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Yesterday, in the midst of a Senate confirmation hearing for Judge Ketanji Brown Jackson, who has been nominated to serve on the U.S. Supreme Court, the question was posed: “What do you think is the purpose of a dissent?” In her response, Judge Jackson made reference to a famous dissenting opinion by a noted Presbyterian jurist whom we have written about previously on Log College Press. She said,

There are actually many justices in history who have used the dissent mechanism to discuss the law in ways that others find, over time, to be more persuasive,” Jackson said. “I’m thinking of the first Justice Harlan, who dissented famously in Plessy v. Ferguson [1896]. He dissented alone. All of the other justices agreed with the proposition of ‘separate but equal,’ and he said ‘no’ in a dissent. And his dissent generations later became … the blueprint for Justice Marshall to make arguments that led to Brown v. Board [of Education of Topeka, 1954].

When Justice Harlan dissented from the Plessy “separate but equal” doctrine, he wrote:

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. The humblest is the peer of 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. It is, therefore, to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race. 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.

Fifty-eight years later, in Brown v. Board of Education, the U.S. Supreme Court repudiated Plessy in favor of the principle that racial segregation, even regarding otherwise equal facilities, is unjust, and finally affirmed the dissenting opinion of Justice Harlan, giving encouragement to those who, taking the long view, and trusting in God, believe that justice and truth will ultimately prevail.

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On May 18, 1896, the U.S. Supreme Court handed down a decision in Plessy v. Ferguson which affirmed the doctrine of “separate but equal” in favor of the state of Louisiana’s right to maintain racially segregated public transportation systems. The vote was 7-1 and the lone dissenter was Associate Justice John Marshall Harlan.

Justice Harlan was also a ruling elder and a Sunday School teacher at the New York Avenue Presbyterian Church in Washington, D.C. Wallace Radcliffe presided over the justice’s funeral when he passed away in 1911. Harlan’s dissent (recently added to Log College Press) contains some memorable words that reflect his conviction that disparate treatment of citizens by the government based on race was unjust.

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. The humblest is the peer of 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. It is, therefore, to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race. 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.

Although he failed to persuade his colleagues in 1896, the U.S. Supreme Court ruled in Brown v. Board of Education (1954) that “separate but equal” public education was unconstitutional, thus essentially rendering Plessy v. Ferguson a dead letter.

The principle that he stood for was an outworking of his religious beliefs. James W. Gordon wrote in “Religion and the First Justice Harlan: A Case Study in Late Nineteenth-Century Presbyterian Constitutionalism” Marquette Law Review Vol. 85, No. 2 (2001):

The first Justice John Marshall Harlan was a deeply religious man. As a devout and life-long "Old School" Presbyterian, Harlan's religious convictions shaped his style as a judge. They also provided him with a concrete standard against which to measure the "rightness" or "wrongness" of the world he saw around him, a standard he often consciously or unconsciously applied in his public life.

Justice Harlan also opposed tolerating polygamy in U.S. territories, siding with the majority in Reynolds v. United States (1879) and in Davis v. Beason (1890), and again opposed racial segregation as the lone dissenter in Berea College v. Kentucky (1908).

Certainly it is the case that the U.S. Constitution has deficiencies which not only include a failure to acknowledge God or Jesus Christ as the fountain of its authority, but also its original acceptance of slavery and the Three-Fifths Compromise in which slaves were reckoned as less than a person for census purposes. But Justice Harlan was a man of principle regarding Christian civil ethics, particularly with respect to the idea that race should not be a factor in how the government treats one citizen in contrast to another. “Our Constitution is color-blind,” said Justice Harlan.

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