The Supreme Court Justice Who Stood Up in Plessy v. Ferguson

Appraising the racial legacy of Justice John Marshall Harlan, the Court’s famous civil rights dissenter.

During his legal campaign to desegregate public schools, the lawyer and future Supreme Court Justice Thurgood Marshall had “a Bible, to which he turned during his most depressed moments,” recalled one of his colleagues at the NAACP Legal Defense and Education Fund: Justice John Marshall Harlan’s famous dissent in Plessy v. Ferguson. It reads, in part, “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” 

The Great Dissenter:
The Story of John Marshall Harlan, America’s Judicial Hero
by Peter S. Canellos
Simon and Schuster, 569 pp.

Chief Justice John Roberts, a Republican appointee to the Court, quoted the same words in a 2003 majority opinion, Parents Involved in Community Schools v. Seattle School District No. 1, which held that local officials may not take race-conscious steps to end or prevent segregation in their public schools. 

Marshall saw race-conscious policies as the remedy for the effects of generations of official racism. Roberts sees programs that open doors on the basis of race as immoral. Each claimed to live by the Plessy dissent. 

Among justices, Harlan, who served on the Court from 1877 to 1911, is what one biographer, Tinsley Yarbrough, called a “judicial enigma.” To Peter Canellos, the author of The Great Dissenter, he was “America’s Judicial Hero.” In this readable biography, Canellos argues that “Harlan didn’t merely predict the rights revolution of the twentieth century—the system of equal protection and due process of the laws that Americans rely upon today—he helped to inspire it. His philosophy, vision, and writings were the seeds from which the modern Constitution grew.”

Harlan’s life and opinions are well worth studying. But he may be easier to admire than to understand. His intellectual roots stretch back to antebellum America and even to the era of the country’s founding. In that sense, his jurisprudence is not so much a prophecy of the future as the dying gasp of Radical Republicanism—a political vision the nation had abandoned by 1896 in favor of the macabre splendor of the Gilded Age. 

Harlan’s life began in the slave South: He was born in 1833 to a prosperous, slave-owning Kentucky family. He came of age as a protégé of his father’s friend and ally Henry Clay, Kentucky’s on-and-off senator, one-time secretary of state, and perennial presidential aspirant. Like his own father, James, and Clay, Harlan valued the Union and was resistant to antislavery agitation that might imperil it. But as southern intransigence ripened into civil war (John Marshall Harlan became a colonel in the Union army), then into violent opposition to Reconstruction, Harlan moved, step by reluctant step, from Whig to Know-Nothing to Constitutional Unionist to Unionist Democrat. (In fact, he ran out of names for his careful steps; at one point in his career, his party was simply called “the Opposition.”) Along the way, though, he usually sought to slow, not hasten, change: He questioned the Emancipation Proclamation; he opposed the Thirteenth Amendment; and he supported the Democratic “peace candidate” George McClellan against Abraham Lincoln in 1864. 

But for Harlan, as for the nation, temporizing eventually failed. By 1867 he was forced to choose between a Democratic Party turning to white supremacy and violence, and a waning but still biracial Republican Party. He chose the latter. In 1877, President Rutherford B. Hayes, in a gesture to the South, nominated Harlan to the Supreme Court. 

Beginning 30 years ago, scholars have found evidence that the Harlan family circle included two educated, prominent parents, John and his eight white siblings, and one Black slave. The latter, Robert James Harlan, shared the family surname and lived with the family. James Harlan, the paterfamilias, even tried to send Robert to the school his white children attended—and was outraged when he was turned away. The idea that James Harlan must have sired Robert Harlan seemed irresistible; in 2001, however, DNA testing suggested no father-son link between them. 

The issue of blood, however, is really irrelevant. What’s important is that the future justice was raised with an enslaved Black boy who was treated as a sibling. That in itself was not rare; many a southern planter had half-acknowledged mixed-race offspring living in a half-world between the slave quarters and the big house. But Robert Harlan, once freed, became a wealthy man, a prominent American with an international reputation. John Marshall Harlan and he were collaborators in Republican Party politics, and each relied on the other on occasion for political help.

In addition to Supreme Court history, The Great Dissenter offers a compulsively readable parallel biography of John Marshall and Robert Harlan. This part of the book offers the pleasures of a great 19th-century novel, like Mark Twain’s The Gilded Age, and its most interesting character is not the towering white jurist but the resourceful Black entrepreneur. While still enslaved, Robert Harlan began his career as a barber in Kentucky. But once freed, he joined the California Gold Rush and went into business selling supplies to the prospectors. He returned to Kentucky with a considerable fortune, rich enough—and flamboyant enough—to send a handmade piano as a wedding gift for James Harlan’s daughter Lizzie. Next, he became a gambler and a successful breeder of racehorses. Racing took him and his family to England, where he rode out the Civil War staging widely publicized exhibition races between his horses and those of famous British stables.

After the war, Robert Harlan became a force in national Republican politics, consulted by luminaries like Massachusetts Senator Charles Sumner and President Ulysses S. Grant. When Hayes took office, Robert—with John’s knowledge—used his contacts to discreetly urge the president to nominate John. For his services to the party, President Benjamin Harrison later named Robert special inspector of the Customs Department. 

While Robert blazed his own trail, John followed a path laid out for him by his lawyer-politician father. James’s connections led to his son’s appointment as adjutant general of the state militia, then to his election as a county prosecutor, trial court judge, and finally state attorney general. After a discreet but pointed campaign for the office, John became, at 44, an associate justice of the Supreme Court in 1877. 

The future justice was raised with an enslaved Black boy who was treated as a sibling. Once freed, Robert Harlan became a wealthy man with an international reputation. Robert and John were collaborators in Republican Party politics, and each relied on the other on occasion for political help.

In his 2015 book Dissent and the Supreme Court, the historian Melvin Urofsky calls John Marshall Harlan “the first great dissenter.” Harlan served for 34 years—more than half his adult life—at a time when the high court fiercely defended wealth and power; its majority was a relentless enemy of economic regulation, labor unions, progressive taxation, and civil rights. During that time, Urofsky writes, Harlan wrote 703 majority opinions and 316 dissents. To highlight just a few of these, he objected when the majority struck down the Civil Rights Act of 1875; invalidated the income tax; curtailed the power of the federal government to rein in monopolies; denied full citizenship rights to residents of Puerto Rico, Hawaii, and the Philippines; and struck down a state law setting maximum hours of work for commercial bakers. 

Today, the civil rights dissent for which Harlan is best remembered is Plessy v. Ferguson, in which the Court upheld a Louisiana state law requiring racial segregation on passenger trains. In it he wrote his most famous words: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.” Read today, those words seem to announce a charter for a multiracial democracy. 

But during his own lifetime, Harlan’s most famous dissent came during the Civil Rights Cases—five separate cases that the Court consolidated into one—and is less contemporary in its rationale. 

The Civil Rights Cases invalidated the sweeping Civil Rights Act of 1875, a pioneering Reconstruction measure that forbade discrimination in public accommodations such as inns, theaters, and trains. The majority ruled that under the Civil War amendments—which banned slavery, overturned laws that restricted voting rights on the basis of race, and ensured equal protection of the laws—Congress could not ban discrimination by private parties like innkeepers or railroads. Enough already with Black people, the majority wrote: “When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws.” 

After Justice Harlan’s dissent in Civil Rights Cases became public, the great Black abolitionist Frederick Douglass wrote to Harlan that “if I had means, I would cause it to be published in every newspaper and magazine in the land.”

Harlan’s dissent in the Civil Rights Cases speaks less of broad principles of equality than of congressional authority; less of post-racialism than of the special relationship between American whites and Blacks. Its theme, in fact, is not “color-blindness” but clear sight: frank recognition that the United States had created and nurtured the “peculiar institution” of slavery, and that the Civil War amendments were “addressed primarily to the grievances” of Black Americans. The Constitution, he pointed out, had always singled out Black people for special treatment. The antebellum Supreme Court had found in the fugitive slave clause “implied” powers allowing the federal government to override state law when that was needed to pursue runaway slaves. Now the Court said the Civil War amendments were limited by “state rights.” “I venture,” Harlan wrote, “to insist that the national legislature may, without transcending the limits of the Constitution, do for human liberty and the fundamental rights of American citizenship, what it did, with the sanction of this court, for the protection of slavery and the rights of the masters of fugitive slaves.” After the dissent became public, the great Black abolitionist Frederick Douglass wrote to Harlan that “if I had means, I would cause it to be published in every newspaper and magazine in the land.”

John Harlan was a man out of his time,” Canellos writes. He’s right; but the voice came not from the future but from the past. His is the lost voice of antislavery figures like Ohio Representative John Bingham, one of the principal authors of the Fourteenth Amendment. Like Harlan, Bingham was a conservative Presbyterian, steeped in a theological tradition that saw America as a sacred republic, instituted by God as part of His redemption of mankind. The nation, not the states, was the source of American identity; the fountainhead of rights was American citizenship, not state allegiance; the Bill of Rights bound the states as well as the federal government. The fruit of Civil War victory, to both Harlan and Bingham, was full citizenship for Black Americans. That was part of God’s plan. 

In her book The Republic According to John Marshall Harlan, the Notre Dame historian Linda Przybyszewski noted the centrality of Christian nationalism in Harlan’s thought as expressed in his lectures to law students at Columbia University:

Harlan used typology, the religious theory that events in the Old Testament foreshadow events in the New Testament, in order to explain American history . . . In Harlan’s hands, the Revolutionary War became a type for the Civil War. With the help of God, Americans had first overthrown the hierarchy of monarchy and nobility, then they overthrew the hierarchy of race. In this, they were divinely destined to serve as an example to the world. 

In this view, God had called Black people to the American continent precisely to create that “example to the world.” Their elevation to citizenship was a foreordained step on the road to national perfection. 

National citizenship was at the center of this tradition. A quarter century ago, the legal scholar Gabriel Chin pointed out that the majestic egalitarianism of Harlan’s Plessy dissent exists on the same pages as his open contempt for Chinese immigrants. “There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States,” Harlan wrote. Yet,

a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union, who are entitled, by law, to participate in the political control of the state and nation . . . and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race.

Elevation of Black Americans was part of the plan; rights for Chinese Americans were not. In Wong Kim Ark v. United States in 1898, the Court held that, with a few exceptions, any child born in the U.S. is an American citizen. Harlan dissented; despite the plain text of the Fourteenth Amendment, he argued that the ban on Chinese naturalization (part of the law since 1790 and reaffirmed in the 1882 Chinese Exclusion Act) meant that not even American-born children of Chinese immigrants were citizens. 

The readability and richness of The Great Dissenter should inspire readers to dig even more deeply into Harlan’s history and thought. No one should be surprised that we the living fall into confusion when reading Harlan’s quotable but complex dissents. “The past is a foreign country,” the novelist L. P. Hartley wrote in 1953. “They do things differently there.” Try though we might, we can never truly know the minds of the dead; and when they speak to us, it is in their own language, which today we only dimly understand.

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Garrett Epps

Garrett Epps is the Legal Affairs Editor of the Washington Monthly and a professor of law emeritus at the University of Baltimore. He is the author of American Epic: Reading the U.S. Constitution and four other books about the Constitution.