Omar Bennett
In 1896, the U.S. Supreme Court ruled 7-1 in Plessy v. Ferguson, upholding Louisiana's right to maintain segregated public transportation systems. The lone dissenter, Associate Justice John Marshall Harlan, argued that the U.S. Constitution was color-blind and did not tolerate classes among citizens. He wrote, 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. This notion of a color-blind constitution has since been embraced by other Supreme Court justices, including Thurgood Marshall and Sandra O'Connor.
| Characteristics | Values |
|---|---|
| Name | John Marshall Harlan I |
| Known as | The "Great Dissenter" |
| Year of Dissent | 1896 |
| Case | Plessy v. Ferguson |
| Issue | Racial segregation |
| Opinion | The US Constitution was color-blind and did not tolerate classes among citizens |
| Legacy | His dissent has been cited in support of the view that the Constitution prohibits racial distinctions |
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What You'll Learn
John Marshall Harlan's dissent in Plessy v. Ferguson
In 1896, the United States Supreme Court made one of its most notorious decisions in the case of Plessy v. Ferguson. By a vote of 7-1, the Court approved the principle of "separate but equal", which was used to justify segregation laws in the South for the next half-century and more. The one dissenter against the decision was Associate Justice John Marshall Harlan.
The case concerned a Louisiana law mandating segregation of the races in rail coaches. Homer Plessy, a Louisianan of mixed race, challenged the law by sitting in the whites-only section of a train car and was arrested. Plessy argued that enforced segregation compromised the principle of legal equality. The Supreme Court rejected this argument, ruling that the Louisiana law did not violate the Fourteenth Amendment, which established the legal equality of whites and blacks but did not require the elimination of "distinctions based upon color".
In his dissent, Harlan wrote that the U.S. Constitution "is color-blind, and neither knows nor tolerates classes among citizens". He argued that the law should have been found unconstitutional because it distinguished between citizens based solely on race. Harlan's dissent included the now-famous passage:
> "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. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved."
Harlan's dissent attracted little attention at the time, but it has since inspired many civil rights advocates, including Thurgood Marshall, who cited it in the 1954 case Brown v. Board of Education, which overturned Plessy v. Ferguson. Harlan's stand has been described as an act of lonely courage and his dissent is considered one of the greatest in the history of the Supreme Court.
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The separate but equal doctrine
The "separate but equal" doctrine was a legal doctrine in US constitutional law that allowed for racial segregation in the United States. The doctrine held that as long as segregation laws affected white and Black people equally, those laws did not violate the equal protection clause of the Fourteenth Amendment to the US Constitution, which prohibits states from denying "equal protection of the laws" to any person within their jurisdiction. In other words, as long as the facilities provided to each race were equal, state and local governments could require that services, facilities, housing, medical care, education, employment, transportation, and public accommodations be segregated by race.
The "separate but equal" doctrine was introduced in the Plessy v. Ferguson case in 1896, which involved Homer Plessy, a mixed-race man who purchased a train ticket and took a seat in a car reserved for white passengers. Plessy refused to move to a car for African Americans and was arrested and charged with violating Louisiana's Separate Car Act. The US Supreme Court ruled against Plessy, stating that the Louisiana law did not violate the Fourteenth Amendment and that it did not require the elimination of all "distinctions based upon color". However, Justice John Marshall Harlan dissented from the majority opinion, arguing that the US Constitution "is color-blind" and that all citizens are equal before the law, regardless of race.
The "separate but equal" doctrine was used to justify segregation laws, known as Jim Crow laws, in the American South after the end of the Reconstruction era in 1877. These laws created a racial caste system that enforced the inferiority of Black people, despite the doctrine's supposed intention of ensuring equality. In practice, the treatment and facilities provided to Black citizens were often inferior or non-existent compared to those provided to white citizens.
The "separate but equal" doctrine was eventually overturned in the Brown v. Board of Education case in 1954. The US Supreme Court ruled that segregation in public education was a denial of the equal protection of the laws and that ""separate educational facilities are inherently unequal". This decision marked a significant shift in social sentiment and initiated the racial integration of the country's public schools. However, the implementation of these changes was long and contentious, and racial inequalities continue to exist in American school systems due to residential patterns and funding disparities.
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The Equal Protection Clause
In 1896, Justice John Marshall Harlan was the lone dissenter in the Supreme Court's 7-1 decision in Plessy v. Ferguson, which affirmed the doctrine of "separate but equal" in favour of the state of Louisiana's right to maintain racially segregated public transportation systems. In his dissenting opinion, Justice Harlan argued that the US Constitution was "colour-blind" and that it ""neither knows nor tolerates classes among citizens". He wrote:
> "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 colour-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his colour when his civil rights as guaranteed by the supreme law of the land are involved."
Justice Harlan's dissenting opinion in Plessy v. Ferguson reflected his conviction that disparate treatment of citizens by the government based on race was unjust. He was concerned about the encroachment on the Fourteenth Amendment, which states:
> "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The Fourteenth Amendment, which took effect in 1868, marked a large shift in American constitutionalism by applying more constitutional restrictions against the states than had applied before the Civil War. The Equal Protection Clause, located at the end of Section 1 of the Fourteenth Amendment, provides:
> "No State [...] shall deny to any person within its jurisdiction the equal protection of the laws."
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Affirmative action
In Plessy v. Ferguson (1896), Justice John Marshall Harlan was the lone dissenter in the Supreme Court's 7-1 decision, which ruled that racial segregation laws did not violate the U.S. Constitution as long as the facilities for each race were equal in quality, known as the "separate but equal" doctrine. In his dissent, Justice Harlan argued that the U.S. Constitution "is color-blind, and neither knows nor tolerates classes among citizens", and thus, laws distinguishing races should be deemed unconstitutional. He asserted that in the eyes of the law, all citizens are equal, regardless of their race, colour, or social standing.
While affirmative action aims to address past and present discrimination, it has faced criticism for potentially benefiting the most privileged within minority groups and hindering less fortunate individuals from majority groups. Additionally, some argue that it may not sufficiently address racial equality issues when implemented in a "colour-blind" manner without explicit consideration of race. Nonetheless, affirmative action has been a tool to promote diversity, social equity, and redress past wrongs, with criteria including race, disability, gender identity, sexual orientation, ethnic origin, and age.
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Racial equality in the US
In 1896, the US Supreme Court ruled 7-1 in the case of Plessy v. Ferguson, which upheld racial segregation under the "separate but equal" doctrine. Justice John Marshall Harlan was the lone dissenter, arguing that the US Constitution was "color-blind" and that there was "no superior, dominant, ruling class of citizens". He wrote, "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 has since been cited in support of the view that the Constitution prohibits racial distinctions of any kind. The concept of constitutional colour blindness, or colourblindness, stands for the proposition that race ought to play no role in assessing individuals. The goal of colourblind constitutionalism seeks to make the words of Dr. King’s famous speech manifest, where one’s character and abilities are the metrics considered.
However, some have interpreted Harlan's colour-blind Constitution as a bulwark of white supremacy. Harlan himself was a child of a slave-owning family and believed that legal segregation was unnecessary to preserve socioeconomic racial inequality. He also believed that a colour-blind Constitution stood in defence of white supremacy, and his dissent has been used in arguments against affirmative action and other race-conscious government policies.
The debate over colourblindness remains a central issue in the broader debate over affirmative action and racial equality in the United States. Proponents of colourblindness advocate for a race-neutral approach to government policies, while opponents emphasize the need for race-conscious efforts to promote diversity and correct systemic inequities.
In the Brown v. Board of Education case of 1954, Thurgood Marshall argued that the colour-conscious doctrine of "separate but equal" must be rejected to achieve full and complete integration in public education without regard to race or colour. This case marked a significant shift in social sentiment, leading to attempts to level the playing field for minorities through policies like busing, racial quotas, affirmative action, and disparate-impact standards.
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Frequently asked questions
Justice John Marshall Harlan I, also known as the "Great Dissenter", argued that the US Constitution was color-blind.
In 1896, the Supreme Court ruled 7-1 in Plessy v. Ferguson that racial segregation did not violate the Constitution as long as there were "separate but equal" facilities. Justice Harlan was the lone dissenter, arguing that the US Constitution was color-blind and that the laws distinguishing races were unconstitutional.
Justice Harlan's dissent has since been cited in support of the view that the Constitution prohibits racial distinctions of any kind. It played a role in reshaping American society and informed the main argument in desegregation cases.
The notion of a color-blind Constitution has been used in conservative legal arguments against affirmative action and other race-conscious government policies. Supporters argue that the Equal Protection Clause mandates a race-neutral approach, while opponents emphasize the need for race-conscious efforts to promote diversity and correct systemic inequities.
Justice Harlan was a child of a slave-owning Kentucky family and was raised by an enslaved nanny. He believed that legal racial segregation would lead to racial hatred and violence, and that a color-blind Constitution stood as a bulwark of white supremacy.
