Harlan's Libertarian-based Dissent in Plessy v. Ferguson
Over at Volokh, David Bernstein has a thoughtful post on the libertarian ideas which formed the philosophical and legal basis of Justice Harlan's dissent in Plessy v. Ferguson .
Many advocates of preferences have increasingly dismissed Harlan as a pie-in-the-sky believer in a" color-blind society." This, of course, is untrue. Harlan never argued that a color-blind society was realistic, at least in the short-term, but he did believe that the law and the constitution should be color-blind. In fact, as Bernstein notes, Harlan often emphasized how governmental intervention detracted from this goal. The critics of Harlan often forget this important distinction.
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