tv Peter Canellos The Great Dissenter CSPAN September 11, 2021 7:00pm-8:01pm EDT
editorial board in 2020 after covering politics and the social movements 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. the author of a forthcoming book american-made what happens to people when work disappears. here to talk about peter's new book the great dissenter the story of john marshall america's judicial hero. sarah and peter, welcome. >> thank you.
>> i love seeing where everyone is tuning in for him so that's great. keep it coming. it's a delight to be here tonight. peter is an old journalism mind. i worked for the "boston globe" for 16 years and think i spent 14 of them under peter and in the recent years he's talked with such enthusiasm about this book he's been working on the great defender, so this is a pleasure for me to interview him tonight about his book. i can talk to peter anytime i want, so i think tonight is also a chance for you all to get your questions in. i'm going to kick off the conversation tonight with some questions for peter and then turn it over to you so please put questions in the chat and i
will try to be monitoring both. so we want to hear from you. okay, peter. you see the world through this legal lens. tell us how you came across this story and how did you get started on it? >> first, thank you so much. it's an honor to be interviewed by you and so many of your interviews in the past. i never quite envisioned being on the other side. it's also a great honor to be back to one of my most favorite places it put a smile on my face after the book was announced. it's great to be here.
i thought of the career of john marshall harlan for basically 30 years since i was a law student myself. i sort of came upon him in the sense of part of the legal study and reading the case books and following the progression of the law and perfect process of bringing these intricate cases and then there was one person who spoke with a dramatically different voice who brought completely different considerations into the appointment who seemed to have a sort of innate sense of justice and then the more you study it and the more you realize, you saw that his dissent in the cases during the years he was on the court from 1877 are much more consistent with the law of today then the party opinion.
so it's an interesting kind of question to come to mind because we have been 230 years reading supreme court opinions with a couple hundred people who serve as the supreme court justices. we know enough to know who got it right, and here was somebody that stood alone in the case after case as was indicated by time so it makes you wonder how do you see things differently and what made his life different. and then in 2005 when i was the washington bureau chief for the globe, we were covering the bureau, alito and roberts and one night in the office i was reading the french encyclopedia of the supreme court and saw a reference to who was widely believed to be his half-brother,
african-american man, the son of an enslaved woman and became a very well-known civil rights leader in his own right and interacted with him and had a relationship with him so it's the key to how he managed to see things differently and and that was the term of the book. >> even the title of the book the great dissenter in the paradox i think the idea that he was dissenting in 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 purposes of
the fact and how it has informed later generations. it seems like he was largely ignored or forgotten back then but what do we take from the dissent now. >> before, there were several famous the dissents. it was a strong and powerful statement in opposition. when the great john marshall was reporting the jeffersonian initiatives and the objectives.
the objections were principled as well but he conceived of them as a sort of roadmap to the future to overturn the case from 1877 to 1911, things happened in society. you might wonder today how it is the system of repression became that it led to 70 years of total exclusion for african-americans and a century and a half of racial tensions and strides are still reverberating today. it also was a period of dramatic economic inequality we also knew
that there were immigrant workers in tenements in new york dramatically unhealthy conditions. the answer when you look back at it the supreme court took away civil rights, human rights, access to education and endorsed. the income inequality was allowed to continue because the supreme court ruled unconstitutional in essentially invalidated all labor regulations including things like that. think of all the suffering those cases caused.
the woeful analysis of how these decisions would affect people on the ground and explanations of why essentially they violated the american experience and structure of the law that had been developed going back to the declaration of independence. >> this is something really fascinating. you were talking about a person who thinks about the law and is not just theory and ideas, but how this will be experienced by black people and he knows how it will be experienced, because he has this brother, half-brother, some kind of intimate
relationship with a black person who which, you know, a lot of people at that time would not have had. it's not just the separate but equal, but that's what he's famous for. you talk about these economic rights as well. why did he have access to the knowledge of how it would be experienced, the practical implications on the ground for the poor or labor rights. what was it about his life that gave him this kind of moral clarity? >> he really did stand out for most of his tenure because of
his background in kentucky and i think there were some things that war on him powerfully because of that background. one was living in fear of the civil war. from the 1830s to the 1850s there was this deep sense of foreboding that the war was coming and they were going to be because in the middle and they were also a divided state's themselves and people who cared about the states were horrified by the idea of division. while he was a young politician trying to enact compromises people say compromises would have continued i don't think that is entirely the whole picture. he was a strong believer and wanted to put slavery on a sort of gradual path to emancipation. on the other hand, he was terrified and came to believe
inequality was a cancer in american life. there's also obviously a different economic picture in kentucky it wasn't the economic hold. after the civil war, the state suffered while the people in the north experienced a tremendous boom. there was an unbroken string for lincoln to grover cleveland but then when grover cleveland the first democrat became president he was a bourbon democrat what we call today wall street democrat and so you had something like 30 or 40 years were the only supreme court appointees tended to be pro- wall street conservative. how did harlan fit in there? he was chosen because of circumstances of the 1876 presidential election. we all have heard the story how
he prevailed because of backroom deals. they were much more progressive and had to pick somebody that was accessible to those that believe african-american rights are important because we saw african-americans as a part of the voting constituency behind the republican party. so, in many ways he vouched for the credentials at the time when people were very skeptical and provided other points of connection between them. so it gets to the core and you have all these different
reference points. he's a civil war veteran and the other justices are older. he also fought and saw death and destruction. he saw with the quality abroad in kentucky felt much more strongly. the northerners attitude to slavery in the south was a peculiar institution process by backwards so the nurse but they didn't see it as closely. he articulated that much later when the united states took over the philippines, hawaii, puerto rico, cuba in the periods of american imperialism. he was named for the constitution following the flag and insisted on the full constitutional rights to filipinos. it's not two systems under one
roof. he saw that as a restoration that led to civil war. they were enlightened northerners that opposed slavery that were well educated and went into the law at the time that being a lawyer meant doing traditional work and representation. as they grew older, railroads changed the economy dramatically. suddenly the people who controlled the rails were able to control the distributions of goods throughout the country and immediately there was pressure to regulate the control and this class of nationally prominent lawyers emerged representing the
railroads crafting the theory that it could take on the justice department and the best of the state prosecutors. they became wealthy. some of them had mansions as big as the rockefellers. those were the people writing the majority opinions. >> can you hear me i'm wondering if my internet is stable. >> i can hear you. >> you mentioned a bit about the relationship between these two men that you uncovered. give us a tiny bit more of a taste. african-american men during that
time what they would have been doing and seeing and how he could possibly help his former master, half-brother, what do you call that relationship? i don't know. these situations were deeply concerning and painful for african-americans involved and confusing for whites in the family as well. in the area near james harlan who was john marshall's father's mother family had lived and so he had relatives he would travel to virginia from kentucky to visit his relatives. he was born at a time that james harlan was only 16 so some
people would speculate as one explanation how he could be his son. but robert harlan became a prominent man and a law was written about him. when he was 8-years-old he and his mother undertook a journey from virginia to kentucky through wilderness with the idea that she was taking him to his father. many accounts say he arrived at harlem station. the father pretty much had to be somebody in the harlan circle. some of the accounts say they discovered his father was dead and then he became the property of james harlan while the mother somehow was sold down south. how these transpired was never explained. who the original owner was was never explained.
how it was that he takes possession of this 8-year-old boy never completely explained. what is explained and he talked about later in life is that he took a tremendous interest in him at the time robert came to live with him he had recently married and had nine children but in all of the accounts he was raised by james, not his wife eliza. by the time john is born, roberts is a teenager and when he's a little boy, robert is into his early 20s and he is a sort of unique figure in the family in one sense he's known to be a special favorite of the patriarch who everyone else describes and we know in part because john's wife wrote a memoir after his death that the
father was considered a formidable figure sort of much respected but cold remote man and yet he was much more interactive. the boys were expected to be lawyers like their father and were committed to the regiment of the study. more than the other kids had, roberts became a pioneer in the horse racing so it's one of the few areas african-americans could compete equally. the reason for that is the early horse donors were slave owners and would have enslaved men sort
of jockeys and trainers there was no barrier to them becoming involved. but it was a pretty rough sport. you would have to go to these towns and build together a race where there's these rituals that had to be followed. everyone had a gun. the winnings had to be collected. so if you are john marshall harlan and a little boy in this regimen of study and who comes galloping over the horizon with money from a horse race, i think that is the vision that he had but he continued that same pattern so he goes to lexington as a progressive city at that
time in kentucky and opened a store and was successful for a while but then white vigilantes pushed him out. he then went to the gold rush before almost everybody and made it a fortune, $90,000, which is many millions in today's dollars, moved to cincinnati which is the end of the underground railroad and invested in businesses that created everything from grocery stores to poverty parlors. two racehorses in europe and bring american horses out all over the continent and then
returns to become a civil rights leader. you get a vision of what the country could have been like and what had a man like that been given a chance had something not happened but become the law of the land. it's striking. tell us what happened at the end of his life after that devastating supreme court decision.
he wrote he became a leading politician in ohio and at the time it was the difference between republicans winning and losing ohio which was the most important state at that time so he would get jobs for himself and others. he was able to play at creating a leadership and meetings where they would put forward. he became personal friends with people like ulysses grant and rutherford b hayes. he entertained lavishly and did things like the first all-black national guard battalion in cincinnati. all was not always peaceful on the political front though there
were others that felt that he was there was a series of debates that he had with rivals that were sometimes a friend named peter clark who believed neither republicans nor democrats were ever going to serve black interest and negotiate with unified force but there was almost a lincoln douglas debate. then what started to happen is after 1876, there was a consensus within the community that sacrificing black rights was sort of the price and allowed the business is to continue like normal. white southerners were now going to accept the quality of african-americans and white northerners stopped trying
eventually. because voting rights were somewhat more secure than in other states, they had to some power to even manage to get elected to the state legislature. so there was a total failure but you could see in the ark of his life after 1877 and he died in 1897 and it was a sort of period of disillusionment in law. there started to be more racial incident. there was a terrible confrontation between the black national guardsmen and it almost became a legendary riot. his son who was a lawyer and prominent man himself took his
children to a birthday party, a theater in cincinnati and got forced to go up to the balcony and refused so here he was in the same city and his grandchildren were plaintiffs in the case against racial segregation so it was a period of decline and disappointment. 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 was less
decorum when the income tax was ruled there was commentary how he was on the bench shaking his fist at the justice who was an antagonist at various points so some historians today will say that it was a little wild west on the court. they were not entirely practicing decorum. also people in the black community that paid more attention than any of the whites did, people like frederick douglass would write about his tremendous courage and willingness to stand up for all of his colleagues and the community and that is a consistent theme. although i will say there's nothing in his letters were the written record that's available
now to show that he was himself ostracized for these positions that he was receiving death threats and getting, his family was harassed. they may have been but they chose not to collect the letters but there isn't any evidence of them which leads me to believe two things. because he was a lone dissenter nobody felt threatened. he was somebody that wasn't threatening. the black community i think there was this assumption that whites were in collusion because a lot of the northern justices were essentially closing their eyes and voting in cases where they knew they were doing the wrong thing but they thought it was right for the country to try to repair relations with the south.
yet the black community may have seen it as more of a conspiracy. an anti-asian sentiment [inaudible] >> i think that is a fair comment on the famous dissent, by far the constitution is colorblind. another point in the dissent there is a race that is so different from our own to the nationalities that we do not
even allow them in this country. then we make the point that nonetheless, chinese people are allowed and african-americans were not. now i think in part this was a reasonable legal point because they said everyone is being treated equally. there's one place for lacks, one place for whites and harlan was making the point everybody knows the purpose is not to separate whites or anything and [inaudible] there were articles from 25 years ago from someone that i've known and read the book, gabriel who sort of expanded. if you keep it just at that point, this is true.
i don't think there's any evidence that he had any particular towards chinese. there were some counterexamples, the supreme court case where a terrible case where they chased and her nasty group of chinese that ended up taking refuge. the citizens and the chinese were not citizens. they were in this country as a part of a treaty that says they were to be treated exactly like this. was forcefully in favor of the
chinese victims in the saying that -- in the case where he was a force for the dissenter but the records of the case is more different. >> do we know much about his influences outside of this possible relationship? >> he had other contact because he had a grown up in a slaveowning family and he had a wetnurse who was african-american. there was an incident where her
dress caught on fire and he jumped to try to save her and ends up almost dying himself [inaudible] that must've been true with a lot of white southerners raised by black women. >> you also had a deep respect for frederick douglass, a long-standing relationship. in addition to his eldest daughter apparently taught in the industrial school in washington which was a school for the children of freed men fd women to teach skills to help them get a job. but then she died of typhoid fever at 26 and he had a letter that said every minute of every day is going to be devoted to
preserving her legacy. he was the heart and soul of the family. but the concern he spoke at the metropolitan and they had allowed for the lynchings to take place were prosecuted so his efforts went way beyond his relationship with robert harlan. he believed that this was a way of repairing the damage.
it almost destroyed the government and so he was deeply committed to enforcing equality. and it was the moment when he believed the civil war was inevitable and all that he worked for was falling apart. he understood what it meant for the supreme court to get it wrong so unlike a lot of these other justices that are a challenge, we look to these cases in terms of who was being harmed, who was being helped, how did this affect the country 50 years from now and all of that was in his opinion. >> can you comment on the way
the constitution, formerly the beacon of civil rights is cited to support claims of reverse discrimination and similar policies? >> there's no question that that is in argument, the anti-affirmative action for a long time. it started with william bradford reynolds that began on the civil rights protections and he had an influential article that said harlan got it right, the constitution is colorblind and that led to some angry feelings from opponents. he was always an admirer and
thurgood marshall defended him and said the constitution is colorblind and we wouldn't have had 70 years which is why we need affirmative action. i don't think that he can say therefore we won't rule out past discrimination but it's the comment about colorblind and if it weren't such a powerful statement, people would be arguing about the concept of inequality and does it allow for racial considerations like affirmative action. >> okay.
we have -- are there any parallels to be drawn? >> there are a lot of parallels and ruth bader ginsburg cited the influence when she embraced the role of the dissenter and started praising the british dissent from the past and we talk frequently about harlan and mentioned benjamin curtis also a massachusetts justice who objected to dread scott. but i think that harlan offers hope to some who are fans of ruth bader ginsburg because he showed how in one year they
become the majority in another era and how those very documents and records that are preserved can become part of the decision-making process in the next generation. there is no one method for the supreme court by which the supreme court can change its mind and the law can change. but if you look at the history of the dissent, almost all these methods combined. so let's look at the antitrust cases being declared unconstitutional. there's the case that controls 98% of the sugar production in the country. the supreme court found a way to say they were not a monopoly. he was a soul defender and of course railed against a giant combination pretty much within five years the same justices the that ruled the other way would begin. i don't know that it was harlan
persuading, but there are examples of the same people literally changing their mind. all of our wendell holmes changed his mind on the amendment. they greatly relaxed the rules and allowed for more antitrust actions. they got into that position they were allowing antitrust. in the income tax case which was a 5-for decision and they overruled the president.
for the senate to accept. he would read the dissent on the floor of the house as a way of showing how wrongheaded the original decision was and how important it was for the amendment to remove it and overrule it. so that's one example. it gets overruled in time because of franklin roosevelt's threat to expand the court, the switch and time. 1965, 1954, both of plessy versus ferguson were part of the arguments in the case and the dissent was part of the actual argument in the case to overturn that in 1965.
it came in so many different forms but nonetheless if you are ruth bader ginsburg, yes you can apply benjamin curtis for taking a personal stand but it's a better example in terms of how your actual views can become part of the law. >> we've got three more questions and 12 more minutes or so. let me get through these and then i want to close out with a thought about today and bring the book forward. a. >> we will do a lightning round. harlem looks from kentucky not a northern state or southern
state. to what extent did this in the informhis worldview and legal tt from the border states or was he singular? >> there was a school of thought from the border states and he would pay tribute at the university law school for putting that forward. there were some things that were problematic in that school of thought. the elite in kentucky were constitutional unionists. they believed in the u.s. constitution, not a sort of federal destiny in the united states. a part of that that was a little excessive is that they were in love with the idea that it's a unique experiment.
some of those professors that he was admiring in the university were also people who joined the know nothing party that he had associated with that were known for their anti-catholic feelings and living under the authoritarian force being they didn't understand democracy. that is a literal kind of question. i think that kentucky influenced him and a lot of ways as was mentioned earlier. not based on capital investments and tremendous imbalances of
wealth gave a different perspective and while the racial situation was horrendous, there was interaction with african-americans which none of the northern justices had at all and the fact the ku klux klan was inserting itself so strong also gave him a moral impetus later on. a. >> i understand he was a fundamentalist christian of the time. what do you know about stopping the decision? >> this is a difficult question to answer and i probably shied away from it a little too much because the theologies are a very difficult thing to grasp obviously. i will say he was a devout presbyterian and there were two
doctrines one was a famous theologian of his time and believed in this idea that god has a divine plan for anything and i think that how can you be aware of the injustices of slavery and allow it to continue. the presbyterians was that god had a plan. they would preach the sort of relationship to acknowledge the humanity of people in the subservient position and in a different part of the church they also had this idea that
it's part of this plan that may have prevented action. by contrast, there is another doctrine with a sort of spiritual agency where people can and later in his life may have given him something. a lot of critics wrote him a letter after the dissent in the civil rights case of 83 which is a crushing blow and frederick douglass said i'm reminded of something during the time people filled abolition would never happen and i say this to you one man was thought as a majority. and i think harlan came to believe that if you are on god's side, you are good.
>> a couple of people have asked similar questions, asking about whether or not what was the biggest challenge in researching this book and i want to know what was the biggest surprise. you are in there trying to sort of dig through history to create a mental picture of a man. what were the biggest challenges and was there anything that just shocked you? there were no letters between the second half of their life and with no idea why it could be just shoddy records. john marshall had spotty letters it could be that they didn't talk or he was traveling to
washington regularly because his son was living there and they didn't have a chance to write about it. we know things from third parties that it wasn't harlan stopped talking to roberts. a surprise to me is how bad the supreme court was in that era. all the decisions we talked about on both sides there are glimmers but mostly just abominations. nobody on the right, nobody on the left is going to endorse these decisions. it's just kind of shocking how bad they are when you go through
them. and when you talk about that long to the period and history of the united states and this personal story and relationship, all of those challenges kind of combined into one. >> we've got about five minutes left. is this something that came to my mind, harlan county kentucky named after harlan or his family? i've been told no, but i haven't like research did closely. it's kind of shocking it must be different but it's not named after him.
>> bring us up to today. a supreme court that's much more conservative than the american people. how should we read this history with an eye to today. who is the great, who has the moral clarity today or how can we when you look back at this, what does it tell you about the story right now? >> it tells me that it's a terrible mistake for the supreme court to allow its self to kind of negate the will to people. i'm thinking more the economic cases. some people could say it's sort of the opposite, the problem is that they only define the
people. in the economic cases, you had a will to change the country starting in the early 1890s because there was the panic of 1893 so congress passed the sherman antitrust act which had the effect because the federal government was funded by tariffs on a loaf of bread that would affect the penniless immigrant the same as it would affect the richest person on fifth avenue. the income tax was only applied to people above a certain income so much more burdensome to the rich. and it was also seen by the rich as opening the door to high levels of taxation and other graduating levels of taxation. so it was much more preventive. and yet at the supreme court is essentially because of class bias found a pretext that again even the most conservative justices today would not endorse
or accept to essentially overturn the will of the people in the country. that's not the purpose of the supreme court. by the same token, when you look at the cases for one thing it's not simply the case that white people were unanimously against some of these protections. the case is validated and passed by congress in 1875 and signed by the president. so that's not some -- i also think when you get to plessy versus ferguson, it is entirely possible that the court could have ruled the other way. it would have infuriated the south, but the country was accustomed to having this period and the various points because of the lack of moral courage.
>> about this period of time where we literally go backwards with rights in so many ways. we are use to learning about history as an arc towards justice and it's a fair time to go backwards and amazing to think where we would be today if we listened to him. so, i think we are out of time. there is someone who's going to come but i could talk to you about this all day. i hope everybody buys the book and they get a chance to attend another event like this today. thank you so much for the conversation, peter. >> thank you, peter and sarah for a truly amazing story and so much to take away.
thank you all for being such a thoughtful audience. we highly encourage you to pick up the great dissenter. there is a link in the chat and we have some new questions that will shape the programs and we would love to hear from you. we would love to see you at upcoming events as a member. it's open to everyone and it is a uninspiring space with opportunities for conversation. finally cracked the books with a chapter of workers is now on view and we would love to welcome you in. you can visit the website for more information. thank you again so much for joining us tonight. be well, be safe and we hope to orensteifil