Justice Harlan's Lone Dissent in Plessy and the Colorblind Constitution

Homer Plessy did not get arrested by accident. On a June day in 1892 he boarded a railroad car in New Orleans that was reserved for white passengers and sat down, fully expecting to be removed. The Citizens' Committee behind him had hired a detective to make the arrest, and the railroad, which disliked the law, had been told of the plan in advance. The whole scene was staged, with a care that would do credit to a stage manager, by men who had decided to take a bad law to the Supreme Court and lose in order to win.

They lost the case and, for sixty years, the war. But they got one thing they could not have bought: a dissent from one man, written in plain English, that outlived the majority opinion by a lifetime. This is the story of Plessy v. Ferguson (1896), of the Justice who wrote that dissent, and of how a lone voice became the ancestor of the argument that the Constitution does not know race.

The law and the plan

In 1890 Louisiana passed the Separate Car Act, requiring railroads to provide "equal but separate" accommodations for white and Black passengers and forbidding passengers from sitting in cars assigned to the other race. By then the promises of Reconstruction were being dismantled across the South, and in Louisiana a group of New Orleans citizens formed a Citizens' Committee to challenge the law. They turned to Albion Tourgée, a white lawyer and former Union Army officer, who became Plessy's lead attorney.

The committee wanted a test case, and they chose the plaintiff carefully. Homer Plessy was a man of mixed ancestry, described in the Court's opinion as seven-eighths white and one-eighth Black, which was exactly the point: the Louisiana law required railroad conductors to classify passengers by race on sight, and Plessy's appearance made that classification absurd. On June 7, 1892, he took a seat in the white car of the East Louisiana Railroad. He was arrested. The case went to the criminal court of Orleans Parish, where Judge John Howard Ferguson rejected his argument, and Plessy appealed. The Louisiana Supreme Court affirmed the conviction, and the case went to Washington.

The Court heard argument in April 1896 and decided the case on May 18, 1896. The vote was 7-1. Justice David Brewer did not participate, and Justice John Marshall Harlan stood alone against the majority.

Justice Brown's majority

Writing for the Court, Justice Henry Billings Brown made two arguments that deserve to be taken seriously, because understanding why the majority thought it was right is the only way to understand why it was wrong.

First, he argued that the Fourteenth Amendment had been intended to establish the legal equality of the two races, "but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality." The Amendment, in his reading, dealt with civil and political rights, and separate railroad cars were a matter of social arrangement. Laws requiring separation, he noted, had been enacted by Congress itself for the schools of the District of Columbia, and by many states.

Second, and more famously, he rejected the claim that segregation implied inferiority. "We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it." And he added that "if one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane."

Pause on that reasoning, because it is the kind of argument that sounds sensible if you do not look at it closely. The legislature has not said anyone is inferior; it has only required separation. If anyone feels slighted, the fault lies in their interpretation. That works for a law about separate entrances to a theater of no importance. It does not work for a statute that, in its setting and its purpose, existed precisely to mark one group as unfit to share a railway car with another. The Court pretended not to see what everyone in Louisiana could see.

The dissent

Harlan was an unlikely hero. He was a Kentuckian from a slaveholding family who had himself owned slaves before the Civil War, who opposed the Emancipation Proclamation at the time and then changed his mind, and who joined the Republican Party and was appointed to the Court by President Rutherford B. Hayes in 1877. He had dissented in the Civil Rights Cases of 1883, when the Court struck down the Civil Rights Act of 1875. He was a man who had been wrong and had said so, and the correction made him formidable.

His Plessy dissent is short enough to read in an afternoon and powerful enough to remember for life. Four passages stand out.

The disguise

"Every one knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons." Harlan did what the majority refused to do: he looked at what the law was for. He wrote that "the thin disguise of 'equal' accommodations for passengers in railroad coaches will not mislead any one, nor atone for the wrong this day done."

The color-blind Constitution

The line that made the dissent immortal: "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." A few paragraphs earlier he had written that, "In respect of civil rights, common to all citizens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights."

Read it slowly. It makes a claim about what the government may know. The sentence does not say that society must be blind to race, which no law could require. It says the Constitution forbids "any public authority" from taking race into account in distributing civil rights. That is a statement about the power of the state, and it is the principle that later generations of lawyers would build on.

The honest admission

Harlan was not a flatterer of his own side. In the same dissent he wrote: "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." The sentence is uncomfortable to modern readers, and it should be read for what it is: the language of his era, from a man who held views of his own time, spoken in the course of an argument that the Constitution gave the dominant race no legal privilege. It shows that the principle he defended did not depend on a modern sensibility. A Justice who took the white race's dominance for granted still concluded that the law could not enforce it.

The prophecy

"In my judgment, 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." Harlan saw that the Court had done what Dred Scott had done: put the weight of constitutional law behind a hierarchy of citizens. For the lesson of that earlier case, see Dred Scott Is the Warning Every Fan of Judicial Supremacy Should Read.

What followed

The majority opinion's effect was immediate and long. Plessy gave constitutional cover to the system of Jim Crow laws that spread across the South in the decades that followed, covering schools, parks, transportation, hospitals, restaurants and drinking fountains. The "equal" half of "separate but equal" was seldom honored, and the Court did not enforce it. In Cumming v. Richmond County Board of Education (1899), a challenge to a Georgia county's decision to suspend its Black high school while keeping a white one open, the Court rejected the claim without dissent, in an opinion written by Harlan himself. The record shows that Harlan was no flawless prophet. But his dissent in Plessy remained the argument that the system's critics would eventually press.

The system lasted roughly another half century. Federal courts chipped at it in graduate and professional schools before 1954. In 1954, in Brown v. Board of Education, a unanimous Court held that racial segregation in public schools violated the Equal Protection Clause and stated that "separate educational facilities are inherently unequal." Brown rested on different reasoning, but it reached the destination the dissent had pointed to, and the lawyers who argued against segregation had long drawn on the same principle. The conservative case that Brown is consistent with the Constitution's text and history is laid out in Can an Originalist Defend Brown v. Board? Yes, and Here Is the Case.

Harlan in the present argument

The color-blind principle has had a second life in recent decades. In Students for Fair Admissions v. Harvard (2023), the Court held that the race-conscious admissions programs of Harvard and the University of North Carolina violated the Equal Protection Clause. Justice Thomas's concurring opinion quoted Harlan's Plessy dissent and argued that the Constitution's command is one of equal treatment, and that the lessons of the Plessy era should be applied to the present. The majority concluded that the programs failed the Equal Protection Clause's guarantee against racial classification. For the longer story of that line of cases, see Students for Fair Admissions Ended an Experiment That Began With Bakke in 1978.

Thoughtful people disagree about what Harlan's principle requires today. Opponents of race-conscious policy say it forbids them, because the Constitution does not permit "any public authority to know the race" of the person it is treating. Defenders of such policy say that Harlan was writing about a law whose purpose was to demean a group, and that the Constitution can permit measures aimed at remedying that demeaning. That disagreement is a real one and deserves a straight hearing, and the people on each side are claiming Harlan, because his sentence cuts at the center of what the Fourteenth Amendment means.

My own view, stated plainly, is that the text favors the first reading. The Amendment protects "any person," not any group, and a principle that depends on the race of the person receiving the benefit is not the principle Harlan wrote. A government that sorts citizens by race to help them is still sorting them by race, and the Amendment was written to end that habit. But the question is argued from the text, and it is one on which a fair-minded reader may reach a different conclusion.

Why one voice mattered

A lone dissent is a peculiar thing. It changes nothing on the day it is delivered. It does not bind a court, does not free a defendant and does not alter a statute. And yet the history of American constitutional law has a long list of dissents that later became the law. Harlan's is near the top of it.

Why? Because a dissent that rests on the text can wait. A majority that rests on the mood of an era loses its authority when the mood changes. A dissent that rests on the plain words of the Constitution keeps its authority for as long as the words remain. That is the argument for fixing meaning in the text. If constitutional law is what the Justices feel at the moment, then the 1896 majority was right for its time, and Harlan was merely out of step. If constitutional law is what the document says, then Harlan was right in 1896 and the majority was wrong then, and the passage of time has done nothing to the Constitution but confirm it. For other dissents that later prevailed, see Five Supreme Court Dissents That Later Became the Law of the Land.

There is a dry irony here, too. The Court that decided Plessy thought of itself as modest and realistic: it was merely recognizing "the nature of things." The dissenter was the idealist, the man who thought a legislature's stated reason ought to be set beside its obvious purpose. History has reversed their reputations. The realists of 1896 are remembered as the authors of a catastrophe, and the idealist is remembered as the man who read the Constitution straight.

The case in brief

1. Plessy v. Ferguson was a planned test case: Homer Plessy sat in a whites-only car on June 7, 1892, to challenge Louisiana's Separate Car Act, and the Court upheld the law 7-1 on May 18, 1896.
2. Justice Brown's majority held that separation did not imply inferiority and that the Constitution could not put the races "upon the same plane" socially, a reading that ignored the law's evident purpose.
3. Harlan's dissent called the claim of equality a thin disguise, declared the Constitution "color-blind," and warned that the decision would prove as pernicious as Dred Scott.
4. Jim Crow flourished for roughly half a century until Brown in 1954 reached the destination Harlan had described, and the principle is now cited on both sides of the debate over Students for Fair Admissions (2023).
5. A dissent that rests on the text can wait for the majority to change its mind, which is the strongest argument for reading the text as written.

What you can do: read Harlan's dissent in full on the Supreme Court's or the Library of Congress's website and underline the one sentence you think the Court should still be asked to answer.