POLITICO’s Peter Canellos on Justice John Marshall Harlan & Plessy v. Ferguson

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[00:00:00] Albert Cheng: Hello, everybody, and welcome to another episode of the Learning Curve podcast. I am your host or one of your hosts this week, Albert Cheng from the University of Arkansas, and co-hosting with me this week is Alisha Searcy. Hey! Thanks, Been a while. Hope all’s well.

[00:00:45] Alisha Searcy: All is well. I started a new job, so my life is a little bit different now. I’m now the regional president of the Democrats for Education Reform and Education Reform Now. So, I’m doing some exciting education work.

[00:00:57] Albert Cheng: Excellent. Excellent. Yeah. Good luck with that. And there’s always lots of work to do in this space. So glad you’re at the helm there.

[00:01:04] Alisha Searcy: Absolutely. Thank you.

[00:01:06] Albert Cheng: We’ve got a great show ahead of us. We’re going to have Peter Canellos talk about Justice John Marshall Harlan, who was the dissenting opinion on the famous Plessy v. Ferguson Supreme Court case. And I’m really excited to talk about that, especially as we gear up to talk about Brown v. Board and celebrate its 70th anniversary. Peter, but anyway, before we get to that on the other side of this break, let’s talk news.

[00:01:30] Alisha, I found a story yesterday in Forbes written by a friend, a mutual friend, I think. I don’t know if Carrie McDonald is doing a lot of great work with just educational entrepreneurship, and she’s got an article talking about that. The title of the article is the rise of education entrepreneurs in Minnesota.

[00:01:49] And I just want to point readers to the article. It’s a great book. I don’t know if you want to call it a survey, a census, a description about lots of innovative K-12 learning models that are going on in Minnesota right now. She talks about the Chesterton schools network, which I’m familiar with, just studying classical education. There’s, Wildflower Montessori micro schools, which are getting big there. Scola is just another micro school network that she talks about. And so anyway, as we’re in the middle of this paradigm shift. in education. And really, I think this article is a great orientation to some of the ideas that are going on.

[00:02:24] I really hope to see more entrepreneurship and people stepping in and figuring out new models, alternative models to really improve our education system more broadly.

[00:02:33] Alisha Searcy: Yes, I could not agree with you more and that article that you just mentioned is so timely, not just for this conversation, but just where we are in terms of education.

[00:02:43] And so the article that I want to talk about comes from Carolyn Jones, More California High School Students Want Career Training and How the State is Helping. And this is from CalMatters. So, what I love. One of the big top lines of this article is a student, a 10th grader, saying, why hate school when you can love it?

[00:03:05] And I immediately thought of my 17-year-old high school junior does not love school. And my frustration as an educator, as a former policymaker, now working in the executive level of the nonprofit space, that in 2024 we still have schools that are Looking like the ones that did when I went to school, or many years before that.

[00:03:29] And we do have an opportunity for kids to love school. We have an opportunity to make schools more relevant, more meaningful for students, but we haven’t done that yet. And my daughter’s going to graduate next year, not having the experience that she deserves, and that millions of other kids deserve across this country, because we just haven’t had I don’t know, the desire, the sense of urgency, the, whatever it is, as California has had.

[00:03:55] And I think there are some schools, in Georgia, we’ve had this in Cal, in Florida. So, we’re seeing it across the country, but not nearly enough. And so, in this article, it’s talking about the number of programs that are offered to high school students in California. So, everything from, Agriculture, right?

[00:04:12] And so you spend some of your time with animals and learning how to work in that area. You’re talking about students who are going into different career paths, even we’re in California, so you’re talking about going into film. Marine transportation, global logistics, and so if you remember, and I know I do, I was in the legislature, this was, during the Obama administration, there’s a lot of talk about everybody’s got to go to college, and if you don’t go to college, you don’t have a lot of options, and I will admit I was on that train, because I know how having a college education changed my life, and for a new generation.

[00:04:54] But now we have figured out that not all kids are going to go to college and not all of them have to go. There are lots of careers that they can go into, get trained while they’re in high school, get these certifications and they can graduate and go off into a career. And so, we’ve even changed the way we look at students who are going into these career paths. There was a time when you graduated from high school and if you had a vocational technical degree or diploma, it meant something different back then. Now it has a totally different meaning because we figured out that we can have these career paths. So, it’s a great article. I really think it’s important to change to your point earlier, about how we’re delivering education in this century, and how we can make the system more meaningful for students. It also mentions that Governor Newsom is hoping that his funding proposal to make sure these programs are in place in California gets passed. So, if you’re listening from California, make sure this passes so that these young people can have access to career pathways in high school.

[00:05:58] Albert Cheng: Yeah, and a couple weeks ago, I talked about what’s going on in Virginia, that there are these lab schools that are being found in, partnerships between school districts and universities, giving kids these vocational opportunities. So, you know, there’s stuff like that going on, and actually, I should take this opportunity to highlight a recent study that got released at Pioneer Institute, dealing with the issue of voc-tech in Massachusetts. So really, I think the study is calling for the expansion of these kinds of opportunities, just as you were saying in your story for California, really, I think in Massachusetts, the demand for. Our career in vocational technical education is really outstripping the seats that are available and the supply. So yeah, I’d hope to see some more entrepreneurship, if you will, and expansion and imagination to see what might deliver to our students.

[00:06:47] Alisha Searcy: Absolutely.

[00:06:50] Albert Cheng: that wraps up the news for this week. Stick with us because coming up after the break, we’re going to have a great discussion with Peter Canellos. So, stick around.

[00:07:11] Peter Canellos is managing editor for Enterprise at Politico, overseeing the site’s magazine, investigative journalism, and major projects. He has also been politico’s executive editor directing the newsroom during the 2016 presidential coverage. Mr. Canelo is the former editorial page editor. and Washington Bureau Chief for the Boston Globe and supervised two Pulitzer Prize winning projects along with five others that were Pulitzer finalists, among many other awards. In 2021, he authored the widely acclaimed The Great Dissenter, the story of John Marshall Harlan, America’s judicial hero, and in 2009 edited the New York Times bestseller, Last Lion, the fall and rise of Ted Kennedy. He is a graduate of the University of Pennsylvania and earned a law degree from Columbia University. Mr. Canellos, welcome to the show. It’s a pleasure to have you here.

[00:08:08] Peter Canellos: Yes, welcome. Thank you. It’s an honor to be here.

[00:08:12] Albert Cheng: Yeah, we’re looking forward to hearing more about Justice John Marshall Harland. And so, for listeners, again, he served as an associate justice of the U. S. Supreme Court from 1877 until 1911. So Peter, you’ve written his biography, The Great Dissenter, the Story of John Marshall Harland, America’s Judicial Hero. Before we get into his life, can you tell the readers how you became interested in Justice Harland? And then what did you discover? What made him such an iconic figure in the history of American law?

[00:08:41] Peter Canellos: I had a very kind of authentic, organic introduction to Harlan in that I was a young law student studying civil rights in a class on civil rights and social change. And for the lawyers in the audience, constitutional law books don’t normally include dissents, but they did in the civil rights class.

[00:09:02] And that was where Harlan did many of his most prominent dissents. So here I was in the late 1980s. Reading these cases that by our current standards were abominations, and yet here was this one person writing in a very sort of contemporary vein, thoughts and opinions and perspectives that were very consistent with the modern day, but a hundred years previously.

[00:09:27] So I always filed away in my mind, this feeling that Harlan was this unique and distinctive voice. And I had this kind of curiosity about what was it? that enabled him to see the future so clearly and so perfectly compared to all of his colleagues. we were talking a hundred percent in the civil rights cases.

[00:09:46] And then flash forward till 2006, I was the bureau chief in Washington for the Boston Globe, we were covering the nominations of John Roberts and Sam Alito to the Supreme Court, and we had this old print encyclopedia of the Supreme Court, and I ended up, in the course of editing a story, I ended up reading about Harlan in that encyclopedia. The last line said he was thought to be the half-brother of Robert Alito. the leading Black politician in Ohio. And I got this idea that there must have been an amazing personal story behind the justice who got everything right on civil rights a hundred years previously.

[00:10:26] Albert Cheng: We’ll get into a discussion about Robert Harlan in a bit. But yeah, speaking of which, let’s get into Justice Harlan’s life. So, he was born into a prominent Kentucky slave holding family, and then when the American Civil War broke out, he supported the Union, got recruited into the 10th Kentucky Infantry, I think, if my notes here are correct, and served in the Union Army in the Western Campaign.

[00:10:49] So catch those listeners up to speed. Tell us about his family background, were there other political heroes, talk about the military service, and then, I guess I’m making you give a lot here, but also, after the Civil War, he rose in Kentucky politics, get listeners up to speed here.

[00:11:06] Peter Canellos: He was born in 1833 in Kentucky. His family was one of the most prominent families in Kentucky, but they were just one generation removed from literally Daniel Boone style frontiersmen. they were a prominent family, but when he was growing up, they were still People around who, remembered the War of 1812, remembered how the British and their Native American allies had attacked settlers, and it was quite a frontier type setting that he was born into.

[00:11:36] But his father was the leading lawyer in Kentucky and was very passionately interested in the law, hence his name, John Marshall Harlan. He was named after John Marshall Harlan. The great Chief Justice, John Marshall, who was the man who asserted the principle of judicial review. That was the idea that the courts can interpret the constitution and say what the law is, not Congress.

[00:12:02] Now that was an important idea because all during Harlan’s childhood and upbringing, there was a cloud hanging over his state and that was the disintegrating political situation that was leading to civil war. Folks in Kentucky, unlike people to the south who were cheering on the state’s rights argument and not like people to the north who are very comfortable being abolitionists, in Kentucky It was a very evenly divided political situation, and there was a belief that if a war came, it would destroy their state.

[00:12:34] They would be the battleground. So, if you imagine John Harlan growing up with his father talking to him about the greatness of the Declaration of Independence, and talking about the Constitution as this unique entity that all the rest of the world was living under despotism, emperors, kings, The United States, the Constitution was king, and yet you saw it all disintegrating because of the slavery issue.

[00:13:05] He was not necessarily friendly to slavery. The family was a slave-holding family, but they did not have a plantation or anything. They had only House servants and Robert Harlan was treated as a member of the family was technically enslaved, but his father and he both had expressed at various points skepticism about slavery, the long-term viability of slavery, the morality of slavery, many of those issues, but they were not abolitionists.

[00:13:32] They were moderate unionists. They wanted to preserve the union first and foremost. If you imagine John Harlan in his 20s, he became very quickly, very early on, a young man of promise, political leader, barnstorming the state, offering lectures at a time when public lectures were almost a form of entertainment.

[00:13:54] And yet, watching the political situation deteriorate. When it deteriorated to a certain point, this guy who’d been Raised as a lawyer, as a man of intellect, suddenly had to become a man of action in that he had to play a leading role in trying to keep Kentucky neutral. There was a pervasive sense that if Kentucky joined the Confederacy, it would be a terrible blow, perhaps a mortal blow, to the Union chances.

[00:14:21] So Harlan, as a Unionist, slept on the floor of the state capitol in Frankfurt because Bariah MacGuffin, who was the governor of Kentucky at the time, was a Confederate sympathizer and he felt that the governor was going to cut a deal in the middle of the night with the legislature to join the Confederacy.

[00:14:39] The Lincoln administration would send guns to the Harlans as loyalists. They called them so-called Lincoln guns. to protect the state if the South tried to invade, just to force the issue of the Confederacy. And then, when the war had to come, Harlan, on his own prestige, raised that regiment. so he recruited 800 people under his own name and prestige to join the Union forces, became a colonel, and saw substantial combat during his time in the Civil War. After the Civil War, or in the later years, the last year of the Civil War, his father died tragically, and he had to leave the army to take care of the family, which was burdened with debts. But he also took his father’s position as the elected attorney general in Kentucky.

[00:15:29] Now, at that time, The Lincoln administration, and then afterwards the Johnson administration, the Andrew Johnson administration, put Kentucky under martial law, treated it like a defeated state, for probably some good reasons, because there were a lot of Confederate sympathizers. But as the elected Attorney General, it put Harlan in a very awkward position because he’s the people’s lawyer.

[00:15:52] He’s representing the state government in this case. He also had put so much of his personal prestige into persuading the state to remain loyal to Kentucky. He and the Speed brothers, those who know the Lincoln story, know that James Speed was Lincoln’s second attorney general and Joshua Speed had been his longtime roommate and close personal friend.

[00:16:12] Harlan and the Speed brothers stood on the street corners of Louisville with bare feet Bullhorns in their mouths, imploring people to stay loyal, and Harlan felt like he had personally promised his friends and neighbors that the U.S. government would reward Kentucky for its loyalty. Instead, they’re under martial law, and they’re treated like a defeated territory.

[00:16:31] So he was slow, he was fighting the federal government, and he was slow to embrace the post-Civil War amendments, which gave him the reputation at that time of being not only not an abolitionist, but also slow to embrace the Post war liberation of slavery. Within two or three years, though, he undertook a profound change.

[00:16:56] He saw the Ku Klux Klan starting to take control of parts of Kentucky. He was disgusted by the violence and made a major shift and became a strong voice for the Republican Party in Kentucky, joined the Republican Party, which was like committing political suicide in Kentucky, because the He was never going to win.

[00:17:14] Abraham Lincoln, for perspective, got only 5 percent of the vote in 1860 in Kentucky. So, joining up with the Republicans was not a great career move in state politics. But he began to preach very strongly against slavery, saying that it was the worst form of despotism of mankind. He thanks God that the sunlight of freedom is shining on every person in the United States. So, he made a very strong conversion.

[00:17:40] Albert Cheng: Wow. So, it sounds with all these details, setting the stage for, as you said in the beginning, why did he dissent in the famous Plessy case? So, let’s talk about one more bit of his background. You mentioned his half-brother, Robert Harland. Born in 1816 into slavery but was raised in the Harlan household.Yeah, what should listeners know about Robert Harlan?

[00:18:00] Peter Canellos: Robert Harlan was an amazing figure, and you can only speculate about the impact that Robert Harlan would have on young John Harlan growing up. Robert was 16 years older. He was like an older brother, uncle kind of figure in the house, living in the main house.

[00:18:17] Robert Harlan was born in Southern Virginia, as you mentioned, in 1816. That was the place where John Harlan’s grandmother, James Harlan, their father’s mother, had grown up. And what we know is that when Robert Harlan was eight, he and his mother undertook a journey from Southern Virginia to Kentucky. What at that time was a perilous journey over 400,500 miles.

[00:18:43] And we know because Robert became a prominent person later in his life from stories written during his lifetime, that he was going to find his father. And they came to Harlan Station, which was a family town, originally a stockade in Kentucky. And from there, the belief was that James Harlan, John’s father, had been Robert’s father, even though James was only 16 when Robert was born, but there was a feeling he was probably visiting his mother’s family and there could have been a relationship, a sexual initiation, a, an occasion for him to Father Robert.

[00:19:20] I think that it’s also possible that James Harlan believed that Robert was the son of his own father. who had died in the intervening years, the intervening eight years of Robert’s lifetime. But what we know is that Robert joined James’s family. James had just gotten married, and so he essentially adopted Robert, this from Robert’s own account, and tried to get him educated, but he got kicked out of school after half a day because he was black.

[00:19:46] And that paradoxically It freed him or gave him a quality that I think helped him in later life, which was that he began to have this sort of radar of sensing where opportunities would exist for Black people under the greatest odds, which slavery has to count as the greatest odds. The first was in the horse racing industry, where he became a horse racing pioneer. And so, if you’re young John Harlan, imagine Robert coming back from staging horse races where you had to be tough, you had to have guns, you had to enforce the betting rules and all that. Sure, yeah. Swashbustling figure. The next one was in the gold rush in 1849. He was one of the first group of Kentuckians to go to San Francisco, came back with the equivalent of six million dollars in gold.

[00:20:33] Moved then to Cincinnati, which was the terminus of the Underground Railroad at the time and invested in black owned businesses. Wow. As simple as a grocery and as complicated as a photography studio where he nurtured some of the real pioneers of American photography. Wow. He then left the country to go to Europe to stage horse races challenging the British in the sport of kings saying Kentucky’s raising better horses.

[00:20:58] Back after the Civil War and became Once again, the leading black politician in Cincinnati was elected to the state legislature, but also became very important in the Republican Party, and then played a role in helping John Harlan get onto the Supreme Court, which you can talk about separately.

[00:21:16] Albert Cheng: yeah. Let’s get into this, maybe set the stage a bit for the Plessy v. Ferguson case. So let me have you talk about some of the background here. So, you mentioned the Gold Rush, 1849. The other thing that happened in 1849 was a Massachusetts case, Roberts v. Boston. It sought to end racial discrimination in Boston public schools, but the Massachusetts Supreme Court, or judicial court, ruled in favor of Boston, finding no constitutional basis for the suit.

[00:21:44] So this was actually then cited. In the Plessy v. Ferguson case, and that essentially established the separate but equal doctrine. say more about the Roberts v. Boston case, and how did that really come to bear on Plessy v. Ferguson?

[00:21:59] Peter Canellos: The Roberts v. Boston case, I think, it’s instructive in showing that, there was segregation in the North.

[00:22:05] That this was not purely a Southern phenomenon, that even at a time, 1849, when you’re fairly close to the Civil War and there was a lot of abolition movement in Massachusetts, there was also racism in Massachusetts. So it’s worth knowing that. I will say, as a legal precedent, this was before the Constitution was changed after the Civil War.

[00:22:27] So to say it was a precedent for Plessy v. Ferguson, it certainly was created by Henry Billings Brown, but it was not a persuasive precedent for, first of all, no state court action is a precedent for the U. S. Supreme Court, but also just in terms of it being a moral force or something, it doesn’t make any sense because there was no Equal Protection Clause in 1849.

[00:22:51] So that does not Excuse Judge Lemuel Shaw, who made that decision in 1849, but it does show how outrageous the Plessy v. Ferguson decision was later on, that you literally have the Constitution in plain language saying there’s equal protection under the laws, which they did not have in 1849.

[00:23:08] And still, they found for segregation. Also, the Roberts case was brought at Charles Sumner’s instigation, and he was furious when it failed in the courts. And by 1855, he actually, under Massachusetts law, outlawed segregation. Massachusetts did indeed have racist segregationist policies, but by 1855 it did not.

[00:23:31] Again, it’s not a great chapter in Massachusetts history, but Massachusetts was still way ahead of Louisiana, let’s just say. And segregation after the Civil War sprang from a very different motive and was far more insidious. And so, the Plessy v. Ferguson case was the first legal test of it before the Supreme Court. It was a simple law in Louisiana that stated that black people had to stay on a separate coach on railroad cars. And could not enter the white car, basically.

[00:24:06] Albert Cheng: Let’s talk about another case, which I think it seemed to have influenced the young John Marshall Harlan’s view, or his views, really. so, it’s the 1857 Supreme Court case, Dred Scott v. Sanford.

[00:24:18] And again, just to Brief listeners had held that the U.S. Constitution did not extend American citizenship to people of Black African descent. So, what’s important about that case as it pertains to Justice Harlan?

[00:24:31] Peter Canellos: It had a profound effect on Harlan because as we were saying before, Harlan had devoted his entire young life to the to try and to prevent the Civil War. His political hero at the time was Henry Clay, who was called the Great Compromiser. And again, because Kentuckians viewed themselves as being right there on the front lines, they took the lead in trying to create compromises that would forestall the Civil War. Henry Clay was involved in colonization plans with Liberia.

[00:24:58] He was involved in plans to compensate slave owners, proposals that would include compensating slave owners to try to bring about a negotiated end to slavery. He was behind, most famously, the sort of geographical compromises like the Missouri Compromise. That created a political equilibrium between slave and free states.

[00:25:17] By 1857, the Supreme Court very misguidedly thought that it was going to end the controversy by declaring not only that formerly enslaved people had to be returned to slavery if they were captured in the North, but that no Black person, free or enslaved, had rights under the U.S. Constitution. It was an incredibly sweeping decision, and it was incredibly legally wrong because Six states had free Black people voting and participating under the law at the time that the original Constitution was ratified.

[00:25:51] Roger Taney, who was the Chief Justice who succeeded the great John Marshall and who was thought of as the anti-Marshall, Marshall was a Federalist. Taney was a Democrat, and Taney, even though he’s from Maryland, a strong slavery supporter, they felt they were using the finality of the Supreme Court to settle this question once and for all.

[00:26:12] Harlan, especially as time went by in later years, immediately saw this as the moment that in his life he realized that the war would not be for Stahl, that the war would come, no matter what, because the Supreme Court has this unique finality to its decisions. There’s no appeal to the Supreme Court. So, the only possible appeal to this wrongheaded decision was war, and All of those compromise ideas that Henry Clay and Harlan were pursuing were more or less voided.

[00:26:44] If the Supreme Court says there’s no possible way that Black people will ever have rights under the law, there’s no possible compromise, right? So, in later years, when Harlan became the great dissenter and started dissenting so forcefully in these cases, Supreme Court cases, he would often mention Dred Scott as the example of what happens When the Supreme Court gets it wrong.

[00:27:04] So people will often say, how did Harlan come to believe in the power of dissent? I think it’s a combination of things, but one of them was witnessing the terrible consequences of Dred Scott and understanding that the Supreme Court, when it gets something wrong, it’s impossible. to undo it, at least without another Supreme Court decision, and so that’s why he felt so strongly that you had to get it right the first time.

[00:27:28] You had to, there was, there can be no compromise on certain issues when the future of the country is at stake, and I think if you When you fought in the Civil War, if you saw friends die, if you stepped over bodies as he did at Shiloh and places like that, you had a heightened sense of what the stakes are in these Supreme Court decisions.

[00:27:47] So people sometimes wonder, couldn’t he just, deal with his colleagues, go along, get along? I think he felt the experiences of his life said that He couldn’t. And when you talk about civil rights and his later descents in cases like Plessy v. Ferguson, he also had the influence of Robert Harlan.

[00:28:05] Just watching Robert Harlan become rich and successful and powerful in his own right, it gave the lie to these ideas that were percolating around the North. That enslaved people had been held in this childlike state that was going to take a long time for them to get to be able to exercise the full privileges of citizenship.

[00:28:23] Harlan understood it much better than his colleagues did, that if people are given legal protections, they will advance. Robert Harlan had no education, but he had legal protections, and he became one of the most distinguished men of his era, and one of the wealthiest. African Americans, certainly, if it’s Europe.

[00:28:41] Harlan’s life experiences were so different from those of his colleagues. And there’s a further irony because he had a difficult confirmation because he had not been an abolitionist before the war. The Judiciary Committee was controlled by so called radical Republicans who were anti-Semitic.

[00:28:57] Totally pure on the abolition issue. Now, many of them had paid for someone to fight in their stead in the Union Army, but again, if you come from the far north, it was an easy position to be an abolitionist. So, they stood in judgment on Harlan for not having been an abolitionist, but after the Civil War, when these racial cases took on a different dimension, the Northerners had no actual experience of Black people and fell prey to all these kind of racist ideas, and Harlan did not.

[00:29:26] Alisha Searcy: I’m in awe by all that we’re learning today, and you made such powerful statements when you talk about the need for him to get it right. And I’m so glad that he got it right. I wish his colleagues had followed suit. But also, just this notion that legal protections are what made the difference. So, Pulitzer winning historian Eric Foner wrote that maybe the most tangible legacies of the Civil War and Reconstruction era are the 13th, Amendments to the United States Constitution. Can you talk about what the Reconstruction Amendment and the Civil Rights Act of 1875 and how they impacted Justice John Marshall Harlan’s jurisprudence, especially in the civil rights cases of 1883?

[00:30:10] Peter Canellos: Yeah, very, that was a key moment for Harlan and a key moment. for the country. And Foner is entirely right about the post war amendments.They completely remade the Constitution, created this idea that you had as a citizen right that went beyond those granted by your state, that you had certain federal rights that gave you special protections as an American from certain kinds of mistreatment. The Civil Rights Act of 1875 was a rather bold congressional move.

[00:30:44] Robert Harlan, by the way, as a Black leader, played a prominent role in pushing for that bill. It basically guaranteed all Americans, Equal rights to the sort of rudiments of economic life, like transportation, inns, restaurants, etc. What happened is soon after that, the various people in various places, in inns, restaurants, and trains, and things like that, started to discriminate against Black people and violate law.

[00:31:10] They did it in the North, they did it in the West, they did it in the South. All these cases were combined into one case for the Supreme Court to consider. The constitutionality of the Civil Rights Act of 1875. This was a huge moment in U.S. history. Everyone in the United States knew the Supreme Court was considering these cases.

[00:31:30] In Atlanta, they were literally interrupting theater presentations to give people updates on the arguments and ultimately the decision that the court came down. Harlan had been on the court for six years and had been a junior partner on an older court and had been more of a go along, get along justice up to that point.

[00:31:50] In 1883, his colleagues decided, somewhat similar to the Dred Scott decision, that they were going to put an end to all this racial strife in the United States by declaring That the Civil Rights Act was unconstitutional on the grounds that the U.S. Constitution could only protect against state actions, not actions by individuals.

[00:32:13] if it’s the state of Georgia or the state of Alabama that’s denying you your rights, yes, the federal constitution applies. If it’s the ticket taker at the theater that is discriminating against you or the innkeeper that’s discriminating against you, then it’s purely a state matter and the federal government should play no role in this.

[00:32:33] Harlan knew that was wrong. He knew because the post-Civil War amendments had been ratified and proposed during his lifetime and that of almost everybody else who was in a position of power at that time. So, they knew, the founders are still alive, they knew, the framers knew what they intended to do, and that was to elevate Black people to a level of, equality with white people.

[00:32:55] Also, you had the plain language of things like the Equal Protection Clause and the Due Process Clause guaranteeing equality under the law. You also, in this question of state action, there was a sense that these amendments had been passed precisely because they needed to provide a constitutional basis for an earlier civil rights statute.

[00:33:17] So whatever the framers were considering, they had to consider that private acts of discrimination could be included under this. So, Harlan, 1883, still the youngest justice on the court, facing tremendous pressure to have a unanimous Supreme Court decision. A unanimous decision would really be a strong statement. And he really agonized over this, and you can imagine his feelings about Dred Scott, his experiences with Robert Harlan, the sense of the stakes from having fought in the Civil War, and there was one other factor that was playing on him. His eldest daughter had tragically died that year of typhoid fever after giving birth to a baby.

[00:33:59] Peter Canellos: And he sent a letter to his sons who were in college saying he would spend every day of his life trying to live up to the values and ideals of their wonderful sister. What did she do? She taught children of freed men and women at a local school in Washington. So Harlan determined that he could not allow the court to be unanimous on this point and wrote A long, powerful magisterial dissent that not only had the sort of classic Harlan sense of fairness and judgment, he found a line in the majority opinion that said, at some point, discriminated against minority has to cease to be special favorites of the law and take the ranks merely of citizen.

[00:34:40] Harlan shot back; it is scarcely fair to say that Black people have been the special favorites of the law. This at a time when the Ku Klux Klan was lynching people left and right. He also in his interpretation of those post-Civil War amendments, the 15th Amendments, he set out a radically different interpretation of them than his colleagues, which is much more consistent with how we see them today.

[00:35:04] So that was a pioneering opinion on Harlan’s part. Frederick Douglass was dismayed by this decision. This was a terrible blow to Black people, but he was comforted by Harlan’s dissent, sent a letter to Harlan saying, this is the greatest opinion ever written in the history of the Supreme Court, and it should be Spread like falling leaves over the entire country and used to fertilize a future civil rights movement.

[00:35:27] Alisha Searcy: I love that. I want to ask you; I want to talk more about Plessy. We hear, of course, about the case often, Plessy v. Ferguson. But tell us about who he was. We know that He was born a free person of color, an American shoemaker, an activist, and of course the plaintiff in the U.S. Supreme Court’s 1896 decision, Plessy v. Ferguson. His civil disobedience challenged Louisiana’s Separate Car Act, which required separate accommodations for black and white people on railroads. And so can you talk more about the man, about the case, and the discriminatory majority decision that established Separate but equal as federal law.

[00:36:05] Peter Canellos: Yes. This was a case where there are some interesting complications in this. I know Homer Plessy is widely viewed as a civil rights hero and deserves a lot of credit for taking a personal risk and challenging this law. But his challenge was part of an effort by Creoles in New Orleans to challenge the Separate Car Act, more or less on the grounds that they felt that because they were part Black, only part Black, and they were a mixed race of many different races, ethnicities, that they were being discriminated against on the grounds that this law, cast them as second class citizens.

[00:36:44] So they wanted a plaintiff, the Creoles, who looked entirely white. So they found Homer Plessy, who’s believed to have been one eighth, Black, who agreed to challenge the law, went on a train, told a conductor, “I am a person of color. I may not look at it, but I’m a person of color.” The conductor expelled him from the car, and that created a dispute that could be a dispute taken to the courts. Now, Harlan, we talked about the civil rights cases of 1883, where everyone in America knew this was going on. By 1896, the view that the Supreme Court was going to be opposing African American rights was pretty ingrained. There had been other intervening cases. no one, even in New Orleans, paid a whole lot of attention to this case as it was going up before the Supreme Court.

[00:37:32] Many people in the Black community, including Frederick Douglass, in his very last years, bemoaned the fact that they were even bringing this case because he felt that only bad news could come out of it. in other words, the court would act in such a way that would restrict public Black people more than protect Black people.

[00:37:51] In that sort of grim setting, only Harlan perceived that this would become a really major court precedent. everyone else saw it as just a continuation of the discrimination against Black people by the court. By this time, Harlan was also well established as the Harlan was the sole dissenter on all of these cases involving the rights of Black people, and other cases involving economic rights that benefited immigrants and other people like that, that gave state governments power to take on industrial elites during the Gilded Age.

[00:38:26] So Harlan was by then really recognized as the great dissenter. And his opinion in that case became a central part of his legacy. He, I think had by that time, distilled a lot of frustration, a lot of anger, but also had become much more confident in his views of the Constitution and constitutional law.

[00:38:49] So he issued a very sharp dissent that includes the kind of phrases that we paint onto the side of buildings, like the Constitution is colorblind and neither knows nor tolerates classes among citizens. very much. The humblest is the peer of the most powerful. There is no caste here. What Harlan was saying, and the case makes a very persuasive legal case, talking about the original intent of the Equal Protection Clause, showing how this fallacy of separate but equal is really, this law was intended to stigmatize Black people, not white people, talking about the moral wrong done to Black people, but talking also about how it would disadvantage Black people.

[00:39:30] All Americans into the future. He compared it to the Dred Scott decision saying someday this case will be remembered as horribly as the Dred Scott case and it was an extraordinary thing at that time for him to be saying that because this was a very small case at that time. Now, but he was right. It is the two most infamous cases in Supreme Court history of Dred Scott and Pelosi.

[00:39:51] So I think what was extraordinary about his opinion there is, first of all, he went beyond just the strictures of the law to talk about foundational principles of the United States, that here in America, equality is It’s the cornerstone of our country, our common values. It was a full-throated condemnation of his colleagues of the type you almost never hear from the Supreme Court. And it served to inspire future generations and remains a central part of Harlan’s legacy.

[00:40:22] Alisha Searcy: and how profound and how prolific he was. You mentioned one of the most, I think, powerful lines in his dissenting opinion, and it’s part of another piece that I want to mention. He says, In the view of the Constitution, in the eye of the law, there is in this country no superior, dominant ruling class of citizens.

[00:40:45] He goes on to say, there is no caste here. Our constitution is colorblind and neither knows nor tolerates classes among citizens. Can you talk a little bit more, and you hit on it, about this dissenting opinion and the legal principles on which it’s based and how it was received by his fellow Supreme Court justices across the country.

[00:41:07] Peter Canellos: It was not initially praised in the white community. We now know because African American newspapers from the times have been digitized just in the last 10 to 15 years, that it had a profound impact in the Black community. And in fact, when Harlan died in 1911, there were spontaneous memorial services in Black churches throughout the country, places that he had never been to, where they read that dissent aloud, including one in Washington at Metropolitan A. M. E. Church, a sort of joint memorial service after there had been some spontaneous ones. That was about two weeks after his death. All Black people, no white people attended, but they, paid attention to his words. And in future generations, Thurgood Marshall, for example, is only born three years after Harlan died, so there were no actual interactions between them.

[00:41:58] He was inspired by that Harlan descent in Plessy and put it into every one of his briefs challenging segregation when he started the 20th century civil rights movement. So, Harlan was a deep inspiration to Thurgood Marshall and to Constance Baker Motley. that dissent has lived longer than the majority opinion, which was overruled in 1954.

[00:42:23] Now, in recent years, there’s more controversy attached to the whole idea of a colorblind constitution because some conservative justices have cited it in their affirmative action rulings and said the constitution is colorblind, therefore affirmative action should not be tolerated. My personal impression, we don’t know how Harlan would have seen it, my personal impression is that Harlan, if you think back to that line in his dissent in the Civil Rights Cases of 1883 about its scarcely fair to say that Black people have been special favorites under the law, I think he would endorse affirmative action as a way of Enforcing equality, and if people have been denied equal protection and there’s a method to undo the wrong, I think Harlan would’ve approved of that.

[00:43:06] He would’ve seen it as enforcing equality and colorblind principles. I’m not sure he would’ve supported every one of the sorts of diversity plans at these universities that were challenged because. They weren’t necessarily based on past discrimination. They were just based on diversity as a positive good.

[00:43:22] And he might have said that the damage in choosing certain people and rejecting certain people based on their race is greater in that case than it’s not intended to enforce equality. It violates equality.

[00:43:35] Alisha Searcy: Absolutely incredible. I can’t believe we’re at the end of our interview, but before we let you go, we would be honored if you would consider reading an excerpt from your book.

[00:43:47] Peter Canellos: Thank you. I’ll just read you one paragraph, and that’s to say, In the history of the Supreme Court, there is no parallel to Harlan’s career. There have been other passionate dissenters and other famous dissents. But no one stood so consistently against his brethren, only to be vindicated in later times.

[00:44:08] That makes his career an important clue in the ongoing search for how best to undertake the task of interpreting the Constitution without falling prey to the fears or prejudices of the moment. There are many theoretical approaches with high sounding names such as originalism and textualism, and Harlan has been persuasively linked to some of them.

[00:44:32] But the evidence indicates that his crucial differences with his colleagues stem more from the sensitivities of his life than any strategic vision of the law. Unlike many later generation justices whose careers vaulted them from law school to clerkship to faculty position to judgeship, with no intervening stops in the neighborhood of real life, Harlan’s legal views were shaped by what he saw with his own eyes and felt in his own heart.

[00:45:04] Alisha Searcy: Perfect. said. Thank you so much, Peter Canellos, for joining us today, author of The Great Dissenter, the story of John Marshall Harlan, America’s judicial hero. Thank you for your contributions to history as we celebrate the 70th of the Brown v. Board of Education in the coming weeks.

[00:45:24] And again, your contribution to literature and to history. Thank you very much for being with us.

[00:45:30] Peter Canellos: Thank you so much, Alicia.

[00:45:43] Albert Cheng: That was a fascinating interview. I learned quite a bit. Absolutely, about that. Which is really appropriate, again, I, just to remind listeners, we’re coming up on the 70th anniversary of Brown v. Board, so the landmark case that reversed the Plessy decision. We got to close out with the Tweet of the Week, don’t we, Alisha?

[00:46:00] Alisha Searcy: We do!

[00:46:02] Albert Cheng: And this week’s Tweet of the Week comes from Education Week, and it reads, social media bans alone were enough. Won’t improve mental health, say student advocates, which I think is just another important voice here in all the discussion and public discourse we have around mental health. I know we’re debating the role of social media and what it does and people are proposing lots of policies.

[00:46:24] I’m a fan of having some more kind of policy oversight on social media, but I really found this article a good read as well because I think it was a reminder for me. particular, about the need for adults and mentorship. We need actual folks to come alongside students to help them navigate social media and just the internet, as well as some other ideas that really stretch beyond. Just what we might be able to do with Policy Lever.

[00:46:51] Alisha Searcy: So once we adults figure it out for ourselves, right?

[00:46:54] Albert Cheng: Yeah. Yeah. No, you and I, we’re, I guess we’re guilty here trying to figure out how to manage this new technology ourselves. So yeah, we’re in this together. I think definitely worth a read to help us think through this important topic. That brings us to the conclusion of our show. Alisha, it was great to see you again. Thanks for having me. Yeah. Join us next week as we have Cheryl Brown Henderson. She’s the daughter of the lead plaintiff in the landmark Supreme Court decision, Brown v. Board of Education, which is celebrating its 70th anniversary. So hope to see you next week as we have that important discussion.

[00:47:33] Alisha Searcy: So long.

This week on The Learning Curve co-hosts U-Arkansas Prof. Albert Cheng and DFER’s Alisha Searcy interview POLITICO‘s Peter Canellos, biographer of Justice John Marshall Harlan. Mr. Canellos delves into Harlan’s upbringing in a prominent slaveholding family, his Civil War service in the Union Army, and his rapid rise in Kentucky politics as a Republican. He highlights John Harlan’s mixed-race half-brother Robert Harlan and key legal precedents like the notorious Dred Scott v. Sandford (1857), which influenced Harlan’s views on race and equality. Canellos explores Harlan’s famously farsighted dissent in Plessy v. Ferguson (1896), emphasizing its significance in laying the groundwork for future civil rights legal victories, notably Brown v. Board of Education (1954). In closing, Mr. Canellos reads a passage from his book, The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero.

Stories of the Week: Albert shared an article from Forbes discussing the rise of education entrepreneurs in Minnesota; Alisha discussed an article from Cal Matters on California high school students wanting more voc-tech career training.


Peter Canellos is managing editor for enterprise at POLITICO, overseeing the site’s magazine, investigative journalism, and major projects. He has also been POLITICO’s executive editor, directing the newsroom during the 2016 presidential coverage. Mr. Canellos is the former editorial page editor and Washington bureau chief for The Boston Globe, and supervised two Pulitzer Prize-winning projects along with five others that were Pulitzer finalists, among many other awards. In 2021, he authored the widely acclaimed The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero, and in 2009 edited the New York Times bestseller Last Lion: The Fall and Rise of Ted Kennedy. He is a graduate of the University of Pennsylvania and earned a law degree from Columbia University.


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