Justice Harlan’s imperishable dissent in Plessy v. Ferguson

Justice John Marshall Harlan was the only dissenter from the U.S. Supreme Court’s infamous ruling in Plessy v. Ferguson, in 1896, in which the majority invoked the “separate but equal” test to uphold segregation laws.

Justice Harlan’s immortal dissent became law in the landmark case of Brown v. Board. Of Education of Topeka, Kansas (1954), in which the Court overturned Plessy and held that “separate but equal” was inherently unconstitutional and a violation of the 14th Amendment’s Equal Protection Clause.

Harlan’s dissent in Plessy, combined with his landmark dissent in The Civil Rights Cases of 1883, establish him as “the great dissenter” in American constitutional history. His dissent in The Civil Rights Cases, in which the Court had struck down an 1875 congressional statute that would have banned racial discrimination in all places of public accommodation, laid the foundation for Supreme Court rulings in the 1960s that prohibited private acts of discrimination. His opinion in Plessy provided the architecture for the Court’s ruling in Brown, which remains our nation’s most famous civil rights case. His lofty status reflects that imperishable contribution, of course, as well as his enduring observations about fundamental constitutional principles and provisions.

Justice Harlan’s dissent in Plessy reiterated the important 13th Amendment argument that he had made in The Civil Rights Cases of 1883, in which he said that that amendment did more than abolish formal slavery and involuntary servitude. It also prohibited the “badges and incidents” of slavery. The 13th Amendment, he wrote, “decreed universal civil freedom in the country.”

In Plessy, Harlan confronted the Court with its own ruling in Strauder v. West Virginia (1880), where it had interpreted the 14th Amendment to mean that “the law in the States shall be the same for the black as for the white” and that the amendment embodied a “necessary implication” that blacks enjoyed “exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of rights which others enjoy.”

The segregation act in Louisiana that separated blacks from whites on railroad cars, Justice Harlan stated, was unreasonable because segregation was not germane to a legitimate legislative end. The 14th Amendment, he asserted, prohibited the state from creating legal distinctions based on color, such as those that involved public transportation, which included railroads. In words that resonate across the decades and inspire repetition, Harlan stated: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.”

Justice Harlan’s outrage in Plessy was on full display. He believed that the Court’s ruling in Plessy would be viewed as pernicious as Dred Scott v. Sandford (1857), in which the Court held that Black Americans could never be citizens of the United States. In his opinion for the Court in Dred Scott, Chief Justice Roger Taney spoke of blacks as “a subordinate and inferior class of beings,” upon whom had been impressed “deep and enduring marks of inferiority and degradation.”

Harlan took the Plessy Court to task for embracing separate but equal as a doctrine purporting to satisfy the 14th Amendment’s guarantee of the equal protection of the law. The “thin disguise” of equality, he wrote, would mislead no one, “nor atone for the wrong done this day.” Harlan’s frustration with his colleagues was palpable. In the Civil Rights Cases, the Court prevented Congress from abolishing segregation. In Plessy, the Court supported segregation.

Justice Harlan’s landmark dissents are made more remarkable by his public, mid-life repudiation of the world of slavery. Born into a Kentucky slave-holding family he, himself, owned slaves and opposed the 13th Amendment. However, his growing belief that the Reconstruction Amendments and increased federal power were indispensable to America’s future aided his intellectual and political transition from a defender of slavery to a powerful and eloquent advocate for the civil rights of Black Americans.

Following his death in 1911, Justice Harlan was regarded by most scholars and jurists as a middling Justice, largely because his views on the nature of the Reconstruction Amendments were out-of-step in a nation that practiced segregation. His reputation, however, dramatically changed in the 1950s, as a result of two events in 1954 — the Court’s adoption of his famous dissent in Brown v. Bd. Of Education and President’s Dwight D. Eisenhower’s nomination of his distinguished grandson and namesake to the High Tribunal.

The subsequent scholarly reevaluation of Justice Harlan’s career paid considerable respect to his stature as a great dissenter, who had foreshadowed fundamental developments in American constitutional law. It was Harlan who had suggested that the 14th Amendment was designed to incorporate the Bill of Rights so that they would apply to the states. It was Harlan who had vigorously argued the harms and evils of the inherent inequality of racial segregation. And it was Harlan who argued that the plenary power of Congress under the Commerce Clause could be used to outlaw racial discrimination in public accommodations. There are many lessons to be learned from Justice Harlan’s life and career, not the least of which is the reminder of the value of open-mindedness and a willingness to reevaluate issues in light of new facts and changing societal circumstances.

David Adler, Ph.D., is a noted author who lectures nationally and internationally on the Constitution, the Bill of Rights and presidential power. His scholarly writings have been cited by the U.S. Supreme Court and lower courts by both Democrats and Republicans in the U.S. Congress. Adler’s column is supported. in part. through a grant from Wyoming Humanities funded by the “Why it Matters: Civic and Electoral Participation” initiative, administered by the Federation of State Humanities Councils and funded by Andrew W. Mellon Foundation. Adler can be reached at david.adler@alturasinstitute.com.