The great dissenter's greatest dissents: The first justice Harlan, the "color-blind" constitution and the meaning of his dissents in the insular cases for the war on terror

American Journal of Legal History

Volumn 48, Issue 2, 2006, Pages 119-146

  Schepard, Eric ^a  

^a NONE

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[No Author keywords available]

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EID: 34548312351     PISSN: 00029319     EISSN: None     Source Type: Journal    
DOI: 10.2307/25434789     Document Type: Review

References (216)

1. See infra notes 24-39 and accompanying text.
2. See infra notes 29-31 and accompanying text.
3. 163 U.S. 537 (1896) (Harlan, J., dissenting).
4. Id. at 559.
5. Id.
6. Id. at 561.
7. Gabriel J. Chin, The Plessy Myth: Justice Harlan and the Chinese Cases, 82 IOWA L. REV. 151 (1996); Gabriel J. Chin, The First Justice Harlan by the Numbers: Just How Great was "The Great Dissenter?", 32 AKRON L. REV. 629 (1999); Earl M. Maltz, Only Partially Colorblind: John Marshall Harlan's View of Race and the Constitution, 12 GA. ST. U. L. REV. 973 (1996).
8. Fong Yue Ting v. United States, 149 U.S. 698 (1893).
9. Wong Kim Ark v United States, 169 U.S. 649 (1898).
10. LINDA PRZYBYSZEWSKI, THE REPUBLIC ACCORDING TO JOHN MARSHALL HARLAN 120-121 (1999); TINSLEY E. YARBROUGH, JUDICIAL ENIGMA: THE FIRST JUSTICE HARLAN, 190-191 (1995); see infra notes 85-88 and accompanying text.
11. Gabriel J. Chin, The Plessy Myth: Justice Harlan and the Chinese Cases, 82 IOWA L. REV. 151, 173 (1996); PRZYBYSZEWSKI, supra note 10, at 121-122.
12. PRZYBYSZEWSKI, supra note 10, at 121.
13. Chin, supra note 11, at 174.
14. Gabriel J. Chin, The First Justice Harlan by the Numbers: Just How Great was "The Great Dissenter?", 32 AKRON L. REV. 629, 647 (1999).
15. See infra notes 121-126 and accompanying text.
16. Rasul v. Bush. 542 U.S. 466. 470 (2004).
17. See infra notes 207 and accompanying text.
18. PRZYBYSZEWSKI, supra note 10, at 9.
19. 163 U.S. 537, 541 (1896).
20. Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
21. Nathaniel R. Jones, The Harlan Dissent: The Road Not Taken - An American Tragedy, 12 GA. ST. U. L. REV. 951, 951 (1996).
22. Plessy, 163 U.S. at 552 (Harlan, J., dissenting).
23. Plessy, 163 U.S. at 559 (Harlan, J., dissenting).
24. 347 U.S. 483 (1954).
25. T. Alexander Aleinikoff, Symposium on Race Consciousness and Legal Scholarship: Re-Reading Justice Harlan's Dissent In Plessy v. Ferguson: Freedom, Antiracism and Citizenship, 1992 U. ILL. L. REV. 961, 961 (1992).
26. Chin, supra note 11, at 151 n.3.
27. Lawrence v. Texas, 539 U.S. 558, 584 (2003) (O'Connor, J., concurring).
28. Grutter v. Bollinger, 539 U.S. 306, 378 (2003) (Thomas, J., dissenting).
29. See, e.g., Civil Rights Cases, 109 U.S. 8, 37-41 (Harlan, J., dissenting).
30. RICHARD E. WELCH JR., RESPONSE TO IMPERIALISM: THE UNITED STATES AND THE PHILIPPINE-AMERICAN WAR, 1899-1902 103 (1979).
31. Maltz, supra note 7, at 984.
32. See Gumming v. Richmond County Board of Education, 175 U.S. 628 (1899). By rejecting black parents' challenge to the use of their tax dollars to support a high school for whites without an analogous institution for blacks, Harlan, who wrote the opinion for the Court, seemingly endorsed segregation in schools. See also Pace v. Alabama 106 U.S. 583 (1883), in which Harlan concurred in the Court's decision to uphold a statute which punished "fornication and adultery" more severely if the acts were committed by members of different races than the same race.
33. Maltz, supra note 7, at 973.
34. YARBROUGH, supra note 10, at viii.
35. Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting).
36. http://college.hmco.com/history/readerscomp/rcah/html/ ah_040200_harlanjohnma. htm (last visited May 27, 2006).
37. Przybyszewski, supra note 10, at 41.
38. Jacob W. Landynski, John Marshall Harlan and the Bill of Rights: A Centennial View, 49 J. Soc. RESEARCH 899, 899 (1982).
39. YARBROUGH, supra note 10, at viii.
40. Plessy, 163 U.S. at 555.
41. Id. at 561.
42. Chin, supra note 11, at 167.
43. Hadley Arkes, Survey of Books Relating to the Law; IX. Casebooks: The Shadow of Natural Rights, or a Guide From the Perplexed, 86 Mich. L. Rev. 1492, 1518 (1988) (reviewing WALTER MURPHY JAMES FLEMING & WILLIAM HARRIS II., AMERICAN CONSTITUTIONAL INTERPRETATION (1986)).
44. Chin, supra note 11; Chin, supra note 14; Maltz, supra note 8, at 999-1015.
45. Maltz, supra note 7, at 999; On the nation's anti-Chinese bias, See Love, infra note 111, at 94.
46. Indeed, Chin concludes that Harlan was less likely to vote for Asian-American litigants than the Court as a whole. Chin, supra note 14, at 646.
47. 149 U.S. 698 (1893).
48. 169 U.S. 649 (1898).
49. Maltz, supra note 7, at 1001.
50. Id.
51. Fong Yue Ting, 149 U.S. at 726.
52. U.S. CONST. amend. XIV, § 1.
53. Fong Yue Ting, 149 U.S. at 725.
54. Id. at 724.
55. U.S. CONST. amend. V.
56. Fong Yue Ting, 149 U.S. at 730.
57. Id. at 754, 738, 764.
58. Id. at 759-760 (Field, J., dissenting).
59. Maltz, supra note 7, at 1012 (claiming that Harlan concurred in the majority opinion); Chin, supra note 11, at 161 n.69 (asserting that Harlan did not participate).
60. 158 U.S. 538, 544-546 (1895).
61. 189 U.S. 86, 97, 100-101 (1902).
62. JAMES E. KERR, THE INSULAR CASES: THE ROLE OF THE JUDICIARY IN AMERICAN EXPANSIONISM 89 (1982).
63. LOREN P. BETH, JOHN MARSHALL HARLAN: THE LAST WHIG JUSTICE 256 (1992).
64. Fong Yue Ting v. United States, 149 U.S. 698, 764 (1893) (Fuller, J., dissenting).
65. 169 U.S. 649 (1898).
66. Maltz, supra note 7, at 1012.
67. U.S. CONST. amend. XIV, § 1.
68. Wong Kim Ark, 169 U.S. at 682.
69. Id. at 694.
70. Id.
71. Plessy v. Ferguson, 163 U.S. 537, 563 (1896) (Harlan, J., dissenting).
72. Wong Kim Ark, 169 U.S at 741.
73. Id. at 721; Harlan seemed to believe that the Chinese aliens in America were subject to a foreign power, See infra note 85.
74. Id. at 731.
75. Id. at 715.
76. BETH, supra note 63, at 237.
77. KERR, supra note 62, at 19.
78. PRZYBYSZEWSKI, supra note 10, at 44.
79. Id. at 121.
80. Gabriel J. Chin et al., Beyond Self-interest: Asian Pacific Americans Toward A Community of Justice, A Policy Analysis of Affirmative Action, 4 Ucla Asian Pac. Am. L. J. 129, 144-145 (1996).
81. Maltz, supra note 7, at 1014-1015.
82. See ERIC T. L. LOVE, RACE OVER EMPIRE: RACISM AND U.S. IMPERIALISM 1865-1900 94 (2004).
83. Plessy v. Ferguson, 163 U.S. 537, 561 (1896) (Harlan J., dissenting).
84. Chin, supra note 11, at 175; In Plessy, though Harlan stated that the Chinese are excluded because we consider them to be so different from our own race, he did not indicate whether he actually agreed with that proposition. Plessy, 163 U.S. at 561. In fact, one could argue that he included the observation about the Chinese in Plessy merely to demonstrate the irony of a statute which discriminated against one race and not another.
85. PRZYBYSZEWSKI, supra note 10, at 120; When he reported back to class after the case was decided he expressed his fears that the majority opinion would require the United States to save one its Chinese citizens from beheading at the whim of the Emperor when he returned to his homeland. Id. at 121.
86. YARBROUGH, supra note 10, at 190-191 (emphasis added).
87. Id. at 191.
88. Chin, supra note 11, at 171 ; PRZYBYSZEWSKI supra note 8, at 121.
89. Chin, supra note II, at 162 (citing Wong Wing v. United States 168 U.S. 228, 237 (1896)).
90. Maltz, supra note 7, at 1010
91. 118 U.S. 356 (1886).
92. Maltz, supra note 7. at 1003.
93. Id. at 1002.
94. Chin, supra note 14, at 646.
95. Id.
96. Id.
97. Chin, supra note 11, at 173.
98. Id. at 174.
99. See Maltz, supra note 7, at 1015. "This record demonstrates that modern commentators have often overstated Harlan's distaste for race based classifications... [H]is sympathy for the situation of free blacks should be characterized as no more than that-sympathy for free blacks specifically...In short, in Harlan's view, the Constitution was only partially 'color-blind'."
100. Id. at 182.
101. Chin, supra note 14, at 647.
102. See Chin, supra note 11; Chin, supra note 14.
103. See Maltz, supra note 7.
104. JAMES W. ELY JR., THE CHIEF JUSTICESHIP OF MELVILLE W. FULLER: 1888-1910 (1995).
105. PRZYBYSZEWSKI, supra note 10, at 95.
106. KERR, supra note 62, at 28.
107. ELY, supra note 104, at 174; see also Gerald L. Neuman, Closing the Guantanamo Loophole, 50 LOY L. REV. 1, 8 (2004).
108. ELY, supra note 104, at 174.
109. YARBROUGH, supra note 10, at 96; WELCH, supra note 30, at 70.
110. ELY, supra note 104, at 174.
111. Many anti-imperialists supported granting full citizenship to the inhabitants of the Hawaiian Islands because they assumed it would motivate the United States to relinquish them. PRZYBYSZEWSKI, supra note 8, at 136. Southerners in particular feared that the territories would bring millions of new colored "dependents" who might even flood the borders. Indeed, racism could serve the ends of both imperialism and anti-imperialism. See DAVID W. BLIGHT, THE CIVIL WAR IN AMERICAN MEMORY, 353-354 (2001); See also LOVE, supra note 82.
112. Love, supra note 82, at 102.
113. Id. at 103.
114. PRZYBYSZEWSKI, supra note 10, at 136.
115. WELCH, supra note 30, at 103.
116. PSZYBYSZEWSKI, supra note 10, at 138.
117. Id. at 139.
118. Neuman, supra note 107, at 9.
119. 182 U.S. 244 (1901).
120. U.S. CONST. art. 1, § 8, cl. 1.
121. PRZYBYSZEWSKI, supra note 10, at 138.
122. Downes, 182 U.S. at 244, 287, 344.
123. U.S. CONST. art. IV, § 3, "The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States."
124. Downes, 182 U.S. at 285.
125. ELY, supra note 104, at 175-176. The specific legal doctrine of incorporation and the way in which Brown and White's opinions differed need not be elaborated here. For an indepth examination of the difference between them, see Burnett, infra note 187.
126. Downes, 182 U.S. at 286; Downes, 182 U.S. at 291. According to Justice Brown, constitutional natural rights included "the rights to one's own religious opinion and to a public expression of them, or, as sometimes said, to worship God according to the dictates of one's own conscience; the right to personal liberty and individual property; to freedom of speech and of the press; to free access to courts of justice, to due process of law and to an equal protection of the laws; to immunities from unreasonable searches and seizures, as well as cruel and unusual punishments; and to such other immunities as are indispensable to a free government..." Id. at 282-283
127. Id. at 282.
128. Id. at 279-280.
129. Id. at 306. He also seemed particularly concerned that since the House did not have authority to make treaties, the body most directly accountable to the people (the 17th Amendment enacting direct election of senators had not been passed yet) would be deprived of the ability to decide whether or not the United States should accept "alien races" if territories were incorporated immediately upon annexation. Id. at 313-314.
130. 190 U.S. 197 (1903).
131. KERR, supra note 62, at 99.
132. Mankichi, 190 U.S. at 209.
133. Id. at 211.
134. Justice White again submitted a concurrence. Id. at 218.
135. KERR, supra note 62, at 99.
136. Mankichi, 190 U.S. at 217-218.
137. "There are certain principles of natural justice inherent in the Anglo-Saxon character which need no expression in constitutions or statutes to give them effect or to secure dependencies against legislation manifestly hostile to their real interests." Downes v. Bidwell, 182 U.S. 244, 280 (1901).
138. Id. at 211-212 (emphasis added).
139. 195 U.S. 138 (1904).
140. Id. at 145.
141. Robert A. Katz, The Jurisprudence of Legitimacy: Applying the Constitution to U.S. Territories, 59 U. CHI L. REV. 779, 795 (1992).
142. Dorr, 195 U.S. at 148.
143. See supra notes 65-79 and accompanying text.
144. See supra notes 49-64 and accompanying text.
145. See supra notes 82-88 and accompanying text.
146. KERR, supra note 62, at 42. Downes was decided in 1901, Dorr was decided in 1904, the insurrection in the Philippines lasted until at least April, 1902.
147. PRZYBYSZEWSKI, supra note 10, at 127-128.
148. Downes v. Bidwell 182 U.S. 244, 347 (1901); Hawaii v. Mankichi, 190 U.S. 197, 221 (1903).
149. Downes, 182 U.S. at 375; Mankichi, 190 U.S. at 226-227.
150. KERR, supra note 62, at 42.
151. Dorr v. United States, 195 U.S. 138, 154 (1904).
152. Downes, 182 U.S. at 377.
153. Id. at 384.
154. Id. at 379.
155. See supra note 137-138 and accompanying text.
156. PRZYBYSZEWSKI, supra note 10, at 142.
157. Downes, 182 U.S. at 381.
158. Hawaii v. Mankichi, 190 U.S. 197, 243 (1903).
159. Id. at 240.
160. Id. at 239; ("Thus will be engrafted upon our republican institutions, controlled by the supreme law of a written Constitution, a colonial system entirely foreign to the genius of our Government and abhorrent to the principles that underlie and pervade the Constitution.")
161. See, supra note 151.
162. Dorr v. United States, 195 U.S. 138, 154 (1904).
163. Id. at 155.
164. Id.
165. Id. at 156. (emphasis in the original)
166. Id. at 155.
167. As previously noted, Harlan compared the Plessy dissent to Dred Scott. Plessy v. Ferguson, 163 U.S. 537, 559 (1896). He also chastised the Court for failing to recognize that "[t)he thin disguise of "equal" accommodations for passengers in railroad coaches will not mislead any one, nor atone for the wrong this day done. Id. at 562.
168. Dorr, 195 U.S. at 155.
169. It should be noted that Harlan expressed the most concern with the proposition that under the majority's ruling, an American soldier, a citizen of the United States, would be denied the right to trial by jury if he were charged with a crime while stationed in the Philippines. Id. at 156-157.
170. It is possible to reconcile the cases on relatively technical grounds. Some have stated that Harlan's dissents in the Insular Cases advocated for "full citizenship for the 'alien races' of the noncontiguous territories...," YARBROUGH, supra note 10, at 200. It is not clear, however, that Harlan believed the people, of the territories were immediately entitled to full citizenship. In none of the cases did Harlan explicitly state that the inhabitants of the territories were entitled to all the privileges of full citizens and he fully concurred in Fuller's dissent in Downes which specifically declined to decide the question of whether the inhabitants of the territories were entitled to citizenship. See Downes v. Bidwell, 182 U.S. 244, 365 (1901) (Fuller, J., dissenting). Even if Harlan did believe the inhabitants were entitled to full citizenship Congress could still withhold statehood from the territories indefinitely, thereby denying the territorial inhabitants the right to vote in federal elections indefinitely as well. Burnett, infra note 187, at 802. Therefore, one could argue that Harlan basically extended to the territorial inhabitants the same constitutional protections that Chinese non-citizens already in the United States possessed.
171. Dorr v. United States, 195 U.S. 138, 156 (1901).
172. Yarbrough, supra note 10, at 191-200. In her biography of Harlan, Przybyszewski seems to agree with Chin and Maltz's analysis that Harlan's jurisprudence and personal attitudes toward the Chinese demonstrate that he did not believe in some abstract ideal of human equality. See PRZYBYSZEWSKI, supra note 10, at 121. Yet, she also asserts that Harlan believed that the distinguishing characteristic of Anglo-Saxons was their willingness to apply their system of rights and liberties to the non-white races, particularly those in the acquired territories. Id. at 124. She never explicitly explains why Harlan believed that Anglo Saxons had a responsibility to spread such values to the inhabitants of the Insular possessions while he assented to Congress's decision to subject Chinese within America's borders to expulsion and deny them access to citizenship. Id. at 118-146. She discusses Marian's speeches on the Spanish-American War and notes that they stressed "... a less common theme, the importance of racial equality to the American mission" but she does not use the evidence to refute Chin's or Maltz's arguments that Harlan's sympathies did not extend to races other than the freed slaves. Id. at 132.
173. YARBROUGH, supra note 10.
174. See supra note 32; YARBROUGH, supra note 10, at viii-ix.
175. PRZYBYSZEWSKI, supra note 10, at 41.
176. Id. at 41.
177. Id.
178. Id. at 126.
179. PRZYBYSZEWSKI, supra note 10, at 133.
180. Id. at 127.
181. PRZYBYSZEWSKI, supra note 10, at 132.
182. Id. at 132. (emphasis in original)
183. Id. at 134.
184. ee supra note 111 and accompanying text.
185. WELCH, supra note 30, at 103.
186. Id. at 103.
187. Christina Duffy Burnett, Untied States: American Expansion and Territorial Deannexation, 72 U. CHI. L. REV. 797, 878 (2005).
188. NOEL J. KENT, HAWAII: ISLANDS UNDER THE INFLUENCE 64 (1993).
189. AMY KAPLAN, THE ANARCHY OF EMPIRE IN THE MAKING OF U.S. CULTURE 9 (2002).
190. BETH, supra note 63, at 256.
191. Id.
192. Bartholomew H. Sparrow, The Public Response to Controversial Supreme Court Decisions: The Insular Cases, 30 J. S. CT. HIST. 197, 209-210 (2005).
193. Gabriel Chin and Diana Yoon, Insular Cases, DICTIONARY OF AMERICAN HISTORY, 367 (Stanley I. Kutler ed., 3d ed. 2003).
194. Chin, supra note 14, at 629-630.
195. Maltz, supra note 7, at 1015.
196. Rasul v. Bush, 542 U.S. 466 (2004).
197. Id. at 470.
198. Id. at 471.
199. Neuman, supra note 107, at 3.
200. Id.
201. Rasul v. Bush 542 U.S. 466, 470-483 (2004).
202. Id. at 488-506 (Scalia, J., dissenting).
203. Id. at 481.
204. Id. at 483 n. 15.
205. Id. at 483.
206. Downes v. Bidwell, 182 U.S. 244, 385 (1901).
207. Dorr v. United States, 195 U.S. 138, 156 (1904).
208. Kermit Roosevelt III, Current Debates in the Conflict of Laws: Application of the Constitution to Guantanamo Bay: Guantanamo and the Conflict of Laws: Rasul and Beyond, 153 U. PA. L. REV. 2017, 2036 (2005).
209. Id. at 2018.
210. Although entitled to due process, enemy combatants probably receive fewer constitutional protections than ordinary criminals. See Hamdi v. Rumsfeld, 542 U.S. 507, 533-540. An enemy combatant has not been exactly classified and it is not clear whether someone accused of acts of terrorism against the United States could be so classified. For purposes of the decision in Hamdi, an enemy combatant was defined as an individual who, the government alleges, was "part of or supporting forces hostile to the United States or coalition partners" in Afghanistan and who "engaged in an armed conflict against the United States" there. Id. at 516. It is not clear, of course, whether the Guantanamo prisoners were detained because they were thought to be complicit in acts of terrorism or because they were engaged in armed conflict against the United States in Afghanistan.
211. Kim Lane Scheppele, Terrorism and the Constitution: Civil Liberties in a New America: Law in a Time of Emergency: States of Exceptions and the Temptations of 9/11, 6 U. PA. J. CONST. L. 1001, 1024-1026 (2004).
212. See Hamdi, 542 U.S. 507.
213. See supra note 34 and accompanying text.
214. Downes v. Bidwell, 182 U.S. 244, 385.
215. See WELCH, supra note 30, at 40-42.
216. Hawaii v. Mankichi, 190 U.S. 197, 239 (1903); "Thus will be engrafted upon our republican institutions, controlled by the supreme law of a written Constitution, a colonial system entirely foreign to the genius of our Government and abhorrent to the principles that underlie and pervade the Constitution."