Via Jonathan Adler at Volokh Conspiracy, some differing views on the legacy of the first Justice Harlan (whose dissent in Plessy v. Ferguson had an important role in the recent affirmative action cases):
In the New York Times, Jamelle Bouie: No One Can Stop Talking about Justice John Marshall Harlan.
And at Politico, a long response and defense of Harlan by Peter S. Canellos, author of The Great Dissenter: The Story of John Marshall Harlan, America's Judicial Hero: We Shouldn’t Stop Talking About Justice John Marshall Harlan.
(excerpts from both at the first link above).
In addition to his dissents in Plessy and the Insular Cases, Harlan was a determined advocate of the view that the original meaning of the Fourteenth Amendment incorporated the Bill of Rights against the states. E.g., Twining v. New Jersey (1908) (Harlan dissenting) (Fifth Amendment self-incrimination); West v. Louisiana (1904) (Harlan dissenting) (Sixth Amendment confrontation clause); Maxwell v. Dow (1900) (Harlan dissenting) (Sixth Amendment unanimous jury); O’Neil v. Vermont (1892) (Harlan dissenting) (Eighth Amendment cruel and unusual punishment); Hurtado v. California (1884) (Harlan dissenting) (Fifth Amendment grand jury).
Further, although Harlan started out focusing on the due process clause as assuring procedural rights such as the grand jury in Hurtado, he later embraced the idea that the privileges or immunities clause incorporated all of the Bill of Rights’ rights (especially, for example, in Maxwell v. Dow).
My originalist question is: how much does this matter for original meaning? Harlan wasn't a drafter of the Fourteenth Amendment; his celebrated dissents came long after ratification; and he wasn't able to persuade a majority of the Court (in Plessy, he wasn't able to persuade any Justice).
On the other hand, Harlan (born 1833) was an adult and a politically active lawyer during the ratification debates. His dissents show, at least, that someone of that era could have the views of the Fourteenth Amendment he did — that the Constitution is colorblind, that the Bill of Rights applies against the states, etc. These views, then, are not merely the invention of the modern era, or even of Hugo Black's era.
I'm not sure, though, that they show any more than that.
Posted at 6:04 AM