Only Partially Color-Blind: John Marshall Harlan's View of Race and the Constitution

Abstract:     
Few nineteenth century justices are held in higher esteem than the first Justice John Marshall Harlan. Harlan’s reputation is based largely on his 1896 dissent in Plessy v. Ferguson. With its ringing endorsement of the concept of the “color-blind Constitution,” this dissent is at times viewed as embodying a commitment to modern concepts of racial equality.

This article, which first appeared in the Gerogia State Law Review in a symposium marking the 100th anniversary of Plessy, argues that the scope of Harlan’s vision of racial equality is often greatly overstated. To be sure, in comparison to his colleagues on the Waite and Fuller Courts, Harlan was generally more sympathetic to the plight of African-Americans. However, even in this narrow context, Harlan’s approach was quite different than even the most conservative modern justices. Moreover, he showed much less solicitude for the rights of Native Americans and people of Chinese descent. The most consistent theme of these cases is a commitment to nationalism rather than a robust theory of racial equality.

Number of Pages in PDF File: 44

Accepted Paper Series