tv Peter Canellos The Great Dissenter CSPAN December 23, 2021 11:47pm-12:47am EST
peter is an award-winning writer and a former editorial page editor of the "boston globe" and executive editor of politico. he is the editor of "the new york times" best seller the fall and rise of ted kennedy. farah stockman joined the board in 2020 after covering politics, social movements and race for the national desk. she previously spent 16 years at the "boston globe," nearly half of that time as the papers foreign policy reporter in washington, d.c. she also served as a columnist and editorial board member of the globe winning a pulitzer prize for commentary in 2016. she is the author of a forthcoming book american-made what happened when work
disappears. they are here to talk about the book the great dissenter the story of john marshall harland america's judicial hero. farah and s peter, welcome. >> thank you for having us. i love seeing in the chat where everyone is writing in from more tuning in from so keep it coming. it's a delight to be here tonight. peter is an old journalism mentor of mine. i worked for the "boston globe" for 16 years and spent 14 of them under peter and in recent years he's talked with such enthusiasm about this book working on the great dissenter so this is a real pleasure for me to interview him tonight about his book. i can talk to him anytime i want, so i think tonight is a
chance for q you all to get your questions so i will kick off the conversation tonight with some questions for peter and then turn over to you so please do put questions in the chat and tell us your thoughts in the chat and the q and a. i will try to be monitoring both. we want to hear from you. okay, peter. you have a law degree and see the world through this legal lens. tell us a little bit about how you came across this story and how did you get started on it? >> first of all, thank you so much. it's an honor to be interviewed by you. being on the other side of the inquiry it's also a great honor to be back at the boston act.tv
one of my favorite places. it put a smile on my face when i got an e-mail after the book was announced. it's a great to be here. i followed the career of john marshall harland since i was a law student myself and i sort of came upon him organically as a part of reading the casebooks it's almost a purposely dry process of reading these cases and then there was one a person who spoke with a different voice and brought to different considerations into the opinions and seemed to have a sort of innate sense of justice than the more you realized you saw his
dissentt from 1877 until 1911 ae more consistent with the law of today than the majority opinion so it's an interesting kind of question because we've been 230 years reading supreme court opinions and a couple hundred people who served as supreme courtan justices we know who got it right and here was somebody who stood alone case after case so it makes you wonder how did he see things differently, what is it that made his life different and then in 2005 when i was the washington bureau chief of the globe, we were covering the alito and roberts
nominations and one day in the office i was readingo a large print encyclopedia and saw a reference who was widely believed to be the half-brother, an african-american man the son of an enslaved woman and harland's father who became a very well-known civil rights leader in his own right actually before harland and before john harland and interacted with him and have a real relationship with him. in some ways that is a key to how he managed to see things differently and that was the term of the book. >> it's fascinating because even the title of the book is a bit of a paradox.
it meant his arguments didn't carry the day which meant he was a lonely voice that was against the majority so i wondered if you could say a little bit about the purpose of the dissent and how it's informed later generations. it seems like he was largely ignored or forgotten back then but what do we take from the dissent now? >> by far it is the powerful example of how the dissent becomes law over time. before harland, there were several famous descendents. if there was one in the notorious dred scott case and then promptly quit in protest, packed up his belongings and left. it was a strong, powerful
statement of opposition. there had been some statements of opposition when the great john marshall was the justice supporting the jeffersonian initiatives and it was johnson on the record that could have registered the kind of principled objectives. harland's objectives were principled as well but he actually conceived of them as a sort of roadmap to the future to overturn the case and to give you a sense of what these were like you have to understand the times into the cases. during that point from 1877 to 11, two big things happened it became so ingrained in the american system that led to 70
years of total exclusion for african-americans and a century and a half of racial tension and strife and it was an economic inequality. we go to newport and look at the mansions and admire the work in the ballroom they were sleeping in tenements in new york and under unhealthy conditions. it continued because they warned the act unconstitutional and
passed to the case in new york that essentially invalidated all of the labor regulations think of all the suffering those cases caused. one person dissented and all ofthem and that was john marshal harlan. it was a a mix of the sort of legal doctrine and the explanations of why they violateded the americans. and the structure of law that had been developed going back to the declaration of independence. >> this is something really fascinating. you're, talking about a person who has, who thinks about the
inlaw as how this will be experienced because he has this relationship a lot of white people at the time wouldn't have had it may be. give us another beat on that. it's not just of the separate but equal, but that's what he is pfamous for. you're talking about these economic rights. why did he have access to knowledge of how the law would be experienced, the practical implications for poor labor
rights what was said about his life that gave him this kind of moral clarity and the others on the supreme court that lapped that? >> he did stand out because of his background in kentucky and one was living in fear of the civil war. from the 1830s to the 1850s a deep sense of foreboding that they were going to be caught in the middle the end of the were they divided the states themselves and people that cared about the state were horrified by the idea of division. while he was trying to enact compromises and today people say the compromises that has continued to so therefore he was proslavery, i don't think that
is entirely the whole picture. he was a believer and wanted to put slavery on this path to emancipation. on the other hand, he was terrified of division and came to believe that inequality was a cancer to the american mind. there was also a different economic picture. it wasn't where the post-civil war economic boom, after the civil war, their own estate suffered while his people in the north experienced a tremendous boom.
imperialism. you cannot have the constitution in one place and then a system by congress and other places. he saw that as a restoration of the imbalances that led to civil war. so, he's looking through a different set of eyes. one of the things on the other justices, almost all of them were enlightened northerners that opposed slavery, were well educated, went into the law of the time being a lawyer meant doing a traditional legal work. railroads changed the economy dramatically. they were able to control whole
industries throughout and immediately there was pressure from the state and federal governments to regulate and of this class of nationally prominent lawyers emerged representing the railroads into crafting theories that could take on the justice department and the best of the state prosecutors. llthey became wealthy. some of them had at mansions as big as the rockefellers and then got appointed to the supreme court by the republican president. those were the people that were writing the majority opinions. a. >> can you hear me just fine? i wonder if my internet is stable. >> okay. you mentioned a bit about the relationship between these two men that you uncovered.
give us a tiny bit more of a taste and what they would have been doing and seeing and how he could possibly help his white former master, half-brother, what do you call that relationship, i don't know, but tell us -- >> these relationships were deeply confusing and painful for the african-americans involved and certainly for whites in the family as well. robert harlan is an amazing figurere he was born in virginia in an area where james harlan had lived so he had relatives
who would travel to virginia from kentucky and robert was born there at a time when he was only 16 so some people would speculate later that this could have been some sort of an initiation is one explanation. what is known because he became a prominent man, when he was 8-years-old they undertook a journey through wilderness and all this with of the idea he was taking him to his father. many of the accounts say he arrived at harlan station which is like a family town so the father had to be somebody in the circle that they were assuming. some of the accounts said he
became the property of james harlan while the mother somehow god sold down south. now how these transpired was never explained. who was the original owner was never explained. they take possession and it's never explained. what is explained and what he entalked about is he took a tremendous interest at the time he came to live with him he had recently married and had nine children with his wife but in all of the accounts, robert was raised by eliza by the time john is born, roberts is a teenager and when he's a little way, roberts is into his early 20s and is a unique figure in the
family. in one sense he is known to be a for special favorite of the patriarch everyone else describes the father was considered this formidable figure, much respected, sort of cold remote man and yet roberts was much more interactive. they were committed to this regimen of study. they wanted him to go to school but they would teach those in kentucky so he was taught at home, but because of that i think james gave robert a sort of freedom of movement so he became a pioneer because it was
one of the few areas african-americans could compete and the reason for that was a lot of the early horse owners would have their enslaved men there's no barrier. you have to pull together a race where there was no race. there were these rituals that had to be followed. everyone had a gun. if you are john marshall harlan and a little boy in this regimen of study. with a pocket full of money from a horse race but robert, this sort of dashing figure that's
the vision he had but he continued that pattern of finding the places where african-americans could be givea a shot so he goes to lexington that had a reputation and opened the store and was successful for a while but the vigilantes pushed him out. he then went to the gold rush before almost everybody which is many millions in today's dollars and cincinnati and invested in businesses everything from grocery stores to parlors.
devastating supreme court decision? >> it wasn't a failure it was only that period when the black rights were defended by the supreme court and he rose to prominence at the time it was the difference between winning and losing between ohio which was the most important estate at that time so he was able to get jobs for himself and others and to play a role in creating a leadership with conventions every year and meetings where they would put forth. he became personal friends with people like ulysses grant and ruth deferred to be hayes and
entertained lavishly and did things like the first all-star black national guard battalion and cincinnati. all was not always peaceful in the political front in that there were other african-american leaders that felt he was beholden to the republican party and there were debates with rival friends, peter clark who believed neither republicans nor democrats were going to serve the interest and they needed to negotiate from robert harlan who took the party line. then what started happening is after 1876, there was a consensus in the community that
it was sort of the price that allowed businesses to continue as normal and they were going to accept the quality of african-americans the end of the northerners stopped trying potentially. because of voting rights were somewhat more secure than other states, the black media maintains the power and managed to get elected in the state legislature. it wasn't like there was a total barrier but you could see after 1877 and he died in 1897, it was sort of a slow period of disillusionment and of law. law. there started to be more racial incidents. there was the terrible confrontation between the black national guardsmen and a group of white democrats before the
election that almost became the legendary riot held because robert harlan's metrics. his son who was a lawyer and a prominent man in the south went to a theater, took his children to a birthday party in cincinnati and got forced to go up to the balcony and refused so herewith he was in the same city serving the representatives nevertheless, there's so many more anecdotes you can throw in there. this is a globetrotter with santa ana and cuba and visiting paris on all those kind of things. an amazing man but what is notable as they were prominent in the african american community and john mercer
langston, they were real aristocracies in the community but there's no money in that community. they all sort of suffered in their own way, the prominent businesses started to die out and struggled through money and that kind of thing. you can see how segregation was constrained. >> i want to bring in some questions from the audience here. how well or not did harlan get along with his colleagues on the court? >> that is a fascinating question and there are two answers. i think that he got along pretty well in terms of the basic social etiquette and even did a story of him sharing an apple on a streetcar with justice
mckenna. on the other hand there with justice mckenna who was a frequent in the majority while he was descendent. on the other hand there was less decorum on the court are generallyin those days. when the income taxes were ruled unconstitutional, there was some commentary how he was in temperament shaking his fist to justice field who was an antagonist so some historians today will say it was a little wild west back then on the court. they were not entirely practicing decorum. people who paid more attention, people like frederick douglass would write about the tremendous courage and willingness to stand
up to all of his colleagues that is a consistent theme. i will say there's nothing in his letters or his written records that's available now to show that he was himself ostracized for these positionst that he was receiving death threats and getting harassed. there isn't any evidence of them that leads me to believe two things. no one felt threatened byby it. i think there was this assumption because they were politically inclusion and
essentially closing their eyes and voting in cases they felt like theyt kind of knew they we doing the wrong thing but felt like it was to repair relations. and yet they may have seen it as a more insidious conspiracy than actually someone like john marshall. >> wasn't there a gratuitous sentiment in plessy versus ferguson? >> i think that's a fair comment but it's part of a more complicated story. there's a lion in harlem's famous dissent. by far his most famous dissent and one frequently included today neither knows nor
tolerates. there's no caste here. a. >> at another point he says there is a race that is so different from our own nationality we do not even allow them in the country and then he makes the point nonetheless chinese peoplee are allowed and african-americans were not. i think in part this was a reasonable point because they said everyone's been treated equally. there's one place for blacks and whites and harlem was making the point everyone knows the purpose. there was a law review article from somebody that i know that has read my book and expanded to
look at how he wasn't the hero that he was to african-americans and i think if you keep it at that point, that's true. i don't think there's any evidence that there were some te counterexamples and a case where a gang of whites in california chased and grasped where they ended up taking refuge. when they were prosecuted under the civil rights act they claimed the language of the act said citizens added the chinese were not citizens. nonetheless they were part of a treaty that said he would be
treated exactly like citizens. nonetheless they couldn't see through being equally and all that so very forcefully in favor of the chinese victims in saying that they be treated like citizens therefore the civil rights protections need to be extended. so it's a very mixed picture and it's fair to say not only was he a hero but also to the case he was a forceful dissenter but the record in the chinese case. a. >> sarah peters is asking do we know much about his influences outside of the possible relationship? so can you tell us
intellectually? >> he had other contacts because he had grown up in the a slaveog family and had a wetnurse who was an african-american. an incident where the daughter said her dress caught on fire and he jumped to try to save her and almost dying himself in burns. that must have been true of a lot of white southerners with black women. >> beyond that he also had a deep respect for frederick douglass and a long-standing relationship. his a oldest daughter apparently taught in the industrial school in washington which was a school for the children for men and
women to teach industrial skills and it was just the. interested but she died of typhoid fever at age 26 and there is a letter but they say every minute of every day is going to be devoted to preserving the legacy so influenced by the concern for african-american children and later he spoke frequently at the metropolitan and would meet regularly with black lawyers. there was a case in tennessee he intervened and pretty much single-handedly to try to make sure city officials that had allowed this to take place were prosecuted so his efforts went way beyond his relationship.
so clearly he was committed to the quality and believed that this was a way of repairing the damages. he came to believe this is what caused the civil war and almost destroyed the experiment and so he was deeply committed to enforcing equality and i think that also influenced his use in the economic bases. because of dred scott was the moment he believed the civil war was inevitable and all that he falling apart so he understood what it meant. unlike a lot of the other theoreticalthe challenge, he looked at the cases in terms of who was being
harmed and helped and how would this affect the country 50 years from now and all of that was in his opinion. a. >> we've got an anonymous questionnaire thatna says can yu comment on the constitution formerly the beacon of civil rights is to support claims of reverse discrimination, affirmative action and policies? >> there's no question that is an argument. it started with william bradford reynolds who was the head of the division under the reagan administration and began the retrenchment on some civil rights protections. he wrote an influential article in the times saying the constitution is colorblind but it means no affirmative action and effect led to some angry
feelings obviously from opponents. thurgood marshall who was on the court then and was always an admirer and put the dissent in the heart of the civil rights movement, thurgood marshall defended harlan nana said it is colorblind and if people listen to harlan we wouldn't have had a 70 years which it wasn't colorblind and why we need affirmative action. i think a bit of a semantical debate when they said the constitution is colorblind and we will rule out any remedies for past discrimination the challenge presented by the affirmative action is an obvious one but if the comment is
colorblind, people would be arguing about the concept of equality for the racial - considerations. >> are there any useful parallels to be drawn of the courts of ruth bader ginsburg? >> there are a lot ofsh paralles and ruth bader ginsburg decided the influence and late in life when she embraced the role of dissenter she started raising from the past and would talk frequently about harlan and mentioned benjamin curtis also as h the justice who objected to dred scott.
harlan offers a sense of hope in one era and how those documents and records that are preserved can become part of the decision-making process and the supreme court can change its mind and the law can change but if you look at the history of the dissent almost all the methods combined is so let's look at w the antitrust cases ia horrible case to trust 98% in the country had they found a way to say they were not the
monopoly. they were the sole dissenter against the giant combinations pretty much within five years the same justices that ruled the other way to see the light i don't know that it was so much persuading that may have been things in the country but there are examples of the same people changing their mind on the first amendment in a number of cases. so within the lifetime, they greatly relaxed the rules and allowed for more antitrust actions but it took maybe 15 or 20 years until they got to the position they were allowing. that is the positive example. in the income tax case which was a 5-for decision and they overruled the precedent and the case everyone was rolling their
eyes afterwards, it took a constitutional amendment to allow the income tax. but to get the process rolling, the obstacle was less getting the states to ratify it the end of the congressman that would later go on to become the secretary of state under roosevelt, he would read the dissent on the floor of the house as a way of showing how wrong the decision was and how important it was to remove it. >> t there have been somebody
and then to distant form that worldview. >> there was a school of thought and he paid tribute to his professors at transylvania university law school for putting up forward there were some things that were w problematic this could also be a critique with the constitutional unionist with that destiny in the united states. but part of that with the idea
that the united states was a unique experiment and the people in america the only place they were not under the thumb of authority. so some of those professors he was admiring at transylvania university were also people that claim the unknown nothing party that were known for they anti- capitalist feelings and in some cases under the authoritarian force. the legal theory being they did not understand democracy. but i think kentucky influenced in a lot of ways as mentioned earlier it is a different economy not based on capital were investments or
the imbalance of wealth to have a different perspective. and while that situation was horrendous there was interaction with african-americans and the fact the kkk also had a moral impetus for later on. >> i understand he was a fundamentalist christian at the time what do you know quick. >> this is afi difficult question to answer because that theology is difficult to grasp have a phd in theology
and then there were two doctrines and one was his home speaker and to believe in the idea that god has a divine plan for everything. with those injustices of slavery but then they would say but that is reliable they acknowledge that humanity —- humanity and then there were black parishioners as well.
but there is also the idea that is all part of a plan and with that other doctrine was the first spiritual agency with that urge to live out the values. that he willcs him a letter after the dissent in the civil rates case each 83 which was a crushing blow. and then i am relying on some things to say that would never happen a say this to you but with one man god as a majority.
he was challenged regularly so his son was living there maybe he talked a lot. [laughter] and then and then to have those communications and that was frustration. at that time how bad the supreme court was during that era because the decisions with these justices those that are sharp little thinking in theseim decisions but mostly the abomination. nobody on the right or on the left.
it is shocking how bad they are when you go through them. so with that long of a period with the supreme court. and then to combine all of these into one. >> . >> is this something that came into my mind is kentucky named after the family? >> i have been told know. [laughter] i haven't researched it. so it must be a different harlem. and then from harlan station
that is not named after him. >> and then to be much more conservative than the american people. so how should we read history? so when you look back, what does it tell you the story we are living in right now? >> it's the supreme court to allow itself with the role of the people and then i realized it could be the opposite.
but then inn the economic cases we could change the country starting in the early 18 nineties because there is a p&l in 1893. >> . >> and then it was the same. and then the income tax only applied to those over a certain income. it is always seen by the rich and much higher levels. and yet the supreme court essentially because of class
bias found a pretext even the most conservative justices today would not endorse or accept that is not the purpose of the supreme court. butt for one thing and then to be against those protections for african-americans but to invalidated. also i think that but the court could have went the otherav way. but the country was accustomed
amazing story and so much to take away this evening. and thank you all are being such a great audience. we highly encourage you in the chat and we also we shape our fall programs that and as a member of the afternoon. and then for our books and authors. you can also e-mail us for more information. inc. you again for joining us tonight. we hope to see you again soon. take care.