Rebuking Justice Harlan
March could well be designated Homer Plessy month, as it was both the birth and death month of the celebrated plaintiff in one of America’s most infamous Supreme Court decisions.
Plessy participated in an 1892 test case designed to challenge the constitutionality of Louisiana’s Separate Car Act, which required colored people to ride on separate railway cars from whites.
Organizers of the challenge selected Plessy partly because of his fair skin; the law required conductors to dubiously determine the race of passengers, which wasn’t always obvious. Even though he was legally classified as “Black” by bloodline (one-eighth Negro), Plessy appeared to be white.
The well-orchestrated event was executed flawlessly. The railroad company was informed of the plan, and when conductor J.J. Dowling learned of Plessy’s race, he ordered him off the “whites only” passenger car.
Hired private detective Chris Cain arrested Plessy and met plan organizers at the Orleans Parish jail, where they paid his $500 bond.
It took four years for the case to wind its way to the U.S. Supreme Court, and the most noble opinion expressed in the Plessy v. Ferguson Supreme Court case is the losing one. Justice John Harlan’s dissent was eloquent, compellingly reasoned and prophetically ahead of its time.
In stark contrast to the rest of the bench, Harlan saw the inherent inequality of separate treatment between the races some 60 years before the Brown v. Board of Education decision established it as constitutional law.
One of the most memorable and oft-quoted statements from Harlan’s dissent was also a favorite of later Supreme Court Justice Thurgood Marshall: “Our Constitution is color-blind.” As such, “it neither knows nor tolerates classes among citizens.”
Harlan didn’t stop at color-blindness at the constitutional level, however. He deemed it essential to be mandated for all government bureaucracies.
“In respect of civil rights, common to all citizens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights,” he wrote. “… I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved.”
That was truly radical thinking back in 1896, but even more so in 2023.
Imagine no government agencies or entities being allowed to include a checkbox for race. Imagine appeals courts being denied knowledge of the race of the plaintiffs or defendants in civil rights cases.
Imagine, if you can in our hyper-racialized era, what Harlan recognized and realized more than a century ago: that racial knowledge can only distort the equal application of civil rights. Giving regard to race inherently elevates its weight in affecting legality and equality.
Harlan accurately predicted the Plessy case would become “quite as pernicious [meaning harmful or destructive] as the decision made by this tribunal in the Dred Scott case.”
But Harlan’s opinion is full of other prognostic zingers, for instance: “State enactments regulating the enjoyment of civil rights upon the basis of race … under the pretense of recognizing equality of rights, can have no other result than to render permanent peace impossible, and to keep alive a conflict of races, the continuance of which must do harm to all concerned.”
Those are exceedingly strong words applicable to a large number of “state enactments” in effect right now, and more being continually proposed. “No other result” leaves little room for exceptions. Rendering “permanent peace impossible” reads like a job-preservation strategy for the vast race-baiting lobby. And “harm to all concerned” tidily sums up the persistent paradox of spending more and more money in the name of racial adjustment, only to see racial disparities and gaps in things like crime and incarceration, out-of-wedlock childbirth, education and earning power fail to improve.
Ironically, the so-called “progressive” racialist reasoning from advocates of the principles behind critical race theory, DEI, color-blind racism and other woke ideologies sounds more like Justice Henry Brown in his Plessy majority opinion.
Today’s race-obsessed provocateurs are the ones who say the Constitution should allow “distinctions based upon color” and racial preferences when it comes to college admissions, government employment, public works contracting and other areas.
The argument that racially discriminatory practices are necessary to correct social injustice echoes Justice Brown when he ruled that laws using race as a basis for separation don’t run afoul of the 14th Amendment as long as they are “enacted in good faith for the promotion of the public good.”
Harlan disagreed vehemently, and would have a sharp bone to pick with those who now rebuke his opinion and claim race-based laws and policies are socially or racially beneficial.
“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,” he wrote.
“What,” he asked, “can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races” than state enactments based solely on race?
What, indeed.