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Was the ‘Great Dissenter’ actually great? Segregation and Justice in Harlan’s Dissent. 

Written by Amy Hendrie. Who was the supposed 'Great Dissenter'? Amy Hendrie challenges the traditional accounts of the the United States Supreme Court Justice John Marshall Harlan as the colour-blind stalwart against legalised segregation, revealing that it is far from simple.

Jim Crow-style segregation defined American history from the period of Reconstruction until its abolition in the mid-twentieth century. While it developed initially outside of the law, one Supreme Court ruling judged segregation to be constitutional; thus, the separation of blacks and whites in the United States became not only legal but part of everyday life for African Americans across the South. In this way, the case of Plessy v. Ferguson perpetuated racism in the US and provided a legal precedence to discriminate against African Americans. All but one Supreme Court justice voted in favour of these Jim Crow laws.  

Justice John Marshall Harlan’s dissenting vote and his call for an end to segregation have been the subject of praise and admiration. Nicknamed the ‘Great Dissenter’, Harlan’s words have since been used to inspire civil rights organisations and to argue for equality. However, some historians, namely Phillip Hutchison and Douglas Reed, argue that Harlan’s dissent was rooted not in equality but in white supremacy, just the same as those he argued against in Plessy v. Ferguson. This argument will be examined and Harlan’s words closely scrutinised in order to reach a verdict: is Harlan worthy of praise, or should his words be taken with a pinch of salt? 

The case of Plessy v. Ferguson took place in 1896, when Homer Plessy argued that segregation on rail carriages was unconstitutional as per the 14th Amendment. This resulted in a ruling which deemed the practice of providing ‘separate but equal’ facilities constitutional. A verdict was reached that the state of Louisiana did not violate the 14th Amendment by establishing and enforcing a policy of racial segregation in its railway system. This verdict, delivered by Justice Henry Brown, echoed the beliefs of the majority of white elites at the time. Brown went on to suggest that the argument that the separation of the races brands one with a badge of inferiority was ‘because the coloured race chooses to put that construction upon it’. In other words, African Americans spun the concept of segregation to make themselves the victim, and segregation was perfectly fine. Furthermore, Brown noted that, ‘If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane’. Here it is clear that the racist views held by the masses would determine the course of the future of African Americans in the United States, and that they could expect little help from the Supreme Court.  

Justice John Marshall Harlan was the only one to oppose the verdict reached by the Court. Most famously, Harlan uttered the phrase, ‘Our Constitution is colour-blind’—this is perhaps the most notable legacy of Harlan’s dissent. Sounding radical for the time, civil rights groups leapt upon this phrase. The National Association for the Advancement of Colored People (NAACP) created interest in Harlan’s dissent when they used it when preparing for the ground-breaking case of Brown v. Board of Education in 1954. Indeed, Hutchison highlights that a colour-blind approach ‘endures as the nation’s dominant racial ideology’. In this way, Harlan’s words served as fuel for advocates of civil rights half a century later and were clearly influential. However, historians have recently asked what Harlan actually meant by ‘Our Constitution is colour-blind’, and Hutchison and Reed have concluded that Harlan was in no way an anti-racist.  

One important thing to note is that Harlan was a former slaveholder from Kentucky. This immediately taints his dissent and signals a less-than-liberal point of view. Indeed, evidence of Harlan’s racism can be easily glimpsed when looking at the rest of his argument. Notably, Harlan asserts that ‘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’. From the very beginning, Harlan made sure to state his belief in white supremacy. According to Harlan, whites are socially superior and secure in this fact. Where Harlan dissents is the need to enshrine this in law. As per the 14th Amendment, all races are equal under the law, and Harlan believed that this that equality need not extend to the social realm. Hutchison places particular emphasis on Harlan’s distinction between the ‘social’ and the ‘legal’. According to Harlan, the law should be ‘colour-blind’, as this will not imperil white supremacy socially. This notion of colour-blindness is the focus of articles by Hutchison and Reed, and they concur that Harlan’s notion of colour-blindness serves not to improve racial harmony but to lock in and entrench ideas of white domination. 

Furthermore, Harlan argues that if segregation was made constitutional, it would embarrass the US internationally. For a country which prides itself on being built upon the values of liberty and freedom, to legally enshrine racial inequality would appear hypocritical and regressive. Building on this, Harlan asserts that to legally enforce segregation would sow the ‘seeds of race hate’ which would endanger whites in race riots and would cause further unrest. In neither of these arguments does he consider the harm done to African Americans. It is therefore evident that the basis of Harlan’s defence was the protection of white Americans and the reputation of the US; his dissent perpetuates and upholds ideas of white supremacy, contrary to the interpretation made by the NAACP thirty years on.  

Based on Harlan’s words and enhanced by the work of Hutchison and Reed, the label of the ‘Great Dissenter’ is decidedly undeserved and ignores Harlan’s perpetuation of white supremacist ideals in the late nineteenth century.  

Written by Amy Hendrie

Bibliography

Hutschison, Phillip, ‘The Harlan Renaissance: Colourblindness and White Domination in Justice John Marshall Harlan’s Dissent in Plessy V Ferguson’ in Journal of African American Studies vol. 19(4), 2001 

Legal Information Institute, ‘Plessy V. Ferguson’, Accessed 19th November 2021 

https://www.law.cornell.edu/supremecourt/text/163/537

Reed, Douglas S. ‘Harlan’s Dissent: Citizenship, Education, and the Colour-Conscious Constitution’ in Russell Sage Foundation Journal of the Social Sciences vol. 7(1), 2001  

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