Posted by Anita Folsom
“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.”
Is that profound statement made by one of the Founders or by a modern student of the law? Neither. It is from the dissenting argument in Plessy v. Ferguson, given by Supreme Court Justice John Marshall Harlan in 1896.
Harlan was an unusual man for his time. Born in 1833 to a slave-holding family in Kentucky, Harlan graduated at age 17 from Centre College in Kentucky and then studied law before joining his father’s law practice. He was a staunch Unionist during the 1850s and worked to prevent Kentucky’s secession. During the Civil War, he served in the Union Army until his father died, when he returned home in 1863 to support his family and serve as the state’s Attorney General.
President Rutherford B. Hayes appointed Harlan to the Supreme Court in 1877, where Harlan served for 34 years, the sixth-longest tenure on record. He was a colorful figure who was comfortable talking with people of all races. Although Harlan didn’t believe in racial equality (and neither did Abraham Lincoln), he hated the actions of groups such as the Ku Klux Klan, which pitted American against American. Harlan is remembered for his dissents against the national trend of his day to segregate the races.
Plessy v. Ferguson was a landmark case that upheld the constitutionality of the “separate but equal” doctrine in providing schools, transportation, and other facilities for different races. Here is what happened: In 1890, the state of Louisiana passed a law requiring separate railroad cars for whites and blacks. A committee of concerned African Americans in New Orleans asked Homer Plessy, an “octoroon” (seven-eighths white and one-eighth black) to test the law. Under Louisiana law, Plessy was still classified as “black” and required to sit in the rail cars designated for African Americans.
Plessy boarded a rail car for “whites only” in June, 1892, and was promptly arrested by the railroad authorities, who had been told that he was going to test the Louisiana law. He was convicted and fined $25.
Plessy’s case argued that the Louisiana law violated his rights under both the 13th and 14th Amendments of the Constitution. When Louisiana’s state courts ruled against him, Plessy and his supporters took the case to the U.S. Supreme Court.
In May, 1896, the Supreme Court ruled that segregation was legal as long as facilities were of equal quality. Only John Harlan objected.
In Harlan’s lone dissent, he eloquently stated the argument: “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.”
Plessy v. Ferguson would be the law of the land until overturned in 1954 by Brown v. the Board of Education. But Harlan’s dissenting voice was an encouragement to those fighting segregation that the Constitution did indeed provide equality before the law.
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Our Constitution is important—and it has a lively and interesting history—which is why Hillsdale College is offering a ten-week course on “The Meaning and History of the Constitution.” You may sign up online for the course at www.hillsdale.edu and also order the best-seller The U.S. Constitution: A Reader
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