Separate but Equal, the Court Said. One Voice Dissented.
The Supreme Court decision in Plessy v. Ferguson, announced 125 years ago Tuesday, is duly remembered as one of the great abominations in legal history. By endorsing the notorious separate-but-equal doctrine, it consigned most African Americans to a state of rank oppression. In the space of no more than 5,000 words, it violated the plain language of the Constitution, engaged in expansive racist dissembling and defied the outcome of the Civil War.
Rarely has a pile of words had such a devastating impact on the lives of so many people, while simultaneously mocking the nation’s founding principles. Appended to it, however, was a document of far greater character and wisdom, which — in its very existence — proved that one justice, at least, understood the vastness of the court’s error.
The appendage was the fiery dissenting opinion of Justice John Marshall Harlan, the Kentuckian who was on his way to earning the title “The Great Dissenter.” He did more than anyone since the Continental Army to enshrine dissent as an American tradition and a badge of honor, and showed that history would look positively on those who voice truth in the face of even a seemingly monolithic consensus — something today’s leaders can take to heart.
“Our Constitution is colorblind and neither knows nor tolerates classes among citizens,” he wrote in its most famous passage. “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 his color when his civil rights as guaranteed by the supreme law of the land are involved. …”
Nearly six decades later, when the Supreme Court finally overruled Plessy v. Ferguson in the case of Brown v. Board of Education, many people, even in white America, agreed that Harlan had been right all along. “Justice Harlan Concurring,” was the cheeky headline on The New York Times editorial the Sunday after the decision. “This is an instance in which the voice crying in the wilderness finally becomes the expression of a people’s will,” wrote the Times editorial board.
Thus, 43 years after his death, Harlan got a posthumous pat on the back, along with the not insignificant acknowledgment that he alone had seen clear of the fog of racism. (This was quite ironic, since he had owned slaves early in his life.) But those attaboys didn’t completely capture the importance of his dissent. More than just a static marker, it was a road map for those who would labor into the future to undo the great injustice done that day. Harlan had drawn such guidelines in his dissents before Plessy, and would do so afterward, as well — in cases involving crucial economic and labor protections as well as race. His status as a legal progenitor extends into the current day, when justices of all political persuasions acknowledge the soundness of his views while admiring his courage in expressing them.
Over the last decade or so, as African-American newspapers have become digitized, the impact of Harlan’s words on the Black community has become clearer, including its role in inspiring the many courageous figures who rose up to challenge the separate-but-equal doctrine approved in Plessy.
“Beyond the decision of the Supreme Court, there is no redress,” grieved The Enterprise, a Black paper in Omaha, in the days after the decision. A month later, The Enterprise was able to focus on the future: “We have read nothing so clear, so manly, so straight forward and uncompromising in many a day as Justice Harlan’s dissenting opinion … he uttered words that will ever endear him to the hearts of the colored people.”
The greatness of Harlan’s opinion was in the way it combined unyielding principles with a common-sense examination of the case. The subject was Louisiana’s separate-car law, through which the proponents argued that keeping travelers like Homer Plessy in a separate railroad car didn’t violate the Constitution as long as they got substantially equal service. Harlan saw instantly that holding one race apart from all others didn’t pass the smell test, and he was frank enough to declare that everyone else knew it as well: “The thing to accomplish 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. No one would be so wanting in candor as to assert the contrary.”
He also clearly saw the pain of the victims. His open declaration that a “wrong” had been done to African-Americans not only affirmed their rights but acknowledged their humanity. Furthermore, he predicted that the horrific effects of the decision — while visited exclusively on Black people — would do pernicious harm to the country at large: “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. …”
While these words were barely noticed in the white community, they were widely discussed among Black leaders. The fact that one person, rather than none, in the white power structure had recognized the injustice visited upon them was a slender thread that nonetheless kept some Black people believing in the American system.
When Harlan died in 1911, Black congregations around the country organized spontaneous memorial services without expecting that a single white person would attend. Three of these all-Black services were in Washington, D.C., culminating in a huge multifaith gathering at the cavernous Metropolitan A.M.E. Church at which Harlan’s Plessy dissent was read aloud.
All of this was invisible to the white community. But a few decades later, Thurgood Marshall and his team at the NAACP Legal Defense Fund began scouring the country for plaintiffs willing to challenge segregation laws, knowing that the Ku Klux Klan was on high alert. Harlan’s dissent provided the sole beacon of hope that the courage of the Black defendants might someday be rewarded.
“Marshall’s legal staff would gather around him at a table in the office to discuss possible new legal theories for attacking segregation,” recalled Constance Baker Motley, one of Marshall’s top lieutenants. “Marshall would read aloud passages from Harlan’s amazing dissent. I do not believe we ever filed a brief in the pre-Brown days in which a portion of that opinion was not quoted.”
Indeed, in their brief to the Supreme Court in the Brown case itself — the culmination of their relentless legal campaign — Marshall and his team quoted directly from Harlan before concluding, “It is the dissenting opinion of Justice Harlan, rather than the majority opinion in Plessy v. Ferguson, that is in keeping with the scope and meaning of the Fourteenth Amendment. …”
The Supreme Court, under Chief Justice Earl Warren, unanimously agreed.
When Thurgood Marshall died in 1993, Judge Motley wrote movingly of how Marshall himself, as a Supreme Court justice from 1967 to 1991, often was in the minority: “I believe I know what sustained Marshall spiritually during all of those heartbreaking years when the Warren Court decisions were being denuded. Marshall had a ‘bible’ to which I believe he must have turned during his most depressed episodes. The ‘bible’ would be known in the legal profession as the first Mr. Justice Harlan’s dissent in Plessy v. Ferguson. … Marshall admired the courage of Harlan more than [that of] any justice who has ever sat on the Supreme Court. Even Chief Justice Warren’s forthright and moving decision for the Court in Brown I 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.”
Tuesday’s anniversary marks one of the lowest points in the 230 years of Supreme Court decision-making. But its allowance of dissenting opinions — a largely American innovation — enabled one man’s objection to be heard by the lawyers and justices of the future. It was a small consolation at the time, but a momentous act in history."