The Plessy Myth: Justice Harlan and the Chinese Cases

Abstract

For a century, the vision of racial equality expressed in John Marshall Harlan's dissent in Plessy v. Ferguson has captured the legal imagination in a way matched by few other texts. Even today, the symbolic power of Harlan's rejection of segregation of African Americans and whites in New Orleans streetcars is rivaled only by the Reverend Martin Luther King, Jr.'s I Have a Dream speech and Brown v. Board of Education. There is a tiny fault in Harlan's Plessy dissent, a slip. After arguing that the government should guarantee "equality before the law of all citizens of the United States, without regard to race," the next paragraph begins like this: "There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race [cannot]...." This essay explores Justice Harlan's attitude towards Chinese Americans in this and other cases in an effort to contextualize his Plessy dissent, and concludes that his anti-Chinese attitude was reasonably consistent. Many scholars ignore the anti-Chinese language in Plessy and other cases, making no effort to square his words with the idea that Harlan's view is worth following today. The essay concludes by suggesting that while Harlan was ahead of his colleagues on the Plessy Court in recognizing that "separate but equal" was catastrophically flawed, he failed to offer an understanding of equal protection of the laws which is useful today. Instead, Harlan's vision of a Constitution protecting some non-whites, yet approving of racial discrimination against other non-whites, was ultimately as unprincipled and unstable as the particular form of race hierarchy he rejected.

Keywords: John Marshall Harlan, Plessy v. Ferguson, discrimination, Equal Protection, Asian Americans