Justice John Marshall Harlan as Prophet: The Plessy Dissenter\u27s Color-Blind Constitution

The concept of color-blindness has long elicited much debate over its precise meaning and the role it should play in jurisprudence. Such debate was catalyzed by Justice John Marshall Harlan\u27s well-known Plessy dissent. In the wake of the efforts of both civil rights activists and conservatives to use color-blindness to further their respective goals, Professor O\u27Brien seeks to clarify Harlan\u27s vision of color-blind jurisprudence and examines the ways in which recent Supreme Court decisions echo Harlan\u27s concepts regarding a color-blind constitution. Professor O\u27Brien first provides a brief introduction to the concept of color-blindness. O\u27Brien then examines Harlan\u27s experiences in politics and war to explain the bases of Harlan\u27s beliefs, which O\u27Brien argues were steeped in white paternalism and Republican federalism. By analyzing Harlan\u27s decisions in several key cases, O\u27Brien pinpoints two consistencies in Harlan\u27s race jurisprudence: his commitment to federalism and his belief that for a court to find that a plaintiff has been racially discriminated against, the discrimination must have been explicit and purposeful. Finally, O\u27Brien adresses the limitations of constitutional color-blindness and the ways in which current members of the Supreme Court continue to echo Harlan\u27s opinions regarding the interaction between federalism and color-blind racial justice. Professor O\u27Brien concludes that although John Marshall Harlan was prophetic in his prediction that legally sanctioned segregation would place minorities in a position of legal inferiority, Harlan\u27s world-view caused him to fail to address pervasive prejudice against African-Americans by elevating formal equality and federalism concerns above social realities and remedial needs. Additionally, O\u27Brien concludes that, like Harlan, the current Supreme Court unnecessarily has limited its remedial power with regard to racial justice