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‘The Great Dissenter’ kept his love for Kentucky at forefront of important legal life

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In 1904, a Breathitt County legislator named Carl Day proposed a law banning interracial education in Kentucky, even at private institutions where everyone wanted to learn together. It was a missile aimed squarely at Berea College, which had been founded a half-century earlier by a minister named John Fee expressly to allow Black people and white people, and men and women, to be educated in a spirit of Christian unity.

It was also a solution in search of a problem: No one at Berea had objected to the college’s arrangements. There was no pretext for Day’s intervention except politics. He wanted to be able to claim credit for stamping out one of the few sources of integration across the state. Even those legislators who privately expressed sympathy to Berea’s president felt obliged to vote for the law, fearing a backlash from racist constituents. State courts weren’t about to sympathize with Berea, either, with the Kentucky court of appeals ruling that the law was justified to preserve “purity of blood.” Outraged, and believing its rights were being trampled, the beleaguered Berea community had but one recourse, and that was to the U.S. Supreme Court.

Among the nine justices who would resolve the college’s fate there was one for whom the case struck an intensely personal note. He was the Bluegrass State’s own John Marshall Harlan, who was known by then as “The Great Dissenter” for his willingness to challenge his colleagues. Love for Kentucky was a constant in Harlan’s life. It had driven him as a young politician to support compromises to avoid a civil war that he felt would destroy a border state like his own. It had led him to take to the streets of Louisville with a bullhorn, imploring his fellow citizens to stay neutral rather than join the Confederacy. Later, his love of his state prompted him as Kentucky’s attorney general to oppose what he saw as the federal government’s insufficient recognition of his state’s loyalty and independence.

But it was a more bittersweet form of love for Kentucky that motivated the last, great turn in his life. After the Civil War, he watched with horror as the Ku Klux Klan asserted its power. Seeing segregation divide Kentuckians in much the same way as slavery, he came to believe that inequality under the law was a great sin that had almost destroyed the American experiment once through the Civil War – and would again pose an existential threat until the nation began living up to its first principle.

The principle was equal protection under the law.

Thus, when the Supreme Court foolishly and wrongly started caving in to the South’s desire for racial separation by invalidating the Civil Rights Act of 1875, refusing to enforce voting rights and then embracing the legal architecture of segregation in the 1896 case of Plessy v. Ferguson, Harlan spoke out in fiery, passionate dissents. “Our Constitution is color-blind and neither knows nor tolerates classes among citizens,” he wrote in his Plessy dissent. “In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. . .”

In 1908, when the Berea case finally made it to the Supreme Court, Harlan was 75. He had been fighting the court’s retrenchment on civil rights for a quarter century. And, sadly, he’d made little progress, though he always believed his views would be vindicated.

Once again, Harlan lost in the Berea case. He was the lone dissenter. It would be his final testament on the country’s racial woes, his farewell warning to the country and state that he served and honored.

“The capacity to impart instruction to others is given by the Almighty for beneficent purposes, and its use may not be forbidden or interfered with by government . . . it is beyond question part of one’s liberty as guaranteed against hostile action by the Constitution of the United States,” Harlan wrote.

Today, Harlan’s views are the law of the land. His arguments provided the foundation for Brown v. Board of Education and other cases in which the Supreme Court reversed itself on equal protection under the law. Black and white students learn together at Berea College, which is renowned as the first integrated, coeducated college in the South. Yet few students fully apprehend the role of the one man who kept the spirit of liberty and equality alive amid the darkest chapter in American law, or the way Kentucky’s hopes and struggles propelled him forward.

Peter S. Canellos is the author of “The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero.” He will be appearing at the Kentucky Book Festival on Nov. 6 at 12:30 p.m. at Joseph-Beth Booksellers in Lexington.

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