The great dissenter had limits

LITTLE GOOD can be said about the legal and moral catastophe known as Plessy v. Ferguson except that it produced a hero, Supreme Court Justice John Marshall Harlan.

Harlan, in solitary dissent, delivered a defense of equal justice under law so forceful that even a century later, it rivals the Rev. Martin Luther King's "I Have a Dream" speech and Brown v. Board of Education itself as a symbol of the true meaning of racial equality.


Virtually every first-year law student in America reads Harlan's stirring words: "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." University of Virginia law professor G. Edward White is by no means alone when he calls Harlan a "visionary prophet"; largely based on the Plessy dissent, Harlan is often ranked at the top in surveys of Supreme Court Justices, and is honored as "the great dissenter."

The impact of Harlan's Plessy dissent can be measured by the variety of people who rely on it. Chief Justice William Rehnquist and Justice Antonin Scalia cite Harlan's dissent approvingly, for example, but so did the late Justice Thurgood Marshall, who often disagreed with those more conservative justices; Justice William Brennan called the dissent "masterful."


Both sides of the affirmative action debate also insist that Harlan's words, correctly understood, support their position. Harvard law professor Laurence Tribe and Stanford's Kathleen Sullivan, for example, argue that Harlan's opinion supports affirmative action; former Harvard law professor Charles Fried (now justice of the Massachusetts Supreme Judicial Court) claims the opposite. Plessy is one of the few Supreme Court cases which is known by non-lawyers; letters to newspaper editors, for example, often cite it.

At one level, it should not be surprising that Harlan is so celebrated; after all, he seemed to get right what his colleagues bungled so badly. However, there is a problem with Harlan's views which has been largely overlooked by legal scholars and the courts. Although Harlan was a leader on the court in opposing discrimination against blacks, he was much less troubled about discrimination against another racial group, the Chinese.

In Plessy itself, Harlan argued that the segregation laws were absurd because they did not cover Chinese, who, under federal law, were prohibited from immigrating to the United States or becoming naturalized citizens: "There is a race so different from our own," Harlan wrote, 'that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from this country. I allude to the Chinese race. But by the statute in question, a Chinaman can ride in the same passenger coach with citizens of the United States, while citizens of the black race" cannot.

In United States v. Wong Kim Ark, an 1898 decision, Harlan dissented again in a race case. This time, he contended that Chinese born in the United States were not citizens, notwithstanding the 14th Amendment, which begins by stating "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." Arguing that Chinese could not assimilate to American society, Harlan concluded that they were not entitled to become citizens. In this, and in many other cases, Harlan voted to uphold special racial treatment for Chinese. In short, while Harlan must be credited with recognizing discrimination where others did not, it is also true that Harlan himself did not insist that the Constitution was colorblind when discrimination against Chinese was before the court. If Harlan blandly accepted discrimination against one race, it's hard to see why discrimination against another is so wrong.

Justice David Brewer, attending a daughter's funeral, was absent from the Court when Plessy was decided. Asian-Americans might regard him as the real "great dissenter," for he objected in many cases where a majority of the court upheld discrimination against Asians. But he turns out to have had Harlan's flaw: In cases where blacks were involved, his record is much less supportive of civil rights. In a diverse America, neither Harlan's position nor Brewer's makes sense. The only principle which has a hope of working is that all Americans are entitled to the protection of the Constitution; justice should be denied to no race.

That Harlan's views were not perfect should not erase recognition of what was good about them. Opposition to some discrimination was better than nothing. But respect for Harlan's accomplishment must be tempered by the realization that Harlan advocated neither a thoroughgoing colorblindness of the kind supported by many modern conservatives, nor the more complex concepts of equal outcomes proposed by some liberals. Harlan's Plessy dissent is of significant historical interest. But it does not offer principles which Americans should be prepared to embrace today.

Gabriel J. Chin, professor of law at Western New England College School of Law in Springfield, Mass., is the author of "The Plessy Myth: Justice Harlan and the Chinese Cases," which will appear later this year in Volume 82 of the Iowa Law Review.

Pub Date: 12/05/96