If nothing else, the Supreme Court’s decision in Students for Fair Admissions v. Harvard is a victory for the conservative vision of the so-called colorblind Constitution — a Constitution that does not see or recognize race in any capacity, for any reason.

As Chief Justice John Roberts wrote in his opinion for the court, “To eliminate racial discrimination means to eliminate all of it.” Or as Justice Clarence Thomas put it in his concurrence, “Under our Constitution, race is irrelevant.”

The language of colorblindness that Roberts and Thomas use to make their argument comes directly from Justice John Marshall Harlan. lonely dissent in Plessy v. Ferguson, the decision that upheld Jim Crow segregation. “There is no caste here. Our Constitution is colorblind, and neither recognizes nor tolerates classes among citizens,” wrote Harlan, who struck down a Louisiana law establishing “equal but separate” accommodations on passenger railroads.

But there is more to Harlan’s dissent than his most-quoted words would lead you to believe. When read in its entirety, the dissent paints a picture of Harlan not as a defender of equality, but as someone who believes that the Constitution can ensure hierarchy and inequality without the assistance of state law. It is not that segregation was wrong but that, in Harlan’s view, it was unnecessary.

Today, Harlan’s dissent is among the most famous in Supreme Court history. For much of the century after they were written, however, Harlan’s words were obscure, known mostly to opponents of white supremacy. For obvious reasons, the court ignored Harlan during his long period of indifference to racial segregation. But the court also ignored Harlan when, in the 1940s and ’50s, it began to undermine Jim Crow and strike down state laws requiring racial segregation.

You won’t find Harlan in Smith v. Allwright of 1944, which canceled the “white primary”. You will not find him in Shelley v. Kraemer of 1948, which prohibited states from enforcing racially restrictive housing covenants. And you won’t find him in Brown v. Board of Education (1954), in which the court overturned Plessy and declared compulsory school segregation illegal.

Harlan does not begin to appear in the opinions of the Supreme Court and its justices with any regularity until the 1980s, when Republican appointees began to target the favorable policies of the previous decade.

In dissent, accompanied by judge William Rehnquist, to the decision of the court in Fullilove vs. Klutznick in 1980, Justice Potter Stewart cited Harlan’s claim that the Constitution is “colorblind” to challenge the majority’s view that Congress could use its spending power to mitigate past discrimination. “According to our Constitution,” he wrote, “any official act that treats a person differently because of his race or ethnic origin is inherently suspect, and presumably invalid.”

In City of Richmond v. Croson in 1989, the court struck down a municipal set-aside program for minority businesses as a violation of the equal protection clause of the 14th Amendment. In his concurrence, Justice Antonin Scalia cited Harlan to argue that “the difficulty of overcoming the effects of past discrimination is as nothing compared to the difficulty of eradicating from our society the source of those effects, which is the tendency – fatal to a nation such as ours – to classify and judge men and women based on their country of origin or the color of their skin.”

Thomas, as one of the most influential proponents of the colorblind Constitution, cited or invoked Harlan during his tenure on the Supreme Court.

What is interesting about the conservative use of Harlan’s dissent in Plessy is that it begins and ends with his rejection of legal caste and its assertion that the Constitution “neither recognizes nor tolerates classes among citizens.” Conservatives seem less interested in the words that immediately precede Harlan’s principle.

“The white race thinks of itself as the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power,” Harlan wrote. “So I have no doubt, it will continue forever if it remains faithful to its great heritage and holds fast to the principles of constitutional freedom. But considering the Constitution, in the eye of the law, there is in this country no superior, dominant , a ruling class of citizens.” What follows are the words we are most familiar with.

If you read the most quoted part of Harlan’s dissent in isolation, you might get the impression that this former slave owner was some kind of anti-racist pioneer. The context makes it clear that he was nothing of the sort.

“When Harlan spoke approvingly of equality, it was always in its legal manifestations,” observes legal scholar Phillip Hutchison in 2015 analysis of the Plessy disagreement. “Collectively, it is clear from all these references that, for Harlan, the legal equality he spoke of worked in isolationas in the opening sentences of the passage, he made the social inequality between blacks and whites unambiguous.”

Harlan’s account for the colorblind Constitution rested, within the text, on a belief in the inherent superiority of white Americans and the basic inferiority of their Black counterparts. “Blacks and whites might be ‘equal before the law,'” notes Hutchison, “but that did not mean they were equal in any other respect—in the social sphere, racial inequality would prevail ‘forever’ if the nation remained blind . to race ‘in view of the Constitution.’ “

There is another step in Harlan’s dissent that seems to suggest an egalitarian worldview. “As far as civil rights are concerned, all citizens are equal before the law,” Harlan wrote. “The humblest is the peer of the most powerful. The law regards a person as a person and does not consider his surroundings or his color when his civil rights guaranteed by the supreme law of the land are involved.

But, as Hutchison points out, this is just another statement of Harlan’s indifference to social realities as it relates to the law. “The same implication applies,” Hutchison writes, “just as men could be ‘equal before the law’ while astonishingly unequal in every other respect, the law could still ‘regard a man as a man’ whether that man lived in a mansion or a cardboard box. .”

Douglas S. Reed, professor of government at Georgetown, writes that Harlan’s dissent “relies in part on a legal formalism that forces public actors to keep reality at bay, ignore the lived realities of inequality within the American experience, and grasp a strict separation between public, legal categories and private, social position. .”

It is as if Harlan is repeating, without apparent irony, Anatole France’s joke that “the law, in its majestic equality, forbids the rich and the poor to sleep under bridges, beg in the streets and steal their bread.” The law may not recognize social distinctions and material inequalities, but social distinctions and material inequalities continue to exist and shape the way the law is felt by both groups and individuals.

The core of Harlan’s disagreement in Plessy is a practical disagreement with the majority. Unlike the other judges and the State of Louisiana, he does not believe that it is necessary to separate Americans by race in public places in order to maintain white racial supremacy: “Social equality no longer exists between two races when traveling in a passenger coach or public highway than when members of the same races sit side by side in a streetcar or in the jury box.” The argument that social equality could exist “between the white and black races in this country,” Harlan says, “is hardly worthy of consideration.”

Legal separation, he adds, will only “keep the conflict of races alive” and delegitimize the United States before the world: “We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a legal state that, in practice, puts the sign of slavery and degradation upon a large class of our fellow citizens, our equals before the law.”

As Harlan saw it, the “white race,” as long as it “remained faithful” to the “principles of constitutional liberty,” did not need Jim Crow. It would remain “the dominant race” “in prestige, in achievements, in education, in wealth, and in power.” The color-blind Constitution would do as much as legal separation to maintain supremacy, without risk to order or international prestige.

Conservatives will certainly disagree with this assessment of Harlan’s dissent. So will others. Even though Harlan was not egalitarian, his words were used by generations of civil rights activists in their war against legal caste.

But the text is the text, and Harlan the high-level defender of white racial supremacy is more consistent with his life, his views (as a younger man, he initially opposed the Reconstruction Amendments) and his jurisprudence (three years after Plessy, he would to support a system of school segregation that taxed black families for the exclusive benefit of whites) than is Harlan the anti-racist.

More importantly, to read Harlan’s dissent in full is to see why it was so readily accepted in the era of opposition to efforts to redress racial inequality and past injustice. As Harlan knew, a colorblind Constitution could do as much or more to maintain a hierarchical and unequal society as laws designed for that purpose.

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