Of Color Lines and Race Lines: John Marshall Harlan, W.E.B. Du Bois, and the Persistence of Racial Inequality in a Colorblind Regime

The life of the first Justice Harlan has been the subject of myriad studies, largely inspired by his declaration “Our Constitution is color-blind,” which appeared in his storied dissent in Plessy v. Ferguson. This article interrogates unaddressed angles of his dissent that, when given proper attention, can deliver fruitful insights into his intentions behind the colorblind metaphor. The focus is primarily trained upon Harlan’s concept of the “race line,” which he referenced twice in his dissent. Placing this “race line” up against the colorblind Constitution will reveal that he purposed to keep whites educationally and financially dominant “for all time” by means of (colorblind) legal racial equality. The article delves further into the race line by juxtaposing it with W.E.B. Du Bois’s notion of the “color line,” which was voiced at the same moment of Plessy.


Introduction
Henry Billings Brown's majority opinion in the 1896 case Plessy v. Ferguson (163 U.S. 537) today ranks among the most ignominious rulings ever handed down by the United States Supreme Court.
Plessy's accession to legal segregation unleashed Jim Crow into every crevice of Southern society, rapidly ballooning from "separate but equal" train cars to "separate but equal" everything. Brown's logic thus came to constitute judicial common sense among most whites through the first half of the Twentieth Century. Such common sense persisted until the advent of the civil rights movement, whose campaigns against legal racial subordination ultimately eviscerated the rationales Brown had deployed in his defense of Jim Crow. From that moment forward, Brown's opinion has been almost universally condemned as indefensible by any yardstick of racial justice. Plessy itself remains today as it has since the civil rights movement: the target of near-ubiquitous disdain, its anti-canonicity scarcely in dispute (Harris, 2004, p. 181;Amar, 2011, p. 75;Breyer, 2015, p. 31;Turner, 2015).
Such obloquy evaporates, however, when we turn to the sole dissent Plessy spawned. John Marshall Harlan-the son of a prominent Kentuckian politician and the Court's lone former slaveholder-composed a sulfurous invective that unambiguously denounced the majority's capitulation to Jim Crow and their hypocrisy in claiming that legalized segregation was something other than racially oppressive. Harlan's dissent thus represents for many the fundamental "antithesis" (Kull, 1992, p. 112) to the "bad logic, bad history, bad sociology, and bad constitutional law" (Harris, 1960, p. 101) seen to define Brown's majority opinion; in this regard, Harlan's enduring truism "Our Constitution is color-blind" places him squarely in the ranks of the heroic antiracist among both right-wing (Note 1) and left-wing (Note 2) commentators alike.
Others are less convinced. Such critics point out that directly before declaring the Constitution colorblind, Harlan asserted that whites were racially "dominant" and would remain so "for all time"-with the key ingredient locking in white domination being legal obeisance to the very colorblind Constitution for which Harlan is so honored today. These mutually exclusive positions-were Harlan's intentions in Plessy antiracist or racist?-form the core of the ongoing debate enveloping his dissent and its implications in our conjuncture of postraciality.
In this article, I attach my voice to this latter set of interlocutors. The indignation pouring from Harlan's pen in Plessy, I suggest, stemmed solely from his hostility to legal racial oppression. For Harlan, whites' overwhelming control of educational and financial resources and political power was, in full contrast, something to be celebrated. While previous work has explored this perspective in the context of the famous passage in which Harlan labeled the Constitution colorblind, we find that this thematic of disparaging legal racism whilst championing every material expression of racial inequality defines his entire dissent. Taking this thematic as my starting point, I explore and analyze another concept from Harlan's opinion-one that has not received the attention it deserves. Early therein, friends of liberty throughout the world. They removed the race line from our governmental systems" (163 U.S. 537, 555). This in-depth study of Harlan's "race line" will confirm that the only injustice Harlan inveighed against was legal injustice, rather than the political marginalization and economic destitution in which blacks continued to languish.
The argument unfolds over three sections. First, I make a brief foray into the famed paragraph in which "Our Constitution is color-blind" resides, training my focus on the relationship between that statement and Harlan's hailing of white domination immediately preceding it. That discussion sets up my extensive analysis of the race line in the second section. This race line, I demonstrate, was fully a species of the legal realm. While the post-Civil War amendments had swept away black/white inequality "before the law," their removal of the "race line" did not translate into the concomitant annihilation of inequality in any other domain of society; blacks had remained disproportionately poor and uneducated in the race line-free decades following the Civil War, Reconstruction's interventions notwithstanding.
Only a few years after Harlan authored his Plessy dissent and spoke of a race line that served to legally inferiorize blacks, influential sociologist W.E.B. Du Bois published The Souls of Black Folk, coining therein the iconic axiom "The problem of the Twentieth Century is the problem of the color line" (2015, p. 1). Section three takes stock of the significance of this statement in the context of Harlan's dissent.
Comparing Harlan's "race line" and Du Bois's "color line" will not only expose their colossal differences, but will show how the former was restricted to its legal manifestations divorced from material racial inequalities in every other realm of society. Du Bois, in contrast, conceived the color line to incorporate the gamut of expressions of racial injustice: legal, economic, social, ad infinitum.
In concert, the three sections of this article aim to reveal the discursive cohesiveness informing John Marshall Harlan's Plessy dissent, demonstrating that he had white political and economic domination in mind not only in his homage to the colorblind Constitution, but throughout his musings on the role of the Constitution in a post-slavery nation. I conclude this article with a brief discussion of the place of these arguments in the context of current studies of Harlan's dissent and his complex life more generally.

Of Colorblindness and Racial Inequality
Before launching into my examination of John Marshall Harlan's "race line", I first provide contextualization via a study of the most quoted passage from his dissent in Plessy v. Ferguson, cited in its entirety: The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race (163 U.S. 537, 559).
Were these words an expression of unparalleled antiracism from a late-Nineteenth Century Supreme Court justice? Or were they an evocation of (in the condemnatory phrase of Roy Brooks [2009, p. ix]) "out-and-out white supremacy"? My analysis of this paragraph and the race line concept decisively points to the latter (Note 3).
First, what main ideas might we draw from the uber-influential iterations inflecting this passage? We can begin by splitting its ten sentences into two parts. The first part, covering the opening three sentences, represents Harlan's celebration of racial inequality in United States society of the late 1800s.
I label these Harlan's white domination sentences. Here, Harlan noted that whites considered themselves dominant (sentence one); agreed with them while furnishing empirical evidence of said dominance (sentence two); and confidently forecasted the reproduction of their domination "for all time" (sentence three.) The second part, comprising the passage's final seven sentences, strikes a crucially distinct chord. While Harlan began the paragraph lauding white domination in such arenas as education, wealth, and power, he marked a transition beginning in the fourth sentence: "But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens." Harlan was thus transitioning from an exaltation of white domination in such spheres as education and wealth to a veneration of legal racial equality, underscoring in the second section of the passage (and elsewhere throughout the dissent) that blacks and whites were "equal before the law." This commits us to the conclusion that all of Harlan's statements succeeding his fourth-sentence conjunction "But" were in exclusive reference to the legal realm. Harlan's dual use of the word "dominant" keys us into this difference. Whites may be dominant in prestige, achievements, education, wealth, and power, but in view of the Constitution, no dominant race exists in the eye of the colorblind law. When Harlan insisted "There is no caste here," he had only the government-sponsored variety in mind-the kind encoded by de jure systems of racial oppression (to wit, slavery and Jim Crow.) Racial caste clearly existed in every other domain of society; Harlan had just listed off its various dimensions in his white domination sentences. To put this another way: While no racial caste existed "in view of the Constitution," racial caste proved omnipresent "in view" of such material inequities as education, wealth, and power. This communicates that Harlan was solely seeking to end legal racial domination, rather than other manifestations of racial inequality (Hutchison, 2015). Yet the implications extend beyond this. It is not enough to say, on the one hand, "Whites are dominant in prestige, achievements, education, wealth, and power," and on the other hand, "all are equal before the law." A fundamental association binds these two realities, and Harlan illumined that association at the end of the passage's third sentence, when he surmised that the white race would retain its dominance "for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty." What exactly were those "principles of constitutional liberty" to which he was referring here? Harlan named them clearly enough in the second section of the above-quoted paragraph, from the idea that the colorblind Constitution affords all citizens equal access to the benefits of civil rights to the notion that all citizens are "peers" in the eye of the law no matter how "humble" or "powerful" they are elsewhere in society. The collective connotation of these assertions is evident-as recently articulated by Randall Kennedy (2013), these principles "posed no real threat to white supremacy" (p. 152). What Harlan was ultimately arguing was that whites were clearly dominant "in prestige, in achievements, in education, in wealth, and in power"-and that the best tactic to keep them that way was to declare whites and blacks equal before the colorblind Constitution (Carr, 1997, p. 116;Goldberg, 2002, p. 212). This formula of governmental colorblindness, numerous analysts have conclusively demonstrated, has proven beyond effective in reproducing the very racial inequalities Harlan enumerated in his famous passage (Alexander, 2010;Bonilla-Silva, 2013;Omi & Winant, 2013;Brown et. al., 2003). As Harlan communicated it, racial groups could be "equal before the law" (a point he repeatedly voiced throughout his opinion), but that did not mean they were equal in any other way.
It is Harlan, in his Plessy dissent, who became the progenitor of the idea that legal equality would successfully preserve the countless extralegal inequities circulating within society, from education to power to wealth. A concise summation of this position appears in Moon-Kie Jung's Beneath the Surface of White Supremacy (2015): "Harlan's 'antiracism' was one within the boundaries of white supremacy, one for legal equality that he was certain would not upset but safeguard white dominance" (p. 77; see also Han, 2015, p. 38).
The above serves to suggest that, far from being the intrepid antiracist for which Harlan is given so much credit and deference, his fervent support of black civil rights was predicated on his conviction that the colorblind Constitution would reproduce white domination "for all time." As he made clear in his white domination sentences, whites controlled vastly disproportionate political power and economic wealth-material inequalities that would carry over into a polity freed of Jim Crow's legal shackles.
"Introducing the notion of 'colorblind'," asserts David Theo Goldberg in Are We All Postracial Yet? In confirming this position, we need not solely dwell on "Our Constitution is color-blind" and its immediate discursive vicinity. Harlan thought through his Plessy opinion, and his conviction that legal racial equality and material racial inequality could easily cohabit informs the entirety of his dissent. To demonstrate this, the following section turns to Harlan's concept of the "race line," further affirming that the blistering opprobrium he aimed at Jim Crow represented an assault on legal caste and legal hierarchies, rather than upon whites' massive educational and financial advantages.

Of Race Lines and Legal Racial Hierarchy
The 1960s civil rights movement is rightly hailed as a watershed moment in the crusade for racial justice in the United States; it successfully vanquished de jure racial oppression via such cases as Brown v. Board of Education and the various civil rights laws. As a result, all citizens experience the "equality before the law" for which Justice John Marshall Harlan had advocated over half a century earlier. While the purging of legal racial subordination surely proved an unprecedented victory, other forms of racial caste continue to plague people of color, poisoning their live(lihood)s and truncating their dreams. All racial groups may today possess civil rights and be equals "in the eye of the law," but this has failed to translate into any other form of equality (powell, 1995, p. 894); people of color remain disproportionately poor and enter educational environments of lesser quality-all the while facing an altogether new form of racial caste in the guise of the nation's prison system, the population of which began skyrocketing in the immediate post-civil rights era (Alexander, 2010;Murakawa, 2014   We were slaves-and you have made us free-and given us the ballot. But the world has never seen any people turned loose to such destitution as were the four million slaves of the South. The old roof was pulled down over their heads before they could make for themselves a shelter. They were free! free to hunger; free to the winds and rains of heaven; free to the pitiless wrath of enraged masters, who, since they could no longer control them, were willing to see them starve (quoted in Turner, 2012, p.

56).
It was in these immediate post-Civil War years that Douglass came to acknowledge (in the words of Jack Turner) (2012) "that one could be legally free, politically enfranchised, and economically helpless While slavery and Jim Crow surely differed in the details, to Harlan they amounted to the same thing.
The race line of slavery ("an institution tolerated by law") had been removed, but the (legal) incubus of Jim Crow was now poised to take root in society. What the Constitution's accession to Jim Crow had accomplished, Harlan protested, was to place blacks "in a condition of legal inferiority." This was the sole manifestation of inferiority that concerned Harlan; in this vein, he could have tweaked his white domination sentences to read, "The black race is the subordinate race in prestige, in achievements, in education, in wealth, and in power" (Note 6). Such indicia of inferiority lay beyond the purview of the colorblind Constitution; the possession of civil rights would not upend white dominance or symbiotic black inferiority in these extralegal domains of society. The opportunity to exercise civil rights, Harlan averred, does not presuppose such equality-or lack thereof. They are two separate domains.
The race line concept, then, was indisputably legal. And it was horizontal as well; the legal distinctions it wrought placed blacks in a lower legal echelon, outside the penumbra of civil rights protections whites possessed as a matter of course. This race line had existed during slavery and was "removed" and "obliterated" thanks to the post-Civil War amendments-only to be reintroduced via the utter fiction of "separate but equal." These observations make the inherent horizontality of the race line clear: positioning whites on the top and blacks on the bottom in an environment of legally encoded unequal power relations.

Further Insights
What Harlan's staunch conviction on the legal evil of slavery (Przybyszewski, 1999, p. 39;Hutchison, 2015, p Combining all three references, we encounter another commonality-in each instance, Harlan employed the past tense: "removed" and "obliterated." In this context, we can compare it to his present-tense assertion "There is no caste here" (Note 7). Indeed, the two are discursively synchronous; the race line's removal had fomented the concomitant termination of racial caste. On this score, Harlan could have just as easily composed such statements as "There is no race line here" and "The post-Civil War amendments obliterated racial caste from our governmental systems" (Note 8) And all the while, whites remained dominant in every extralegal domain of society: race lines in prestige, achievements, education, wealth, and power abounded in society, and (recalling Douglass's lamentations) emancipation had done little to vitiate them. Like Douglass, Harlan understood that white domination would persist in a slavery-and Jim Crow-free nation: the three decades without these race lines gave him all the evidence and confidence he needed.
We can apply the relationship between the race line and racial caste to many of the other statements in Harlan's famous passage, for it was the race line's absence that proved the all-necessary precondition for his assertions therein. In a society with a race line, for example, the law decidedly does not "regard man as man"; this was incontestably the case during slavery, and that reality would return come Jim Crow. In this situation, "The humblest" is not "the peer of the most powerful," either socially (by definition) or legally (as was the race line's function.) Through all this, Harlan was arguing, in effect, that thanks to the race line, there were two Constitutions: one for whites (who would see their legal rights continuously protected), and one for blacks (who, being of a lower legal caste, would face the gamut of circumscriptions upon their civil rights.) As he strenuously attempted to make clear, there was only one Constitution: and it was colorblind.
Yet this race line-free Constitution would not dispel the extralegal material inequalities dividing whites and blacks. Placed in its proper context, the race line furnishes further evidence that Harlan was scarcely seeking the removal of any form of racial inequality beyond the legal. This observation will become clearer as we consider the race line along another "line"-one that has occasioned decidedly more analysis in its century-plus career.

Of Color Lines and Racial Oppression
Rivaling the popularity of Harlan's dissent and his assertion "Our Constitution is color-blind" is the great historian and sociologist W.E.B. Du Bois's proclamation that "the problem of the Twentieth Century is the problem of the color line." Innumerable academic and lay treatises on race and racism open their arguments with this quotation; it remains the entrypoint for a wide spectrum of discussions on the obdurate staying power of racial injustice in the United States (Lewis, 1994;Bush, 2009;Porter, 2010).
In with all its social, economic, interpersonal, and legal consequences.
The inherent inclusivity of the color line is further evidenced by the in-depth treatment it has received over the century-plus since its first voicing. Scholars across the disciplines employ the color line to illuminate and protest the oppression and inequalities that inundate American society and beyond, critically interrogating a world in which poverty continues to closely correlate with dark skin (Winant, 2002, p. 305). And its lasting popularity today further communicates that Du Bois's color line is scarcely tethered to solely the legal realm, as countless texts spanning the interdisciplinary gamut have drawn upon it in the decades following the demise of government-mandated racial oppression following the civil rights movement. Color lines continue to represent among the deepest fault lines in the United States today; the material inequities Harlan itemized provide merely an inkling of the disparities governing every measurement of life chances in this country. Harlan had himself boasted of whites' dominance in education and wealth, gaps that endure today (Oliver & Shapiro, 2006). To Harlan's list we could add a near-never ending inventory of indicators of insidious inequality, including infant mortality, neighborhood quality, life expectancy, job attainment, and the aforementioned hyperincarceration of poor black and Latino males (Wacquant, 2009;Alexander, 2010). These wealth, and power, so has the 1960s re-abolition of the race line failed to witness the termination of these same imbalances (Massey, 2007, p. 112).
None of the above would trigger the opprobrium of the colorblind Constitution, as the only racial injustice it can tackle is that of solely a legal nature. So long as the imbalances enumerated above contain no present-day legal underpinnings, the colorblind Constitution has no responsibility to rectify these and other egregious inequalities (O'Brien, 1998, p. 766). While Du Bois's color line speaks to and intervenes in the myriad villainous manifestations of racism, Harlan's race line possesses a most limited use in today's environment of formal legal equality.
The problem of the Twenty-First Century continues to be the problem of the color line (Prashad, 2002, p. 38). In this regard, Du Bois's maxim retains its vitality. David Wilkins, in a 1996 text, echoed the throngs of scholars who have commended his enduring statement, asserting that "the accuracy of Du Bois's prophecy is beyond dispute." Its sole shortcoming, continued Wilkins, "is the implication that this most American of problems might be solved in this century" (1996, p. 3 have gone far to publicize, drawing attention to their importance as a means to comprehend the gargantuan complexities characterizing this towering "judicial enigma" (Blackman, Frye, & McCloskey, 2013;Douglas, 2013;Przybyszewski, 1999;Yarbrough, 1995).
Asphyxiating the potential richness of these new angles on Harlan's life is the notably profound disagreement over his legacy and the import of his insights upon our society today. Nowhere does this disagreement appear more sharply than in the most scrutinized of his over one thousand opinions-his between Harlan and the majority was not over whether the law should support white supremacy, but rather about the best and most effective ways of supporting it" (2015, p. 128). Here, I have contended that Harlan's concept of the "race line" strengthens the claim that Harlan's interests lay in perpetuating white domination in prestige, achievements, education, wealth, and power "for all time"; I have illuminated how this race line proves fully compatible with the averments located in his most quoted passage. A polity without a race line, Harlan attempted to convey, was a polity without legal racial caste: and in both instances, material racial inequality would reign. Such inequality represented but a piece of the "color line" W.E.B. Du Bois spoke of at the same historical moment of Plessy. As Du Bois and Harlan both well understood (separated by their mutually exclusive racial goals), the law only represented part of the network and framework of racial oppression in the U.S. and the world beyond.
Equipped with this understanding, and using his influential perch on the bench of the Supreme Court, Harlan positioned himself at the vanguard of illustrating "that legal declarations of 'equality' are often tools for maintaining stratifying social and economic arrangements" (Spade, 2015, p. 14).
Colorblindness, as a result, has today functioned precisely as Harlan envisioned it would: as a legal device for preserving racial inequality in such areas as education, prison rates, wealth, and neighborhood quality. This colorblindness is arguably even more racially insidious than in Harlan's conception, as it likewise explains away these enduring racial differences as a function of the incapacity of people of color to take advantage of the equal opportunities the civil rights movement put in place half a century ago (Massey, 2007, p. 112;Bonilla-Silva, 2013, p. 87). In this regard, the 1960s civil rights acts had the same effect as the 1860s post-Civil War amendments-each "removed" and "obliterated" the race line, but accomplished neither for the persistence of racial inequality in a colorblind regime.