Anna Maria College
The Development of the Argument against Separate but Equal
Harlan’s Dissent and Thurgood Marshall
Race and Crime
December 19, 2017
Throughout history, African Americans have been oppressed merely for their color of
their skin. There have been a countless times when laws against Africans Americans have been
challenged due to their unconstitutionality. Brown v. Board of Education was the landmark case
in 1954 that undermined the laws that implemented unconstitutional segregation between white
and black citizens. This case, however, was backed by years of litigation that helped set the stage
for this landmark to finally be passed. Along with the very important dissent of Justice John
Marshall Harlan, who was the lone dissented in Plessy v. Ferguson, Thurgood Marshall was the
man who made the win in Brown v. Board of Education.
In 1892, passenger Homer Plessy refused to sit in a Jim Crow car, a segregated all black
railroad car. Even though Plessy was one-eighth black and seven-eighths white, he was still
considered black under Louisiana law. Under the Separate Car Act passed by Louisiana State
Legislature in 1890, all railway companies required equal, but separate train car accommodations
for both races. For violating this law, Plessy was brought before Judge John H. Ferguson of the
Criminal Court for New Orleans, who upheld the state law. The law was challenged in the
Supreme Court on grounds that it conflicted with the Thirteenth and Fourteenth Amendments.
The ruling in supreme court went to a 7-1 vote, with Judge John Marshall Harlan
as the lone dissenter. The majority believed that the the state law, set in 1890, is within
constitutional boundaries. Justice Henry Billings Brown led the majority decision and upheld the
segregation law imposed by the state. All justices that were on the upheld side based their
decision on the separate but equal doctrine. This doctrine says that separate facilities for blacks
and whites are constitutional under the Fourteenth Amendment so long as all facilities are equal.
Justice Brown had an entirely contrasting opinion in which he stated that the Fourteenth
Amendment intended to establish absolute equality for all races. Brown also noted that
segregation does not in itself constitute unlawful discrimination. This meaning that just because
segregation is present, it doesn’t mean that the separation of the races in unlawful.
Harlan was on the losing side of the 7-1 decision but his dissent was what helped set the
precedent for the reversal of the law in the 1954 landmark case Brown v. The Board of
Education. He noted in his dissent that a legislature could not differentiate on the basis of race
with regard to civil rights. He discussed how white citizens view themselves as the dominant
race but the Constitution says nothing of who the dominant race is, or that there even is one.
Harlan continued his dissent by saying that the Constitution is colorblind and t...