Plessy v. Ferguson Dissent: a Historical Curiosity

Plessy v. Ferguson is a landmark U.S. Supreme Court decision, upholding the constitutionality of racial segregation even in public accommodations under the doctrine of "separate but equal". It is one of America's most infamous and unpopular decisions.

Justice John Marshall Harlan, a former slave owner who decried the excesses of the Ku Klux Klan, wrote a scathing dissent in which he predicted the court's decision would become as infamous as that in Dred Scott. Harlan, decades ahead of his time, wrote: "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."

For a century, the vision of racial equality expressed in John Marshall Harlan's dissent in Plessy v. Ferguson has captured the imagination in a way matched by few other texts. Even today, the symbolic power of Harlan's rejection of segregation of African Americans and whites in New Orleans streetcars is rivaled only by the Reverend Martin Luther King, Jr.'s I Have a Dream speech and Brown v. Board of Education.

There is a curious point in Harlan's Plessy dissent however. After arguing that the government should guarantee equality without regard to race, the next paragraph begins like this: "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. But by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race [cannot]...."

Of course, the Chinese had nothing to do with the Plessy decision, but that did not stop Harlan from including a tirade against them in his opinions. In United States v. Wong Kim Ark, Harlan objected to persons of Chinese descent born in the United States becoming citizens. He described, "the presence within our territory of large numbers of Chinese laborers, of a distinct race and religion, remaining strangers in the land, residing apart by themselves, tenaciously adhering to the customs and usage of their own country, unfamiliar with our institutions and religion, and apparently incapable of assimilating with our people."

Some modern commentators have explained Harlan's position as, "the law is irrational because it burdens one despised minority but not another." However this misstates Harlan's philosophy: he held no ill will towards blacks or even any other Asians; he singled out the Chinese as the sole nationality worthy of segregation.