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Constitutional Borrowing, circa 1960

By Jack M. Balkin

In Thurgood Marshall?s office after his death, draped over an armchair in the morning sun, was a cloak made of monkey skin. The cloak was from Kenya, and was among the Justice?s most treasured possessions. For years, Marshall told his friends and his law clerks stories about Kenya. The cloak was a gift, he told them, from the time he was made an honorary tribal chief. But even those closest to Marshall knew little about the Kenya adventures he so keenly remembered.

This essay, forthcoming in Green Bag, illuminates Marshall?s work on a Bill of Rights for Kenya in the early 1960s as an exercise in constitutional borrowing.

When Marshall went to Kenya he "looked over just about every constitution in the world just to see what was good," and he told an interviewer that the United States Constitution was "the best I?ve ever seen." But at a conference in London on the Kenya constitution, he offered a draft bill of rights for Kenya that had no American constitutional language in it. The rights Marshall embraced as ideal, at least for an emerging African country, drew most extensively from the Universal Declaration of Human Rights, and parts were based on the constitutions of two newly independent countries, Nigeria and Malaya. Marshall?s American sensibility appeared in his document most clearly in his assumption that independent courts would enforce the bill of rights, and his emphasis on equality, something he still hoped to realize in his own country.

The essay is coming soon in Green Bag, and is posted on SSRN. The full story of Marshall?s work in Kenya is told in Exporting American Dreams: Thurgood Marshall?s African Journey (Oxford University Press, 2008), which includes Marshall's bill of rights for Kenya in an appendix. The Introduction to Exporting American Dreams can be downloaded here.

Full post as published by Balkinization on May 18, 2008 (boomark / email).