I have written my critique of John Marshall Harlan’s dissent in Plessy v Ferguson before. Harlan’s view of “colorblindness” is indifference not racial justice. Thus, it is unfortunate, yet predictable, that Clarence Thomas, an Associate Justice of the United States Supreme Court, would glorify Harlan in an article in the Wall Street Journal.
I will reiterate my view.
Justice Harlan’s Dissent in Plessy v. Ferguson
Justice John Marshall Harlan, in Plessy v. Ferguson, 163 U.S. 537 (1896), stated that Whites believed in White supremacy, but the Constitution prohibited the law from enforcing it and, most significantly, from protecting Blacks from the effects of White supremacy doctrines.
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. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens.
Harlan’s dissent is, at best, racially indifferent to the plight of Blacks, certainly not an opinion to admire in the slightest.
The reason why I had to repeat this argument is that in the Wall Street Journal, Thomas stated that he views the flawed Harlan as a role model. However, Thomas edits out a troublesome sentence in order to try to convince the public to agree with him (emphasis mine).
It is the Plessy dissent of Justice John Marshall Harlan to which Mr. Thomas points for an example of a Justice putting his personal predilections aside to keep faith with the Constitution. Harlan was a Kentucky aristocrat and former slaveowner, although he was also a Unionist who fought for the North during the Civil War. A man of his time, he believed in white superiority, if not supremacy, and wrote in Plessy that the “white race” would continue to be dominant in the United States “in prestige, in achievements, in education, in wealth and in power [. . .] for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty.”
“But,” Harlan continued, “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 its citizens.”
That, for Mr. Thomas, is the “great ‘But,'” where Harlan’s intellectual honesty trumped his personal prejudice, causing Mr. Thomas to describe Harlan as his favorite justice and even a role model. For both of them, justice is truly blind to everything but the law.
The way Thomas explains Harlan’s statement of white supremacy is that Whites will remain dominant as long as they follow the Constitution and the idealized view of “colorblindness” (that all people would be treated fairly regardless of their skin color). This is the view Thomas expresses in the interview with the Wall Street Journal.
But the part of Harlan’s dissent edited out by ellipses (“So, I doubt not, it will continue to be”) changes the meaning of the sentence and directly contradicts Thomas’s statement. In reality, Harlan did not separate his personal prejudice from the opinion. With the edited statement added, Harlan was actually observing that White supremacy would never go away and the Supreme Court would not challenge it (provided the society did not implicate the exact words of the Constitution).
Moreover, ideal “colorblindness” is impossible in the United States where one race (White) is the clear majority and controls all of the power in society.
The views of Mr. Harlan or Mr. Thomas are definitely not opinions to be admired in the slightest.