Justice Harlan and Race

For years and in many different situations I have heard appeals to Justice Harlan’s one-person dissent in the Plessy vs. Ferguson decision of 1896, in which he articulated the idea that the Constitution, and therefore the law of the land is “color blind.” His “color-blind” thesis has been given as a reason for numerous present-day views. Some have claimed that his words define a fundamental notion of what our democracy means, forgetting that, far from stating the position of the nation, his was a lonely dissent; the other Justices did not agree with him, therefore we can hardly appeal to him as stating how the Court viewed the law. Yet some will still claim that it is clear that the Constitution is “color blind.” The Plessy decision does not say that. The “color- blind” notion has been used as a focus for political and legislative decisions, and by many has been used as a reason for refusing to recognize “color” at all. My hunch is that more arguments about the nature of democracy have been built on this dissent than on many majority decisions of the Court.

Finally I’ve decided to look again at the Plessy decision, and at the full text of Justice Harlan’s words in particular. There are at least two interesting implications in his words, neither of which I have heard expressed often. First his notion that racial pride is acceptable, and then secondly his acknowledgment that the dominant race can continue to be dominant even though the law is “color-blind.” Here I want to begin an exploration of these two themes which are clearly stated in Harlan’s dissenting opinion.

In the context of two sentences in which Harlan says that the Constitution does not “permit any public authority to know the race of those entitled to be protected in the enjoyment of (civil) rights,” he asserts that “every true man has pride of race and under appropriate circumstance, when the rights of others his equals before the law, are not to be affected it is his privilege to express such pride and to take such action based upon it as to him seems proper.” Clearly for Justice Harlan “color-blind” does not ignore the fact of color. He specifically indicates that being truly human includes pride of race. The large numbers of people whom I have heard insisting that “color-blindness” means that we do not need to see color or to acknowledge its importance can find no grounds for that position in these words from Justice Harlan. The people whom I have heard take that “color-blind” position are not usually speaking from a legal perspective, but are saying that on a practical, daily basis they do not want to acknowledge the color of a person. Color does not seem important to them, and they would prefer to ignore it, because it is not and should not be a significant factor in relationships. My own response has been to acknowledge a similar goal for the future, but to insist that in our day to ignore color is to do so at peril for our nation. That argument will continue at another level, but right now I want simply to say that those who advocate a “color-blind” approach to race today, and who frequently appeal to Harlan for the roots of that view, will not find support for that view in these words of the Justice. In fact he encourages race pride, and that cannot come without recognition of race.

The second idea I want to explore is Justice Harlan’s honest recognition that, while “in the eye of the law, there is in this country no superior, dominant, ruling class of citizens,” there in fact is such a class. His words say it well: “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. So, I doubt not that 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.”

To my non-legal mind, these words which point to the fact of a dominant white race, assuring that it can remain dominant “for all time,” can be interpreted in several ways. Is this once again the same contradiction which haunted the Constitutional framers, asserting both equality and superiority? Is this simply a separation of “law” from “practice,” of “belief’ and “act”? Is the Justice just plain confused? Or is he remarkably honest?

Harlan reaches for a vision of “color-blind” but cannot find it in reality. That is in part a legacy of the contradiction on which our nation was founded. The framers of the Constitution were for the most part trapped in convictions about equality, yet also convinced of their superiority as white, as male, as privileged property owners. Justice Harlan is in the same trap. He wants a law and a Constitution which is “color-blind,” but he also assures the white race that it can remain dominant. In a sense it is as if he “winks” at his colleagues on the Court, and my hunch is that they must have seen the wink and taken solace in it.

Harlan’s “wink” presages the era of “separate and unequal.” I do not want to measure the motivation of the good Justice. I don’t know how we can determine whether or not he intended his “wink” to provide a way out of a tough legal situation for his colleagues and our society, but it seems to have been one step toward effecting a new possibility. Now the Court could say, and the nation could adopt a legal stance of “separate and equal” treatment for the two races then involved, but here was an assurance that in actuality there was no need to fear an end of white dominance. The next decades proved Justice Harlan to be right.

So our nation entered the 20th century with a variation of the old contradiction. The majority of the Court said that the law affirms policies which recognize “equality with separateness.”  The lone-dissenter, Harlan, states strongly that the “destinies of the two races in this country are indissolubly linked together,” that the Court must reject the notion that “colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens.”

BUT THEN HARLAN ‘WINKS.” Don’t worry, the white race can still dominate!