If opposing Jim Crow alone at the peak of its ascendancy in 1896 isn’t ‘anti-racist,’ what does that term really mean?
The Supreme Court’s decision in Students for Fair Admissions Inc. v. President & Fellows of Harvard College, which struck down preferences on the basis of race in college admissions, was based largely on the Court’s reading of its precedents in the area of race discrimination. The Court’s approach dates back to Justice John Marshall Harlan’s lone 1896 dissent in Plessy v. Ferguson, which argued that “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.” Beginning with Brown v. Board of Education in 1954, what was once Harlan’s lonely argument has gradually become the Court’s reigning approach to the 14th Amendment. It fell to Justice Clarence Thomas, in his lone concurring opinion, to make the case that Harlan’s view of Section 1 of the 14th Amendment was also the correct reading of Section 1 of the 14th Amendment as an original matter, a case that Justice Sonia Sotomayor tried lamely to rebut. As Thomas noted in his opinion, quoting Constance Baker Motley, Thurgood Marshall (who litigated and won Brown and many other cases challenging legal segregation) viewed Harlan’s Plessy dissent as “a ‘Bible’ to which he turned during his most depressed moments”; no opinion “buoyed Marshall more in his pre-Brown days.”
One of the stranger responses to this came from Jamelle Bouie of the New York Times, who decided to write a column attacking . . . Harlan. “If you read the most-quoted part of Harlan’s dissent in isolation,” Bouie writes, “you might get the impression that this former slave owner was some kind of anti-racist pioneer. The context makes clear he was nothing of the sort.” Bouie — who skips over Thurgood Marshall’s view of Harlan — makes two points. First, he argues that Harlan’s dissent is full of assumptions about American society in 1896 that we would regard today as racist:
When read in its entirety, the dissent gives a picture of Harlan not as a defender of equality, but as someone who thinks the Constitution can secure hierarchy and inequality without the assistance of state law. . . . “The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power,” Harlan wrote. “So I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens.”. . .
Harlan’s brief for the colorblind Constitution rested, within the text, on a belief in the inherent superiority of white Americans and the basic inferiority of their Black counterparts. . . . It’s as if Harlan is restating, with no apparent irony, Anatole France’s quip that “the law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”. . . As Harlan saw it, the “white race,” as long as it “remains true” to the “principles of constitutional liberty,” did not need Jim Crow. It would remain “the dominant race” “in prestige, in achievements, in education, in wealth, and in power.” The colorblind Constitution would do as much as legal segregation to sustain supremacy, without the risk to order or international prestige.
Second, Bouie goes after Harlan’s own biography:
Harlan the sophisticated defender of white racial dominance is more consistent with his life, his views (as a younger man, he initially opposed the Reconstruction Amendments) and his jurisprudence (three years after Plessy, he would uphold a system of school segregation that taxed Black families for the exclusive benefit of white ones) than is Harlan the anti-racist.
While both of these points are true as far as they are stated, they don’t get Bouie where he seems to think they go — and they say something very unflattering about Bouie’s worldview.
To start with, notice what Bouie never even bothers to say: that Harlan was wrong about what the Constitution says and requires. The column is a complaint about the Constitution, not an argument that Harlan or the current Court misread its meaning.
Did Harlan think that white people were superior to black people? Most certainly he did — although it should be recalled that he wrote these words in a lone dissent. As with some of the things Abraham Lincoln and post-Civil War Radical Republicans said about race, it should be borne in mind that Harlan was writing to reassure his audience that the arguments he made for racial equality before the law would not have the further consequences (viewed as radical at the time) that opponents charged. The majority in Plessy, for example, claimed that the plaintiff’s argument for banning legal segregation “assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races.” Harlan denied taking this position.
Did Harlan oppose Reconstruction and the 14th Amendment when he was in Kentucky politics? Yes, he was a slaveowner and he even opposed the 13th Amendment. Like Andrew Johnson, Harlan was a pro-Union Democrat during the Civil War, but no friend of racial equality. He was attorney general of Kentucky in 1867 when the 14th Amendment’s ratification was being debated (after it passed Congress) as a means of providing constitutional support for the Civil Rights Act of 1866. Harlan wrote legal opinions at the time attacking the Civil Rights Act as unconstitutional — his was precisely the view that Congress proposed the 14th Amendment to overcome. Kentucky refused to ratify the amendment (it finally gave its assent long after the fact in 1976). Harlan left politics and left the Democrats after 1867, and was appointed to the Court in 1877 by Republican Rutherford B. Hayes in part as a gesture of sectional reconciliation.
All of this tells us two things about Harlan. One is that he perfectly well understood the original purpose and meaning of the 14th Amendment, having been an active and highly informed participant in the public debates over its meaning at the time of ratification. The second is that he did his job as a judge. His opinion in 1896 wasn’t about enforcing his social opinions, which were at odds with legal integration (although Harlan was consistent from the 1860s to the 1890s in placing a high priority on opposing anything he saw as likely to promote racial and civil conflict). It wasn’t about adhering to his positions from the 1860s. It was about getting the law right.
The Court in 1896 had six Republicans and three Democrats. The Republicans included Harlan, Henry Brown (a Benjamin Harrison appointee who wrote the opinion), and Stephen Field (a Lincoln appointee who was deep into senility by 1896); the Democrats, all Grover Cleveland appointees, included Chief Justice Melville Fuller and future Chief Justice Edward White. Only Harlan had the courage to rise above his time and prejudices and stand up for what the Constitution was actually supposed to mean, even alone, even when it was unpopular. That’s exactly the judicial character we want from Supreme Court justices.
Bouie complains that legal equality would not have created complete social equality in the conditions of 1896, when white prejudice was entrenched and most black Americans remained poor. True enough — but legal equality would have made an enormous and consequential difference compared with what 1896 America was really like. Harlan’s stance wasn’t just courageous, it was massively important. Even if “separate but equal” was theoretically possible, it was never in practice equal — nor was it likely to be, given both social realities and the simple demographic fact that black Americans were a hugely outnumbered minority in all but a few states. Much of the reasoning behind the Court’s reversal of Plessy in 1954 was based upon a long-belated acknowledgement that legal segregation tended to result in unequal services and accommodations. Had the American political system insisted upon rigid enforcement of the Constitution as written — black voting rights, integrated schools, etc. — instead of enforcing the legal architecture of Jim Crow, that would not have changed everything overnight, but it would have made a very big difference.
If opposing Jim Crow alone at the peak of its ascendancy in 1896 isn’t “anti-racist,” what does that term really mean? That is the disturbing undercurrent of this column. Progressives today are happy to whitewash the racial sins of current or past political figures who, in their view, end up in the right place. So, it’s permissible to cheer for Franklin D. Roosevelt or Lyndon Johnson, or to excuse a Democratic Party that embraced Robert Byrd and George Wallace. There is plenty in Joe Biden’s background that Bouie once found racially problematic, before Biden became the Democratic nominee; in 2019, Bouie wrote that “Biden gave liberal cover to white backlash.” Now, Biden is Good, Actually. All is forgiven.
What does it say that Harlan’s insistence on absolute racial equality before the law is not — then or now — greeted the same way?