Harlan and Clarence Thomas’ Color-Blind Constitution

05Nov09

I feel like I’ve been neglecting Harlan in this blog lately. There’s actually a technological reason for that. When I started this blog I created 2 Westclip searches: one for Brandeis and another for Harlan.  My email inbox soon started filling up with notices about Brandeis. I wasn’t particularly disturbed by the fact that I wasn’t getting any messages about Harlan; I just assumed nobody was doing any research on him. Then the other day while logged onto West I decided to take another look at my Westclip searches. Sure enough, I had misconfigured the Harlan search. Once I corrected the search, a number of articles showed up. Most of them were either to old or marginal to hold my interest, but three recent ones stood out. Interestingly, they all turned out to be related to Clarence Thomas and Harlan’s famous line about the color-blind constitution from his Plessy dissent.

The first was a speech given Berkeley professor Goodwin Liu, which unfortunately is not currently available online: “The First Justice Harlan” (96 California Law Review 1383). Liu starts by noting the irony that Harlan’s dissent was quoted by both the majority and dissenting justices in Parents Involved in Community Schools v. Seattle School District No. 1.  Liu uses that apparent contradiction as an excuse to delve into the history of Harlan’s life and the eternal mystery of how the author of the dissents in Plessy and the Civil Rights Cases could also write the majority opinion in Cumming v. Richmond County Board of Education and concur in Fong Yue Ting V. US and the Chinese Exclusion Cases.

Recent Duke graduate Hannah L. Weiner also noted Clarence Thomas’ quoting Harlan in Parents Involved in Community Schools and has written two articles about it. The first, “The Next ‘Great Dissenter’?: How Clarence Thomas Is Using the Words and Principles of John Marshall Harlan to Craft a New Era of Civil Rights” (58 Duke Law Journal 139) discusses how Thomas has latched onto the phrase “color-blind constitution” and used it almost literally in a number of his opinions to support his view that preferential treatment of any race by the government is unconstitutional. In “The Subordinated Meaning of ‘Color-Blind’: How John Marshall Harlan’s Words Have Been Erroneously Commandeered” (11 Journal of Social Change 45 — not currently available online), Ms. Weiner takes a look at the phrase itself and how it is used by two different schools of legal thought: anti-subordination and anti-classification. The anti-subordinationists believe that the Fourteenth Amendment was created to protect minority groups from the majority while the anti-classificationists (like Justice Thomas) believe that the Fourteenth Amendment forbids any special treatment of minorities. Ms. Weiner then puts the phrase in perspective of Harlan’s life and judicial opinion and come to the conclusion that Harlan was an anti-subordinationist.

There is another, rather tenuous, connection between Harlan and Parents Involved in Community Schools. While the name of the decision reflects the case that came from Seattle, that case was combined with another case that originated here in Louisville, Kentucky, which is also where Harlan practiced law for many years. The law library here at the University of Louisville received a copy of the briefs in Parents Involved in Community Schools and we have them bound and waiting for any who want to see them.

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