Justice Harlan and the True Origins of the Colorblind Constitution

The notion of a colorblind Constitution originated with Supreme Court Justice Harlan, a historically famous dissenter who is well-known for writing in defense of racial equality and equal rights for African-Americans. As the lone dissenter in Plessy v. Ferguson, Justice Harlan objected to the finding that enforced segregation was constitutional on the basis 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… Our Constitution is color-blind and neither knows nor tolerates classes among citizens…The law regards man as man and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.”[1]

In a sense, Harlan’s dissent seems heroic; in the face of a Supreme Court that upheld the doctrine of separate but equal, he proclaimed racial equality in the eyes of the law. By denying that the law can take race into account when determining the civil rights of citizens, Harlan promoted a colorblind legal system and argued that the nation should disestablish racial hierarchy in formal political and legal discourse. In fact, Harlan’s colorblind interpretation of the Constitution was so powerful that it was used post-World War II by the NAACP and the Civil Rights Movement to end segregation through cases like Brown v. Board of Education. By claiming that racial discrimination policies did take color into account despite a colorblind Constitution and legal system, civil rights activists were successful in dismantling segregated public areas, most notably schools.

Yet when reflecting on Harlan’s life, particularly his youth and early political beliefs, it seems peculiar that he would write a dissent opposing segregation. During his lifetime, Justice Harlan, a defender and practitioner of slavery, transformed not only in his stance on slavery, but also in his regard for the civil rights granted to newly freed slaves. Harlan’s mixed views on race combined with his devotion to nationalism and unionism were developed from a very young age and became important indicators of the political and legal positions he held throughout his lifetime.

John Marshall Harlan, named after the former Chief Justice of the United States, was born on June 1, 1833 to James Harlan and Eliza Davenport Harlan, a Kentucky slave-owning family.[2] James, a lawyer and member of the Kentucky House of Representatives, was a very important figure in Harlan’s life and in many ways shaped his opinions on slavery; while by no means an abolitionist, James did not believe in the extension of the slave system or in the harsh treatment of slaves. Rather, he treated the family’s slaves well and believed that slavery was an evil that would eventually die out.[3] Harlan’s future wife, Malvina, also morally opposed slavery and no doubt exercised some influence over her husband, as it was noted that he never made a major decision without consulting her first. However, Harlan might also have been influenced by the fact that he had a half-brother or half-uncle, Robert, who was the son of a slave. Although Robert was officially a slave, he was brought up in the Harlan household as a member of the family and remained in touch with them for the rest of his life. Robert eventually bought his own freedom, later becoming a prominent member of the Republican State Committee and the Ohio State Legislature.[4] It is clear that these experiences and influences from Harlan’s youth shaped his mixed positions on race, as throughout his life he held contradictory positions on slavery, newly freed slaves, and the civil rights granted to them.

In addition to shaping Harlan’s views on race, James provided Harlan with numerous Whig beliefs, particularly the belief in a nationalist government “that would be supreme and paramount in all matters entrusted to the General Government, its powers, however, to be so exerted as not to infringe upon the rights which remain with the people of the several States”.[5] This is a principle that corresponds to how Harlan felt about slavery, as he saw the topic to be one that each state should handle independently. Harlan’s Whig belief in nationalism and conflicting views on slavery were furthered by his Unionist Whig law school professors, who had a deep distaste for all forms of involuntary servitude. These ideals would stay with Harlan for the rest of his life and arguably were the cornerstone for many of his political moves and judicial opinions.

Upon graduation from law school in 1852, Harlan began working for his father’s law practice and began his political career as a Know-Nothing, as the Whig Party had already begun to disappear.[6] However, Harlan continued to espouse the Whig principles of nationalism and anti-secession during his time as a Know-Nothing, later as a Constitutional Unionist who fought against secession, and even as the attorney general for Kentucky and as a Union soldier. During the Civil War, Harlan fought for the Union, in a continuation of his anti-secession views and in spite of his pro-slavery opinions. Harlan also attacked Lincoln for the Emancipation Proclamation and for suspending privileges of the writ of habeas corpus, as he believed both were unconstitutional and that slavery was a question beyond the powers of the federal government.[7] This clearly exemplifies that Harlan continued to hold the Whig beliefs that his father had instilled in him throughout his life.

Harlan’s firmness in the preservation of the Union maintains his motive to support the Democratic Party through George McClellan in the 1864 presidential campaign.[8] Although Harlan did not agree with most of the principles put forth by the Democratic Party at the time, McClellan held similar views of unionism that encouraged Harlan to work on McClellan’s campaign. During this time, Harlan also vehemently disagreed with the passage of the 13th Amendment, as he expressed fear that immediate abolition would stimulate racial unrest and predicted future attempts to give African-Americans the right to vote.[9] Consequently, it was surprising when Harlan’s next political move was to join the Republican Party. Harlan’s rapid turn to the Republican Party surprised many, and has led to two main theories which offer hypotheses on this switch. One theory is that Harlan joined the party as a matter of political expediency.[10] At the time, as a Conservative Unionist who held the Union in the highest regard but who was against civil rights for former slaves, Harlan was stuck in between the Republican and Democratic parties; some argue that Harlan chose the Republican Party and adopted Republican doctrines to simply continue upward mobility for his career.

However, perhaps Harlan’s move to the Republican Party was a true signal of his conflicted views on race. Factors including Harlan’s father’s and wife’s views on slavery and Harlan’s relationship with Robert likely influenced the softening of his racial attitudes. This, combined with Harlan’s intense commitment to nationalism and unionism, might explain why he leaned towards the Republican Party rather than the Democratic Party. In 1870, Harlan entered a legal partnership with Benjamin Bristow, a Republican who was known as a champion of civil rights for African-Americans under the 13th Amendment.[11] During this time with Bristow, Harlan used his law practice to defend the 13th and 14th Amendments, to fight for the rights of newly freed slaves, and to consolidate African-American support for the Republican Party.[12] Harlan also argued a case regarding his own church in front of the Supreme Court when political tensions split the congregation and its possessions between pro-Northern and pro-Southern factions. In his brief, Harlan argued for the pro-Northerners that federal courts had the proper jurisdiction to right wrongs done by the state, therefore demonstrating and reinforcing his belief in nationalism and unionism.[13] It is highly probable that Harlan’s experience in similar situations that exacerbated the split between the North and the South furthered his move towards the Republican Party.

After his political shift and during his vigorous defense of the Reconstruction Amendments, Harlan campaigned for Rutherford B. Hayes in the 1876 presidential election. Once Hayes won the presidency, he nominated Harlan to the Supreme Court; during the nomination process, many questioned whether Harlan’s Republican beliefs were sincere as he had been known to demonstrate inconsistent principles during his career.[14] However, as a Supreme Court Justice, Harlan wrote many dissents in defense of the rights of African-Americans and in many ways served as the Court’s conscience. When reading many of Harlan’s Supreme Court opinions, Harlan clearly maintained many aspects of the Whig doctrine, particularly supporting a strong national government and arguing for interpretations of the 14th Amendment and of the commerce clause that maximized the powers of Congress. However, despite his seemingly progressive views in regards to the civil rights of African-Americans, Harlan was indeed a man of his era. Although he disavowed slavery and believed that African-Americans should have the same rights as others, like many during the post-Civil War era, Harlan did not see African-Americans as equal.[15] A close reading of Harlan’s dissent in Plessy v. Ferguson shows the continued complexities regarding Harlan’s views on race. Although he was arguing for a colorblind Constitution and legal system, Harlan also stated that:

“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.”[16]

Harlan’s opinion is simply advocating adopting a colorblind constitutional regime to allow the continuance of the racial stratification of society. In other words, colorblindness can be used to disavow de jure racism, or racism in the eye of the law, while allowing it to continue through de facto racism. In many ways, colorblindness has come full circle and Harlan has predicted the way in which colorblindness would integrate itself into society. What started as an attempt to fight legal racist policies through the Civil Rights Movement has led to a submerged version of the same, with colorblindness being used as an excuse for allowing racist societal behavior to continue below the radar of the law. This, in turn, has caused efforts that attempt to recognize race in the face of a colorblind society to be futile.

Perhaps the fundamental error in applying Harlan’s notion of a colorblind Constitution and legal system is that the statute to which he was dissenting, mandated separate but equal public services, is profoundly different from present-day statutes that directly take race into account, most notably affirmative action. Time and time again, the Supreme Court has ruled on affirmative action in ways that has narrowed its applicability despite the obvious differences between past racist laws and current ones that take race into account in order to remedy past harms. This has happened most recently through Fisher v. University of Texas, in which the Supreme Court stated that universities should use a holistic approach to its application with race as a variable in relation to data.[17] Essentially, the constitutionally acceptable way for universities to use race is to hide it deep in the application process by coding for race through other indicators, such as income level. The irony of this is that while race is not allowed to be explicitly or numerically used in admissions, the ultimate goal of affirmative action is to reach an explicit statistical race-based form of diversity in universities. It is clear that despite the self-designation of colorblindness, society still takes race into account. Justice Harlan, a man with a complicated life and even more complicated views on race, acknowledged that race is indeed something that matters in the world in which we live, despite the colorblindness of the Constitution. Until we acknowledge the same, the application of a colorblind Constitution to a color conscious society will always be inherently flawed.


[1] Plessy v. Ferguson, 163 U.S. 537 (1896)

[2] Loren P. Beth John Marshall Harlan: The Last Whig Justice. Lexington, KY: University Press of Kentucky, 1992.

[3] Beth, The Last Whig Justice, 11.

[4] Beth, The Last Whig Justice, 12.

[5] Beth, The Last Whig Justice, 8.

[6] Beth, The Last Whig Justice, 29.

[7] Beth, The Last Whig Justice, 69.

[8] Beth, The Last Whig Justice, 73.

[9] Beth, The Last Whig Justice, 74.

[10] Tinsley E. Yarbrough Judicial Enigma: The First Justice Harlan. New York: Oxford University Press, 1995.

[11] Beth, The Last Whig Justice, 83.

[12] Beth, The Last Whig Justice, 83.

[13] Beth, The Last Whig Justice, 86.

[14] Beth, The Last Whig Justice, 84.

[15] Goodman, Paul. Of One Blood: Abolitionism and the Origins of Racial Equality. Berkeley: University of California Press, 1998.

[16] Plessy v. Ferguson, 163 U.S. 537 (1896)

[17] Fisher v. University of Texas, 579 U.S. (2016)


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