“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. It was adjudged in that case that the descendants of Africans who were imported into this country and sold as slaves were not included nor intended to be included under the word 'citizens' in the Constitution, and could not claim any of the rights and privileges which that instrument provided for and secured to citizens of the United States;… The recent [Thirteenth Through Fifteenth] amendments of the Constitution, it was supposed, had eradicated these principles from our institutions. But it seems that we have yet, in some of the States, a dominant race -- a superior class of citizens, which assumes to regulate the enjoyment of civil rights, common to all citizens, upon the basis of race. The present decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the Constitution, by one of which the blacks of this country were made citizens of the United States and of the States in which they respectively reside, and whose privileges and immunities, as citizens, the States are forbidden to abridge. Sixty millions of whites are in no danger from the presence here of eight millions of blacks. The destinies of the two races in this country are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law. 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 as was enacted in Louisiana.”—Justice John Marshall Harlan, dissenting opinion in Plessy v. Ferguson (1896)Another section of this opinion delivered on this date 115 years ago today by John Marshall Harlan, associate justice of the Supreme Court, is far better known to posterity: "our Constitution is color-blind and neither knows nor tolerates classes among citizens.'' But this section above is far more prophetic, and deserves to be better known, both for its deep understanding of the high court’s problematic history in preserving the rights of America’s most marginalized citizens and in foreseeing the possibilities for mischief in laying down dangerous new precedents that ignore the intentions underlying constitutional amendments.
At first glance, Harlan, the son of a Kentucky slaveowner, might be the last person one would expect to deliver one of the most ringing calls for racial equality from any American court. Yet he appears to have been one of the few jurists of that era comfortable with socializing with African-Americans--or, for that matter, Hispanics or Chinese.
Harlan is known to the great mass of American high school and college students (if he is at all) for his lonely, courageous dissent from the Supreme Court’s 8-1 finding that segregation could be justified on “separate but equal” grounds. He deserves to be even better known. Apart from his decisions, he was, simply, quite a character. As what colleague Oliver Wendell Holmes Jr. called the last "tobacco chomping justice," he loved bourbon, golf, baseball, and colorful clothing.
Harlan was appointed to the court by Rutherford B. Hayes in 1877, as the nation began its long, dark retreat from Reconstruction. But the court's unwillingness to preserve civil rights cannot be blamed on him. He rendered 24 years of distinguished service to the highest court of appeals, and a half century later a more sympathetic set of justices would find his reasoning in Plessy compelling enough to begin overturning American apartheid.
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