Opinion | Separate but equal, the Court said. A Dissident Voice. (Published in 2021) (2023)


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Opinion | Separate but equal, the Court said. A Dissident Voice. (Published in 2021) (1)
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ByPedro S. Canellos

Peter S. Canellos is editor-in-chief of Politico and author of the biography "The Great Dissenter: The Story of John Marshall Harlan, America's Judicial Hero."

The decision of the Federal Supreme Court inPlessy v. ferguson, announced 125 years ago on Tuesday, is rightly remembered as one of the great abominations in the history of law. By endorsing the notorious separate but equal doctrine, he condemned most African Americans to a state of total oppression. In the space of no more than 5,000 words, he violated the plain language of the Constitution, engaged in extensive racist cover-up, and defied the outcome of the Civil War.

Rarely has a bunch of words had such a devastating impact on the lives of so many people, while mocking the nation's founding principles. However, there was appended to it a document of much greater character and wisdom, which, in its very existence, demonstrated that a judge, at least, understood the magnitude of the court's error.


The appendix was the fierce dissenting opinion ofJuez John Marshall Harlan, the Kentuckian who was on his way to earning the title of "The Great Maverick". He has done more than anyone since the Continental Army to enshrine dissent as an American tradition and a badge of honor, and he has shown that history will look positively on those who speak the truth even in the face of a seemingly monolithic consensus, something leaders today can enjoy. heart.

"Our Constitution is colorblind and does not recognize or tolerate class among citizens," he wrote in his most famous passage. “In terms of civil rights, all citizens are equal before the law. The humblest equals the most powerful. The law considers man as a man and does not take into account his origin or color when it comes to his civil rights guaranteed by the supreme law of the land.

Nearly six decades later, when the Supreme Court finally struck down Plessy v. Ferguson in Brown v. Board of Education, many people, even in white America, agreed that Harlan was right all along. “Judge Harlan Agrees” was the cheeky headline in The New York Times editorial the Sunday after the ruling. “This is a case where the voice crying in the wilderness finally becomes the expression of the will of a people,” wrote the Times editorial board.

Thus, 43 years after his death, Harlan received a posthumous pat on the back, along with the not inconsiderable acknowledgment that he alone had emerged from the fog of racism. (This was quite ironic, as he owned slaves early in his life.) But these attaboys did not fully understand the importance of dissent from him. More than a static marker, it was a roadmap for those who would work in the future to undo the great injustice committed that day. Harlan had worked out such guidelines on his dissenters before Plessy, and would do so later, in cases involving crucial economic and labor protections, as well as race. His status as a legal parent extends to this day, as judges of all political persuasions recognize the strength of his views while admiring his courage in expressing them.

Over the past decade, as African American newspapers have gone digital, the impact of Harlan's words on the black community has become clearer, including his role in inspiring many courageous figures who have risen to challenge the doctrine of separates, but equals. Thumbs up on Plessy.

“Beyond the Supreme Court decision, there is no redress,” lamented The Enterprise, a black Omaha newspaper, in the days following the decision. A month later, The Enterprise was able to focus on the future: “We haven't read anything as clear, as manly, as direct and uncompromising in many days as the dissenting opinion of Judge Harlan... uttered words that once won him the sympathy of The others. hearts of people of color."

The greatness of Harlan's opinion lies in the way in which he combined uncompromising principles with a common sense examination of the case. At issue was Louisiana's separate car law, whereby proponents argued that keeping riders like Homer Plessy in a separate boxcar did not violate the Constitution as long as they received substantially equal service. Harlan instantly realized that keeping one race separate from the others would not pass the sniffer's test, and was blunt enough to declare that everyone else knew it too: and the blacks, to force the latter to keep clear while traveling on the passenger train. cars. No one would be so lacking in frankness as to assert the contrary."

He also clearly saw the pain of the victims. His open declaration that African Americans had been “wrong” not only asserted their rights but recognized their humanity. Furthermore, he foresaw that the dire effects of the decision, while affecting exclusively blacks, would do pernicious damage to the country as a whole: “What most certainly can arouse racial hatred, what most certainly can create and perpetuate a sense of distrust ? these races, these state laws which, in effect, proceed on the ground that citizens of color are so inferior and degraded that they cannot sit in public carriages occupied by white citizens. …”

While these words went largely unnoticed in the white community, they were widely discussed among black leaders. The fact that one person, and not anyone, in the white power structure recognized the injustice inflicted on them was a thin thread that nevertheless kept some blacks believing in the American system.

When Harlan died in 1911, black congregations across the country organized spontaneous funeral services without expecting a single white person to attend. Three of these all-black services were held in Washington, DC, culminating in a large multi-faith gathering in the cavernous Metropolitan AME. Church where Harlan Plessy's 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 defy segregation laws, knowing that the Ku Klux Klan was on high alert. Harlan's dissent provided the only beacon of hope that the courage of black defendants might one day pay off.

"Marshall's legal team would gather around him at a desk to discuss possible new legal theories to attack segregation," recalled Constance Baker Motley, one of Marshall's top advisers. “Marshall read aloud portions of Harlan's incredible dissent. I don't think we've ever filed a petition before Brown that didn't cite part of that opinion."

Indeed, in their Supreme Court summary of the Brown case itself, the culmination of their relentless legal campaign, Marshall and his staff quoted Harlan directly before concluding: "It is the dissenting opinion of Judge Harlan, not the majority opinion in Plessy v. Ferguson, who agrees with the scope and meaning of the Fourteenth Amendment. …”

The Supreme Court, under Justice Earl Warren, unanimously agreed.

When Thurgood Marshall died in 1993, Justice Motley poignantly wrote of how Marshall himself, as a Supreme Court Justice from 1967 to 1991, was often in the minority: "I think I know what sustained Marshall spiritually through all those painful years in that Warren's court decisions were being ripped out. Marshall had a "bible" that I think he must have consulted during his most depressive episodes. The "bible" would become known in the legal profession as Judge Harlan's first dissent in Plessy v ... Ferguson .... Marshall admired Harlan's courage more than [that of] any justice who ever sat on the Supreme Court. Even Justice Warren's blunt and moving decision to court in Brown did not affect Marshall in the same way. Earl Warren was writing for a unanimous Supreme Court. Harlan was a lone figure writing for posterity."

Tuesday's anniversary marks one of the low points in the Supreme Court's 230 years of decision-making. But its allowance for dissenting opinions, a largely American innovation, allowed one man's objection to be heard by the lawyers and judges of the future. It was a small consolation at the time, but an important act in history.


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