Prophet or Example: A Review of The Republic According to John Marshall Harlan

Abstract

Prophet or Example: A Review of The Republic According to John Marshall Harlan TONY A. FREYER In Americans’ search for a useable past John Marshall Harlan occupies a unique place. No other member ofthe Supreme Court authored so many dissents that were precursors ofdoctrines that decades later became part of the nation’s ruling constitutional law. Thus Harlan holds a historic place because he appears to be a true constitutional prophet. This identification began with the Brown decision of 1954. Appointed to the Court by Republican Rutherford B. Hays in 1877, just as the party ended Reconstruction and active support ofthe freedman’s civil rights in the South, Justice Harlan went on to author dissenting opinions that vigorously affirmed a “color-blind” Constitution. His lone dissent in Plessy v. Ferguson (1896), rejecting the Court’s embrace ofthe doctrine that separate but equal public facilities did not violate the Fourteenth Amendment’s Equal Protection Clause, formally declared the “color-blind” principle. Much ofHarlan’s opinion tracked closely the logic the Court followed to reverse Plessy in Brown. From then on, lawyers, judges, and law school students routinely viewed Harlan in prophetic terms. Many scholars have helped to explain Harlan’s seemingly prophetic vision, but Linda Przybyszewski offers the most original and per­ suasive understanding yet. Harlan maintained the “color-blind” idea in most cases concerning civil rights, but not all. In the CivilRights Cases of 1883, the Court struck down the Civil Rights Act of 1875. On the basis ofthe Equal Protection Clause, Con­ gress had enacted the law to forbid racial dis­ crimination in “public accommodations” such as hotels, theaters, and restaurants. Only Harlan dissented, asserting vigorously that his col­ leagues’ repudiation ofcongressional purpose perverted the true meaning ofthe Equal Protec­ tion Clause. Eighty one years later, Title II of 326 JOURNAL OF SUPREME COURT HISTORY the Civil Rights Act of 1964, which the Court upheld the same year, endorsed the spirit of Harlan’s dissent. Here again, Harlan seemed to be ahead ofhis time. Yet shortly before his dissent in the Civil Rights Cases, Harlanjoined a unanimous Court in upholding the conviction of black Alabam­ ian Tony Pace under a law that punished blacks more severely than whites for interracial co­ habitation and adultery. Concurring without opinion, Harlan did not attempt to explain why he sanctioned the double standard. Three years after the Plessy dissent expressly stated the “color-blind” principle, moreover, Harlan reached his most puzzling result in a race case. The opinion for the Court in Cumming v. Rich­ mond County School Board (1899) held that a local Georgia public school board’s closing of a black high school, while it kept open the school forwhites, did not violate the Fourteenth Amendment’s Equal Protection Clause. Harlan noted that the board’s policy did not deny blacks educational opportunities because they could attend a private high school that indi­ rectly received some tax support. Even so, the Court’s most adamant opponent of “separate but equal” had sanctioned that very doctrine in the field ofpublic education. During the years that followed, Harlan nonetheless affirmed the spirit ofthe earlierdis­ sents. When the Court upheld a Kentucky law that declared illegal the policy ofracial equality private Berea College had maintained for over forty years, Harlan passionately dissented. Also, not long before his death in 1911, Harlan joined a Court majority that declared illegal the practice ofdebt peonage in Alabama and other southern states. Initially, when the Court let stand the states’ brutal system because it pur­ portedly involved labor contracts, Harlan dis­ sented. As later litigation revealed the evils of the system and the Court changed its position accordingly, Harlan was vindicated. Outside the field of race, Harlan’s opin­ ions engendered similar puzzles. Throughout his judicial career Harlan staunchly defended the principle ofequal citizenship for ethnic and racial minorities under the Constitution. In Elk v. Wilkins (1884) the Court denied voting rights to a Native American who paid taxes and was otherwise assimilated into white society. Harlan dissented on the grounds that the Constitu­ tion established a national citizenship that in­ cluded all bonafide residents ofAmerican states and territories. Harlan’s most publicized affirmation of a more liberal...