitutional provisions, even when they constituted a proposal, were always and for all purposes legal regulations since they imposed limitations on the legislators of the future.

The draft the members of the Constituent Assembly worked on has succeeded in handling the social tensions of our post-Second World

War period. All the inviolable rights confirmed in Article 2, particularly those specifically confirmed in other provisions of the Constitution, immediately became not mere statements of principles but rules required to regulate, even before the late entry into force of the Constitutional Court, social conflicts and even fights for cultural liberties in the name of a legality superior to that of ordinary laws. This result, due to logical political choices by the Italian political parties, was decisive, and caused inviolable rights to take root in broad social layers. This made it feasible for the provision to play the central role it plays today in our juridical experience.

What makes an examination of Justice Marshall’s ideas, considering his legal experience, suggestive and important today is the great transformation that is taking place in Italy. This transformation poses new problems for our legal system and, first and foremost, for our constitutional setup. Reference to the work of Justice Marshall is certainly relevant for solving these problems.

Presently - and this is a positive phenomenon - citizenship is no longer the formal requirement of a merely bureaucratic relationship with the state to which one belongs but is a quality of that person who carries a series of rights and duties, regardless of the territorial situation in which he or she is. - An attempt is being made - or should be made - to implement the national politics beyond the Nation. The participants in our Constituent Assembly just managed to glimpse this in very general terms when, in the Constitution, they confirmed that Italy "complies with the generally recognized provisions of international law" (Article 10); and, as stated in Article 11, "... consents, under conditions of equality with the other States, to the limitations of sovereignty necessary for a system that ensures peace - and justice among nations ". Also it was laid down in the amended Article 117 that  "legislative power is exercised by the State and by the Regions in compliance with the Constitution,” as well as with the restrictions arising from the community system and from international obligations. - The process of internationalization, inevitably leads to the construction of a common legal wealth for humanity.

The mobility of capital beyond the borders of individual national states, to mention just one of the causes of the complex phenomenon, makes a decisive contribution to reducing the labor force to the level of mere goods, making recognition of those inviolable rights of the person of the worker, on which modern constitutional democracies are founded, meaningless.

As recently pointed out, an ancient question that seemed to belong merely to history is becoming topical today: that is to say, whether work can be understood merely as goods, as a purely market matter, confining the constitutional answer entrusted to Article 36 of the Italian Constitution to the past.

On the other hand, the great migrations of people, now characteristic of our times, are ending up by creating similar and often more dramatic results for large masses of people, for whom inviolable rights remain a mere utopia.This has given rise to forms of discrimination and to the emergence of practices of slavery. This is so unknown to our legal experience that it is very useful to make a comparison with the replies that Justice Marshall gave to those same problems in a different legal situation.

In our times, the defense of inviolable rights has to cope with a very topical phenomenon, the traffic in human beings, which, particularly for traffic in women and children, has now taken on planetary dimensions because it is facilitated by the spread of new technologies as well as by the ease and speed of traveling. It is very widespread in certain Italian regions, including Puglia, and also Calabria, and is a worse substitute for the traditional exploitation of farm laborers, protagonists in centuries-old struggles in favor of the dignity of the person, which inspired many articles of the Italian Constitution, in particular Articles 35 and those following. Traffic in human beings is, therefore, another modern form of slavery, in addition to the many kinds known to history, and it seems to nullify, in the name of the inflexible logic of the labor market, the multitude of inviolable rights recognized by the Italian constitutional text and by several international treaties.

The phenomenon incredibly magnifies the illegal gang-master system (known as "caporalato"), which had already reappeared in the 1960s in relation to modern forms of farm labor, particularly female, in the Apulian countryside and the South in general and has now reached proportions unthinkable in those times.

In the abovementioned perspective, Article 2 of the Italian Constitution, in view of its universally recognized open structure, must be integrated, even before with articles 4 and 5 of the Universal Declaration of the Rights of Man of 1948, with the prohibition of slavery and of forced labor as contained in Article 4 of the European Convention on the Rights of Man of 1950 and with Article 5 of the Charter of Fundamental Rights, included in Title I dedicated to human dignity. The Charter of Fundamental Rights, referred to in Article 6 of the Treaty of Lisbon, recognizes the same values. That last provision, in particular, prohibits traffic in human beings in the name of the inviolability of human dignity, which therefore constitutes the very nucleus of national constitutions and of international instruments on human rights that bind the member states. The first of these is the provisions of the Warsaw Convention of the Council of Europe condemning traffic in human beings.

The perspective assumed by the aforementioned supranational regulations, regardless of the direct effect of our legal experience, whether at the level of compliant interpretation or with regard to the assessment of the constitutionality of the applicable provisions, has had a direct effect on the reform of our basic legislation, particularly criminal law. In fact, Law 228, of August 11, 2003, regarding measures against traffic in persons changed, among other things, both Article 600 of the Italian Criminal Code, on the subject of the reduction to or maintenance in slavery or in servitude, and the following Articles 601, on the subject of traffic in persons, and 602, on the subject of buying and selling slaves.

With specific reference to Article 600 of the Italian Criminal Code, the reform of 2003 noticeably shifted the centre of regulatory protection, setting it on the centrality of the dignity of the person and radically altering the sense and function of the regulation in question. Before the reform the crime could be committed by any person, but not in Italy, deeming that the only States taken into consideration were ones where slavery - or other similar situations - existed as conditions of law, today the active subject of the crime is recognized to be the person that, in Italy, exercises powers corresponding to the right of property.

Furthermore, with reference to the objective element of the crime, two different conducts are punished: reduction to or maintenance in slavery, as well as reduction to or maintenance in a state of continuous subjection for the purposes of exploitation. The provisions of the Italian Criminal Code referred to above highlight the complete novelty of the phenomenon in question compared to the problems our tradition has always dealt with.

The "worker" referred to in our system (see Section 2087 of the Italian Civil Code) and, in parallel, in the Italian Constitution (see Article 3), assumes the notion of abstract human work, which instead is totally different from the figure of the slave in the true sense.

In the case of slavery, the work does not come on the market in the form of goods saleable by "free" workers. The subjection of the slave to the master is not based on a contractual relationship but has an extra-economic origin and is not created by the organization of his or her activity as conducted in the workplace where it is performed, but has causes external to the production process in which he or she is inserted as a mere object.< This feature of the phenomenon is today a substantial part of the very rich case law, which is a unique observatory for understanding its extent and nature.

In a very significant case, the crime of reduction to or maintenance in slavery, referred to in Article 600 of the Italian Criminal Code, is identified in the behavior of a person who, regarding him or her as a thing that can be the object of trade, purchases a minor from the parents by paying a price and continues to use him or her, as the parents already did, for committing thefts, telling him or her the answers to give to the police in case of arrest and warning him or her not to reveal the sale to any person.

Article 600 of the Italian represents a crime with multiple offences, consisting either of the behavior of whoever exercises over a person powers corresponding to those of an owner, or the behavior of whoever reduces to or maintains a person in a continuous state of subjection, forcing him or her to work, or perform sexual services, or to beg or, in any case, to perform services that involve his or her exploitation.

Finally, the crime of reduction to slavery, provided by Article 600 of the Italian Criminal Code, presumes a relationship of intentional dependence between the conduct of reduction to and maintenance of a person in a state of continuous subjection and that consisting of forcing the person to perform specific services or in any case that involve exploitation. Therefore the objective of the exploitation distinguishes the offence from any other form of restraint of personal liberty.

The frequent use made by Italian case law of the type of offence at issue that, at first glance, seems to recall social relationships of long ago, is striking because of the variety of cases it applies to and the specific thinking characterizing it, quite different from the traditional types of offence in the Italian system.

In a recent judgment by the Italian Appeals Court, slavery or servitude is identified as continuous subjection and in subordination to the will and orders of others (hierarchical superior, employer, head of family, husband or other person. The illegally required "services"- work or sexual or begging - that involve exploitation are not a further element in the conduct of reduction to slavery, but they frame and define the state of subjection). It is not a question of a simple, merely passive condition of deprival of freedom but also involves one who is compelled to carry out various activities that take the concrete form of exploitation of his or her person and not merely of his or her abstract working activities.

Lastly, it must be remembered that, in the particular punishment system set out in Legislative Decree Number 231 of June 8, 2001, on the subject of the so-called "administrative" responsibility of corporate bodies, companies and associations, reduction to slavery is provided in Article 25 as one of the cases considered in relation to a monetary penalty.

f we consider the set of fundamental and/or inviolable rights provided by the Italian Constitution, as it is now supplemented by supranational sources, there exists within it provisions for the protection of rights that are not merely social but also racial, and the new forms of real, true slavery, completely unknown to the Italian legal experience until now.

There is thus needed a different approach from that process of transformation, which, as Justice Marshall recalled, the US Constitution had to undergo in order to concretely affirm the fundamental laws abstractly provided for in it, in view of the existence of slavery and the practice of various kinds of discrimination, including racial. Notwithstanding this difference, the strategies practiced by Justice Marshall, and clearly described in his writings, are extremely relevant for a situation that, like the Italian one, that requires dealing with types of inequality and of discrimination that were unknown to it until recently.

Faced with the undeniable increase in social forms of inequality and discrimination, and even the new forms of real slavery, we need, as Justice Marshall teaches, to remember that the mentality behind the various kinds of discrimination, even though different in contents and origin, is always the same and therefore the related legal remedies and, even before that, the social strategies to be adopted, for wiping them out, need to be considered as a single whole.

These strategies are totally different from the kind that can be successful in protecting strictly individual interests and, as Justice Marshall often stressed, call for the kind of lawyer who is capable of playing a social role, because his or her fights in court must also be combined with political action and even with possible demands for adequate legislative measures. This kind of "lawyer" is a qualified legal operator who can only exist within a strong association.

In the United States situation that particular association has been the National Association for the Advancement of Colored People(NAACP), the legal office of which was, as already mentioned, managed by Thurgood Marshall for more than 25 years, from 1936 to 1961. It is also the association that, as has already been mentioned, has as one of its founding members, W.E.B. Du Bois, the first African-American to receive a Ph.D. from Harvard University.

The work of Du Bois, previously referred to, is worthy of special attention, not only for the great importance of his vast and multiform scientific and artistic productions, but also because it highlights the complex composition of the NAACP, naturally quite different from the kind of associations known to us but which can in a certain sense be compared to it.

After having contributed to its foundation, Du Bois was, for several decades, the official most involved in the work of the Association but, after a long period of dedication, during which he directed the fights and claims of African-Americans relating to rights and of citizenship in the atmosphere of the Cold War and of anti-imperialist criticism of the United States, he gradually moved away from it and left the United States, after he had joined the Communist Party, and died at the age of ninety in 1961,  a citizen of Ghana in Nkrumah's time. Nevertheless, the Association, which he had helped to found, never expelled him.

Just a short time before his tragic death, Martin Luther King, introducing the collection of the writings and speeches of Du Bois, pointed out that "Dr. Du Bois was a genius and chose to be a communist. Our irrational and obsessive anticommunism has led us into too many quagmires to be retained as if it were a mode of scientific thinking”. This shows the internal dialectics of an associative movement that succeeded in leading such a complex and difficult struggle.

In our European situation, particularly the Italian one, a similar role to the one recalled above was played by the political parties and trade unions during their best periods of strong social integration, when they succeeded in putting an organized network for the defense of the workers into operation, very like the social lawyers that Justice Marshall talked about.

Presently in the immigration sector, the efforts of trade-union organizations are important, even if they are not enough to involve the entire organizational system, while the political crisis means that the commitment of the parties to dealing in terms of collective commitment with problems that are so vital for our entire social life is only sporadic and is left to the initiative of individual officials. In the absence of generalized social participation, uprisings by the excluded, so carefully studied by Justice Marshall, unfortunately become inevitable and new forms of racism are increasingly common all over Europe.

ASIl & International Judicial AcademyInternational Judicial Monitor
© 2013 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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