At Volokh Conspiracy, Josh Blackman: Frederick Douglass Praises the "Courage" Of Justice John Marshall Harlan. From the introduction:
One of the coolest pieces I saw [on a visit to the University of Louisville] was a letter that Frederick Douglass wrote to Justice Harlan shortly after the Civil Rights Cases (1883) was decided. I encourage you to read the entire letter…. Here is an excerpt:
[Harlan's dissent] seems to me to be absolutely unanswerable and unassailable by any fair argument at any point for there is not a single weak point in it. You had an important and in some respects a difficult and delicate work to do, and you have done it with amazing ability skill and effect. . . . I have nothing bitter to say of your Brothers on the Supreme Bench, though I am amazed and distressed by what they have done. How they could at this day and in view of the past commit themselves and the country to such a surrender of National dignity and duty, I am unable to explain. I have read what they have said, and find no solid ground in it. Superficial and [???], smooth and logical within the narrow circumference beyond which they do not venture, that is all
The post continues:
To this day, I remain convinced that Justice Harlan was correct in the Civil Rights Cases. Had his view prevailed, the Court would have never needed to contort the Commerce Clause in Katzenbach and Heart of Atlanta Motel. And cases like United States v. Morrison would have come out differently. Moreover, if the Civil Rights Act of 1875 had been upheld, we never would have had Plessy, because a segregation law on a public conveyance would have been preempted by the federal bill. Everyone focuses on Plessy, but truly the root cause of the problem was The Civil Rights Cases, and if you want to go back a decade earlier, The Slaughter-House Cases.
Posted at 6:07 AM