Don't Cite Harlan Against Affirmative Action

Opponents of racial affirmative action like to say that they favor an ideal of "colorblindness," i.e. the idea that the government should never ever be able to base its treatment of someone on a knowledge of their race. Affirmative action, the claim goes, violates this rule, which sounds very much like the very model of a rule against racial discrimination, every bit as much as Jim Crow laws did. Or, as Chief Justice John Roberts infamously put it, "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race." And as a kind of supporting precedent for that idea, either in an actual legal-precedent context or just as rhetorical support from a hero of the civil rights movement, people on that side of that issue like to cite the dissenting opinion of Supreme Court Justice John Marshall Harlan from Plessy v. Ferguson. Here are the passages that suggests a kind of color-blindness:

"In respect of civil rights, common to all citizens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights."

And:

"But I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved."

And:

"They [the Reconstruction Amendments] declared, in legal effect, this court has further said, "that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States..."

And:

 "Our Constitution is color-blind, and neither knows nor tolerates classes among our citizens."

That last bit is perhaps the most commonly cited, especially just the first clause. It certainly does sound like it supports a color-blindness standard.


But this analysis is too simple. For instance, you'll notice that I truncated the third passage I quoted. Here's the continuation of that sentence:

"...and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color."

That's... interesting, by the modern color-blindness interpretation. Because that interpretation would say that no discrimination shall be made against anyone by law because of their color. Expressing this provision as applying specifically to the colored race is an actual exception that proves the rule: it implies that the same protection does not attach to the white race. (This line, or something very much like it, could be quoted in support of the Scalia position that the 14th Amendment only protects against racial discrimination, although not in support of Scalia's other position that it does protect whites from racial discrimination as well as blacks, but the question of broader Equal Protection application is beyond the scope of this post. Suffice it to say that this argument is wrong.)

How is this consistent with Harlan's other seeming paeans to color-blindness? Because, you'll note, all of those references (or at least all of the ones in the excerpt in my casebook) are to color-blindness as concerns civil rights. Using the supposed civil/political/social right framework that was the norm in this period (although it's debatable how broad the support commanded by that framework really was), it appears that Harlan favors an absolute color-blindness standard as to civil rights, and probably also as to political rights, but for social rights, as well as situations where no rights are involved, he envisions a more complex test. Blacks can never be discriminated against on the basis of their color, that is clear, and by implication the same protections do not apply to whites.

I contend that affirmative action is not about civil rights. Civil rights are things like my entitlement to own property, to contract, to appear in court. They concern my ability to act as a member of society, and may also include things like the right to walk around public spaces. Affirmative action, however, is about the distribution of certain positions to which no one is entitled. The Harlan opinion would seem to suggest that, at least insofar as whatever state-action doctrine might apply, blacks could not be discriminated against even as concerned those positions, i.e. that a government department with a maximum quota for hiring blacks would be in violation, but it at the very least leaves open whether discrimination in these spheres against whites would be proscribed.

Now, I don't think that Harlan's opinion is very explicit in support of something like modern academic affirmative action. I also do not, of course, think that whether John Marshall Harlan thought affirmative action was acceptable is controlling on the issue, or of any but purely persuasive authority. The fact that he was on the right side of one of the worst decisions the Court has ever made makes him admirable, but if he was also wrongly against affirmative action that limits the scope of his admirability; the one does not provide sufficient authority or whatever to give weight to the other. But since this opinion is so often cited, including, as can sometimes curiously happen to dissents in cases that come to be seen as horribly wrong in retrospect, as an actual legal precedent of sorts, it is important to notice that he does not provide any support for a John Roberts-style color-blindness principle. Yes Harlan wanted color-blindness as to civil rights, but there's far more to life than civil rights.