Justice Harlan Said Our Constitution Is Color-Blind in 1896, and He Was Right

In 1896 eight men sat on the Supreme Court bench to decide a case about a railroad car, and only one of them got it right. He was a Kentuckian who had once owned slaves. He wrote alone. And the sentence he wrote that day is now quoted by people who would be startled to learn how unfashionable it has become in some of the most expensive buildings in America.

The sentence is "Our Constitution is color-blind." Let me argue three things about it. One, Justice John Marshall Harlan meant it as a legal rule, not a pleasant sentiment. Two, the history since 1896 has vindicated the rule every time it was applied. Three, the strongest modern argument against it, that race-conscious policy is required to reach equality, fails on its own terms.

The case, the car and the man who sat in it

In 1890 Louisiana passed what was known as the Separate Car Act. It required railroads carrying passengers in the state to provide "equal but separate accommodations for the white, and colored, races," and made it a crime for a passenger to sit in a car not assigned to his race.

A group of New Orleans citizens, the Comité des Citoyens, organized a test case. On June 7, 1892, Homer Plessy, a shoemaker who was by the law's own reckoning one-eighth Black, bought a first-class ticket on the East Louisiana Railroad and took a seat in the car reserved for whites. He was arrested, as planned. The trial judge was John Howard Ferguson, which is how a criminal defendant came to be the plaintiff in one of the most famous captions in American law.

Plessy's lawyers, among them the novelist and former Union officer Albion Tourgée, argued that the act violated the 13th and 14th Amendments. On May 18, 1896, the Supreme Court rejected those arguments by a vote of seven to one. Justice David Brewer did not take part.

Justice Henry Billings Brown wrote for the majority. His reasoning deserves to be quoted only in summary, because it is as bad as its reputation. He held that the 14th Amendment was meant to enforce the "absolute equality of the two races before the law" but could not have been meant to abolish distinctions "based upon color." He said that if Black citizens took enforced separation as a badge of inferiority, that was "solely because the colored race chooses to put that construction upon it." In other words, the insult was in the eye of the insulted. That line has aged about as well as a rotten egg in a hot railcar.

The dissent, passage by passage

Harlan's dissent is long, and much of it is close legal argument about the scope of the Reconstruction Amendments. Four passages carry its moral weight. Let us read them.

First, a public highway belongs to everyone

Harlan began by treating the railroad as what the law had long considered it, a public highway operated under public authority. He wrote:

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.

Notice the word "arbitrary." Harlan did not say government may never notice anything about a person. He said government may not sort citizens by race when it exercises public power, because race is not a reason. It is a pretext. Notice, too, "badge of servitude," a phrase that ties the case to the 13th Amendment. Slavery was a legal status that marked a man in public. A law that marks him by his ancestry on a public road keeps a piece of that status alive.

Second, the famous paragraph

Then comes the passage everyone knows:

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. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.

Read the verbs. The Constitution "neither knows nor tolerates" classes. That is two prohibitions, not one. It does not know them: the law is not permitted to see citizens through the category of race when it allots civil rights. It does not tolerate them: the law may not permit a state to build a caste system by statute. "The law regards man as man." That is the whole of the Declaration of Independence compressed into five words. Every person is a person, and the state deals with persons.

Third, the prediction

Harlan understood exactly what the majority had done:

In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case.

He was right, and it took fifty-eight years for the Court to admit it. In those years Plessy became the legal foundation for segregated schools, hospitals, parks, theaters, water fountains and cemeteries across much of the country.

Fourth, the disguise

Finally, Harlan dismissed the majority's central fiction:

The thin disguise of "equal" accommodations for passengers in railroad coaches will not mislead any one, nor atone for the wrong this day done.

Everyone in that courtroom knew what the law was for. It was not written to protect anyone's comfort. It was written to tell Black citizens they were second-class. Harlan refused to pretend otherwise. That refusal to accept a euphemism as an argument is one of the most useful habits a judge, or a citizen, can have.

A paragraph we should not hide

Honesty requires one more note. Just before the famous passage, Harlan wrote that the white race deemed itself the dominant race in prestige and power and would likely remain so. Elsewhere he contrasted the treatment of Black citizens with that of Chinese immigrants, whom federal law then barred from naturalization, in language that reads as harsh today. Critics of color-blindness sometimes cite these passages to suggest that Harlan's principle was hollow.

The answer is that the principle is stronger than the man who stated it. Harlan was a nineteenth-century Kentuckian with some of the assumptions of his place and time. What makes the dissent great is that he wrote a rule of law that condemns those assumptions whenever they are turned into legislation. A principle that convicts its own author's prejudices is a principle worth keeping.

Who Harlan was

John Marshall Harlan served on the Court from 1877 to 1911. Born in Kentucky in 1833, he came from a slaveholding family, fought for the Union in the Civil War, and opposed the Emancipation Proclamation at the time. After the war his views changed, and on the bench he became the Court's most consistent defender of the Reconstruction Amendments. He dissented in the Civil Rights Cases of 1883, when the Court struck down the public-accommodations provisions of the Civil Rights Act of 1875. He dissented again in Plessy.

There is a lesson in that biography. People can learn. A nation can learn. The Constitution's amendment process and its written text gave Harlan something to learn toward: a standard outside himself. For a fuller account of his career and dissent, see Justice Harlan's Lone Dissent in Plessy and the Colorblind Constitution.

From Plessy to Brown to Harvard

Brown v. Board of Education (1954)

On May 17, 1954, a unanimous Supreme Court under Chief Justice Earl Warren held that "in the field of public education the doctrine of 'separate but equal' has no place." The Court reached that result largely by relying on the harm segregation did to children, and it did not formally adopt Harlan's color-blind language. Thurgood Marshall, arguing for the families, pressed the argument that racial classification by the state is itself unconstitutional. The Court took a narrower path.

That choice had consequences. Because Brown did not say plainly that the Constitution forbids racial classification as such, later courts were able to treat race-based sorting as acceptable when the purpose seemed benign. Whether an originalist can defend Brown is a fair question, and we take it up in Can an Originalist Defend Brown v. Board? Yes, and Here Is the Case. Our short answer is yes, on Harlan's ground.

The detour, 1978 to 2023

In Regents of the University of California v. Bakke (1978), a fractured Court struck down a fixed racial quota but allowed race to be used as one factor in admissions. Justice Harry Blackmun, writing separately, gave the most candid statement of the other view: "In order to get beyond racism, we must first take account of race." For forty-five years, universities built admissions systems on that sentence.

Students for Fair Admissions v. Harvard (2023)

On June 29, 2023, the Court ended the experiment. Chief Justice John Roberts, writing for the majority, held that the admissions programs at Harvard and the University of North Carolina violated the Equal Protection Clause and, for Harvard, Title VI of the Civil Rights Act of 1964. He wrote that "eliminating racial discrimination means eliminating all of it." Justice Clarence Thomas, concurring, devoted pages to Harlan's dissent and argued that the color-blind Constitution was the original meaning of the 14th Amendment. The story of how the experiment began and ended is told in Students for Fair Admissions Ended an Experiment That Began With Bakke in 1978.

So the line runs straight. Harlan wrote the rule in 1896. Brown reached his result in 1954 without quite adopting his reasoning. SFFA came closest to adopting it in 2023. Few dissents have had such a long road to vindication. For four others that made the trip, see Five Supreme Court Dissents That Later Became the Law of the Land.

The best argument against color-blindness, stated fairly

Now the other side, in the words its defenders would use.

Formal neutrality, they argue, freezes existing inequality in place. Centuries of slavery and Jim Crow left gaps in wealth, education and opportunity that do not disappear when the law stops discriminating. A starting line is not fair if some runners were held back for decades before the race began. A color-blind rule applied to an unequal society produces unequal results, and calling that equality is a kind of willful blindness. Only by taking race into account, temporarily and with care, can the state undo the effects of its own past race-taking. That was Blackmun's point, and it is the moral core of what is now called equity.

That is the argument at its strongest. Here is why it fails.

Why it fails, in five points

1. It makes the state do the very thing the 14th Amendment forbids. The amendment says no state shall "deny to any person within its jurisdiction the equal protection of the laws." The word is "person," not "group." A rule that admits one applicant and rejects another because of race treats the rejected person unequally, whatever the intention. Good motives do not change what a classification is.

1. It has no stopping point. Justice Sandra Day O'Connor wrote in Grutter v. Bollinger (2003) that she expected racial preferences would no longer be necessary twenty-five years later. Twenty years in, the universities that relied on them showed no sign of a plan to stop. A remedy without an end date is not a remedy. It is a permanent system of classification, which is what Harlan called caste.

1. It sorts people into categories too crude to bear the weight. Government racial categories lump together people of enormously different histories and circumstances. A rule built on those boxes treats the child of a wealthy professional and the child of a struggling family as interchangeable if they check the same box. That is not attention to disadvantage. It is attention to ancestry.

1. It costs real people real chances. In SFFA, the trial record showed that Harvard's process rated Asian American applicants lower on its subjective "personal" score than applicants of other groups. Whatever one makes of the reasons, a policy defended as fighting discrimination produced a measurable penalty for one minority group. That is what happens when the law "knows" race: someone always pays.

1. There is a better tool, and it is color-blind. If the goal is to help people who start behind, the law can aim at disadvantage directly: family income, the quality of a student's school, the circumstances of a neighborhood, the obstacles a particular applicant overcame. Chief Justice Roberts's opinion said universities may consider an applicant's own account of how race affected his life, so long as the decision rests on the individual. Those approaches help the struggling of every background and never ask the government to sort citizens by blood.

The verdict: equality before the law is not an obstacle to fairness. It is the precondition of it. Every regime that classified people by race in the name of some higher good, from the slave codes through Jim Crow, believed its purposes were sound. The Constitution's answer, as Harlan saw, is not to find better purposes for the classification. It is to abolish the classification.

What the coverage leaves out

Read the coverage of SFFA and you will often find the decision described as "ending affirmative action" or "a blow to diversity," with Harlan's name nowhere in sight. Rarely will you learn that the chief legal principle at stake was first articulated by a dissenter fighting segregation, or that the Civil Rights Act of 1964 forbids discrimination "on the ground of race, color, or national origin" in any program receiving federal money, in words that do not carve out good intentions. The framing tells readers that the color-blind principle is the conservative side of a partisan quarrel. It was, in 1896, the side of the man who stood alone against Jim Crow.

That is worth remembering the next time a bureaucracy announces a program that sorts people by race and calls it progress. The question to ask is the one Harlan asked: does the law regard man as man? If it does not, no disguise will atone for it.

The case in brief

1. Justice Harlan's Plessy dissent stated a legal rule: the Constitution "neither knows nor tolerates classes among citizens," and the state may not sort people by race.
2. History vindicated him: Plessy proved as pernicious as he predicted, Brown reached his result in 1954, and SFFA came closest to his reasoning in 2023.
3. The case for race-conscious policy sincerely aims at equality but treats persons as members of groups, has no end point, and imposes real costs on real applicants.
4. Aiming help at individual disadvantage reaches the same goal without asking the law to see color.

What you can do: read Harlan's full dissent in Plessy v. Ferguson and Chief Justice Roberts's opinion in SFFA side by side, then ask your state university and school board in writing whether any of their programs still classify applicants by race.