The False Hero

"You don't need many heroes if you choose wisely." So reads John Hart Ely's dedication of his masterpiece, Democracy and Distrust, possibly the most important work of constitutional law in the 20th century, by perhaps the greatest constitutional law theorist of the 20th century.

The man Ely was referring to in his dedication was former Supreme Court Chief Justice Earl Warren. Hero of American liberals, Warren is most famous for authoring the pathbreaking and unanimous decision in Brown v. Board of Education, the decision which barred racial segregation in public schools. Though it did not explicitly say so, Brown is widely understood today to have overturned the 1896 case of Plessy v. Ferguson, which upheld the notorious concept of "Separate but Equal."

Plessy was an 7-1 decision, and the lone dissenter was a Kentucky jurist from a former slave-holding family by the name of John Marshall Harlan. The first Justice Harlan, as he is known (his grandson, also named John Marshall Harlan, would serve on the Supreme Court as well during the Warren Court years), also has emerged as somewhat of a hero, especially on the right, for his role in Plessy. The apex of his dissent, and his most quoted passage, represented the birth of the ideal of "color-blind" equality in America:

"Our constitution is color-blind, and neither knows nor tolerates classes among citizens."

Striking words, and ones that have stirred not a few hearts, including my own. I do not deny their poetry. And the surrounding text only adds to their power:

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 guarantied by the supreme law of the land are involved.

And these words have passed into our lore and legend. Harlan's dissent is the keystone of the conservative argument in favor of color-blindness as race equality, against "color-conscious" remedies like Affirmative Action. Harlan's heroism gives this position a moral legitimacy in American discourse, as the rallying cry of his solo dissent against one of America's darkest chapter.

But there is a problem. Harlan was not arguing for racial equality. I admit that I cheated you earlier, for I omitted the opening sentences of Harlan's climatic paragraph:

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. 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 guarantied by the supreme law of the land are involved.

This is a very revealing preface. At the very heart of his argument, Harlan reveals that he believes his position will strike no blow to White supremacy or superiority. White people will continue to be "the dominant race in this country...for all time." Given this context, Harlan's argument takes on a significantly darker tone. Harlan's passage simultaneously subverts the case for color-blindness at the precise moment it creates it, for it ratifies the principle critique of color-blindness by racial progressives: it won't work. If our goal is to live in a society where White supremacy will not last "for all time," a color-blind ideology won't take us there.

Many race theorists have noted that much racial reform in America, including Brown v. Board itself, occurs only when White people deem it to be in their interests, or at least not threatening to them. There is plenty of empirical evidence to back this claim (the "interest-convergence" theory) up. And this appears to be the vein in which Harlan is arguing: Don't worry. Allowing Black men on trains with Whites won't undermine the hierarchy of racism. Be confident in White supremacy. We can throw Blacks a bone here. There is no genuine threat to our interests; we can afford to be magnanimous. Derrick Bell, the principle architect of the interest-convergence theory, has written further of so-called "contradiction closing" cases. These cases show that "the system is not so bad after all," that in fact minorities can depend on Courts for protection. When minorities claim that the deck is stacked, it is these cases that defenders of the status quo point to, proclaiming its fairness while ignoring that the other 51 cards are marked. Because CCCs are outliers, they usually have very little impact on the overall structure of racism, which simply shifts course slightly and then continues unabated. The argument between the majority and the dissent in Plessy ought to be understood as a debate as to whether Plessy was a good candidate for a "contradition closing" case.

Do you think I am reading Harlan too harshly? Consider, then, his lesser-known but more notorious opinion in Cumming v. Board of Education of Richmond County, written three years after Plessy was decided. If Harlan's commitment to color-blindness was ever meant to signify a push towards true racial equality, this was the moment of its ultimate betrayal. Harlan's opinion, written for a unanimous court, held that the 14th Amendment, including the "equal" part of "separate but equal", was not breached when a Georgia county closed down its only Black high school, but continued to operate programs for White students, citing budgetary concerns. A more flagrant breach of the 14th amendment could scarcely be envisioned, as Black students were left with neither equal nor separate schools. Harlan did not just sign on to this position, he wrote it.

Does this mean that Harlan ought to be condemned, his Plessy opinion thrown in the trash heap as but dolled-up racist garbage? Perhaps, but I think not. Jack Balkin has written of a concept he calls ideological drift, where a principle or ideology changes in meaning and affiliation over time due to changing circumstances. In a world where virtually every relevant governmental institution and structure was officially tasked with anti-Black suppression, where the laws themselves where the vanguard of White supremacy, color-blindness was indeed quite a liberal notion, even if it did nothing to offer Blacks true social equality. But, as society progresses and our concerns shift from eliminating laws designed to maintain White supremacy, to achieving the social equality and standing that Harlan proudly declared would not come from color-blindness, the meaning of the principle changes. It shifts from progressive to regressive, from left to right. Words which stir our hearts because they were uttered in 1896, when few Whites even had the vision to demand formal equality, become bitter and foul when used by Whites to block social equality. The liberal remembrance of Harlan can make this distinction, and can preserve Harlan's poetry without being eternally bound to it.

You don't need many heroes if you choose wisely, and Justice Harlan, while no hero, is certainly a revealing figure. His words offered hope to a generation of Black civil rights leaders who knew that there was an alternative to Jim Crow waiting to be redeemed. And his preface to those words similarly reveals the limitations to that alternative. Faced with Harlan's world or Jim Crow, Blacks would choose Harlan's in a moment. But those are no longer our choices, and the cost of Harlan's preface weighs heavier on us then it did in years past. It is time to transcend the first Justice Harlan. We can cast down the burden of White supremacy "for all time." Every future becomes a past, every story carries within it both the seeds of its own destruction and the materials to craft new tales. Harlan's world is not ours. And we make a mistake if we cling to a past that is slowly devouring our chance for a brighter future.