Why the Court’s Civil Rights Hero Might Have Opposed Affirmative Action

Why the Court’s Civil Rights Hero Might Have Opposed Affirmative Action

“What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between the races, than state enactments which, in fact, proceed on the grounds that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens,” he wrote.

It was his constant theme: Failure to enforce equal protection fans the flames of racial animus.

Harlan’s sense of legal inequality as a cancer that could destroy the American system extended beyond the realm of Black-white relations. Though he joined a unanimous majority in rejecting a challenge to the Chinese Exclusion Act, for which the only legal issue was whether the Senate had the power to abrogate a treaty (and which remains the law today), he dissented sharply 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 had 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 pointedly denying them equal rights, Harlan saw the seeds of future wars being planted in his own time. While his colleagues contended that Hispanic and Asian populations were so backward that they couldn’t function under a constitutional structure, Harlan insisted that all individuals under the power of the Constitution be granted its protections, lest inequality reign.

“It will then come about that we will have two governments over the people subject to the jurisdiction of the United States — one, existing under a written Constitution … the other, existing outside of the written Constitution, in virtue of an unwritten law, to be declared from time to time by Congress, which is itself only a creature of that instrument,” he wrote.

Harlan sensed the tectonic plates of society shifting again, and feared a re-activation of the forces that led to the Civil War. In his mind, inequality under the law inevitably led to strife. It also altered social and economic structures in ways that were difficult to unravel. The simple solution was enforcement of the equal protection clause of the Constitution. That, in his mind, meant treating people of every race equally.

“God bless our dear country!” he declared in a speech before many of the nation’s leaders, including President Theodore Roosevelt, at a dinner commemorating his 25th year on the Supreme Court. “God bless every effort to sustain and strengthen it in the hearts of the people of every race subject to its jurisdiction and authority!”

It didn’t escape Harlan’s notice that the same paeons to 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, Justice Joseph Philo Bradley, writing for a court majority that rejected civil rights protections, suggested that the time had come for Black people to cease to be “the special favorite of the laws” — this, just 18 years after the Civil War and at a time when the Ku Klux Klan murdered Black men by the dozens. Harlan shot back: “It is, I submit, scarcely just to say that the colored race has been a special favorite of the laws.”

Harlan didn’t live to see the end of segregation, or to know that his own words would play a role in bringing it about. But he would not have failed to comprehend that legal measures to offset the effects of segregation operate on a different basis than those that enforced segregation. For a university that had barred Black students to then make special efforts to accept Black students — especially if was also granting preferences for applicants whose parents attended — was simply fair and just, advancing the cause of equality rather than impeding it.

But affirmative action has moved to a different place, as the nation’s pastiche of diversity has grown richer and more complex. Many universities aren’t linking racial preferences to past discrimination in the rigorous, fact-finding manner envisioned by some jurists, focused on how earlier practices altered the fates of today’s applicants. Rather, they are seeking diversity as an end unto itself, viewing anything but proportionate representation of racial groups as per se evidence of discrimination. America’s understanding of historical modes of exclusion and oppression may be stronger, but the connection between those dynamics and today’s beneficiaries of affirmative action may not be. Racial distinctions are varied and complicated; affirmative action, at least in some forms, is arbitrary. Not every beneficiary has suffered equally and not every person who is denied benefits wears a similar badge of privilege. There are also mechanisms such as preferences for students from disadvantaged backgrounds or for those who are the first in their families to go to college that can promote campus diversity without reference to race.

What Harlan could not accept is that racial distinctions come at little cost. Plessy v. Ferguson, with its winking assertion that separate railroad coaches were equal, weakened his appetite for alternatives to the essential mandate of equality. Experience taught him that privileges and detriments under the law are pernicious forces. When combined with race, they not only amplify discord but create it. After the Civil War, he alone among jurists predicted the devastation wrought by segregation, and saw its seeds in the unequal treatment of Hispanic and Asians.

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