Justice Harlan's Constitution

...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...

...Feudal society first identified serfs, freeholders, and noblemen by their economic and social status and then measured the justice due each accordingly...

...He understood that rights guaranteed by the Fourteenth Amendment are personal rights...

...We conclude that in the field of public education, the doctrine of 'separate but equal' has no place...

...Not so for the court...

...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...

...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...

...Last month's Fifth U.S...

...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...

...Harlan's dissent would have taken constitutional law and race relations in an entirely different and much more salutary direction...

...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...

...That such an initiative is necessary speaks volumes about the abject failure of the Supreme Court to make Harlan's noble sentiments the "law of the land...

...rather they are viewed as supplicants-as petitioners for favors...

...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...

...In respect of civil rights, all citizens are equal before the law...

...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...

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

...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...

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

...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...

...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...

...This approach destroys the concept of citizenship altogether...

...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...

...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...

...In its race cases, the court has operated in much the same way...

...The plaintiff's capacity stoically to endure discrimination-like his surroundings and color-was irrelevant...

...Separate educational facilities are inherently unequal...

...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...

...By so doing, it has pursued a contemporary version of feudal sociological jurisprudence that the liberal American tradition expressly sought to eradicate, not embrace...

...Of course, it was also the case that "not one word" of Warren's opinion even mentioned Harlan or his dissent...

...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 plaintiff's rights were derived from the fact that he was a man...

...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...

...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...

...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...

...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 the shifting sands of psychological authority...

...In his Plessy dissent, Justice Harlan denied that individual plaintiffs must demonstrate a need for judicial protection of their rights...

...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...

...Any language in Plessy contrary to this finding is rejected...

...Whatever may have been the extent of psychological knowledge at the time of Plessy, this finding is amply supported by modern 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...

...Moreover, just as there was no need for the court to demonstrate individual injury, there was no need to provide individual relief...

...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...

...from Plessy on, it has continually and consistently demeaned those who seek its aid by obliging them to demonstrate that they have suffered...

...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...

...Warren argued that "separate but equal" educational facilities are "inherently unequal" because they generate feelings of inferiority in blacks...

...It chose the latter...

...The plaintiff seeking vindication of his constitutional rights need have suffered no harm- psychological or otherwise...

...Now the words he used in his lonely dissent in a 7-to-1 decision in the case of Plessy v. Ferguson in 1896 have become a part of the law of the land...

...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...

...The truth is that Brown did not vindicate Harlan's dissenting dictum...

...Indeed, we have expressly rejected this proposition on a number of occasions...

...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...

...They have been deceived...

...In Plessy, the court approached racial discrimination from a psychological perspective...

...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...

...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...

...The humblest is the peer to the most powerful...

...Harlan was alone on the Supreme Court in arguing that the Constitution prohibits the state from taking race into account in its treatment of people...

...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...

...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...

...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 grounded his opinion firmly on the principle that all men are created equal...

...Justice Harlan's Constitution By Ralph A. Rossum May 18, 1996, marks the 100th anniversary of Justice John Marshall Harlan's famous dissenting words in Plessy v. Ferguson that the "Constitution is color-blind...

...In Brown, the court was presented with a choice: It could do what most people 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...

...Plessy upheld the constitutionality of racial segregation in general and of the "separate but equal" doctrine in particular...

...Plessy was defective not because of its constitutional reasoning but because of its inadequate knowledge of psychology...

...neither has any subsequent court decision...

...The court rejected Harlan's approach in Plessy and has continued to reject it since...

...There is no caste here...

...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...

...No longer are men seen as citizens-as bearers of rights...

...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...

...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...

...It is forty-three years since John Marshall Harlan passed from this earth...

...On the ballot this November in the nation's largest state is the California Civil Rights Initiative, which says simply: "The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting...