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John Marshall Harlan's View of the Constitution Earl M Georgia State University Law Review Volume 12 Article 11 Issue 4 June 1996 May 2012 Only Partially Color-blind: John Marshall Harlan's View of the Constitution Earl M. Maltz Follow this and additional works at: https://readingroom.law.gsu.edu/gsulr Part of the Law Commons Recommended Citation Earl M. Maltz, Only Partially Color-blind: John Marshall Harlan's View of the Constitution, 12 Ga. St. U. L. Rev. (2012). Available at: https://readingroom.law.gsu.edu/gsulr/vol12/iss4/11 This Article is brought to you for free and open access by the Publications at Reading Room. It has been accepted for inclusion in Georgia State University Law Review by an authorized editor of Reading Room. For more information, please contact [email protected]. Maltz: Only Partially Color-blind: John Marshall Harlan's View of the C ONLY PARTIALLY COLOR-BLIND: JOHN MARSHALL HARLAN'S VIEW OF RACE AND THE CONSTITUTION t Earl M. Maltz INTRODUCTION As the one-hundredth anniversary of Plessy v. Ferguson' approaches, one can expect an outpouring of admiration for Justice John Marshall Harlan. Virtually all discussions of the constitutional status of race relations prominently feature Harlan's dissent in Plessy.2 Based largely on this dissent, Harlan has become a kind of constitutional icon, with many modern scholars lavishly praising him as a man whose advocacy of the "color-blind Constitution" stood in sharp contrast to his racist colleagues on the Fuller Court and prefigured modern constitutional theories dealing with race discrimination.3 This Essay places the Plessy opinion in the context of Harlan's overall record on race-related cases, and contends that such characterizations dramatically overstate Harlan's commitment to racial equality. Admittedly, he was less willing than other members of the Waite and Fuller Courts to countenance state action that denied rights to African-Americans. Conversely, he was less hostile to federal statutes that were designed to protect the rights of the freed slaves. However, even in this area, his commitment to racial equality was less robust than is often suggested. Moreover, in cases involving the rights of Native- Americans and Chinese immigrants, Harlan showed even less t Distinguished Professor of Law, Rutgers (Camden). The Author gratefully acknowledges the assistance of Charles McClain, who read an earlier draft of this Essay and made a number of helpful suggestions. 1. 163 U.S. 537 (1896). 2. E.g., DERRICK BELL, RACE, RACISM AND AMERICAN LAW 115-16 (3d ed. 1992); ANDREW KULL, THE COLOR-BLIND CONSTITUTION 118-30 (1992); DONALD E. LIVELY, THE CONSTITUTION AND RACE 52-53 (1992); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1524-25 (2d ed. 1988). 3. E.g., KULL, supra note 2, at 118-30; CHARLES A. LOFGREN, THE PLESSY CASE: A LEGAL-HISTORICAL INTERPRETATION 195 (1987). 973 Published by Reading Room, 1996 1 HeinOnline -- 12 Ga. St. U. L. Rev. 973 1995-1996 Georgia State University Law Review, Vol. 12, Iss. 4 [1996], Art. 11 974 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 12:973 sympathy for the plight of racial minorities in a Eurocentric society. I. HARLAN'S ROAD TO THE COURT John Marshall Harlan was born in Kentucky on June 1, 1833. Harlan's early life and political career gave little clue that he would ultimately emerge as a champion of the rights of free blacks on the Court.4 A slaveowner himself until shortly before the Civil War, he opposed the adoption of the Thirteenth Amendment and did not join the Republican Party until the process of Reconstruction was well under way. As a Republican, he reversed course, strongly defending not only the Thirteenth but also the Fourteenth Amendment. This course of action did not bring Harlan success in statewide elections; nonetheless, it brought him substantial notoriety in national Republican politics. Thus, when President Rutherford B. Hayes determined to appoint a southerner to replace retiring Justice David Davis in 1877, Harlan was a logical choice. Harlan's jurisprudence reflected a staunch nationalism and strong respect for property rights; however, he is best remembered for his actions in cases involving the rights of free blacks. A. Harlan and the Rights of Free Blacks Although Harlan is best known for his dissenting opinions in cases involving the rights of free blacks, the first major decisions in which he participated-the jury discrimination cases-actually found him in agreement with the majority of the Court.5 Two of these cases, Ex Parte Virginia' and Strauder v. West Virginia,7 presented constitutional challenges to efforts to require states to allow blacks to serve on juries. Ex Parte Virginia involved a petition for a writ of habeas corpus from a state judge indicted for allegedly violating the Civil Rights Act of 1875 by 4. LOREN P. BETH, JOHN MARSHALL HARLAN: THE LAST WHIG JUSTICE (1992) and TINSLEY E. YARBROUGH, JUDICIAL ENIGMA: THE FIRST JUSTICE HARLAN (1995) discuss Harlan's early life in detail. 5. The discussion of the jury discrimination cases is taken from Earl M. Maltz, The Civil Rights Act and the Civil Rights Cases-Congress, Court and Constitution, 44 FLA. L. REV. 605, 628-32 (1992). 6. 100 U.S. 339 (1879). 7. 100 U.S. 303 (1879). https://readingroom.law.gsu.edu/gsulr/vol12/iss4/11 2 HeinOnline -- 12 Ga. St. U. L. Rev. 974 1995-1996 Maltz: Only Partially Color-blind: John Marshall Harlan's View of the C 1996] HARlAN'S VIEW OF RACE AND THE CONSTITUTION 975 systematically excluding blacks from jury lists that he prepared.8 The case raised two analytically distinct problems of federal-state relations. The first was the substantive question of whether the federal government could constitutionally require the states to allow blacks to serve on juries.9 The second was the institutional question of whether federal law could punish a state official for performance of the duties required of him by state law.10 The majority opinion in Ex Parte Virginia focused primarily on the nationalizing impact of the Fourteenth Amendment. Speaking for the Court, Justice William Strong asserted that "[the Reconstruction Amendments] were intended to be, what they really are, limitations of the power of the States and enlargements of the power of Congress,"" and that enforcement of the rights guaranteed by the amendments "is no invasion of State sovereignty." 2 While conceding "in the general" that "the selection of jurors for her courts and the administration of her laws belong to each State,"'3 Strong found justification for the Civil Rights Act of 1875 in the flip-side of American federalism-the principle that "in exercising her rights, a State cannot disregard the limitations which the Federal Constitution has applied to her power."'4 Turning to the institutional concern with federal coercion of state officials, Strong contended: A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws.' He concluded, therefore, that Congress must have authority to impose penalties on those officials who violate the principles of 16 the Fourteenth Amendment. In Strauder, Strong focused more specifically on the relationship between jury selection and the Equal Protection 8. Ex Parte Virginia, 100 U.S. at 340. 9. Id. at 344-48. 10. Id. at 348-49. 11. Id. at 345. 12. Id. at 346. 13. Id. 14. Id. 15. Id. at 347. 16. Id. at 348. Published by Reading Room, 1996 3 HeinOnline -- 12 Ga. St. U. L. Rev. 975 1995-1996 Georgia State University Law Review, Vol. 12, Iss. 4 [1996], Art. 11 976 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 12:973 Clause. Strauder dealt with a statute derived from the Civil Rights Acts of 1866 and 1870, which provided for removal of state court actions to federal court by defendants who would be denied or could not enforce a right secured to them by a "law providing for... equal civil rights.""7 In the trial, Strauder, a West Virginia black man, was accused of killing his wife.18 Under West Virginia state law, only whites were allowed to serve on juries." The defendant claimed that this exclusion was inconsistent with both the Civil Rights Act of 1866 and the Fourteenth Amendment, and that he was therefore entitled to the benefit of the removal provision." The state court denied his motion, and Strauder was convicted of murder.2' He argued that the state court's refusal to remove the case to federal court vitiated his conviction.22 Concluding that the case should have been removed, Strong's reasoning tracked the arguments of those who had supported the inclusion of the jury discrimination provision in the Civil Rights Act of 1875. He first contended: The very fact that [black] people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors... is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others.' Strong also asserted that the statute denied equal protection to black defendants themselves, contending: It is not easy to comprehend how it can be said that while every white man is entitled to a trial by a jury selected from persons of his own race or color, or, rather, selected without discrimination against his color, and a negro is not, the latter is equally protected by the law with the former.24 17.
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