Plessy v. Ferguson and the Lone Dissent
When the US Supreme Court decided on Plessy v. Ferguson (1896), it established the "legality" of racial separation (segregation) as long as facilities were "separate but equal." This led to "legal" inequality for decades until it was overturned by Brown v. Board of Education (1954). (Not to say inequality of this sort had ceased to exist, but it no longer had "legal" justification issued from the highest court in the land.)
The Plessy decision was nearly unanimous. The vote was 7-1, one judge absent. Besides the notoriety and shamefulness of the result of the case, it is known for the eloquent and forceful dissenting opinion by John Marshall Harlan (1833-1911). Given his background, his dissension is even more remarkable.
John Marshall Harlan and slavery
Harlan was born into a prominent slaveholding family in Kentucky. In a bit of historical foreshadowing, he was named after John Marshall, who served as Chief Justice of the Supreme Court from 1801-1835. His father was a lawyer and politician who sent his son (one of nine children) to good schools and finally to law schoolthis was uncommon at the time, most lawyers having gotten their knowledge through apprenticeship (when he joined the Supreme Court, Harlan was the only one of the nine who was a law school graduate).
After graduation, he worked at his father's law practice and dabbled in politics. As to the subject of slavery (unsurprisingly) he was against its abolishment, in fact "[defending] it vigorously and often, arguing against abolition as a violation of private property rights." On the other hand, his belief in the need to preserve the Union led to his joining the North during the Civil War.
In his own words, the war was "not for the purpose of giving freedom to the Negro." He said that if president Abraham Lincoln signed the Emancipation Proclamation, he would quit the army and, when it went into effect, that it was "unconstitutional and null and void" (he did not, however, resign from the army). Since Kentucky had not been a Confederate state, the Proclamation did not apply. Harlan kept some of his slaves, only freeing them when the thirteenth amendment was passed, an amendment he felt was a "flagrant invasion of the right of self-government which [deprives] the states of the right to make their own policies."
The great shift
A few years later, Harlan had a major shift in his beliefs. He became a Republicanthe party of Lincoln which had helped push for freedom of the slaves and the thirteenth through fifteenth amendments, extending citizenship and voting rights. His reasoning? "I have lived long enough to feel and declare that...the most perfect despotism that ever existed on this earth was the institution of African slavery.... With slavery it was death or tribute.... It knew no compromise, it tolerated no middle course. I rejoice that it is gone." For those who questioned why, his reply was to "let it be said that I am right rather than consistent."
But why, really? Some have suggested it was "political expediency." To continue in politics, it would be necessary to change from his pro-slavery origins. This might be a factor but doesn't seem sufficient to explain the shift or the passion of the words in his dissenting opinion. Some have also suggested that his public statements were a lot stronger than his private views.
A number of aspects of his life suggest this. While he and his family did own slaves, they rejected the "brutality of the system." In a "famous" local incident, his father approached a slave driver with a whip, calling him a "damned scoundrel." Harlan also had a slave half-brother who was treated almost like a family member. His wife was antislavery and many of his teachers were, as well. Externally, Harlan was "appalled" by the behavior of groups like the Ku Klux Klan.
The Supreme Court
In 1877, he was appointed to the Supreme Court. He was known for a number dissenting opinions, some on civil rights issues, including when the Civil Rights Act of 1875 was ruled unconstitutional (1883) and the case (1908) upholding Kentucky's Day Law (which banned integrated education in private schools). In that opinion, he wrote
Have we become so inoculated with prejudice of race that an American Government, professedly based on the principles of freedom, and charged with the protection of all citizens alike, can make distinctions between such citizens in the matter of their voluntary meeting for innocent purposes simply because of their respective races?
While ahead of his time (and sadly, sometimes the Supreme Court), he was by no means perfect. He still harbored some feelings of the inferiority of blacks and occasionally made off-color jokes or comments. On the other hand, the positive work he did cannot be denied.
Plessy v. Ferguson
Homer Plessy was a Louisiana man who was part black. He (and others seeking equality for blacks) made to test the constitutionality of a law that made separation of the races mandatory on rail coaches. According to the law, people could not have seats on a train "other than the ones assigned to them, on account of the race" (http://supreme.lp.findlaw.com). Plessy chose a seat on a "white only" section. Since he was "seven-eights Caucasian," and able to pass as white, the only reason he had been removed was because he was asked his race and replied truthfully. When ordered to move to the "colored" car, he refused. He was "removed" and jailed.
Plessy argued that it violated the fourteenth amendment (and others) and that it "compromised the principle of legal equality and marked blacks as inferior." The lower courts disagreed and so did the Supreme Court.
The Court's decision
The majority opinion, written by Henry B. Brown (1836-1913, Supreme Court 1890-1906), stated that the fourteenth amendment was meant to "to enforce the absolute equality of the two races before the law," rather than
to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation, in places where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other....
The "constitutionality" of segregated schools was cited as evidence that this was "held to be a valid exercise of the legislative power even by courts of states where the political rights of the colored race have been longest and most earnestly enforced." Miscegenation laws were also offered as support of similar laws that "have been universally recognized as within the police power of the state."
Part of the decision was based on the fact that the rail line in question was within the state of Louisiana and seen as "internal commerce" subject to state laws.
It was concluded that
we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances [163 U.S. 537, 551] is unreasonable, or more obnoxious to the fourteenth amendment than the acts of congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.
According to Brown, the "underlying fallacy" was due to the "assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority." It was felt that if that was the case, it was "solely because the colored race chooses to put that construction upon it." The court could not accept the proposition that "social prejudices may be overcome by legislation, and that equal rights cannot be secured to the Negro except by an enforced commingling of the two races." Wrapping up, Brown stated that
Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly [163 U.S. 537, 552] or politically. If one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane.
Harlan saw it differently.
In his dissent, he harshly criticized the majority opinion on the case. He described the law as a "state enactment that compels, under penalties, the separation of the two races in railroad passenger coaches, and makes it a crime for a citizen of either race to enter a coach that has been assigned to citizens of the other race" and that it meant that "the state regulates the use of a public highway by citizens of the United States solely upon the basis of race."
Part of his finding it unconstitutional was because of "eminent domain." Since eminent domain could not be used to take property for private use and that it was established that "a state legislature may authorize a private corporation to take land for the construction of such a road, making compensation to the owner," then even if it was a private company building a railroad, it was a matter of public use. Citing and quoting a previous case, "it is true that the real and personal property, necessary to the establishment and management of the railroad, is vested in the corporation; but it is in trust for the public."
He also felt race had no part in legislation:
In respect of civil rights, common to all citizens, the constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. Every true man has pride of race, and under appropriate circumstances, when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper.
I deny that any legislative body or judicial tribunal may have regard to the [163 U.S. 537, 555] race of citizens when the civil rights of those citizens are involved. Indeed, such legislation as that here in question is inconsistent not only with that equality of rights which pertains to citizenship, national and state, but with the personal liberty enjoyed by every one within the United States.
Harlan went on to note that the thirteenth amendment not only abolished slavery but it "prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude." He discussed the fourteenth and fifteenth amendments as well as attempting to show (by quoting previous rulings) that they declared "that the law in the states shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the states" and that "that no discrimination shall be made against [the "colored" race] by law because of their color." Also that the constitution "in its present form, forbids, so far as civil and political rights are concerned, discrimination by the general government or the states against any citizen because of his race. All citizens are equal before the law."
Continuing, he stated that the real purpose of the law was not to keep whites away from black cars but the other way around. The means to accomplish this was the law which was "under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches." He all but dared anyone to "assert to the contrary."
As he saw it, the law functioned to interfere with the personal rights and liberty of American citizens. Harlan wrote:
If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so; and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each.
He then questioned: if the state had the right to discriminate in that way, why would it not also be able to pass laws that demanded white and blacks keep to separate sides of the street? Or fines and punishment for ones who shared the same vehicle? Or mandated they keep to different sides of the court room? Taking it from a different perspective than race, he questioned
if this statute of Louisiana is consistent with the personal liberty of citizens, why may not the state require the separation in railroad coaches of native and naturalized citizens of the United States, or of Protestants and Roman Catholics?
He found the implications of this as "unreasonable."
He stated that the white race seems to think itself dominantnot based on racial superiority but "in prestige, in achievements, in education, in wealth, and in power"in the country and that on the basis of those criteria, it was. Even adding that it may remain so if it adheres to the "principles of constitutional liberty" but that, as far as the constitution was concerned:
in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is colorblind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guarantied by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.
He followed that statement with prescient comment: "In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case." He continued, noting that the decision could lead to "aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens" as well as to states using it to get around the rights that the amendments in question were trying to guarantee"privileges and immunities, as citizens, the states are forbidden to abridge." He added that the situation presented by blacks being held inferior so as not to be able to even sit in the same coach as whites could lead "race hate" and "distrust between the races." It was the court's duty to uphold these rights and the government's to make the "sure guaranty of the peace and security of each race."
Returning to the interpretation of the thirteenth amendment, he called the "arbitrary" separating the races "a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the constitution" and that it "cannot be justified upon any legal grounds." Continuing,
We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow citizens,our equals before the law. The thin disguise of 'equal' accommodations for passengers in railroad coaches will not mislead any one, nor atone for the wrong this day done.
Summing up, Harlan stated that the law was "inconsistent with the personal liberty of citizens" and "hostile to both the spirit and letter of the constitution of the United States." Before officially stating the lack of assent he finished with
Such a system is inconsistent with the guaranty given by the constitution to each state of a republican form of government, and may be stricken down by congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding.
But of course, his was the dissenting opinion and "separate but equal" (though not appearing in the case record) became the "law of the land.".
Harlan's words have had a lasting effect and they were particularly cherished by no less than the great civil rights advocate and first black justice on the Supreme Court, Thurgood Marshall (1908-1993, Supreme Court 1967-1991). Marshall, who had taken part in Brown v. Board of Education and cited Harlan's dissent, was said to have found the words "a fount a inspiration" and often read them to "[pick] himself up in low moments." He also admired the courage it took to stand alone and say those words in the face of prevailing prejudices and received wisdom within and outside of the courtroom.
Not surprisingly, his favorite line from the dissent was "Our constitution is colorblind." What is surprising is how easily we sometimes take that for granted.
Full text of Harlan's opinion: Dissenting Opinion on Plessy v. Ferguson
(Sources: www.louisville.edu/library/law/harlan/harlthom.html unless noted, quotes not from the text of the opinions are from there; http://supreme.lp.findlaw.com/supreme_court/landmark/plessy.html, www.africana.com/Articles/tt_325.htm, both opinions from http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=163&page=537)