John F. Kennedy and Justice Harlan

John_F._Kennedy,_White_House_photo_portrait,_looking_upIn a paper that I’ve now submitted to law reviews, I argue that Franklin D. Roosevelt played a pivotal role in making the Bill of Rights a central part of constitutional discourse.  The other day I was trying to think of a similar instance where a President helped change the jurisprudential conversation, and what I came up with was John F. Kennedy’s invocation of Justice Harlan’s dissent in Plessy in 1963.

Prior to the 1960s, the Supreme Court never cited Harlan’s statement that “Our Constitution is color-blind.”  (The first reference came in a separate opinion by Justice Douglas in 1961.)  Likewise, I find only a few law review references to that statement prior to the 1960s.  Things changed radically after that, and one reason may be that President Kennedy referred to Harlan’s dissent in his speech (after the violence in Birmingham) announcing support for what became the Civil Rights Act of 1964.  At the end of his Oval Office Address, the President said:

We have a right to expect that the Negro community will be responsible, will uphold the law, but they have a right to expect that the law will be fair, that the Constitution will be color blind, as Justice Harlan said at the turn of the century.

I can’t prove cause and effect (I’d need to give that more thought), but it would be interesting to know why Kennedy chose that reference.


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