Harlan's Great Dissent

Plessy v. Ferguson: Harlan's Great Dissent

By Charles Thompson
This article originally appeared in the 1996 No. 1 issue of Kentucky Humanities, published by the Kentucky Humanities Council, 206 East Maxwell St., Lexington, KY 40508-2316.

In 1896, in the case of Plessy v. Ferguson , the Supreme Court of the United States made what turned out to be one of its most notorious decisions. By a vote of 7-1 (one justice did not participate), the Court approved the principle of separate but equal, which for the next half-century and more was used to justify laws mandating segregation in every area of life in the South, from transportation to education to public accommodations. The one lonely, courageous dissenter against the Plessy v. Ferguson decision was a Kentuckian, Associate Justice John Marshall Harlan.

At issue was a Louisiana law compelling segregation of the races in rail coaches. To test the law's constitutionality, Homer Plessy, a Louisianan of mixed race, made a point of getting arrested for sitting in the whites-only section of a train car. When his case reached the Supreme Court, Plessy argued that enforced segregation in theoretically separate-but-equal accommodations compromised the principle of legal equality and marked blacks as inferior. The Court majority disagreed, declaring the law constitutional while saying it stamped blacks with "a badge of inferiority" only if "the colored race chooses to put that construction upon it."

But if his fellow justices found no objections to the Louisiana law, John Harlan could find little else. He wrote:

"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 arbitrary separation of citizens on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds."

Futhermore, argued Harlan, the decision would poison relations between the races.

"What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments, which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? That, as all will admit, is the real meaning of such legislation."

Even a full century after its delivery in 1896, Harlan's eloquent defense of civil rights for black Americans retains its power. Indeed, it was a fount of inspiration for one of the great lawyers of the century, the late Supreme Court Justice Thurgood Marshall. At a 1993 ceremony in memory of Marshall, a colleague, Constance Baker Motley, recalled that when Marshall was the lead attorney in the NAACP's fight to end segregation, he picked himself up in low moments by reading aloud from Harlan's dissent. And he cited it in Brown v. Board of Education , the 1954 case that finally overturned Plessy v. Ferguson . As quoted in Judicial Enigma , a new biography of Harlan, Judge Motley said: "Marshall admired the courage of Harlan more than any justice who has ever sat on the Supreme Court. Even Chief Justice Earl Warren's forthright and moving decision for the court in Brown did not affect Marshall in the same way. Earl Warren was writing for a unanimous Supreme Court. Harlan was a solitary and lonely figure writing for posterity."

"Our constitution is colorblind." It was Marshall's favorite Harlan quotation, and is now so familiar that we take it for granted. But to get to the point of coining it in his great dissent of 1896, John Harlan of Kentucky, one-time slave owner and defender of slavery, had to come a very long way.

That, of course, is the big question about Harlan: How did he get from where he started to where he ended, from defending slavery to defending the rights of the former slaves? His youth and early political career didn't point in that direction. Harlan was born June 1, 1833, at Harlan's Station in Boyle (then southern Mercer) County. The Harlans were a prominent, slaveholding Kentucky family. Harlan county was named for John's great uncle Silas, who died at the Battle of Blue Licks in 1782. His father, James, was a lawyer and politician who served two terms in Congress in the 1830's and later held several public offices in Kentucky, among them secretary of state and attorney general. His mother, Eliza Shannon Davenport Harlan, was the daughter of a Boyle County farmer. She married James Harlan in 1822. John was the sixth of their nine children.

Named for the great U. S. chief justice, John Marshall Harlan was raised to the law. His education was splendid - B. B. Sayre's private academy in Frankfort (Kentucky had no public schools), followed by Centre College in Danville, very near his birthplace, and law school at Transylvania University in Lexington. (Law schools were rare then - most lawyers were trained as apprentices in law offices. When he joined the Supreme Court in 1877, John Harlan was the only law-school graduate among the nine justices then sitting.)

In 1852, the new graduate joined his father's Frankfort law practice, and plunged into politics. His father was a Whig, a close friend and staunch supporter of the great Whig, Henry Clay. As John embarked on his political odyssey, he too was a Whig. But the Whigs didn't last long - the party disintegrated over the slavery question in the early 1850s. It was the first but not the last party to expire on John. By the time he became a Republican in 1868, he had lent his talents to a bevy of parties. Six feet two inches tall, redhaired and handsome, with a powerful voice and speaking style, his skill on the campaign trail won Harlan renown, and elections - county judge of Franklin County in 1858, Kentucky attorney general in 1863. But his party hopping left a bad taste in some mouths. In 1859, the Lexington Statesman acidly observed that Harlan had "accomplished as many somersaults in his brief career as any man in the country." And at that point he still had plenty of political bounce left in him.

But whether he was with the Whigs, whose belief in a strong national government permanently influenced his thinking, or the Know Nothings, whose campaign against foreigners and Catholics he briefly joined, or one of several other parties, Harlan was consistent on one issue: slavery. He defended it vigorously and often, arguing against abolition as a violation of private property rights. At the same time, he was convinced that the Union must be preserved, leading him to enlist on the Union side in the Civil War in 1861. Col. J. M. Harlan commanded a Kentucky regiment that was celebrated for helping rout the forces of Confederate raider John Hunt Morgan in 1862.

Harlan continued to argue that the federal government should not meddle in the slavery question. The Union's goal in taking up arms, he said in a wartime speech, "was not for the purpose of giving freedom to the Negro." He swore he would quit the army if President Lincoln signed the Emancipation Proclamation. When the Proclamation took effect on Jan. 1, 1863, Harlan denounced it as "unconstitutional and null and void." He did not resign over it, although, due to the death of his father, he did leave the army within a few months to care for his family and resume his career in law and politics.

The Emancipation Proclamation did not apply to Kentucky, since the state was not part of the Confederacy. John Harlan owned a few household slaves, and he did not free them until the ratification of the Thirteenth Amendment to the U. S. Constitution forced him to in December 1865. The amendment, he said, was a "flagrant invasion of the right of self-government which deprived the states of the right to make their own policies. He would oppose it," he said, ". . .if there were not a dozen slaves in Kentucky."

Hardly more than two years after this statement, Harlan turned his final and most amazing political somersault: He became a Republican, joining the party of Lincoln, whose policies he had so reviled. It was the party of freedom for black Americans, the party of the Thirteenth Amendment, which ended slavery, and the Fourteenth and Fifteenth Amendments, which extended the rights and privileges of citizenship to the freed slaves. Once a bitter critic of these Reconstruction Amendments, Harlan was suddenly, and willingly, their proponent. In 1871, he said: "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." As to his spectacular flip-flop on the issue, Harlan said: "Let it be said that I am right rather than consistent."

Now Harlan was on the way to his great dissent, but why did he take this fork in the road? In Judicial Enigma , his highly praised study of Harlan, Tinsley E. Yarbrough says one reason was simple expediency. To continue his political career, Harlan had to finally join either the Republicans or the Democrats. For several years, he had been a leader of the Conservative Union Party and its short-lived successor, the Union Democratic Party, which occupied a shaky middle ground between the major parties. The Conservative Unionists held the Union sacred, which put them out of step with Kentucky's secessionist-dominated Democrats, and they were against civil rights for the former slaves, which made them anathema to the Republicans. By 1868, this middle ground had collapsed, forcing Harlan to choose a new party. He chose the Republicans. Republicans believed in civil rights for black Americans, and now, whatever his past views, so did John Harlan. He embraced Republican doctrines as readily as he had embraced the doctrines of other parties in the past.

But expediency didn't fully account for his choice. In John Marshall Harlan, The Last Whig Justice , the only other scholarly biography of Harlan, Loren P. Beth suggests that for years Harlan's private racial attitudes had been more liberal than his public statements, which were fueled by "a partisan enthusiasm and the desire to win elections . . . with a resulting split between the private and the public man."

Indeed, there are numerous factors in Harlan's background that might have softened his racial attitudes. Though he owned household slaves, Harlan's father abhorred the brutality of the system. In an incident that became legend in the family, an outraged James once walked up to a whip-wielding slave driver in the streets of Frankfort and called the man "a damned scoundrel." The family hero, Henry Clay, opposed slavery in principle and favored gradual emancipation. So did many of John's teachers at Centre and Transylvania. John's wife Mallie, an Evansville, Indiana, native whom he married in 1856, wrote in a memoir that John had imbibed "a deep dislike of involuntary servitude in any form" from his father and teachers. Mallie's own distaste for slavery also may have influenced his views.

Then there was John's slave half-brother Robert, who was treated to some degree as a member of the family. According to some accounts, James Harlan once tried, unsuccessfully, to send Robert to school along with his other children. Robert lived most of his life in Ohio and did very well, but in the early 1860's he moved to England, mainly to escape the racial climate in this country. He returned only after the deterioration of his stateside investments undermined his English lifestyle, which included a fine house, servants, and deep involvement in thoroughbred racing. Though they maintained only limited contact, John must have known of the obstacles racism had thrown up in Robert's path. That knowledge may have made him more sensitive to racial injustice.

The terrorism that the Ku Klux Klan and similar groups inflicted upon blacks in Kentucky immediately following the war also pushed Harlan toward the Republicans. He was appalled by the arson, beatings, and murders, and the revulsion he felt was reinforced by his friendship with a leading Republican, Benjamin Bristow, who as U. S. Attorney for Kentucky prosecuted the white terrorists with a crusader's zeal.

Harlan took up the cause of Kentucky Republicanism with the same kind of energy. Though he lost in both of his runs for governor, in 1871 and 1875, he is credited with making the party viable in Kentucky politics. In 1876, he helped Rutherford B. Hayes win the Republican presidential nomination. In the spring of 1877, the newly inaugurated Hayes had the chance to fill a Supreme Court vacancy. After his first choice, Harlan's friend Bristow, proved too controversial within the party, the President turned to Harlan.

During his Senate confirmation, critics questioned whether Harlan's Republican beliefs were sincere. Harlan swore they were, and once he joined the Court in December 1877, he no doubt felt a need to prove it. No longer a politician scratching for votes, he was free to do so. His resolve was bolstered by his wife and children, who had embraced his new views on race. And once he began writing dissents that defended the rights of black citizens - Plessy was not the only one - reinforcement poured in. Many blacks expressed appreciation and offered encouragement, including the most visible black leader of the day, Frederick Douglass, with whom Harlan maintained warm relations for more than two decades.

The title "The Great Dissenter" has been applied to a number of justices over the years, but it probably fits John Harlan best. His dissents from the decisions of his colleagues were numerous and, at times, fierce. In private he was quiet, courteous, and good-humored, devoted to his family and the Presbyterian church, revered by his students. But he was a passionate jurist. As he himself once admitted, his deep feelings about a case could show up in his voice and manner as he delivered an opinion from the bench. Newspaper accounts described one of his dissents as an "harangue," during which he pounded the desk and shook his finger under the noses of his fellow justices.

Whatever the manner of their delivery, a number of his dissents are classics. They range over many issues, but it is the dissents in civil rights cases that have won him a place on some modern lists of the court's greatest justices. Plessy v. Ferguson was his masterpiece, but he also registered memorable dissents in 1883, when the Court declared the Civil Rights Act of 1875 unconstitutional, and in 1908, when the Court upheld Kentucky's infamous Day Law, which banned integrated education in private schools. The law was aimed at Berea College, which had been integrated since its opening in 1866. In that dissent, Harlan asked:

"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 he was ahead of most of his contemporaries on the race issue, John Harlan was still a man of the 19th century. A close reading of the Plessy dissent reveals the complexity of his racial views. In it he asserts the legal equality of blacks, saying there is no dominant class of citizens, yet also predicts that white dominance "in prestige, in achievements, in education, in wealth and in power" will continue "for all time." To Harlan, as Loren Beth put it in his book, "equality was more a constitutional principle than a personal belief." That's why, Beth wrote in a recent letter, Harlan could "continue, even after Plessy, to regard blacks as inferior in some respects. His comments about blacks were frequently paternalistic in tone, and there is little doubt that he did not favor social mixing of races." On rare occasions, reports Tinsley Yarbrough, Harlan let a racial slur or joke slip into his correspondence. As Yarbrough observes, "flawed human beings are responsible for civilization's advances as well as its retrogressions."

John Harlan died on Oct. 14, 1911, ending a Supreme Court tenure of almost 34 years, still one of the longest ever. "Harlan's stand on the Court is remarkable, coming when it did, and against the united opinions of his brethren," writes Beth. "It thus constitutes an enduring legacy." The heart of that legacy is the Plessy dissent, which attracted little attention a century ago because the kind of segregation it protested was already well-established. Since then, however, the dissent has inspired many of those who have worked to make real its vision of a colorblind Constitution. As one of the greatest of them, Thurgood Marshall, realized, it is the Plessy dissent's context as well as its content that make it truly remarkable. Harlan's great dissent was an act of lonely courage. That is surely one of the main sources of its lasting power: It cost him, as enduring legacies usually do.