Why the Court’s civil rights hero might have opposed affirmative action
“What is more likely to arouse racial hatred, what more likely to create and perpetuate a sense of distrust between races, than state decrees which, in effect, proceed on the grounds that the citizens of color are so inferior and degraded that they cannot be allowed to sit? in public cars manned by white citizens,” he wrote.
It was his constant theme: failure to enforce equal protection fan the flames of racial animosity.
Harlan’s sense of legal inequality as a cancer that could destroy the American system extended beyond the realm of black-white relations. Although he joined a unanimous majority in rejecting a challenge to China’s Exclusion Act, where the only legal issue was whether the Senate had the power to abrogate a treaty (and which remains the law today today), he strongly objected when a California prosecutor failed. to enforce a civil rights law to protect Chinese workers and when the court denied birthright citizenship to a Native American who left his tribal reservation.
When the United States asserted itself as an imperial power, taking control of Puerto Rico, Hawaii, Cuba and the Philippines while ostensibly denying them equal rights, Harlan saw the seeds of future wars planted in its time. While his colleagues argued that the Hispanic and Asian populations were so backward that they could not function within a Constitutional structure, Harlan insisted that all individuals under the Constitution’s power enjoy its protections, fear that inequality will reign.
“It will then come to pass that we shall have two governments over the persons subject to the jurisdiction of the United States – one, existing under a written Constitution…the other, existing apart from the written Constitution, under of an unwritten law, to be declared from time to time by Congress, which itself is but a creature of this instrument,” he wrote.
Harlan sensed that the tectonic plates of society were shifting again and feared a reactivation of the forces that led to the Civil War. In his mind, inequality before the law inevitably led to conflict. It has also altered social and economic structures in ways that are difficult to disentangle. The simple solution was to apply the equal protection clause of the Constitution. This, in his mind, meant treating people of all races the same.
“May God bless our dear country! he said in a speech to many of the country’s leaders, including President Theodore Roosevelt, at a dinner commemorating his 25e year on the Supreme Court. “May God bless all efforts to support and strengthen him in the hearts of people of all races under his jurisdiction and authority!”
This did not escape Harlan that the same calls for equality that led to the freedom of enslaved peoples could be used to deny them necessary government protections. In the Civil Rights Cases of 1883, Judge Joseph Philo Bradley, writing for a court majority that rejected civil rights protections, suggested that the time had come for black people to stop being “the special favorite of the laws” – this, just 18 years after the Civil War and at a time when the Ku Klux Klan was murdering black people by the dozens. Harlan retorted, “It is, I submit, hardly fair to say that the colored race has been a special favorite of Laws.”
Harlan didn’t live long enough to see the end of segregation, or to know that his own words would play a part in bringing it about. But he would not have failed to understand that the legal measures aimed at compensating for the effects of segregation operate on a different basis from those which imposed segregation. For a university that had prohibited black students from making special efforts to accept black students — especially if it also gave preferences to applicants whose parents were present — was simply fair and just, furthering the cause of equality rather than hindering it.
But the affirmative action has shifted to a different place, as the nation’s diversity pastiche has grown richer and more complex. Many universities do not link racial preferences to past discrimination in the rigorous, evidence-based way envisioned by some legal scholars, focusing on how past practices have altered the fate of today’s applicants. On the contrary, they seek diversity as an end in itself, viewing anything but proportional representation of racial groups as evidence in itself of discrimination. American understanding of historical patterns of exclusion and oppression may be stronger, but the connection between these dynamics and current recipients of affirmative action may not. Racial distinctions are varied and complicated; positive action, at least in some forms, is arbitrary. Not all recipients have suffered equally, and not all people who are denied benefits bear a similar privilege. There are also mechanisms such as preferences for students from disadvantaged backgrounds or for those who are first in their families to go to college that can promote campus diversity without reference to race.
What Harlan couldn’t accept was that racial distinctions come cheaply. Plessy v. Ferguson, with its wink assertion that separate railroad cars were equal, weakened its appetite for alternatives to the essential mandate of equality. Experience has taught him that privilege and prejudice under the law are pernicious forces. When combined with race, they not only amplify discord, they create it. After the Civil War, he alone among jurists predicted the ravages of segregation and saw its seeds in the unequal treatment of Hispanics and Asians.