I write now to clarify comments I made in class (and to get participation points for engaging with the Substack). Specifically, I pose the question: is the language in Harlan's dissent that has been widely criticized as racially problematic in truth a more sophisticated recognition of the systematic inequality inevitably ushered in by the institution of slavery?
That is, of course, an open question. It cannot be ignored that, as a white justice in 1896, Harlan's conception of racial equality was far removed from the modern conception of racial equality. Indeed, in the very same opinion in which Harlan advocates for the equality of Black Americans, he indicates that Chinese individuals should be absolutely excluded from consideration of citizenship. Throughout his career, he proceeded to endorse decisions which upheld exclusion of Chinese Immigrants. With that necessary disclaimer provided, I will turn to the language at issue. Specifically, Harlan wrote:
"The white race deems itself to be the dominant race in this country. And so it is, in prestige, achievements, in education, in wealth and 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. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." Plessy v. Ferguson (Harlan dissenting)
While facially controversial, In my view, this language speaks to the uncomfortable reality that the institution of slavery has created in the United States, the effects of which echo today. To begin, Harlan declares that the White race has "deemed itself" the "dominant race," "And so it is, in prestige, achievements, in education, in wealth and power." Surely this language is uncomfortable. However, it is not undue. Rather, this language speaks directly to a reality many attempt to ignore: by kidnapping individuals from Africa, subjugating them to slavery, denying them education, and categorically classifying slaves (or indeed, human beings) as property (See Dredd Scott), the White race had in no uncertain terms "deemed itself" the "dominant race."
However, the language of the dissent does not suggest that this dominance is intrinsically justifiable. Rather, Harlan's next sentence is inherently conditional: "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." In other words, the White race's self manufactured domination will continue if. If what? If it does exactly what the Plessy majority endeavors to do. Specifically, if it continues to purport history, tradition, morality, and heritage justify the subjugation and dehumanization of a certain class of human beings.
In Harlan's view, the majority has veiled a "thing disguise of 'equal' accommodations" that will "not mislead any one, nor atone for the wrong this day done." Plessy v. Ferguson (Harlan dissenting). In no uncertain terms, Harlan admonished the majority for its interpretation, stating that "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." The remainder of Harlan's dissent provides tangible substance to this statement. Indeed, Harlan stated he would "deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved," and likend the majority's opinion to that of the infamous Dredd Scott case.
I believe that a categorization of Harlan's language as stating that the White race will intrinsically remain a dominant class dilutes the substance of his writing. Within this paragraph, Harlan has vocalized that the White class has self-manufactured a certain "dominant race" and has disavowed the existence of a "dominant race" in precise terms. Accordingly, I believe that a more nuanced reading supports the conclusion that Harlan is an early acknowledger of a trend we have seen continue throughout American Jurisprudence. Certain members of the White class may attempt to use law, history and tradition, and structural inequality to cling tightly to a self-manufactured position of dominance.
I apologize for the formatting and citation challenges inherent to writing a discussion post.
Thank you for using the Substack exactly as I hoped — to work through tough, contested themes from class in a deeper way.
On the passage you’ve highlighted ("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"), I think the key point of tension is how to read Harlan’s reference to “great heritage” and “constitutional liberty.” My sense is that you may be attributing to him a critique he didn’t quite mean. Harlan wasn’t saying white domination would endure **if** whites used history, tradition, and morality to justify subjugation (that’s the majority’s move, which he plainly rejects). Rather, he was saying something closer to: the white race is already in a position of cultural and political dominance, and that position will continue so long as it remains faithful to its “great heritage” and to “constitutional liberty.”
That sounds jarring to us, because he’s blending two things: a taken-for-granted assumption of white superiority (a social fact, in his eyes) with an appeal to the Constitution’s promise of equality. For Harlan, “constitutional liberty” was not the tool of oppression—it was the corrective. His dissent tries to carve out a world in which whites remain the dominant race socially, but the law nevertheless refuses to enshrine caste distinctions.
That’s the paradox: he is both the “Great Dissenter” who announces a colorblind Constitution and a 19th-century white justice who cannot escape the racial hierarchies of his time. Holding that paradox together helps us see why his words are both enduring and deeply flawed, inspiring for their equality principle, but compromised by the way they normalize white preeminence.
Your reply is well taken. I think the distinction between social fact and constitutional protection plays an important role in Harlan's writing. Additionally, his description of "great heritage" seems to convey support for that proposition, not ironic dismissal of it.
With that said, I feel that the criticism I acknowledged is present in the language--whether Harlan intended it or not. For that reason, I will always like this dissent. In my view it is interesting to think that the off color remarks of a justice in 1896 could plausibly be read as a more nuanced critique of the culture of white superiority he took for granted.
Your interpretation actually reminds me of Justice Kennedy’s early opinions in the gay rights cases (Romer especially) where he seemed to moderate his reasoning so as not to come off too strong or overreach. Perhaps something similar is at play with Harlan: he may have been signaling a deeper critique of white supremacy, but doing so in a way that remained palatable within the judicial and political culture of his time.
I agree, I really enjoyed reading Kennedy's opinions in the gay rights cases, so I think I was primed to see similar subtlety in Harlan's dissent. Of course it is impossible to tell what Harlan actually meant (but if his opinions on Chinese people bear any relevance, his intentions may not have been as rosy as I'd like to believe).
On Harlan's Dissent.
I write now to clarify comments I made in class (and to get participation points for engaging with the Substack). Specifically, I pose the question: is the language in Harlan's dissent that has been widely criticized as racially problematic in truth a more sophisticated recognition of the systematic inequality inevitably ushered in by the institution of slavery?
That is, of course, an open question. It cannot be ignored that, as a white justice in 1896, Harlan's conception of racial equality was far removed from the modern conception of racial equality. Indeed, in the very same opinion in which Harlan advocates for the equality of Black Americans, he indicates that Chinese individuals should be absolutely excluded from consideration of citizenship. Throughout his career, he proceeded to endorse decisions which upheld exclusion of Chinese Immigrants. With that necessary disclaimer provided, I will turn to the language at issue. Specifically, Harlan wrote:
"The white race deems itself to be the dominant race in this country. And so it is, in prestige, achievements, in education, in wealth and 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. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." Plessy v. Ferguson (Harlan dissenting)
While facially controversial, In my view, this language speaks to the uncomfortable reality that the institution of slavery has created in the United States, the effects of which echo today. To begin, Harlan declares that the White race has "deemed itself" the "dominant race," "And so it is, in prestige, achievements, in education, in wealth and power." Surely this language is uncomfortable. However, it is not undue. Rather, this language speaks directly to a reality many attempt to ignore: by kidnapping individuals from Africa, subjugating them to slavery, denying them education, and categorically classifying slaves (or indeed, human beings) as property (See Dredd Scott), the White race had in no uncertain terms "deemed itself" the "dominant race."
However, the language of the dissent does not suggest that this dominance is intrinsically justifiable. Rather, Harlan's next sentence is inherently conditional: "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." In other words, the White race's self manufactured domination will continue if. If what? If it does exactly what the Plessy majority endeavors to do. Specifically, if it continues to purport history, tradition, morality, and heritage justify the subjugation and dehumanization of a certain class of human beings.
In Harlan's view, the majority has veiled a "thing disguise of 'equal' accommodations" that will "not mislead any one, nor atone for the wrong this day done." Plessy v. Ferguson (Harlan dissenting). In no uncertain terms, Harlan admonished the majority for its interpretation, stating that "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." The remainder of Harlan's dissent provides tangible substance to this statement. Indeed, Harlan stated he would "deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved," and likend the majority's opinion to that of the infamous Dredd Scott case.
I believe that a categorization of Harlan's language as stating that the White race will intrinsically remain a dominant class dilutes the substance of his writing. Within this paragraph, Harlan has vocalized that the White class has self-manufactured a certain "dominant race" and has disavowed the existence of a "dominant race" in precise terms. Accordingly, I believe that a more nuanced reading supports the conclusion that Harlan is an early acknowledger of a trend we have seen continue throughout American Jurisprudence. Certain members of the White class may attempt to use law, history and tradition, and structural inequality to cling tightly to a self-manufactured position of dominance.
I apologize for the formatting and citation challenges inherent to writing a discussion post.
Thank you for using the Substack exactly as I hoped — to work through tough, contested themes from class in a deeper way.
On the passage you’ve highlighted ("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"), I think the key point of tension is how to read Harlan’s reference to “great heritage” and “constitutional liberty.” My sense is that you may be attributing to him a critique he didn’t quite mean. Harlan wasn’t saying white domination would endure **if** whites used history, tradition, and morality to justify subjugation (that’s the majority’s move, which he plainly rejects). Rather, he was saying something closer to: the white race is already in a position of cultural and political dominance, and that position will continue so long as it remains faithful to its “great heritage” and to “constitutional liberty.”
That sounds jarring to us, because he’s blending two things: a taken-for-granted assumption of white superiority (a social fact, in his eyes) with an appeal to the Constitution’s promise of equality. For Harlan, “constitutional liberty” was not the tool of oppression—it was the corrective. His dissent tries to carve out a world in which whites remain the dominant race socially, but the law nevertheless refuses to enshrine caste distinctions.
That’s the paradox: he is both the “Great Dissenter” who announces a colorblind Constitution and a 19th-century white justice who cannot escape the racial hierarchies of his time. Holding that paradox together helps us see why his words are both enduring and deeply flawed, inspiring for their equality principle, but compromised by the way they normalize white preeminence.
That said, please feel free to pushback!
Your reply is well taken. I think the distinction between social fact and constitutional protection plays an important role in Harlan's writing. Additionally, his description of "great heritage" seems to convey support for that proposition, not ironic dismissal of it.
With that said, I feel that the criticism I acknowledged is present in the language--whether Harlan intended it or not. For that reason, I will always like this dissent. In my view it is interesting to think that the off color remarks of a justice in 1896 could plausibly be read as a more nuanced critique of the culture of white superiority he took for granted.
Your interpretation actually reminds me of Justice Kennedy’s early opinions in the gay rights cases (Romer especially) where he seemed to moderate his reasoning so as not to come off too strong or overreach. Perhaps something similar is at play with Harlan: he may have been signaling a deeper critique of white supremacy, but doing so in a way that remained palatable within the judicial and political culture of his time.
I agree, I really enjoyed reading Kennedy's opinions in the gay rights cases, so I think I was primed to see similar subtlety in Harlan's dissent. Of course it is impossible to tell what Harlan actually meant (but if his opinions on Chinese people bear any relevance, his intentions may not have been as rosy as I'd like to believe).