OUR NAKBA:

The elder John Marshall Harlan is correctly described by Robert Cushman as "a Southern gentleman and a slave-holder, and at heart a conservative." A Kentuckian of the Whig persuasion, Harlan had opposed secession and fought in the Union Army, but at the same time he opposed both the emancipation of the slaves and the passage of civil rights laws to protect the rights of the freedmen. Shocked by Ku Klux excesses, he experienced a sudden conversion, renounced his former views, became a Republican in 1868, and was appointed to the Supreme Court by President Hayes in 1877.

After his conversion Harlan became one of the most outspoken champions of Negro rights of his time, and during his thirty-four years on the bench he lifted his voice repeatedly against denial of those rights by the dominant opinion of the Court. His famous dissent in the Civil Rights Cases of 1883 had denounced the "subtle and ingenious verbal criticism" by which "the substance and spirit of the recent amendments of the Constitution have been sacrificed." And in 1896 he was ready to strike another blow for his adopted cause.

Harlan held the Louisiana segregation law in clear conflict with both the Thirteenth and the Fourteenth amendments. The former "not only struck down the institution of slavery," but also "any burdens or disabilities that constitute badges of slavery or servitude," and segregation was just such a burden or badge. Moreover, the Fourteenth Amendment "added greatly to the dignity and glory of American citizenship, and to the security of personal liberty," and segregation denied to Negroes the equal protection of both dignity and liberty. "The arbitrary separation of citizens, on the basis of race, while they are on a public highway," he said, "is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the constitution. It cannot be justified upon any legal grounds."

Harlan was as scornful as Tourgée had been of the claim that the separate-car law did not discriminate against the Negro. "Every one knows," he declared, that its purpose was "to exclude colored people from coaches occupied by or assigned to white persons." This was simply a poorly disguised means of asserting the supremacy of one class of citizens over another. The Justice continued:

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 guarantied by the supreme law of the land are involved....We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of law which, practically, puts the brand of servitude and degradation upon a large class of our fellow citizens,--our equals before the law. The thin disguise of "equal" accommodations for passengers in railroad coaches will not mislead any one, nor atone for the wrong this day done.

"The present decision, it may well be apprehended," predicted Harlan, "will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the constitution...." For if the state may so regulate the railroads, "why may it not so regulate the use of the streets of its cities and towns as to compel white citizens to keep on one side of a street, and black citizens to keep on the other," or, for that matter, apply the same regulations to streetcars and other vehicles, or to courtroom, the jury box, the legislative hall, or to any other place of public assembly?

"In my opinion," the Kentuckian concluded, "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."

But Harlan was without allies on the Court, and the country as a whole received the news of its momentous decision upholding the "separate but equal" doctrine in relative silence and apparent indifference. Thirteen years earlier the Civil Rights Cases had precipitated pages of news reports, hundreds of editorials, indignant rallies, congressional bills, a Senate report, and much general debate. In striking contrast, the Plessy decision was accorded only short, inconspicuous news reports and virtually no editorial comment outside the Negro press. A great change had taken place, and the Court evidently now gave voice to the dominant mood of the country. Justice Harlan had spoken for the forgotten convictions of a bygone era.

The racial aggressions he foresaw came in a flood after the decision of 1896. Even Harlan indicated by his opinion of 1899 in Cummings v. Board of Education that he saw nothing unconstitutional in segregated public schools. Virginia was the last state in the South to adopt the separate-car law, and she resisted it only until 1900. Up to that year this was the only law of the type adopted by a majority of the southern states. But on January 12, 1900, the editor of the Richmond Times was in full accord with the new spirit when he asserted: "It is necessary that this principle be applied in every relation of Southern life. God Almighty drew the color line and it cannot be obliterated. The negro must stay on his side of the line and the white man must stay on his side, and the sooner both races recognize this fact and accept it, the better it will be for both."

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