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10/26/2021

Glenn Reynolds on Peter Canellos on John Marshall Harlan
Michael Ramsey

At Law and Liberty, Glenn Reynolds (Tennessee/Instapundit) reviews Peter Canellos' The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero (Simon & Schuster 2021): Remembering the Great Dissenter.  From the introduction: 

... As Canellos’ biography illustrates, Harlan (the first justice by that name, not to be confused with his grandson John Marshall Harlan, who also served on the Court) was both a very interesting man and a great justice with a connection between the two. Compared to his colleagues, Canellos writes, Harlan was different: He saw things they did not, and he acted on impulses they didn’t share. He was different because his life was different. “Among jurists, he alone expressed the view that when rights are denied to one group, it endangers the protections of all. He alone believed that sowing ‘the seeds of race hate’ in the law would cripple the nation for generations to come.”

And from later on:

Harlan’s dissent in the Civil Rights Cases was actually written with the pen used by Chief Justice Taney to write the infamous Dred Scott opinion and called out his colleagues for abandoning the spirit and letter of the Fourteenth Amendment. “The supreme law of the land,” he wrote, “has decreed that no authority shall be exercised upon the basis of discrimination, in respect of civil rights, against freemen and citizens because of their race, color, or previous condition of servitude.” 

Still more famous, of course, is his dissent in the 1896 “separate but equal” case of Plessy v. Ferguson. Homer Plessy, a man of part-African descent, sat in the “Whites Only” car created by a new Louisiana statute mandating segregated rail facilities. After being removed pursuant to the law, he sued, charging among other things a violation of his Equal Protection rights under the Fourteenth Amendment. The majority famously found no violation of equal protection so long as the facilities, separated by race, were (allegedly) equal.

Harlan’s blistering dissent in  Plessy was widely read in the pulpits of black churches around the nation and its focus on racial equality and the color-blind nature of the Fourteenth Amendment became the foundation for the winning argument in Brown v. Board of Education, which undid Plessy over a half-century later.

Harlan wrote: “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” (He was right about that).  He added,  

In view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. 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. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.

This ringing statement of racial and social equality was radical at the time, when it was taken for granted by many, if not most, that the races were too different to live together, and must have their relations closely managed by the hand of government.

I'd add as well that Harlan dissented from the key decisions in the Insular Cases that denied full constitutional rights to persons in the territories acquired after the Spanish-American War.  (See my discussion here, Part II.A..)  No one gets them all right though -- Harlan also dissented (inexplicably, to me) in United States v. Wong Kim Ark, which established birthright citizenship for U.S.-born children of Chinese immigrants.

Also, I think Harlan is fairly described as a textualist originalist (most of the time).  His dissents in Plessy, the Civil Rights Cases and the Insular Cases rely strongly on constitutional text and reject the majority's ventures into racist policy considerations.  This is why I find his vote in Wong Kim Ark especially mysterious, because in that case (as I argue in the article linked above, Part II.B.) the majority had the better textualist/originalist argument.  Chief Justice Fuller's dissent, which Harlan joined, was largely policy driven. (But three out of four is pretty good).