Love Across the Boundaries: The Case of Justice John Marshall Harlan —A Book Review: Peter S. Canellos, The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero
In understanding the development of the American constitutional law of free speech, the dissents of Oliver Wendell Holmes and Louis Brandeis are understandably central in part because their approaches to free speech were quite different. Holmes appealed to some version of John Stuart Mill’s great utilitarian argument for free speech in On Liberty, while Brandeis appealed to the Kantian value of dignity, a deontological value that trumped utilitarian consequences to the contrary. The overlapping consensus of Holmes and Brandeis on the priority of free speech among constitutional values was the lodestar of American free speech jurisprudence as majorities of the Supreme Court, long after their deaths, gradually adopted first a relatively weak interpretation of their argument (as in Dennis v. United States), and then a quite muscular interpretation in Brandenburg v. Ohio. As dissenters, Holmes and Brandeis at least had one another.
But there is another earlier dissenter, John Marshall Harlan, whose dissents are even more remarkable because in two of them, Civil Rights Cases and Plessy v. Ferguson, Justice Harlan was the lone dissenter, and his views are now cited by all sides to the debate over the constitutional treatment of race in the United States, including the constitutionality of affirmative action. Harlan, quite alone, is now acclaimed by Peter Canellos and others as an American hero, standing alone against the seemingly implacable tide of reactionary American cultural racism which had flooded the United States after the Civil War, North and South, in particular after the withdrawal of federal troops in 1877. That racism buried the constitutionally promised rights of people of color in order for white Northerners and Southerners to find common racist ground as Americans to fight an imperialistic war, the Spanish-American War, and enter another war (essentially among competing European imperialisms), the even more catastrophic World War I (the “shame of Versailles” from the onerous treaty at the end of that war provoking the aggressive political anti-Semitism that rationalized Adolf Hitler’s aggressive wars, murder of six million innocent Jews, and the destruction of Germany at the end of the war). And Harlan, in contrast to Holmes and Brandeis, was not Harvard educated and did not share the abolitionist background of Holmes (though, like Holmes, he fought on the Union side in the Civil War) nor Brandeis’ outsider Jewish background and experience working for left wing labor interests resisting the piratical capitalism of the Gilded Age.
Moreover, Harlan was a Kentuckian, a Southerner, “who had once owned slaves, campaigned for McClellan over Lincoln, and initially opposed the Thirteenth Amendment,” and yet, he is the lone dissenter in Plessy v. Ferguson, condemning the racism that motivated separate-but-equal . . .
