History

Dissent from Plessy v. Ferguson

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Writes Michael Zak, the proprietor of Grand Old Partisan blog:

On this day in 1896, the U.S. Supreme Court issued the Plessy v. Ferguson decision, which declared "separate but equal" to be constitutional.  Dissenting from this infamous decision was Justice John Marshall Harlan, who wrote:

"Our Constitution is color-blind, and neither knows nor tolerates classes among citizens."

More here.

Would that Harlan had carried that day.

Reason on Plessy v. Ferguson over the years.

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  1. “”Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.””

    What a Cosmotarian! Does Reason have any idea how many positive rights this entailed?

  2. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.

    I thought Radley Balko’s work and the actions of the current congress have dispelled that quaint notion. I count three: the governed, our betters, and their enforcers.

  3. Yo, God bless John Marshall Harlan.

  4. Not to dog the man out, but:

    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.

    There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race.

  5. I allude to the Chinese race.

    The Welsh, of course, are beneath any mention at all.

  6. The Welsh, of course, are beneath any mention at all.

    Go back to your coal mine, you drunken sot.

  7. So I know it doesn’t matter who nominated who, but just so y’all know, Harlan was nominated by Hayes, who lost the popular vote by 250,000 votes, but was appointed by a highly questionable political arrangement, and was so religious that he refused to take the oath of office on a Sunday. Very bitter election.

    The reason I mention this is because Harlan came together with Justice White (who was appointed by Cleveland, a fellow Bourbon Democrat with Hayes’s opponent Tilden) in Pollock and dissented, saying that the income tax was perfectly constitutional, as it was not a “direct tax” which had to be “apportioned” but was in fact a uniform tax which applied to all citizens equally (the court unanimously struck down provisions taxing state and municipal bond revenues).

    People had suggested that the two Justices dissented because they were Southerners. You see, the Wilson-Gorman Tariff Act had been conceived to cut tariffs to zero on a wide variety of products and make up for the revenue shortfall by imposing an income tax on the rich. Northern Democrats didn’t like it but accepted it, Republicans pretty much hated it, and by the time it reached Cleveland’s desk was riddled with protectionist amendments. Cleveland nonetheless allowed the bill to become law without his signature, believing it to be an improvement over the previous McKinley tariffs.

    These days we rightly denigrate protectionism, but at the time it was thought to be more of a North-South power struggle, ultimately (I think) between powerful producers and powerless consumers. It is even possible that ruling in Pollock was based more on sympathy with the North than a real constitutional proscription against the income tax.

    I’m sure you have your favorite justices out there, and you can agree or disagree with their decisions individually, but I think that if you’re going to hold up Harlan’s dissent as a reasoned interpretation of the law (especially considering his impartiality in the face of his slaveholding heritage), then you have to at least consider his reasoning in other cases, including Pollock.

    So how about that income tax?

  8. er… It is even possible that the *majority* ruling in Pollock…

  9. So how about that income tax?

    Unconstitutional before the amendment, constitutional now, anathema to the idea of limited government and individual liberty regardless.

  10. Would that Harlan had carried that day.

    Are you wishing that the court had decided based not on the Constitution, but rather on the personal opinions of the justices?

    It certainly sounds that way to me. Don’t get me wrong, I would oppose de jure racial segregation if it ever cropped up again, but the ruling that overturned this decision you decry paved the way for such infamous examples of Constitution-ignoring as Kelo v New London, McConnell v FCC, and Gonzalez v Raich, among others.

  11. “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.”

    Racist…

  12. anathema to the idea of limited government and individual liberty regardless.

    This is a bogus question, but which would you choose:

    a) Flat tax on incomes over $100k. Let’s say 10%. And totally free trade, no differential tariffs.

    b) A complex system of tariffs benefiting various industries, but no income tax.

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