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Profile: John Marshall Harlan

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John Marshall Harlan was a participant or observer in the following events:

Justice Henry Brown.Justice Henry Brown. [Source: Wikimedia]The US Supreme Court rules 7-1 in Plessy v. Ferguson that a Louisiana law requiring “equal but separate accomodations for the white and colored races” is constitutional. Homer Plessy, a light-skinned black man who sometimes “passed” as white, took part in a plan by a small number of black professionals seeking to have a court overturn the Louisiana Separate Car Act of 1890. Plessy boarded a whites-only railroad car and was arrested, as per arrangement, by a private detective. The group intended to use Plessy’s light skin tone to demonstrate how arbitrary and unconstitutional the law was. Plessy’s lawyers argued that Louisiana’s segregation law violated both the Thirteenth Amendment, which bars slavery, and the Fourteenth Amendment, which guarantees all Americans equal protection under the law (see July 9, 1868). Louisiana courts consistently found against Plessy, and the case moved all the way to the Supreme Court. Writing for the Court’s majority, Justice Henry Brown rules that the law does not “discriminate” among legal rights by race, but merely recognizes a “distinction” between races “which must always exist so long as white men are distinguished from the other race by color.” He adds: “Legislation is powerless to eradicate racial instincts or to abolish distinctions based on physical differences, and the attempt to do so can only result in accentuating the differences of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them on the same plane.” The ruling establishes the “separate but equal” doctrine that informs many states’ decision to segregate public facilities—schools, railcars, even drinking fountains. Justice John Marshall Harlan, a former slave owner and a pro-slavery politician, writes a fiery dissent that refutes Brown’s assertion that the Louisiana law discriminates equally among whites and blacks. Harlan writes, “Everyone knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons.” He disagrees with the majority opinion’s finding that segregation on railcars does not violate African-Americans’ constitutional rights under the Fourteenth Amendment. But Harlan does not advocate social equality among the races. Instead, he argues that legally imposed segregation denies political equality. Harlan writes: “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, 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. 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.” Harlan’s dissent becomes the underpinning of the 1954 Brown v. Board of Education decision (see May 17, 1954). (Konkoly 12/2006; PBS 12/2006)


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