The Plessy Myth: Justice Harlan and the Chinese Cases
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Chinese Cases
Gabrielj. Chin*
INTRODUCTION
For a century, the vision of racial equality expressed in John Marshall
Harlan's dissent in Pessy v. Ferguson' has captured the legal imagination in
a way matched by few other texts. Even today, the symbolic power of
Harlan's rejection of segregation of African Americans and whites in New
Orleans streetcars is rivaled only by the Reverend Martin Luther King, Jr.'s
I Have a Dream speech and Brown v. Board of Education=2 itself.!
* Assistant Professor of Law, Western New England College School of Law. BA,
Wesleyan University, 1985; J.D., Michigan Law School, 1988; LL.M., Yale Law School, 1995. E-
Maih gchin@law.wnec.edu. This Article received the 1996 Thurgood Marshall MemorialPaper
Award from the Southeast-Southwest People of Color Legal Scholarship Conference, and was
prepared for a conference on the Centennial of Plessy v. Ferguson at the University of Maryland
Law School. A much shorter discussion of this issue appeared as The Great Dissenter had Limits,
Baltimore Sun, May 12, 1996, at 6F.
Special thanks to Taunya Lovell Banks for her generous support of this project. Thanks
also to Keith Aoki, J.M. Balkin, Robert Chang, Richard Delgado, James Gardner, Anne
Goldstein, James Gordon, Neil Gotanda, Charles Kelso, Denise Morgan, Alice Noble-Aligire,
Fred Yen, and Frank Wu for their comments and suggestions; to Marilyn Gaffen,J.D., Western
New England College School of Law, 1996, for her excellent research; and to Barbara Falvo
and JoAnn Spinelli for their indispensable administrative support.
1. 163 U.S. 537, 552 (1896) (Harlan, J., dissenting). For the background of the case, see
Charles A. Lofgren, The Plessy Case: A Legal-Historical Interpretation (1987); Paul Oberst,
The Strange Career ofPlessy v. Ferguson, 15 Ariz. L. Rev. 389 (1973); C. Vann Woodward, The
Case of the Louisiana Traveler, in Quarrels That Have Shaped the Constitution 157 (John
Garraty ed., rev. ed. 1987).
2. 347 U.S. 483 (1954).
3. See William J. Brennan, Jr., In Defense of Dissen4 37 Hastings LJ. 427, 431 (1986)
(calling the dissent masterful); Michael McConnell, Osiginalism and theDesegregationDisions
81 Va. L Rev. 947, 1120 (1995) (calling the dissent justly famous); Derek Bok, A Callfor
Pressure on Apartheid, Boston Globe, Apr. 7, 1985, Focus Section, at A21 (stating that the
sentiments in Harlan's dissent reflect ideals central to our national creed); Edwin Yoder,
Another Blunder on Civil Rights, Wash. Post, June 7, 1983, at I (noting that the dissent was
heroic); see also Patterson v. McLean Credit Union, 491 U.S. 164, 174-75 (1989) (citing Plessy
dissent, along with Brown and one other case, as evidence of our society's deep commitment
to the eradication of discrimination based on a person's race or the color of his or her skin);
T. Alexander Aleinikoff, Re-Reading Justice Harlan's Dissent in Plessy v. Ferguson: Freedom, Anti-
Racism, and Citizenship, 1992 U. Ill. U Rev. 961, 961 (Justice Harlan's [PesMY dissent] has
become an important cultural text in late twentieth century America.); Daniel Farber &
Suzanna Sherry, The Patiah Pindpl, 13 Const. Commentary 257, 266 (1996) (calling dissent
justly lauded); Louis Filler, John M. Harlan, in 2 The Justices Of The Supreme Court, 1789-
1969, Their Lives And Major Opinions 289 (Leon Friedman & Fred Israel eds., 1969) (Like](ViewImageLocal?handle=hein.journals/ilr82&div=13&collection=&method=preview&ext=.png&size=3)
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The Plessy Myth: Justice Harlan and the Chinese Cases
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