JUSTICE HARLAN’S CONSTITUTION

Many people wrongly believe that the Supreme Court vindicated Harlan’s dissent when, in Chief Justice Earl Warren’s unanimous decision in Brown v. Board of Education in 1954, it held compulsory school segregation unconstitutional. They have been deceived. The New York Times began the deception when it editorialized at the time of Brown, “It is fifty-eight years since the Supreme Court, with Justice Harlan dissenting, established the doctrine of “separate but equal.’ . . . It is forty-three years since John Marshall Harlan passed from this earth. Now the words he used in his lonely dissent in a 7-to-4 decision in the case of Plessy v. Ferguson in 1896 have become a part of the law of the land.” It further insisted that ” there was not one word in Chief Justice Warren’s opinion that was inconsistent with the earlier views of Justice Harlan.” Of course, it was also the case that “not one word” of Warren’s opinion even mentioned Harlan or his dissent.

The truth is that Brown did not vindicate Harlan’s dissenting dictum; neither has any subsequent court decision. Justice Brennan’s words in his concurrence in Regents of the University of California v. Bakke (1978) are unfortunately correct: “The position . . . summed up by the shorthand phrase “our Constitution is color-blind” . . . has never been adopted by this Court as the proper meaning of the Equal Protection Clause. Indeed, we have expressly rejected this proposition on a number of occasions.”

In his Plessy dissent, Justice Harlan declared simply and eloquently: ” In the 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 to 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 guaranteed by the supreme law of the land are involved.” Harlan grounded his opinion firmly on the principle that all men are created equal. Because of this equality, he insisted that no man should be discriminated against or preferred because of his race and that no man should have his claims to justice evaluated on the basis of his race.

The court rejected Harlan’s approach in Plessy and has continued to reject it since. (While Adarand Constructors v. Pena (1995) is encouraging — the court held that any form of racial discrimination, including against whites, must be subjected to “the strictest judicial scrutiny” — only Justices Clarence Thomas and Antonin Scalia unequivocally argued that “under our Constitution, the government may not make distinctions on the basis of race.”) In Plessy, the court approached racial discrimination from a psychological perspective. Justice Henry Brown, speaking for the court majority, declared, “We consider the underlying fallacy of the plaintiff’s arguments to consist in the assumption that the enforced separation of the two races stamps the colored race with the badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”

An analysis of Chief Justice Warren’s opinion in Brown reveals that it operates from the same psychological perspective and employs the same constitutional reasoning, although reaching a different conclusion. Warren argued that “separate but equal” educational facilities are “inherently unequal” because they generate feelings of inferiority in blacks. “To separate [black schoolchildren] solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. . . . Whatever may have been the extent of psychological knowledge at the time of Plessy, this finding is amply supported by modern authority. Any language in Plessy contrary to this finding is rejected. . . . We conclude that in the field of public education, the doctrine of “separate but equal’ has no place. Separate educational facilities are inherently unequal.”

According to Warren, the real deficiency of Plessy was not that it asked the wrong question — Does segregation harm black schoolchildren? — but that it gave the wrong answer. Plessy was defective not because of its constitutional reasoning but because of its inadequate knowledge of psychology. The court said nothing in Brown to contradict Plessy‘s assertion that whites cannot be discriminated against because they will not feel stigmatized or inferior, and, as contemporary reverse-discrimination cases such as Bakke make apparent, it continues to adhere to that Plessy formulation. Consider Brennan’s observation in Bakke, in which he justifies the use of racial quotas by the medical school of the University of California at Davis:

“Nor was Bakke in any sense stamped inferior by the Medical School’s rejection of him. . . . There is absolutely no basis for concluding that Bakke’s rejection as a result of Davis’s use of racial preference will affect him throughout his life in the same way as the segregation of Negro school children in Brown would have affected them.”

For the past century, therefore, the Supreme Court has essentially preserved intact the constitutional reasoning of Plessy that a racial classification violates equal protection only if it stigmatizes the affected group. What separates Plessy, Brown, and Bakke is not a disagreement over what the Constitution requires but simple differences in factual interpretation over whether certain classifications stigmatize. Even Adarand, encouraging as it is, subjects programs of racial preference to strict scrutiny because of their tendency to stigmatize those who receive preference.

Harlan’s dissent would have taken constitutional law and race relations in an entirely different and much more salutary direction. Harlan argued that equal protection of the law is guaranteed to every person as an individual and not on the basis of racial classifications or group identifications. He understood that rights guaranteed by the Fourteenth Amendment are personal rights. By contrast, the court has continuously treated racial discrimination as a psychological problem and has consistently afforded relief to individual plaintiffs only when it has been convinced by the facts that the discrimination in question has stigmatized the entire group of which the plaintiff is a member. In Plessy, since it did not believe that racial segregation stigmatized blacks, it saw no need to regard Homer Plessy as a man and protect his individual right to equal protection of the laws. Similarly, in Brown, although the court had now been persuaded by modern psychological authority that segregation did stigmatize blacks, it again saw no need to concern itself with the individual plaintiffs and their particular deprivation of rights. Moreover, just as there was no need for the court to demonstrate individual injury, there was no need to provide individual relief. Thus, in its 1955 decision implementing Brown, it felt free to instruct the schools to desegregate with “all deliberate speed,” a formula that provided the apparently successful plaintiffs in Brown with no more than a promise that, sometime in the future, other people would be given the rights that the court said they had.

In his Plessy dissent, Justice Harlan denied that individual plaintiffs must demonstrate a need for judicial protection of their rights. The plaintiff seeking vindication of his constitutional rights need have suffered no harm — psychological or otherwise. The plaintiff’s capacity stoically to endure discrimination-like his surroundings and color — was irrelevant. The plaintiff’s rights were derived from the fact that he was a man. Not so for the court; from Plessy on, it has continually and consistently demeaned those who seek its aid by obliging them to demonstrate that they have suffered. Whereas Harlan invited the plaintiff to come before the court as a man and proudly demand the full vindication of his rights, the court has reduced him to a supplicant who must prove to the court that he has suffered some harm and, on the basis of that harm beg the court’s assistance.

The court’s failure to follow Justice Harlan’s “color-blind” approach has proven to be as destructive of the notion of citizenship as it has of the concept of rights. Beginning with Plessy, the court has first identified citizens in terms of their surroundings and their color and then rendered the kind of justice it believes is appropriate for them. By so doing, it has pursued a contemporary version of feudal sociological jurisprudence that the liberal American tradition expressly sought to eradicate, not embrace. Feudal society first identified serfs, freeholders, and noblemen by their economic and social status and then measured the justice due each accordingly. In its race cases, the Court has operated in much the same way; it has first identified individuals in terms of their race and has then determined their rights (and whether these rights will be vindicated) on that basis. This approach destroys the concept of citizenship altogether. No longer are men seen as citizens-as bearers of rights; rather they are viewed as supplicants – – as petitioners for favors.

In Brown, the court was presented with a choice: It could do what most people E believe it did and vindicate Harlan’s dissent, or it could continue to approach questions of racial discrimination in a manner consistent with its opinion in Plessy. It chose the latter. Instead of joining Harlan and properly grounding racial justice on the immutable principle that all men are created equal, the court chose to continue to erect its racial policies on Harlan the shifting sands of psychological authority. Instead of embracing Harlan’s argument that the law regards man as man, it chose to continue to employ constitutional reasoning that proscribes racial classifications if they cause harm, not if they trench upon rights. Last month’s Fifth U.S. Circuit Court of Appeals decision in Hopwood v. State of Texas ordering the University of Texas Law School, upon pain of punitive damages, to adopt immediately a color-blind admissions process provides the Supreme Court with the opportunity it missed in Brown. It should accept Hopwood for review and use it as the vehicle for abandoning its practice of receiving and granting petitions seeking race-based favors and privileges and for proclaiming with Justice Harlan that the Constitution is, once and for all, color-blind.

Ralph A. Rossum is Salvatori Professor of American Constitutionalism at Claremont McKenna College.