In 1896 the United States Supreme Court ruled that segregation based on race was legal and the Jim Crow era began. However, one justice dissented from the majority opinion. Justice John Marshall Harlan’s lone voice would be an eloquent defense of the idea of equality before the law. His dissent in Plessy v. Ferguson was one of many that gave him the name, ‘the great dissenter’. But this would be his greatest dissent of them all.
Harlan and his dissent would be largely forgotten after his death. In the long night of injustice that was the Jim Crow era only a few would read his dissent for inspiration. But it would eventually resurface and be cited in the rulings that would strike down segregation.
The Supreme Court ruling in Plessy v. Ferguson would become one of its most notorious decisions. It would be the law of the land for another 60 years. Perhaps only Dred Scott v. Sandford, which deprived black Americans of their citizenship and arguably helped kickstart the Civil War, was a worse decision than Plessy v. Ferguson.
However, the Supreme Court’s decision was not unanimous. One justice refused to go along with a decision that he thought was wrong and fundamentally flawed. John Marshall Harlan was not a typical champion for racial equality. He was a former slave owner and by any modern standard, a racist.
After the Civil War, the hopes of many for a society based on racial equality had died. The former states of the confederacy initially had governments (often coalitions of African Americans and white Republicans), that were committed to greater racial equality, however one by one they were removed from power through a devastating combination of intimidation, murder and the ballot box. The rebels were back in charge. While they had been defeated in their quest for southern independence and the continuation of slavery, they now set out to create a racist society through violence and legal, state-sanctioned segregation.
‘Jim Crow laws’ were passed in the former states of the confederacy from the 1870s onwards. They created a system of segregated public facilities for black and white Americans, respectively. Everything from public transportation, to schools and even benches and water fountains, would come under its scope.
This was justified under the legal doctrine of ‘separate but equal’. But those facilities were not only unequal they often didn’t exist for African Americans at all. Even if they had though, the very reason for two separate facilities was inherently discriminatory. Supposedly neutral laws would also deprive African Americans of the right to vote and participate in civil matters such as be members of juries or stand for elected office.
This era would be book-ended by two legal cases, Brown v. Board of Education at the end and Plessy v. Ferguson at the beginning.
In 1892 Homer Plessy, an American of mixed race, was arrested in Louisiana when he refused to sit in the ‘colored section’ of an intrastate railroad train as required by the law of the State of Louisiana. The scenario was prearranged by an organization called the Citizens’ Committee so that a test case would reach the Supreme Court and the constitutionality of the Jim Crow laws, which were being passed throughout the South, could be challenged.
Plessy sought legal redress under his constitutional rights enshrined in the 13th and 14th amendments to the Constitution of the United States. His defense at his trial was that segregation was unconstitutional. The court rejected this and he was found guilty. The decision was affirmed by the Louisiana Supreme Court. He appealed to the United States Supreme Court.
The Supreme Court at this time was extremely conservative, pro-business and had proven itself deeply hostile to African American rights. Justice Henry Billings Brown wrote for the court majority. The court ruled that the 13th amendment applied only to slavery; furthermore, the equal protection guarantee of the laws under the 14th amendment had not been violated.
This ruling not only justified segregation, but it would also widen and deepen its reach. The highest court in the Republic declared that the separation of two groups of citizens, based on race, complied with the Civil War amendments (the 13th, 14th and 15th Amendments to the Constitution) as long as there was ‘equality’.
In reality, this equality was in name only. Albion W. Tourgee, the lawyer for Plessy said,
‘A dominant race or class does not demand or enact class-distinctions for the sake of the weaker but for their own pleasure or enjoyment. This is not an act of equal privileges; they were already enjoyed under the law as it previously existed’.¹
With its ruling, the Supreme Court legitimised the Jim Crow laws, racism and a caste system. Plessy, with only minor qualifications, would be the law of the land for another six decades until the segregation cases of the 1950s including Brown v. Board of Education. It would extend to almost every facet of social interaction in large parts of the country.
While seven justices upheld segregation, one justice dissented. This dissent of Associate Justice John Marshall Harlan would have significant political and judicial consequences, though for a time it would be forgotten.
Dissents expound the case for why the majority ruling is incorrect. A later chief justice, Charles Evans Hughes wrote,
“A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the effort into which the dissenting judge believes the court to have been betrayed.”²
Harlan’s dissent questioned the majority in two key ways. First, the logic of the Courts’ opinions and the specifics used to support the Court’s ruling. This was important to establish the credibility of Harlan’s opinion. It could not appear to be a political opinion (if even a laudable one), it must to some extent, be a dispassionate statement of facts and precedent.
The historian BJ Bernstein said, ‘It is clear then from the examination of case law in Plessy v. Ferguson that the Supreme Court was compelled to distort before it could pollute the stream of law with the “Separate but Equal” doctrine.’ Bernstein lays out a convincing case about why the decision was erroneous. ‘The court cited seven cases that were clearly distinguishable in material facts from Plessy.’³ The court used cases that were decided before the Civil War began and the 13th and 14th amendments were passed.
The ‘Separate but equal’ doctrine was fabricated from supposed precedent to become a precedent itself. Harlan exposed the sham of claims of equality through separation by stating candidly that ‘segregation is in itself discriminatory and implies the inferiority of the Negro even if the facilities are equal.’⁴ The idea that Plessy v. Ferguson only allowed separate facilities if those facilities were equal and furthermore gave African Americans any significant legal redress was a nonsense, separating the rule of law from reality and truth.
Proponents for segregation argued that the Louisiana law treated blacks and whites the same, it merely separated them in certain situations for the benefit of all and to reflect social circumstances. The reality was that the law had been enacted to keep black people away from white people and that personal liberty comprised of the right of a person to go where they pleased. Harlan refused to let fabrications be accepted as truth.
Second, was the question of constitutionality. It wasn’t the case that the ruling of the court was strict and correct, albeit perhaps unfortunate in its consequences. It violated fundamental aspects of the constitution.
The Civil War amendments had been passed to protect the newly acquired freed status of former slaves. Judge and civil rights advocate Leon Higginbotham said, ‘In the words of Senator Charles Sumner… “so that hereafter in all our legislation there shall be no such word as ‘black’ or ‘white,’ but… one shall speak only of citizens and of men” ’⁵.
“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 colorblind, 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 arbitrary separation of citizens on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds.”⁶
The Supreme Court decided to ignore the constitution, the Civil War amendments and even the Civil War itself.
Harlan’s eloquence and strength of argument greatly strengthened a dissent that helped to undermine the credibility of the majority’s ruling and gave crucial credibility to those that would speak against the ruling and to those who would resist it.
The dissent gave extra credence and motivation to criticisms of the ruling. Newspaper Editors outside the South largely criticized the court. African American Newspapers were vehement about the case, bar Harlan’s opinion.
Resistance to segregation would continue for more than 50 years. Such resistance was often met with deadly violence from the authorities. As segregation began to fall apart, Harlan’s dissent was cited by the Supreme Court Justices in Brown v. Board of Education and other segregation cases. In 1954 Chief Justice Warren would declare that segregation did discriminate against African Americans,
“We conclude that, in the field of public education, the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.”⁷
Plessy v. Ferguson was, essentially, dead.
A number of other cases would come before the court and segregation was ruled against again and again. It would take some time for desegregation to be achieved and it needed more than just Supreme Court rulings. It would not be a panacea for racism and social inequality. But it did theoretically mean the end of distinctions of people based on race in the eyes of the law.
The Kentuckian’s opinion is not the only dissent to be resurrected in the future, nor is it the only dissent to stand to us in this age, for a position of clear moral right, devoid of any uncertainty. Harlan’s dissent was not pivotal to the struggle for equality — the overturning of Plessy and desegregation would certainly still have happened.
After Plessy civil rights campaigners would be wary of using legal challenges, as to lose would have unwanted precedents set. This would be a debate within the civil rights movements for decades to come. However, the dissent did give some hope to opponents of segregation, as well as other forms of oppression against African Americans, that victory, and freedom, was possible and that the law of the land could be part of the solution and not just part of the problem.
It would be a source of inspiration for the man that led the charge in Brown v. Board of Education, later to be the first black Associate Justice of the Supreme Court, Justice Thurgood Marshall, who reportedly picked himself up in low moments by reading aloud from Harlan’s dissent.
Harlan was a former slave owner and racist, but he had come a long way from his beginnings and his country would eventually follow him. Americans, no matter what has taken place in their history, pride themselves that in the end that the right thing gets done. Dissents against such clear wrongs are important to how America sees itself.
Supreme Court rulings shaped America and continue to do so. By their very nature, dissents are less significant in their consequences than rulings, at least initially. Historian Loren Beth wrote, ‘A dissent is an appeal to the conscience of the future: it is thus to be judged on whether it correctly divined that opinion.’⁸ It did. Harlan’s dissent was as effective and as important as any dissent as ever been. If Plessy v. Ferguson came before the court today Harlan’s dissent would undoubtedly be the majority opinion of a unified court.
It’s easy to think that events in history were inevitable. But what if four other justices had joined with Harlan and he had written the majority ruling of the court in 1896 rather than the dissent. Leon Higgonbotham wrote,
“Think of the type of nation we would now have if in 1896, our leaders had really embraced the message of Justice Harlan, that “. . . the common government of all shall not permit the seeds of race hate to be planted under the sanction of law.” If this message had been implemented, subtle or blatant racism would not be one of the underlying issues in current political campaigns. There would be no problems of busing today; nor would there be the extensive racial ghettos now existing in the inner cities of our nation. The striking racial gaps between black and white economic, health, and educational attainment would be either nonexistent or significantly diminished.”⁹
- Monte M. Olenick, Albion W. Tourgee: Radical Republican Spokesman of the Civil War Crusade, Phylon (1960-) Vol. 23, №4 (4th Qtr., 1962), pp. 332–333
- Elaine R. Whitlock, Getting Ready for the Future of Brown v. Board of Education, Equity & Excellence in Education, 37: p. 186, 2004
- Barton J. Bernstein, Plessy V. Ferguson: Conservative Sociological Jurisprudence, The Journal of Negro History , Vol. 48, №3 (Jul., 1963), p. 198
- Loren P. Beth, Justice Harlan and the Uses of Dissent, The American Political Science Review, Vol. 49, №4 (Dec., 1955), p. 1089
- A. Leon Higginbotham, Jr., The Journal of Negro History, Vol. 60, №3 (Jul., 1975), pp. 355.
- Plessy v. Ferguson, 163 U.S. 537 (1986).
- Brown v. Board of Education, 347 U.S. 483 (1954).
- Loren P. Beth, Justice Harlan and the Uses of Dissent, The American Political Science Review, Vol. 49, №4 (Dec., 1955), p. 1086
- A. Leon Higginbotham, Jr., The Journal of Negro History, Vol. 60, №3 (Jul., 1975), p. 356.
- Image: By John Vachon for U.S. Farm Security Administration — Library of Congress, Public Domain, Link
- Image: By Napoleon Sarony — From the Library of Congress Prints and Photographs Division (Reproduction number: LC-USZ62–40292), Public Domain, https://commons.wikimedia.org/w/index.php?curid=693494
- Image: Photo by Claire Anderson on Unsplash
A. Leon Higginbotham, Jr., The Journal of Negro History, Vol. 60, №3 (Jul., 1975), pp. 347–359.
Archibald Cox, The Warren Court (Cambridge, Massachusetts: Harvard University Press, 1971).
Barton J. Bernstein, Case Law in Plessy v. Ferguson, The Journal of Negro History, Vol. 47, №3 (Jul., 1962), p. 192.
Bernard Schwartz, A History of the Supreme Court (New York: OUP, 1993).
Charles A. Lofgren, The Plessy Case (New York, OUP, 1987).
Charles Thompson, The Great Dissent, Kentucky Humanities, №1. (1996) — <http://www.louisville.edu/library/law/harlan/harlthom.html> — (09/10/06).
Elaine R. Whitlock, Getting Ready for the Future of Brown v. Board of Education, Equity & Excellence in Education, 37: 181–203, 2004
Harry E. Groves, Separate but Equal — The Doctrine of Plessy v. Ferguson, Phylon (1940–1956), Vol. 12, №1 (1st Qtr., 1951), pp. 66–72
Harvey Fireside, Separate and Unequal (New York: Carroll & Graf, 2004).
Kermit L. Hall, The Oxford Companion to the Supreme Court of the United States (New York: OUP, 1992).
Loren P. Beth, Justice Harlan and the Uses of Dissent, The American Political Science Review, Vol. 49, №4 (Dec., 1955), pp. 1085–1104
Mary Frances Berry, Vindicating Martin Luther King, Jr.: The Road to a Color-Blind Society. The Journal of Negro History, Vol. 81, №1/4, Vindicating the Race: Contributions to African-American Intellectual History (Winter, 1996), pp. 137–144
Monte M. Olenick, Albion W. Tourgee: Radical Republican Spokesman of the Civil War Crusade, Phylon (1960-) Vol. 23, №4 (4th Qtr., 1962), pp. 332–345
Brown v. Board of Education, 347 U.S. 483 (1954).
Dred Scott v. Sandford, 60 U.S. 393 (1856).
Plessy v. Ferguson, 163 U.S. 537 (1986).