The Great Dissenter

CONTRA MUNDUM · LIONHEART LEGACY · ISSUE NO. 2

Justice John Marshall Harlan: the courage to read the Constitution for what it said, not for what his culture wanted it to say.

In 1896, seven justices of the United States Supreme Court construed the Fourteenth Amendment to permit precisely what its text forbade. One justice read the Amendment as written, dissented alone, and recorded his reasoning with enough care and courage that it survived six decades of official disregard. The Constitution had not changed. The Court had finally found the nerve to follow it.

AT A GLANCE

BORN June 1, 1833

DIED Oct. 14, 1911

ON THE COURT 34 years (1877–1911)

THE ARENA

A Court that had decided what the Constitution should mean before reading what it said.

John Marshall Harlan was born in 1833 in Mercer County, Kentucky, into a family that enslaved people. He owned slaves. He opposed the Thirteenth Amendment. He ran for governor of Kentucky twice as a defender of the antebellum order.[1] His early record was that of a man whose constitutional views tracked the political and social preferences of his class and region.[2]

What followed is one of the more remarkable personal transformations in American legal history — not a quiet drift but a deliberate, public, costly reversal. The experience of watching Reconstruction-era violence against freed Black Americans, and of sitting with what the war had actually settled, moved Harlan toward a conclusion his earlier self would have rejected: that the Reconstruction Amendments meant what they said, and that a jurist who believed otherwise was not reading the Constitution, but avoiding it.

This is the essential context for understanding what Harlan did in 1896. He was not a man untouched by the pressures and prejudices of his era. He was a man who had held those prejudices, examined them against the constitutional text, and found them wanting. The courage required for that kind of reversal — publicly, in a culture that had not reversed alongside him — preceded and made possible everything that came after.

The Court he joined had developed its own methods for avoiding what the text required. Over 34 years, Harlan wrote 703 majority opinions and 316 dissents.[3] He dissented when the Court gutted the Civil Rights Act of 1875 on state-action grounds the Amendment’s text did not compel. He dissented on voting rights cases that nullified the Fifteenth Amendment in practice while leaving it nominally intact. In each instance the majority reached its preferred conclusion first and constructed its reasoning afterward. His colleagues regarded his persistence as passion exceeding judgment.[4] What it actually was — as the subsequent century confirmed — was fidelity exceeding comfort.

THE MOMENT

The text was plain. Following it required everything he had.

In 1890, Louisiana enacted the Separate Car Act, mandating racially segregated railway accommodations. A coalition of New Orleans citizens organized a deliberate constitutional test, recruiting Homer Plessy — a man of one-eighth African descent — to violate the statute and seek judicial review.[5]

On May 18, 1896, the Court upheld the statute 7 to 1. Writing for the majority, Justice Henry Brown held that the Fourteenth Amendment’s equal protection guarantee was satisfied so long as accommodations were nominally equal — and that any stigma attached to segregation was a construction placed upon it by Black Americans themselves rather than a consequence of the law.[6] The opinion did not grapple seriously with the Amendment’s text, its legislative history, or the evident purpose of the men who drafted and ratified it in the aftermath of slavery. It produced a constitutionally convenient result and dressed it in doctrinal language.

Harlan dissented. He wrote alone, as he had written alone before, and he began — as a jurist faithful to his craft must begin — with the document in front of him. The Fourteenth Amendment’s Equal Protection Clause does not permit states to classify their citizens by race and assign them to separate legal regimes. It does not say this implicitly or by inference. It says it plainly, and the history of its drafting confirms that those who wrote it understood exactly what they were doing. Harlan read the Amendment. Seven of his colleagues had decided not to.

“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.”

— Justice John Marshall Harlan, dissenting, Plessy v. Ferguson, 163 U.S. 537, 559 (1896)

The phrase “color-blind Constitution” has since become a cornerstone of textualist and originalist jurisprudence — not because Harlan was making a policy argument, but because he was making a textual one. He was not asking what result would be most beneficial to American society. He was asking what the Amendment required. That distinction — between asking what the Constitution should mean and asking what it does mean — is the whole of the jurisprudential argument. Harlan was on the right side of it in 1896. It cost him.

He then addressed the structural consequences the majority was electing to ignore:

“The destinies of the two races in this country are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law.”

— Harlan, Plessy dissent, 163 U.S. at 560

And this — the most direct indictment of what the majority had actually done, stated with the precision of a man who had decided he was no longer interested in diplomatic softening:

“The thin disguise of ‘equal’ accommodations for passengers in railroad coaches will not mislead anyone, nor atone for the wrong this day done.”

— Harlan, Plessy dissent, 163 U.S. at 562

There is a detail of composition that illuminates the full weight Harlan understood himself to be carrying. His wife, Malvina, retrieved from storage an inkstand that had belonged to Chief Justice Roger Taney — author of Dred Scott v. Sandford, the most notorious exercise in constitutional evasion the Court had yet produced. She placed it on his desk. Harlan wrote his dissent with Taney’s inkstand.[7] He was not writing a legal opinion. He was answering a tradition.

WHAT IT COST

Professional isolation, institutional dismissal, and the knowledge that he was right anyway.

Harlan’s dissent did not move his colleagues. Plessy became the law of the land and remained the law of the land for 58 years — long enough to erect and entrench the full architecture of Jim Crow: separate schools, hospitals, polling places, courtrooms, and legal systems, all operating with the constitutional blessing of the Court Harlan served. He had told them this would happen. He had told them in writing. He had told them with sufficient precision that there was no subsequent claim of misunderstanding available to anyone who chose to read what he had written.

The legal academy of his era largely dismissed him as an outlier whose passion exceeded his rigor. Colleagues characterized his dissents as harangues — the work of a jurist who felt too much and reasoned too little. The dominant scholarly consensus held that his Reconstruction Amendment jurisprudence was idiosyncratic, unmoored from sound interpretive method, a product of conversion rather than analysis.

None of that characterization engaged seriously with his actual reasoning. It was a social verdict, not a legal one. It said: this man is reading the Constitution in a way that produces uncomfortable results for the existing order, and we have decided that the existing order is right. The circularity of that position — judging the constitutional argument by the political outcome rather than the text — was precisely what Harlan had identified as the majority’s error in Plessy.

“His dissent was largely invisible in the white community, but it was read aloud in Black churches. It was published in Black newspapers. This was the one link of hope that white people might support them and see the law through their eyes.”

— Peter S. Canellos, The Great Dissenter (Simon & Schuster, 2021)

Thurgood Marshall, who would eventually argue Brown v. Board of Education before the Supreme Court and later become its first Black justice, kept Harlan’s dissent as what a colleague described as his “Bible” — the document he returned to in his most discouraged moments, not merely for inspiration but as a reminder that the constitutional argument was sound and had always been sound, regardless of how many courts had declined to accept it.[8]

He died in 1911. The vindication he had earned was still 43 years away. He had spent those 34 years on the Court dissenting from some of the worst decisions in American constitutional history, watching each one take effect, and continuing to write anyway. That is not a small thing to ask of a man. It is not a small thing he gave.

WHY IT MATTERED

The Constitution said what it said in 1896. Harlan was the only one willing to follow it.

On May 17, 1954, a unanimous Supreme Court decided Brown v. Board of Education, overruling Plessy and holding that racially segregated public schools violated the Equal Protection Clause.[9] The New York Times ran an editorial the following day titled “Justice Harlan Concurring,” noting that his 1896 words had become the law of the land.[10]

The more precise observation is that the Constitution had not changed between 1896 and 1954. The Fourteenth Amendment said in 1954 precisely what it had said when Harlan wrote his dissent. What changed was the Court’s willingness to read it honestly. Harlan had read it honestly the first time, at a cost his colleagues were unwilling to pay. Brown did not update the Constitution. It corrected the Court’s failure to follow it.

This is the argument that textualists and originalists have correctly made about Plessy for decades: the majority opinion in that case was not faithful constitutional interpretation. It was motivated reasoning — the Court deciding what result it wanted and constructing a doctrinal path to that result. The Reconstruction Amendments were drafted by men who understood they were reordering the constitutional relationship between race and citizenship. Harlan understood this. His seven colleagues, in 1896, chose not to.

The downstream legacy is substantial. The Civil Rights Acts of 1964 and 1968, the Voting Rights Act of 1965, the incorporation doctrine that now structures the relationship between the Bill of Rights and the states — all of it rests on constitutional ground that Harlan’s dissent preserved during the decades when the Court had abandoned it. He did not build those structures. He kept the legal foundation from being paved over entirely.

A candid accounting of Harlan’s record requires acknowledging its failures. The same dissent that proclaimed a color-blind Constitution contains a passage of open contempt for Chinese immigrants.[11] He voted, in other cases, in ways that are difficult to reconcile with the universalist principles of Plessy. He was a man of his era in some respects and ahead of it in others. The historical record does not support hagiography. It does support this: on the constitutional question presented in Plessy v. Ferguson — what the Fourteenth Amendment required of the states in the matter of race — Harlan was right and his seven colleagues were wrong. Not as a matter of policy. As a matter of what the document plainly said.

THE LESSON

It takes courage to read the document honestly when the institution has decided not to.

There is a temptation, in accounts of Harlan’s dissent, to separate the constitutional argument from the personal courage it required — to treat the textualist analysis as the real contribution and the moral dimension as secondary, or conversely to celebrate the courage and treat the legal reasoning as the vehicle. Both framings miss the point. In Harlan’s case, the courage and the fidelity were the same act.

The Fourteenth Amendment was available to every member of that Court in 1896. The text was not obscure. The drafting history was not hidden. The legislative record of the Reconstruction Congress was accessible to any jurist willing to consult it. Seven justices looked at those materials and produced an opinion that could not be squared with them. They did so because the constitutional result that honest reading required was one the dominant culture of 1896 did not want, and because being the institution that delivered that result would have carried costs they were unwilling to pay.

Harlan paid them. That is what made him the dissenter and them the majority. Not superior reasoning in the abstract — the constitutional argument was not especially difficult to construct, and he was not the only jurist of his era capable of making it. What separated him from his colleagues was the willingness to make it anyway, in public, on the record, in the full knowledge that it would change nothing immediately and would cost him his standing among the men whose professional judgment he shared a building with.

“In the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here.”

— Harlan, Plessy dissent — words adopted as constitutional law 58 years after he wrote them

For any leader in any institution — legal, political, commercial, ecclesiastical — Harlan’s dissent offers a model that is simultaneously principled and practical. Read the document. Follow the argument where it leads. Say what you find, clearly enough that it cannot be misrepresented, and with sufficient care that it will still be legible to the people who come after you. Accept that the institution may not be ready to hear it. Say it anyway.

The seven justices who voted with the majority in Plessy v. Ferguson are remembered, where they are remembered at all, as the men who got it wrong. Harlan is remembered as the man who got it right. That asymmetry — one voice against seven, vindicated by a century — is not an accident of history. It is a consequence of what happens when one person in an institution is willing to do the thing that fidelity requires, regardless of what it costs, and then writes it down carefully enough that the record survives.

He was outvoted 7 to 1. He was the only person in that room reading the Constitution. The distance between those two facts is the whole of his legacy — and the whole of this series.

SELECTED QUOTES — JUSTICE JOHN MARSHALL HARLAN

“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.”

— Plessy v. Ferguson, 163 U.S. 537, 559 (1896) — adopted as constitutional law in Brown v. Board of Education, 347 U.S. 483 (1954)

“The destinies of the two races in this country are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law.”

— Plessy v. Ferguson, 163 U.S. at 560

“The thin disguise of ‘equal’ accommodations for passengers in railroad coaches will not mislead anyone, nor atone for the wrong this day done.”

— Plessy v. Ferguson, 163 U.S. at 562

“In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case.”

— Plessy v. Ferguson, 163 U.S. at 559 — vindicated in Brown v. Board of Education (1954)

COMING NEXT IN THE SERIES

Issue No. 3 turns to the military arena. Future profiles also include Dietrich Bonhoeffer, Aleksandr Solzhenitsyn, and Hugh Thompson Jr. Each profile follows the same structure: The Arena · The Moment · What It Cost · Why It Mattered · The Lesson.

Contra Mundum · Lionheart Legacy

[1]Peter S. Canellos, The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero (Simon & Schuster, 2021), pp. 18–42. Canellos provides the most comprehensive modern account of Harlan’s early life, slaveholding, and political evolution.

[2]Tinsley E. Yarbrough, Judicial Enigma: The First Justice Harlan (Oxford University Press, 1995), pp. 44–61. Yarbrough documents Harlan’s opposition to the Thirteenth Amendment and his two campaigns for Kentucky governor.

[3]Melvin I. Urofsky, Dissent and the Supreme Court: Its Role in the Court’s History and the Nation’s Constitutional Dialogue (Pantheon Books, 2015), p. 89. Urofsky credits Harlan as “the first great dissenter” and documents his 703 majority opinions and 316 dissents.

[4]Charles Thompson, “Harlan’s Great Dissent,” Kentucky Humanities, No. 1 (1996), Louis D. Brandeis School of Law, University of Louisville. Thompson describes Harlan’s bench demeanor during dissents, citing contemporary newspaper accounts.

[5]Keith Weldon Medley, We as Freemen: Plessy v. Ferguson, The Fight Against Legal Segregation (Pelican Publishing, 2003), pp. 115–140. Medley documents the Comité des Citoyens’ deliberate strategy of recruiting Plessy to test the Louisiana Separate Car Act of 1890.

[6]Plessy v. Ferguson, 163 U.S. 537, 551 (1896) (Brown, J., majority). Full opinion available at https://www.law.cornell.edu/supremecourt/text/163/537

[7]Canellos, The Great Dissenter, pp. 298–301. See also Malvina Shannon Harlan, Some Memories of a Long Life, 1854–1911 (Modern Library, 2002). Malvina Harlan describes retrieving the Taney inkstand from storage and placing it on her husband’s desk during composition of the dissent.

[8]Canellos, The Great Dissenter, pp. 388–392, citing Constance Baker Motley’s account at a 1993 memorial for Justice Thurgood Marshall: “Marshall admired the courage of Harlan more than any justice who has ever sat on the Supreme Court.” Harlan’s doctrine of incorporation — dissented as eccentric in his era — was eventually adopted beginning with Gitlow v. New York, 268 U.S. 652 (1925).

[9]Brown v. Board of Education, 347 U.S. 483 (1954). The unanimous Court’s adoption of Harlan’s Equal Protection reasoning vindicated his 1896 dissent. Harlan had predicted that Plessy would prove “quite as pernicious as the decision made by this tribunal in the Dred Scott case.” Plessy v. Ferguson, 163 U.S. at 559.

[10]New York Times, editorial, May 18, 1954, “Justice Harlan Concurring.” The editorial quoted the color-blind passage directly and noted that Harlan’s 1896 words had become the law of the land.

[11]Gabriel J. Chin, “The Plessy Myth: Justice Harlan and the Chinese Cases,” Iowa Law Review 82 (1996): 151–182. Chin documents the tension between Harlan’s Fourteenth Amendment jurisprudence and his expressed contempt for Chinese immigrants. See also United States v. Wong Kim Ark, 169 U.S. 649 (1898), in which Harlan dissented from the Court’s holding that U.S.-born children of Chinese parents were citizens under the Fourteenth Amendment — the very provision he had championed in Plessy.