Transcripts For CSPAN2 Peter Canellos The Great Dissenter 20

Peter canalis is an awardwinning writer and form editorialpage editor of the boston globe and executive editor of politico. He is the editor of the New York Times as seller, the fall and rise of ted kennedy. Farah stockman joined the New York Times Editorial 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 an Editorial Board member of the globe, winning a Pulitzer Prize for commentary in 2016. Shes a author of a forthcoming book, americanmade, what happened to the people in work disappears . They are here to talk about peters new book, the great dissenter the story of John Marshall harlan, americas judicial hero. Fair and peter, welcome. You. I love seeing where everyone is tuning in for him so thats great. Keep it coming. Its 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 hes talked with such enthusiasm about this book hes 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. Im 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. Its 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. Its 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. Its 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 its 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 halfbrother, africanamerican man, the son of an enslaved woman and became a very wellknown civil rights leader in his own right and interacted with him and had a relationship with him so its 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 didnt 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 africanamericans 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, halfbrother, some kind of intimate relationship with a black person who which, you know, a lot of people at that time would not have had. Its not just the separate but equal, but thats what hes 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 states 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 dont 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. Theres also obviously a different economic picture in kentucky it wasnt 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 president ial 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 africanamerican rights are important because we saw africanamericans 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. Hes 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 didnt 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. Its 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 im 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. Africanamerican men during that time what they would have been doing and seeing and how he could possibly help his former master, halfbrother, what do you call that relationship . I dont know. These situations were deeply concerning and painful for africanamericans involved and confusing for whites in the family as well. In the area near james harlan who was John Marshalls fathers 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 8yearsold 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 8yearold 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 hes a little boy, robert is into his early 20s and he is a sort of unique figure in the family in one sense hes known to be a special favorite of the patriarch who everyone else describes and we know in part because johns 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 its one of the few areas africanamericans 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 theres 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 todays 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. Its 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 allblack 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 africanamericans 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, theres 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 theres 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 theres nothing in his letters were the written record thats 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 isnt any evidence of them which leads me to believe two things. Because he was a lone dissenter nobody felt threatened. He was somebody that wasnt 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 relation