SLevinson at MAIL.LAW.UTEXAS.EDU
Thu Oct 26 16:34:46 PDT 2000
Having just taught Plessy today and being about to teach the Civil Rights
Cases next week, I think that one should continue to honor John Marshall
Harlan, even as it is necessary to point out his own feet of clay. It
would not be surprising, though, if persons more interested (or even *as*
interested) in the fate of Asian immigrants to the United States would be
less enthusiastic than are persons who, like myself, focus on THE American
Dilemma, where he was considerably better.
As for Pace, of course, Harlan was no worse than are analysts today who
defend laws against same-sex marriage because of their formal properties in
preventing both males and females equally from marrying the wrong people.
The question is whether Andy Koppelman will be honored, fifty years from
now, in the way that Harlan is now honored with regard to seeing through
the egalitarian pretensions of Plessy or whether, on the contrary, the
culture will remain sufficiently unchanged so that discriminations against
gays and lesbians will seem as "natural" as, say, discriminations against
children or non-citizens.
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