Quote of the Day (John Marshall Harlan, on the Supreme Court’s “Brutal” Assault on Civil Rights)

“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.

This Day in Legal History (Supreme Court Retreats From Reconstruction)

October 15, 1883—In a critical step away from ensuring equal rights to all, the U.S. Supreme Court knocked the foundation from under a landmark Reconstruction piece of legislation, the Civil Rights Act of 1875, by ruling that Congress could not apply the law on subjects within state jurisdiction.

Contrary to the natural expectations one might have, the court’s adverse ruling on the five “Civil Rights Cases”—consolidated into one—was written not by a member of the Democratic Party, which maintained its longtime stronghold in the South by crushing the rights of black freedmen, but by a Republican—Joseph B. Bradley.

But even more startling was the lone dissenter –not just a Republican, but a native-born white southern Republican, a man who had owned slaves in his youth but had turned decisively against the “peculiar institution”—John Marshall Harlan.

Justices Oliver Wendell Holmes Jr. and Robert Jackson probably enjoy the greatest reputations as writers on the high court. But for sheer moral passion in written decisions, I don’t think you’ll find any to compare with Harlan. His moral urgency and bravery is all the more evident in the lopsided majorities he stood against, nursing his only hope in that what turned out to be a far-distant posterity would vindicate his judgment.

Thirty years before the New Deal finally made it official, Harlan declared in his dissent in Lochner v. New York (1905) that Congress had the authority to legislate concerning maximum hours. It would take even longer—nearly a half century—before the Warren Court would agree with his reasoning in Plessy v. Ferguson (1896) that “Our Constitution is color-blind” and that “separate but equal” accommodations imposed inferiority upon an entire class of citizens.

But thirteen years before Plessy, Harlan had served notice that he would defend blacks under the most straitened circumstances—in the service of a law compromised at conception, weakened further in its enforcement, but one of the few remaining tools at the ready for a group of citizens who were watching their hard-won post-emancipation rights rapidly erode.

Eric Foner observes in his authoritative Reconstruction: America’s Unfinished Revolution, 1863-1877 that just passing the Civil Rights Act required the deletion of a major provision, a clause requiring integrated education. (How appropriate that the modern civil-rights movement began in earnest when the Supreme Court ruled on this very element in Brown v. the Board of Education of Topeka, Kansas in 1954.)

The act placed the burden of enforcement on the injured parties themselves—an increasingly difficult proposition when blacks were being intimidated out of using the franchise by the Ku Klux Klan and other agents of domestic terrorism. With the Democrats having achieved a landslide in Congressional elections in November 1874, the Republicans knew that this would be their last chance to pass legislation while still in control of the legislative and executive branches.

The Civil Rights Act, then, might be regarded as the last hurrah of Reconstruction, the moment when the “Radical Republicans” marshaled their forces for a renewed effort on behalf of the freedmen. The act, whatever its deficiencies in enforcement (deficiencies severe enough that it would eventually make the legislation practically a dead letter), still stood as a weapon that could be used in the future. In pursuit of the idea that all powers were equal before the law, it held that penalties could be imposed on anyone who discriminated against anyone using transportation facilities, hotels and inns, theaters and places of public amusement.

Violations of the law were rampant from the beginning. Nearly a generation had passed after Appomattox had seemingly settled the issue of the primary of federal over state authority, the Civil Rights cases hinged on the Tenth Amendment—the one reserving to the states and people any rights not specifically spelled out to Congress.

Justice Bradley took a pinched view of rights in this case. He didn’t have any problem with applying the Fourteenth Amendment to areas it had not envisioned, such as corporations and commercial interests, but ignored the obvious original intent of the legislation—on behalf of blacks.

An obsessive, persnickety researcher, Bradley was the type of guy who, when he missed a train because his wife insisted he wear new trousers, became so enraged that he cut the pants to shreds. Harlan immediately—and correctly—pointed out the narrowness of Bradley’s ruling in the case with this final closing statement:

“At some future time, it may be that some other race will fall under the ban of race discrimination. If the constitutional amendments be enforced according to the intent with which, as I conceive, they were adopted, there cannot be, in this republic, any class of human beings in practical subjection to another class with power in the latter to dole out to the former just such privileges as they may choose to grant.”

In an act of supreme irony, the same pen used by Harlan in signing his dissent had also been employed by Roger Taney in the court’s infamous Dred Scott decision.