Rather, his point of departure from the majority opinion was his belief that legally imposed segregation denied political equality. In a key passage of his dissent, Harlan stated: "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.
Widely regarded today as one of the Court's worst and most damaging opinions, Plessy stood as legal precedent until the landmark case Brown v. Board of Education , which began the process of ending more than 50 years of legally sanctioned segregation. Hall v. De Cuir, 95 U. The court in this case, however, expressly disclaimed that it had anything whatever to do with the statute as a regulation of internal commerce, or affecting anything else than commerce among the states.
In the Civil Rights Cases, U. In delivering the opinion of the court, Mr. Justice Bradley observed that the fourteenth amendment 'does not invest congress with power to legislate upon subjects that are within the domain of state legislation, but to provide modes of relief against state legislation or state action of the kind referred to.
It does not authorize congress to create a code of municipal law for the regulation of private rights, but to provide modes of redress against the operation of state laws, and the action of state officers, executive or judicial, when these are subversive of the fundamental rights specified in the amendment.
Positive rights and privileges are undoubtedly secured by the fourteenth amendment; but they are secured by way of prohibition against state laws and state proceedings affecting those rights and privileges, and by power given to congress to legislate for the purpose of carrying such prohibition into effect; and such legislation must necessarily be predicated upon such supposed state laws or state proceedings, and be directed to the correction of their operation and effect. Much nearer, and, indeed, almost directly in point, is the case of the Louisville, N.
State, U. The case was presented in a different aspe t from the one under consideration, inasmuch as it was an indictment against the railway company for failing to provide the separate accommodations, but the question considered was the constitutionality of the law. In that case, the supreme court of Mississippi 66 Miss.
All that we can consider is whether the state has the power to require that railroad trains within her limits shall have separate accommodations for the two races. That affecting only commerce within the state is no invasion of the power given to congress by the commerce clause.
A like course of reasoning applies to the case under consideration, since the supreme court of Louisiana, in the case of State v. Judge, 44 La. The case was decided largely upon the authority of Louisville, N. State, 66 Miss. In the present case no question of interference with interstate commerce can possibly arise, since the East Louisiana Railway appears to have been purely a local line, with both its termini within the state of Louisiana.
Similar statutes for the separation of the two races upon public conveyances were held to be constitutional in Railroad v. Miles, 55 Pa. Owen 5 Mich. Williams, 55 Ill. Wells, 85 Tenn. Benson, 85 Tenn.
Forbes, 37 Fed. King N. Railway Co. Commerce Com. While we think the enforced separation of the races, as applied to the internal commerce of the state, neither abridges the privileges or immunities of the colored man, deprives him of his property without due process of law, nor denies him the equal protection of the laws, within the meaning of the fourteenth amendment, we are not prepared to say that the conductor, in assigning passengers to the coaches according to their race, does not act at his peril, or that the provision of the second section of the act that denies to the passenger compensation in damages for a refusal to receive him into the coach in which he properly belongs is a valid exercise of the legislative power.
Indeed, we understand it to be conceded by the state's attorney that such part of the act as exempts from liability the railway company and its officers is unconstitutional.
The power to assign to a particular coach obviously implies the power to determine to which race the passenger belongs, as well as the power to determine who, under the laws of the particular state, is to be deemed a white, and who a colored, person. This question, though indicated in the brief of the plaintiff in error, does not properly arise upon the record in this case, since the only issue made is as to the unconstitutionality of the act, so far as it requires the railway to provide separate accommodations, and the conductor to assign passengers according to their race.
It is claimed by the plaintiff in error that, in an mixed community, the reputation of belonging to the dominant race, in this instance the white race, is 'property,' in the same sense that a right of action or of inheritance is property. Conceding this to be so, for the purposes of this case, we are unable to see how this statute deprives him of, or in any way affects his right to, such property.
If he be a white man, and assigned to a colored coach, he may have his action for damages against the company for being deprived of his so-called 'property.
In this connection, it is also suggested by the learned counsel for the plaintiff in error that the same argument that will justify the state legislature in requiring railways to provide separate accommodations for the two races will also authorize them to require separate cars to be provided for people whose hair is of a certain color, or who are aliens, or who belong to certain nationalities, or to enact laws requiring colored people to walk upon one side of the street, and white people upon the other, or requiring white men's houses to be painted white, and colored men's black, or their vehicles or business signs to be of different colors, upon the theory that one side of the street is as good as the other, or that a house or vehicle of one color is as good as one of another color.
The reply to all this is that every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class. Thus, in Yick Wo v. Hopkins, U. It was held to be a covert attempt on the part of the municipality to make an arbitrary and unjust discrimination against the Chinese race. While this was the case of a municipal ordinance, a like principle has been held to apply to acts of a state legislature passed in the exercise of the police power.
Husen, 95 U. Kentucky, U. Hudson, 43 Ohio St. Foster, 12 Pick. Baker, 38 Wis. Collins, 17 Ohio St. Rems, 41 Pa. Riley, 15 Cal. So far, then, as a conflict with the fourteenth amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature.
In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the fourteenth amendment than the acts of congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.
We consider the u derlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a 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.
The argument necessarily assumes that if, as has been more than once the case, and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position.
We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of individuals.
As was said by the court of appeals of New York in People v. When the government, therefore, has secured to each of its citizens equal rights before the law, and equal opportunities for improvement and progress, it has accomplished the end for which it was organized, and performed all of the functions respecting social advantages with which it is endowed.
If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane.
It is true that the question of the proportion of colored blood necessary to constitute a colored person, as distinguished from a white person, is one upon which there is a difference of opinion in the different states; some holding that any visible admixture of black blood stamps the person as belonging to the colored race State v. Chavers, 5 Jones [N. State, 4 Ohio, ; Monroe v. Dean, 14 Mich. But these are questions to be determined under the laws of each state, and are not properly put in issue in this case.
Under the allegations of his petition, it may undoubtedly become a question of importance whether, under the laws of Louisiana, the petitioner belongs to the white or colored race. By the Louisiana statute the validity of which is here involved, all railway companies other than street-railroad companies carry passengers in that state are required to have separate but equal accommodations for white and colored persons, 'by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations.
The managers of the railroad are not allowed to exercise any discretion in the premises, but are required to assign each passenger to some coach or compartment set apart for the exclusive use of is race.
If a passenger insists upon going into a coach or compartment not set apart for persons of his race, he is subject to be fined, or to be imprisoned in the parish jail. Penalties are prescribed for the refusal or neglect of the officers, directors, conductors, and employees of railroad companies to comply with the provisions of the act.
Only 'nurses attending children of the other race' are excepted from the operation of the statute. No exception is made of colored attendants traveling with adults. A white man is not permitted to have his colored servant with him in the same coach, even if his condition of health requires the constant personal assistance of such servant.
If a colored maid insists upon riding in the same coach with a white woman whom she has been employed to serve, and who may need her personal attention while traveling, she is subject to be fined or imprisoned for such an exhibition of zeal in the discharge of duty. While there may be in Louisiana persons of different races who are not citizens of the United States, the words in the act 'white and colored races' necessarily include all citizens of the United States of both races residing in that state.
So that we have before us a state enactment that compels, under penalties, the separation of the two races in railroad passenger coaches, and makes it a crime for a citizen of either race to enter a coach that has been assigned to citizens of the other race.
Thus, the state regulates the use of a public highway by citizens of the United States solely upon the basis of race. However apparent the injustice of such legislation may be, we have only to consider whether it is consistent with the constitution of the United States. That a railroad is a public highway, and that the corporation which owns or operates it is in the exercise of public functions, is not, at this day, to be disputed. Merchants' Bank, 6 How. Justice Strong, delivering the judgment of this court in Olcott v.
Supervisors, 16 Wall. Hardly more than two years after this statement, Harlan turned his final and most amazing political somersault: He became a Republican, joining the party of Lincoln, whose policies he had so reviled. It was the party of freedom for black Americans, the party of the Thirteenth Amendment, which ended slavery, and the Fourteenth and Fifteenth Amendments, which extended the rights and privileges of citizenship to the freed slaves.
Once a bitter critic of these Reconstruction Amendments, Harlan was suddenly, and willingly, their proponent. In , he said: "I have lived long enough to feel and declare that. With slavery it was death or tribute. It knew no compromise, it tolerated no middle course.
I rejoice that it is gone. Now Harlan was on the way to his great dissent, but why did he take this fork in the road? Yarbrough says one reason was simple expediency. To continue his political career, Harlan had to finally join either the Republicans or the Democrats.
For several years, he had been a leader of the Conservative Union Party and its short-lived successor, the Union Democratic Party, which occupied a shaky middle ground between the major parties.
The Conservative Unionists held the Union sacred, which put them out of step with Kentucky's secessionist-dominated Democrats, and they were against civil rights for the former slaves, which made them anathema to the Republicans. By , this middle ground had collapsed, forcing Harlan to choose a new party. He chose the Republicans. Republicans believed in civil rights for black Americans, and now, whatever his past views, so did John Harlan. He embraced Republican doctrines as readily as he had embraced the doctrines of other parties in the past.
But expediency didn't fully account for his choice. Beth suggests that for years Harlan's private racial attitudes had been more liberal than his public statements, which were fueled by "a partisan enthusiasm and the desire to win elections. Indeed, there are numerous factors in Harlan's background that might have softened his racial attitudes.
Though he owned household slaves, Harlan's father abhorred the brutality of the system. In an incident that became legend in the family, an outraged James once walked up to a whip-wielding slave driver in the streets of Frankfort and called the man "a damned scoundrel.
So did many of John's teachers at Centre and Transylvania. John's wife Mallie, an Evansville, Indiana, native whom he married in , wrote in a memoir that John had imbibed "a deep dislike of involuntary servitude in any form" from his father and teachers. Mallie's own distaste for slavery also may have influenced his views.
Then there was John's slave half-brother Robert, who was treated to some degree as a member of the family. According to some accounts, James Harlan once tried, unsuccessfully, to send Robert to school along with his other children. Robert lived most of his life in Ohio and did very well, but in the early 's he moved to England, mainly to escape the racial climate in this country. He returned only after the deterioration of his stateside investments undermined his English lifestyle, which included a fine house, servants, and deep involvement in thoroughbred racing.
Though they maintained only limited contact, John must have known of the obstacles racism had thrown up in Robert's path. That knowledge may have made him more sensitive to racial injustice. The terrorism that the Ku Klux Klan and similar groups inflicted upon blacks in Kentucky immediately following the war also pushed Harlan toward the Republicans.
He was appalled by the arson, beatings, and murders, and the revulsion he felt was reinforced by his friendship with a leading Republican, Benjamin Bristow, who as U. Attorney for Kentucky prosecuted the white terrorists with a crusader's zeal. Harlan took up the cause of Kentucky Republicanism with the same kind of energy.
Though he lost in both of his runs for governor, in and , he is credited with making the party viable in Kentucky politics. In , he helped Rutherford B. Hayes win the Republican presidential nomination. In the spring of , the newly inaugurated Hayes had the chance to fill a Supreme Court vacancy. After his first choice, Harlan's friend Bristow, proved too controversial within the party, the President turned to Harlan.
During his Senate confirmation, critics questioned whether Harlan's Republican beliefs were sincere. Harlan swore they were, and once he joined the Court in December , he no doubt felt a need to prove it. No longer a politician scratching for votes, he was free to do so. His resolve was bolstered by his wife and children, who had embraced his new views on race. And once he began writing dissents that defended the rights of black citizens - Plessy was not the only one - reinforcement poured in.
Many blacks expressed appreciation and offered encouragement, including the most visible black leader of the day, Frederick Douglass, with whom Harlan maintained warm relations for more than two decades.
The title "The Great Dissenter" has been applied to a number of justices over the years, but it probably fits John Harlan best. His dissents from the decisions of his colleagues were numerous and, at times, fierce.
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