Sad to say, but Jammele Bouie, in a recent NY Times op-ed, has overstated his point regarding Harlan's dissent in Plessy v. Ferguson (1896), just as Roberts and a host of conservatives continue to overstate Harlan the other way. Bouie, however, is definitely closer to reality about the limits of Harlan's dissent and why it should not be treated as a sacred type of document. Bouie is also correct Harlan was no friend of Thaddeus Stevens' worldview, opposed the Reconstruction Amendments when they were enacted, and was at best paternalistic towards African-Americans. Further, Harlan was, sadly, a late 19th Century economic liberal, who did not at that point, believe in the government providing many positive economic benefits that would also constrain private power.
Bouie links to what purports to be Harlan's full dissent. However, the link does not contain the full dissent, as it misses the opening of Harlan's dissent where his recitation of the facts shows more fealty to the reality of the imposition of segregation than the majority opinion. While the full text is, admittedly, not as important to Bouie's argument, I believe the dissent is best read in full from start to finish.
I initially posted what I am about to recite at FB. However, I realized I should post it more permanently here as I am seeing too much easy assent to Bouie's position. Where I disagree with Bouie is that Harlan's dissent has important statements which are of use and value to those of us who oppose the right wing's jurisprudence and wish to re-affirm what many progressives wish to see in terms of criminal justice reforms and affirmative action in jobs and educational opportunities. More specifically, this reading of Harlan I propose is helpful for those of us concerned with the 13th Amendment loophole, which leads to much higher incarceration rates and limits on freedom for African-Americans, and to a lesser but still bad extent, Hispanics, through today, starting with the misdemeanor system referred to in the History.com link about the "loophole."
Also, Harlan's language regarding the 14th Amendment shows, beyond John Roberts' crabbed view of that amendment, there is, in fact, an ameliorative intent to directly assist African-Americans that would have allowed for an argument that Harlan may have later agreed to regarding the need for diversity and affirmative action--just as Harlan, in 1908, went against his 19th Century economic pro-capitalist liberalism in holding, as constitutional, an Oregon state law that set maximum hours for women in the workplace--based upon the famous Brandeis brief citing to sociological and economic studies of the time. See: Mueller v. Oregon (1908). Harlan had been a confirmed neo-classical capitalist in the last decade or so of the 19th Century, and against government intervention, but came around in that case based upon reading the sociological information. One may wince at the sexism inherent in how the justices reached that decision in Mueller, however, but it was, as Frances Perkins and Florence Kelley recognized at the time, any port in the storm of the era known as the Gilded Age Court. NOTE: Kelley hired Brandeis for the Mueller case.
The following is language from the Harlan dissent I find most interesting, plus my response to Harlan's language, which shows why I believe Bouie is wrong to cede Harlan to Roberts, Thomas, and the other judicial reactionaries who control the US Supreme Court:
HARLAN DISSENT: "The Thirteenth Amendment does not permit the withholding or the deprivation of any right necessarily inhering in freedom. It not only struck down the institution of slavery as previously existing in the United States, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. It decreed universal civil freedom in this country. This court has so adjudged." (Emphasis added)
MJF RESPONSE: Hmmm....maybe the entire set misdemeanor laws that were enacted after the US Civil War to ensnare African-Americans, and which continue to ensnare African-Americans far more than white folks, may be constitutionally evaluated under Harlan's pronouncement--especially as the right wing are going to continue to cite Harlan's dissent in Plessy as though it was the new law of the land.
HARLAN DISSENT: "The words of the (14th) amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race -- the right to exemption from unfriendly legislation against them distinctively as colored -- exemption from legal discriminations, implying inferiority in civil society, Lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race." (Emphasis added)
MJF RESPONSE: Read the above carefully and note what I have emphasized. Catch the phrase "necessary implication of a positive...right" with the contextual term "unfriendly" with respect to the word "legislation"? Notice a right to a lessening of the security of their enjoyment of the right which others enjoy or discriminations which are steps towards erducing them to the condition of a subject race. Clarence Thomas and the majority opinion want the world to believe the Freedmen's Bureaus set up to directly help African-American slaves after the Civil War were class based, not raced based. The dissent demolishes that argument, as race was certainly on the minds of both advocates for and advocates against the Freedmen's Bureaus. One may wish to consult this monograph to see why the dissent is correct. The fact that a few lighter skinned people got the benefit does not change the main point of an intent that was about race. To think Harlan himself missed the ameliorative intent of the Freedmen's Bureau to positively help African-Americans is to be naive to a cynical degree, particularly because there is direct evidence Harlan supported President Andrew Johnson's racially based veto of the Freedmen's Bureau bill, which went into effect after Congressional override of Johnson's veto. See: page 76, Beth Loren's biography of Harlan, John Marshall Harlan: The Last Whig Justice (1992, U of Kentucky Press).
Further, Thomas, for decades, has argued there is a stigma attached to any African-American or Hispanic who attains an Ivy League degree or gets a managerial position, as if anyone thinks there is any appreciable stigma for a legacy admit into an Ivy League college and gaining a degree--or gains a top management position. Or if somehow the supposed stigma must override the need to get into the elite college or management position in the first place. Too often, this concern over stigma is used to assuage right wing guilt that their overall intent is, in fact, to deprive present or future African-Americans and Hispanics of the ability to gain access to elite education and promotions at work. It is, in my view, a bad faith argument for right wingers to focus on some supposed stigma in order to judicially overturn Harvard's and UNC's programs as they relate to African-Americans and Hispanics. It shows right wingers intuitively understand that they need to get around Harlan's point that "friendly" pro-African-American legislation may still be consistent with an overall drive for equality under the law.
Yes, with respect to Asian-Americans, it was a close call, but let's understand right wingers use Asian-Americans they way they use homeless veterans when opposing any laws designed to help immigrants or undocumented workers. In short, the argument about stigma is a rhetorical device, not a true concern. It is why most Asian-American groups filed a brief supporting Harvard and UNC's diversity admissions systems. Also, while a majority of Asian-Americans oppose affirmative action, likely based upon media presentations, Asian-American students at elite campuses support affirmative action as they see up close how those who are arguing against affirmative action are not comrades in the struggle for equality and non-discrimination.
The point is this: Harlan clearly recognized legislation regarding issues of racism in our society can be friendly or unfriendly to African-Americans, and recognized a Congressional law or private sector program that has a stated good faith intent to help African-Americans may be appropriate and constitutional under the 14th Amendment. Harlan, in the tradition of John Marshall (and James Madison), also recognized there are by "necessity, implied rights" in constitutional pronouncements, including the 14th Amendment. See my blog post which cites Marshall and Madison stating there are implied powers as well as express powers delegated to the US Congress. Once this is understood, one sees how Harlan could be cited to support affirmative action, notwithstanding the soaring rhetoric he mostly uses about the Constitution being colorblind.
Yes, again, Bouie is right that Harlan is not the most reliable guide, and his own personal shortcomings come out in his phrasings, even when Harlan sadly but correctly notes the 14th Amendment was written in the context of anti-Chinese prejudice--as Harlan's language in the dissent is horrible and awful in its racism against Chinese people becoming American citizens. But, let's not leave Harlan's dissent to the right wing, particularly when the right wing does mean to enshrine white supremacy, knowing, with a wink and a nod, that America's culture and economic systems would support white (and Christian nationalist, as opposed to Christian) supremacy despite the law now saying "Don't discriminate on the basis of race."
