John Marshall Harlan

For more information on John Marshall Harlan, visit Britannica.com.

(b. Boyle County, Ky., 1 June 1833; d. Washington, D.C., 14 Oct. 1911; interred Rock Creek Cemetery, Washington, D.C.), associate justice, 1877–1911. Raised in privileged circles on the border between North and South, Harlan had much in common with his namesake, the great chief justice from Virginia. Of a slaveowning family, himself briefly a slaveowner, Harlan was personally acquainted with the South's “peculiar institution.” A fervent believer in the Constitution, Harlan also looked to law and the institutions of government to preserve the Union, notwithstanding social differences. Yet Harlan was to carry the Marshall tradition into a very different world. An almost exact contemporary of chief Justice Melville Fuller, under whom Harlan served for twenty‐three years, he was forced to confront the issues raised by the near breakup of the Union: the emancipation of the slaves and the constitutional amendments that consolidated the North's victory.

Early Career

Harlan's father, a staunch Whig and close friend of Henry Clay, was a successful lawyer and electable politician, serving successively as United States congressman, Kentucky secretary of state, state legislator, and state attorney general. Completing his education by a stay at Centre College in Danville, Kentucky, the young Harlan then studied law at Transylvania University and in his father's law office. Admitted to the Kentucky bar in 1853, he seemed destined to follow his father in a career as a Whig lawyer‐politician, but the deaths of Clay and Daniel Webster the previous year had deprived the party of enlightened leadership in troubled times. Trying demagogic nativism, Whigs like the senior and junior Harlan became Know‐Nothings, a gambit that was ultimately doomed but that brought the younger Harlan his first elective office as county judge in 1858. The years as an active Know‐Nothing also piled up a host of recorded racist and states' rights speeches that were later to embarrass their author.

The secession crisis in 1861 revealed Harlan's true colors: Union blue. Commissioned a lieutenant colonel in the United States Army, he speedily raised a company of infantry volunteers. The senior Harlan's sudden death in 1863 caused Col. Harlan to resign his commission and take over his father's unfinished business. Characteristically, the young veteran plunged promptly into politics; running as a Constitutional Unionist (the Whigs' new party), he was elected state attorney general. At war's end the Unionists faded as a political force and Harlan cast in his lot with the Republicans. In his professional career the move was reflected in his law partnership with Benjamin Bristow, soon to be Grant's secretary of the treasury. Despite Harlan's best efforts—he ran twice for governor—the Kentucky Republicans failed to thrive. It was his good fortune, however, to head the Kentucky delegation to the Republican national convention in 1876, when his timely swing to Rutherford B. Hayes secured the outcome. After the contested presidential election and the ordeal of the scrutiny by the Electoral Commission, Hayes was declared the victor. The new president moved quickly to settle unfinished business and named a commission of five, including Harlan, to report on which of two rival Louisiana state governments was legitimate. In keeping with the president's policy of ending Reconstruction, the commission advised in favor of the Democrats, despite the fact that the same returning board that had certified the Hayes electors had also certified the state Republican candidates. On inauguration Hayes had inherited a Supreme Court vacancy caused by Justice David Davis's precipitate resignation (apparently to avoid service on the Electoral Commission; see Extrajudicial Activities). Consistent with his policy of reconciliation, Hayes was determined to name a Southerner. Admirably qualified and politically deserving, the forty‐four‐year‐old Harlan was the obvious choice.

Service on the Court

Although his tenure on the Court was long, almost as long as Marshall's, and despite the fact that he wrote often and at length, Harlan's reputation at his death thirty‐four years later seemed unlikely to exceed those of his colleagues, Justices Joseph P. Bradley, Stephen J. Field, and Samuel F. Miller—even, perhaps, that of the lackluster Chief Justice Fuller. In his defense of private property he was if anything more zealous than other judges of the Gilded Age, being particularly stern in his refusal to countenance state or municipal debt repudiation (see Property Rights). What has brought him the interest and respect of posterity was not, however, his conventional views but rather what he wrote in certain of his dissents (see Dissent). So frequent and vigorous were Harlan's disagreements with the majority on everything from civil rights and due process to the federal income tax and antitrust law that he was joshingly said by his colleagues to suffer from “dissent‐ery.” To many he seemed to be no more than “an eccentric exception,” which is what Justice Felix Frankfurter called him in Adamson v. California (1947; p. 62), but because important aspects of his dissents were to gain majorities years after his death, he came to be seen as a twentieth‐century liberal born too soon.

What has secured Harlan's modern reputation more than anything else, perhaps, is his position on the civil rights of the newly freed African‐Americans, a position all the more compelling coming from a former slaveowner and speechifying Know‐Nothing. Alive to all the ironies, Harlan was pleased to write his blistering dissent in the Civil Rights Cases (1883) with the very pen and inkwell that Chief Justice Roger Taney had used when composing the opinion of the Court in Dred Scott v. Sandford (1857). While the majority struck down key provisions of the Civil Rights Act of 1875, Harlan maintained that segregation in public accommodation was a “badge of slavery” that Congress could constitutionally outlaw under the enforcement section of the Thirteenth Amendment. His own approach to statutory construction was in striking contrast to the majority's crabbed reading: “It is not the words of the law but the internal sense of it that makes the law: the letter of the law is the body; the sense and reason of the law is the soul” (p. 26). He scathingly contrasted the Court's post–Reconstruction reluctance to recognize national power to defend the civil rights of ex‐slaves with its pre–Civil War zeal “for the protection of slavery and the rights of the master of fugitive slaves” (p. 53). In the notorious case of Plessy v. Ferguson (1896), upholding Jim Crow laws, Harlan again dissented. Crashing through the argument in favor of separate but equal treatment for African‐Americans, he passionately urged the Court to take judicial notice of what “every one knows”: “The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves” (p. 557). In the latter‐day civil rights movement, associated with Brown v. Board of Education (1954), which overruled Plessy, Harlan's dissents were seen as a more honorable past than that of the Court's majority.

In another area of posthumous vindication, Fourteenth Amendment law, Harlan's dissents again pointed the way of the future. While the majority consistently ruled that the amendment's protection against state action was not necessarily that detailed by the Bill of Rights against federal action, Harlan stoutly maintained the view that “‘due process of law,’ within the meaning of the national Constitution, does not import one thing with reference to the powers of the States, and another with reference to the powers of the general government” (Hurtado v. California, 1884, p. 541). Beginning with scattered cases in the 1920s and developing into a steady stream of holdings in the 1950s and 1960s, the so‐called incorporation theory, that is, that the Fourteenth Amendment incorporates most of the Bill of Rights, steadily became law (see State Action).

On another topic, the federal income tax, Harlan's vindication came by way of constitutional amendment rather than judicial volte‐face. Dissenting in *Pollock v. Farmers' Loan & Trust Co. (1895), which invalidated the federal income tax on the dubious ground of the constitutional provision against direct taxes not proportioned to state population, Harlan berated the majority for overturning precedent and engaging in judicial legislation. Again pointing to the reality involved, he acidly observed that “the practical effect of the decision today is to give to certain kinds of property a position of favoritism and advantage” (p. 685). The Sixteenth Amendment overturned Pollock in 1913, two years after Harlan's death.

But Harlan's prophetic spirit was by no means infallible. The same preference for the simple solution that limits judicial discretion, which brought him prematurely to the incorporation theory, led Harlan to resist the majority's reading of the rule of reason into the Sherman Antitrust Act in Standard Oil v. United States (1911); his very last published opinion, in United States v. American Tobacco Co. (1911), denounced the doctrine as usurping the functions of Congress. It was this view on the heated issue of “trust busting” that won him contemporary popularity. On questions of substantive due process—to what extent the Constitution limits the power of government to regulate the economy—Harlan was unpredictable. He wrote the opinion of the Court in Smyth v. Ames (1898), striking down a Nebraska statute setting railroad rates on the ground that it violated the Due Process Clause of the Fourteenth Amendment by not allowing the companies a “fair return” on the “fair value” of their property; the effect, whether intended or not, was to place the work of all state railroad commissions under court surveillance. By contrast, in Lochner v. New York (1905), which invalidated New York's eight‐hour‐day law for bakers, Harlan dissented—a dissent overshadowed by Oliver Wendell Holmes's more trenchant statement. By contrast again, in Adair v. United States (1908), which invalidated a federal law prohibiting “yellow dog” (antiunion) contracts on interstate railroads, Harlan wrote for the majority, over Holmes's ringing dissent. “The employer and employee have equality of right,” Harlan unrealistically explained, “and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract, which no government can legally justify in a free land” (p. 175). (See Labor; Contract, Freedom of.)

Character and Legacy

Cases such as the latter led Holmes to deny that Harlan shone “either in analysis or generalization.” “He had a powerful vise,” Holmes wrote, “the jaws of which couldn't be got nearer than two inches to each other.” Even with respect to race relations Harlan's prophetic vision reached only so far. His justly famous dissent in Plessy includes this unqualified affirmation: “Our Constitution is color‐blind, and neither knows nor tolerates classes among citizens” (p. 559), a doctrine that cannot be squared with modern affirmative action programs.

Because he unsparingly pointed out the real‐world consequences of many judicial decisions, Harlan was criticized by the formalist legal scholars of his day for including extraneous matter in his dissents. Confident in his convictions, he regularly risked breaches in judicial decorum: reading his dissent in the Income Tax Case, he pounded his fist on the desk and wagged his finger in the faces of the chief justice and Justice Field. Charles Evans Hughes once remarked to Frankfurter that he had heard even worse: in the days of Bradley and Harlan the justices “actually shook fists at one another.” Justice David J. Brewer, a close friend, described the source of Harlan's certitude: “He retires at eight with one hand on the Constitution and the other on the Bible, safe and happy in a perfect faith in justice and righteousness.” At Harlan's memorial service Attorney General George W. Wickersham candidly conceded: “He could lead but he could not follow … His was not the temper of a negotiator.” A more emollient temperament might have left Harlan in the minority less often, although it is unlikely, given his strong‐willed colleagues. More likely, his doughtiness enabled him to persevere in often solitary dissent, expressing with realism some of the best instincts of his day.

Despite his active participation in judicial life Harlan also taught constitutional law at Columbian (now George Washington) University from 1889 until his death. In 1893 he served on the Bering Sea Arbitration Tribunal, which settled a dispute between the United States and the British Empire over Alaskan fur‐seal fisheries. Harlan had married Malvina F. Shanklin in 1856 and fathered six children; his grandson John Marshall Harlan II was also a justice of United States Supreme Court.

See also Due Process, Substantive; Judicial Review; Race and Racism.

Bibliography

• Henry J. Abraham, John Marshall Harlan: A Justice Neglected, Virginia Law Review 41 (1955): 871–891.
• Floyd Barzilia Clark, The Constitutional Doctrines of Justice Harlan (1915).
• Alan F. Westin, Mr. Justice Harlan, in Mr. Justice, edited by Allison Dunham and Philip B. Kurland, rev. ed. (1964).
• G. Edward White, The American Judicial Tradition: Profiles of Leading American Judges (1976), chap. 6, John Marshall Harlan I: The Precursor

— John V. Orth

John Marshall Harlan (1833-1911) was the lone voice on the U.S. Supreme Court supporting legal equality for African Americans during the late 19th and early 20th centuries.

John Marshall Harlan was born on June 1, 1833, in Boyle County, Ky. He graduated from Centre College in 1850, then studied law at the University of Transylvania and in the office of his father, a former congressman and Federal district attorney. In 1861 he moved to Louisville to begin his own lucrative law practice.

Originally a Whig, Harlan supported the Constitutional Union party in 1860 and remained a unionist when the Civil War broke out. He recruited a regiment which fought on the side of the North but resigned his colonelcy in 1863 in order to succeed his father as the state attorney general. After the war Harlan entered politics as a Republican, gaining the support of black and white Kentuckians.

Reconstruction in the South

The origins and social credentials of Harlan and many other Kentucky Republicans throw doubt on the often-used generalization that white Republicans in the Reconstruction South were all disreputable, out-of-state "carpetbaggers" who exploited unsophisticated former slaves. Indeed, Harlan regarded the electorate as discerning voters and anticipated close and even unfavorable attention from black voters when, during his race for governor, he agreed to represent an alleged member of the Ku Klux Klan accused of participating in a lynching. Harlan (who won the case) contended that every man, whatever his politics, deserved as good a lawyer as he could pay for.

In the Republican convention of 1876, Harlan nominated his law partner Benjamin H. Bristow but, seeing the contest deadlock between Bristow and James G. Blaine, released Bristow's delegates and secured the nomination of Rutherford B. Hayes. One personal result was a break between Harlan and Bristow, whose careers had been closely parallel. Meanwhile, Harlan, in strong presidential favor, was named associate justice of the U.S. Supreme Court, taking his seat in December 1877.

Supreme Court Justice

During the racially tense decades that followed, Justice Harlan was almost the only man in high Federal office who spoke for the equal rights of African Americans. This concern would have cost him any elective post, but life tenure on the Court allowed his voice to be heard. Harlan alone dissented in U.S. v. Harris (1882), in which the 14th Amendment was declared not to provide African Americans with Federal protection, even from lynching. He dissented again in the Civil Rights Cases (1883), in which the equal protection clause of the 14th Amendment was held not to guarantee equal access for African Americans to privately owned places of public entertainment or accommodation.

Harlan's most famous dissent was in Plessy v. Ferguson (1896). The 14th Amendment says, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"; Harlan contended that a Louisiana law segregating African Americans into separate railroad cars was a violation thereof. Separate was not equal, he argued in a minority opinion, and he predicted, correctly, that "Jim Crow" segregation would soon extend far beyond railroad cars. He was also a dissenter in Berea College v. Kentucky (1908), which held that a Kentucky school segregation law could be made to apply to a long-integrated private college.

His Sense of Constitutionality

Harlan's contribution to racial justice was less an appeal to egalitarianism or to feelings of white guilt than to white feelings of self-confidence. In Plessy, he included an appeal to Anglo-Saxon pride which, he suggested, needed no assistance from segregation laws. Indeed, he saw no inconsistency in his championship both of the rights of oppressed African Americans and of burgeoning corporate enterprises. In his view each deserved protection from infringement on the basic right to develop to full capacity.

Harlan was also committed to the idea that the nation, as well as individuals, should maintain its strength. He dissented when the Supreme Court declared that the income tax was unconstitutional (Pollock v. Farmer's Loan and Trust Company, 1895). Similarly, in support of the premise that the states had "police power" to provide for the public welfare, Harlan joined Oliver Wendell Holmes in dissenting in Lochner v. New York (1905).

A firm believer that the American Constitution and laws passed within its framework meant what they said, Harlan accepted neither Justice Stephen J. Field's appeal to "natural law" in the 19th century nor Chief Justice Edward Douglass White's doctrine of the "rule of reason" in the 20th, as he made clear in his dissent in Standard Oil Company v. U.S. (1911). The majority had held that certain monopolistic practices in restraint of trade were "reasonable" and, hence, allowable despite the Sherman Antitrust Act. Harlan died on Oct. 14, 1911, in Washington.

In 1857 Harlan had married Malvina F. Shanklin; they had six children. In 1955 his grandson and namesake was appointed to the court on which the first John Marshall Harlan had long been the most distinguished justice.

Further Reading

The only biography is Frank Latham, Great Dissenter: John Marshall Harlan (1970). The Bristow Papers at the Library of Congress are important. A study of Harlan is Floyd Barzilia Clark, The Constitutional Doctrines of Justice Harlan (1915; 2d ed. 1969). Allison Dunham and Philip B. Kurland, eds., Mr. Justice (1956; rev. ed. 1964), has a biographical sketch of Harlan. Leo Pfeffer, This Honorable Court: A History of the United States Supreme Court (1965), is a good background study.

Additional Sources

Beth, Loren P., John Marshall Harlan: the last Whig justice, Lexington, Ky.: University Press of Kentucky, 1992.

Yarbrough, Tinsley E., Judicial enigma: the first justice Harlan, New York: Oxford University Press, 1995.

• Born: June 1, 1833, Boyle County, Ky.
• Education: Centre College, B.A., 1850; studied law at Transylvania University, 1851–53
• Previous government service: adjutant general of Kentucky, 1851; county judge, Franklin County, Ky., 1858; attorney general of Kentucky, 1863–67
• Appointed by President Rutherford B. Hayes Oct. 17, 1877; replaced David Davis, who resigned
• Supreme Court term: confirmed by the Senate Nov. 29, 1877, by a voice vote; served until Oct. 14, 1911
• Died: Oct. 14, 1911, Washington, D.C.

John Marshall Harlan belonged to a wealthy and prominent Kentucky family. They were slaveholders and participants in public affairs.

Harlan joined the Republican party and backed the nomination of Rutherford B. Hayes for President in 1876. President Hayes rewarded Harlan with an appointment to the Supreme Court in 1877. Harlan served on the Court for almost 34 years, one of the longest terms in the Court's history. He was known as the Great Dissenter because of his opposition to several important decisions.

Justice Harlan's most famous dissent was in response to the Court's decision in Plessy v. Ferguson (1896). The Court upheld a Louisiana law requiring black railroad passengers to sit in separate cars, apart from white passengers. The Court argued that this state law was in line with the 14th Amendment requirement of “equal protection of the laws” because black passengers were treated equally, though separately. Justice Harlan disagreed: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Harlan's dissenting opinion was vindicated in Brown v. Board of Education (1954), which struck down state laws requiring racial segregation in public schools. But at the time of Plessy, Harlan was the only member of the Court who had the vision of justice that would prevail later on, in the decisions of the Warren Court in the 1950s and 1960s.

See also Plessy v. Ferguson

(1833-1911), associate justice of the U.S. Supreme Court. Born into a slaveholding Kentucky family, Harlan imbibed strong nationalist views from his father, a two-term Whig congressman and an ally of Henry Clay. Entering law practice and politics during the turbulent 1850s, young Harlan became a staunch Unionist and, when war finally erupted, he became colonel of a Union regiment. Nevertheless, although strongly opposed to secession, he remained a defender of slavery, denouncing Lincoln and wartime emancipation policies. Reconstruction, however, transformed Harlan's views on race. As an aspiring politician with an inbred hostility toward Democrats, he soon became a leading figure in the state's fledgling Republican party. With the zeal of the recent convert, he embraced the party's support for civil equality, advocating vigorous use of national power on behalf of the freedmen.

Republican politics brought Harlan to the national stage. In 1876, he played a crucial role in securing the presidential nomination for Rutherford B. Hayes, and in 1877 Hayes rewarded him with an appointment to the Supreme Court. Although affable and well liked by his colleagues, Harlan, a devout Presbyterian, viewed judging as a moral act. He was inflexible on matters of principle and refused to be swept along by the Court's drift to the right. As a member of the Court for thirty-four years (only three justices have served longer), he distinguished himself principally by passionate, often eloquent, dissents that forcefully challenged the new conservative orthodoxy.

During Harlan's tenure, a wide range of important economic issues came before the Court. In these cases, Harlan was no radical. He interpreted the contract clause as protecting out-of-state investors from state governments and used the due process clause to void legislation favorable to unions. Nevertheless, he demonstrated little of his conservative colleagues' fear that increasing government regulation would undermine private property and lead to socialism. An expansive nationalism and hostility to monopoly led him to support federal statutes regulating the railroads (Texas and Pacific Railway Co. v. Interstate Commerce Commission, 1896), curbing trusts (Standard Oil Company v. United States, 1911), and establishing an income tax (Pollock v. Farmers' Loan and Trust Co., 1895).

Harlan's most important contribution to American jurisprudence came in the area of civil rights. He clung tenaciously to Radical Republican orthodoxy while his colleagues adopted a narrow view of national power under the Reconstruction amendments, gutted much of the civil rights legislation passed during Reconstruction, and upheld state segregation and disfranchisement measures. His dissent in Plessy v. Ferguson, the 1896 case that sustained a Louisiana segregation statute, offered a powerful defense of equal rights that the Court would echo fifty-eight years later in Brown v. Board of Education of Topeka (1954). "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens," he wrote. "In respect of civil rights, all citizens are equal before the law." Harlan also took an expansive view of the rights protected by the Fourteenth Amendment, arguing that it incorporated the guarantees of the Bill of Rights and applied them to the states, a view that was rejected during his life but that in substance had been adopted by the end of the 1960s.

Bibliography:

G. Edward White, The American Judicial Tradition, rev. ed. (1988).

Author:

Donald Nieman

See also Plessy v. Ferguson ; Reconstruction; Supreme Court.

John Marshall Harlan served as justice of the U.S. Supreme Court from 1877 to 1911. Harlan, a native of Kentucky, is best remembered for his dissenting opinions in cases that upheld restrictions on the civil rights of African Americans, most notably in Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896). Harlan's dissents served to enlarge his judicial reputation as attitudes and laws changed concerning state-mandated segregation.

Harlan was born in Boyle County, Kentucky, on June 1, 1833. The son of a prominent lawyer and politician, Harlan graduated from Centre College and then studied law at Transylvania University, both located in Kentucky. He was admitted to the Kentucky bar in 1853. As a young man, Harlan sought his own political career. He was elected a county judge in 1858, but relocated to Louisville in 1861 to establish a successful law practice.

With the beginning of the Civil War in 1861, Harlan joined the Union army as a lieutenant colonel and commanded a company of infantry volunteers. Upon the death of his father, he resigned his commission and returned to his law practice in Louisville. There, he became an active member of the Republican party. He made two unsuccessful efforts at getting himself elected governor of Kentucky, but proved more successful at helping others, securing the presidential nomination of Rutherford B. Hayes at the 1876 Republican National Convention.

Hayes took office in 1877, after a difficult election. One of his first acts was to appoint Harlan to the U.S. Supreme Court. Harlan, at age forty-four, joined a Court that, for the length of his tenure, was economically conservative and philosophically opposed to the enlargement of federal power. In addition, the Court deferred to the policies of southern states on racial segregation.

During his long tenure on the bench, Harlan gained prominence as a frequent dissenter. With a temperament that was better suited to leading than following, Harlan did not have the ability to negotiate compromise. Instead, he relied on his dissenting opinions to voice his often prophetic judgments.

In Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, 15 S. Ct. 673, 39 L. Ed. 759 (1895), the Court held that the federal income tax was unconstitutional. Harlan dissented, arguing that the Court was ignoring precedent and acting as a legislator rather than a court. He noted that "the practical effect of the decision today is to give to certain kinds of property a position of favoritism and advantage." Harlan was vindicated in 1913 when the Sixteenth Amendment overturned Pollock and authorized Congress to impose a federal income tax.

In 1883, the Supreme Court struck down Congress's attempt to outlaw racial discrimination in places of public accommodation, including hotels, taverns, restaurants, theaters, streetcars, and railroad passenger cars. The majority decided in the Civil Rights cases, 109 U.S. 3, 3 S. Ct. 18, 27 L. Ed. 835 (1883), that the Civil Rights Act of 1875 violated the Fourteenth Amendment. It determined that the amendment prohibited only official, state-sponsored discrimination and could not reach discrimination practiced by privately owned places of public accommodation.

Justice Harlan, in his dissent, argued that segregation in public accommodations was a "badge of slavery" for the recently freed African Americans, and that the act could be constitutionally justified by looking to the Thirteenth Amendment. This amendment gave Congress the authority to outlaw all "badges and incidents" of slavery. Harlan pointed out that before the Civil War, the Supreme Court protected the rights of slaveholders. Less than twenty years after the abolition of slavery, the Court refused to extend its power and authority to protect the former slaves. Not until the passage of title II of the Civil Rights Act of 1964 (42 U.S.C.A. §2000a et seq.) would the federal government ultimately achieve the desegregation of public accommodations.

Harlan's most famous dissent came in Plessy. At issue in this case was an 1890 Louisiana law that required passenger trains operating within the state to provide "equal but separate" accommodations for "white and colored races." The Supreme Court upheld the law on a 7-1 vote, thus putting a stamp of approval on all laws that mandated racial segregation. In his majority opinion, Justice Henry B. Brown concluded that the Fourteenth Amendment "could not have intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality."

Justice Harlan, the lone dissenter, responded that the "arbitrary separation of citizens on the basis of race" was equivalent to the imposition of a "badge of servitude" on African Americans. He cut through the legal arguments to proclaim that the real intent of the law was not to give equal accommodations but to compel African Americans "to keep to themselves." He concluded that this was unacceptable because "our Constitution is color-blind, and neither knows nor tolerates classes among citizens."

Sixty years later, Harlan's vision was embraced by the Supreme Court in Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), when it overturned Plessy and rejected the "separate-but-equal" doctrine. With Brown, the modern civil rights movement gained its first major victory, setting the stage for the dismantling of the Jim Crow laws, which had required racial discrimination in the South.

Justice Harlan also taught constitutional law at Columbian University (now George Washington University) and served on the Bering Sea Arbitration Tribunal of 1893, which resolved a dispute between the United States and Great Britain over the hunting of seals inhabiting the Bering Sea area of Alaska.

Harlan died October 14, 1911. His grandson, John Marshall Harlan II, also served on the Supreme Court.

This is about the pre-World-War-I US Supreme Court justice; for his grandson, the mid-20th century holder of the same position, see John Marshall Harlan II.

John Marshall Harlan
John Marshall Harlan, Supreme Court collection, Photograph by Handy Studios.[1]
Associate Justice of the United States Supreme Court
In office December 10, 1877 – October 14, 1911
Nominated by	Rutherford B. Hayes
Preceded by	David Davis
Succeeded by	Mahlon Pitney
Born	June 1, 1833(1833-06-01) Boyle County, Kentucky, U.S.
Died	October 14, 1911 (aged 78) Washington, D.C., U.S.

John Marshall Harlan (June 1, 1833 – October 14, 1911) was an American Supreme Court associate justice. He is most notable as the lone dissenter in the infamous Civil Rights Cases (1883), and Plessy v. Ferguson (1896), which, respectively, struck down as unconstitutional federal antidiscrimination legislation and upheld Southern segregation statutes. He was also the first Supreme Court justice to have earned a modern law degree.

Contents 1 Biographical information 2 Tenure at the Supreme Court 3 Plessy v. Ferguson (1896) 4 Death and legacy 5 See also 6 Notes 7 References 8 Further reading 9 External links

Biographical information

Col. John M. Harlan, 1861

Harlan was born into a prominent Kentucky slaveholding family, his father a well-known Kentucky politician and former Congressman. Harlan graduated from Centre College, where he was a member of Beta Theta Pi, and began his career by joining his father's law practice in 1852. Harlan graduated from law school at Transylvania University in 1853. He was a Whig like his father; after the party's dissolution, he participated in several parties, including the Know Nothings. Harlan was elected county judge of Franklin County, Kentucky in 1858. He enlisted in the Union Army in 1861 when the Civil War broke out, rising to the rank of colonel. He was the first commanding officer of the 10th Kentucky Infantry.

Harlan firmly supported slavery but fought to preserve the Union. He had said he would resign if President Lincoln signed the Emancipation Proclamation, but in fact did not leave the army until the death of his father, several months later, to care for his family.

He resumed his career and was elected Attorney General of Kentucky in 1863. Harlan joined the Republican party in 1868 and remained a Republican for the rest of his life, and, befitting his new party, he turned strongly against slavery, calling it "the most perfect despotism that ever existed on this earth." He ran for governor in 1871 and 1875, losing both times.

Tenure at the Supreme Court

He was appointed to the Supreme Court in 1877 by President Rutherford B. Hayes, whom he had helped win the 1876 Republican party presidential nomination. While serving on the Court, Harlan supplemented his income by teaching constitutional law at a night law school which became part of George Washington University.

As the Court moved away from interpreting the Reconstruction Amendments to protect African Americans, Harlan wrote several eloquent dissents in support of equal rights for African Americans and racial equality. In the Civil Rights Cases (1883), the Supreme Court struck down the Civil Rights Act of 1875, holding that the act exceeded Congressional powers. Harlan alone dissented, vigorously, charging that the majority had subverted the Reconstruction Amendments: "The substance and spirit of the recent amendments of the constitution have been sacrificed by a subtle and ingenious verbal criticism." Harland also dissented in Giles v. Harris (1903), a case challenging the use of grandfather clauses to restrict voting rolls and de facto exclude blacks.

At the same time, however, Harlan did not embrace the idea of full social racial equality. For example, in his Plessy dissent, Harlan wrote that

[t]he white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty.

Harlan also exhibited antipathy toward other races, such as Chinese. For example, in 1898 Harlan joined Chief Justice Fuller's dissent in United States v. Wong Kim Ark, in which they objected to the Court's holding that persons of Chinese descent born in the United States were citizens by birth. In the dissent, Fuller and Harlan denounced

the presence within our territory of large numbers of Chinese laborers, of a distinct race and religion, remaining strangers in the land, residing apart by themselves, tenaciously adhering to the customs and usage of their own country, unfamiliar with our institutions and religion, and apparently incapable of assimilating with our people.

Harlan was the first justice to argue that the Fourteenth Amendment incorporated the Bill of Rights (making rights guarantees applicable to the states), in Hurtado v. California (1884). His argument would later be adopted by Hugo Black. Today, most of the protections of the Bill of Rights and Civil War amendments are now incorporated, though not by the theory advanced by Harlan.

Harlan was also the most stridently anti-imperialist justice on the Supreme Court, arguing consistently in the Insular Cases that the Constitution did not permit the demarcation of different rights between citizens of the states and the residents of newly acquired territories in the Philippines, Hawaii, Guam and Puerto Rico, a view that was consistently in the minority. In Hawaii v. Mankichi (1903) he declared that, "If the principles now announced should become firmly established, the time may not be far distant when, under the exactions of trade and commerce, and to gratify an ambition to become the dominant power in all the earth, the United States will acquire territories in every direction... whose inhabitants will be regarded as 'subjects' or 'dependent peoples,' to be controlled as Congress may see fit... which will engraft on our republican institutions a colonial system entirely foreign to the genius of our Government and abhorrent to the principles that underlie and pervade our Constitution."

Harlan's partial dissent in the 1911 Standard Oil anti-trust decision (Standard Oil Co. of New Jersey v. United States,221 U.S. 1) penetratingly addressed issues of statutory construction reaching beyond the Sherman Anti-Trust Act itself.

Harlan also dissented in Lochner v. New York, though he agreed with the majority "that there is a liberty of contract which cannot be violated even under the sanction of direct legislative enactment."

Plessy v. Ferguson (1896)

John Marshall Harlan

In 1896, the Supreme Court handed down one of the most infamous decisions in U.S. history, Plessy v. Ferguson (1896), which established the doctrine of "separate but equal" as it legitimized both Southern and Northern segregation practices. The Court, speaking through Justice Henry B. Brown, held that separation of the races was not inherently unequal, and any inferiority felt by blacks at having to use separate facilities was an illusion: "We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of any-thing found in the act, but solely because the colored race chooses to put that construction upon it."^[2] (While the Court held that separate facilities had to be equal, in practice the facilities designated for blacks were invariably inferior.)

Alone in dissent, Harlan argued that the Louisiana law at issue, which forced separation of white and black passengers on railway cars, was a "badge of servitude"^[2] that degraded African-Americans, and correctly predicted that the Court's ruling would become as infamous as its ruling in the Dred Scott case.

He wrote:

“

The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.

”

Death and legacy

Harlan died on October 14, 1911, after 33 years with the Supreme Court, the third-longest tenure on the court up to that time (and the sixth-longest ever). Many people who knew him regard Harlan as one of the most important, controversial, and visionary Supreme Court Justices in U.S. History.

It is also said that Harlan's attitudes towards civil rights were influenced by the social principles of the Presbyterian Church. During his tenure as a Justice, he taught a Sunday school class at a Presbyterian church in Washington, DC.

His son, James S. Harlan, became the chairman of the Interstate Commerce Commission; his grandson, John Marshall Harlan II, was also a Supreme Court Associate Justice (1955-71).

There are collections of Harlan's papers at the University of Louisville in Louisville, Kentucky, and at the Manuscript Division of the Library of Congress in Washington, D.C.. Both are open for research. Other papers are collected at many other libraries.^[3]

His remains are buried in Rock Creek Cemetery, Washington, DC.^[4]

Named for Justice Harlan, the "Harlan Scholars" of the University of Louisville/Louis D. Brandeis School of Law, is an undergraduate organization for students interested in attending law school.

Centre College, Harlan's alma mater, instituted the John Marshall Harlan Professorship in Government in 1994 in honor of Harlan's reputation as one of the Supreme Court's greatest justices. [1]

In 2009, with the 200th anniversary of Abraham Lincoln's birth coinciding with the election of the first black American president, Harlan's views on civil rights - far ahead of his time - were celebrated and remembered by many. [2]

See also

United States Army portal

List of Justices of the Supreme Court of the United States List of law clerks of the Supreme Court of the United States List of United States Chief Justices by time in office List of U.S. Supreme Court Justices by time in office

United States Supreme Court cases during the Fuller Court United States Supreme Court cases during the Waite Court United States Supreme Court cases during the White Court

American Civil War portal

Notes

1. ^ John Marshall Harlan, Biography, Bibliography, Location of papers Sixth Circuit U.S. Court of Appeals.
2. ^ ^{a b} Plessy v. Ferguson, 163 U.S. 537 (1896) at Findlaw"
3. ^ John Marshall Harlan, Location of papers, Bibliography and Biography Sixth Circuit U.S. Court of Appeals.
4. ^ John Marshall Harlan memorial at Find a Grave.

References

• Beth, Loren P. (1992). John Marshall Harlan: The Last Whig Justice. Lexington, Kentucky: University Press of Kentucky. ISBN 0-8131-1778-X. 
• Latham, Frank B. (1970). The Great Dissenter: Supreme Court Justice John Marshall Harlan, 1833-1911.. New York: Cowles Book Co. 
• Przybyszewski, Linda (1999). The Republic According to John Marshall Harlan. Chapel Hill: University of North Carolina Press. ISBN 0-8078-4789-5. 

Further reading

• Abraham, Henry J. (1992). Justices and Presidents: A Political History of Appointments to the Supreme Court (3rd ed.). New York: Oxford University Press. ISBN 0-19-506557-3. 
• Cushman, Clare (2001). The Supreme Court Justices: Illustrated Biographies, 1789–1995 (2nd ed.). (Supreme Court Historical Society, Congressional Quarterly Books). ISBN 1568021267. 
• Ely, James W. (1995). The Chief Justiceship of Melville W. Fuller, 1888-1910. Columbia, SC: University of South Carolina Press. ISBN 1570030189. 
• Frank, John P. (1995). Friedman, Leon; Israel, Fred L.. eds. The Justices of the United States Supreme Court: Their Lives and Major Opinions. Chelsea House Publishers. ISBN 0791013774. 
• Hall, Kermit L., ed (1992). The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press. ISBN 0195058356. 
• King, Willard L. (1950). Melville Weston Fuller: Chief Justice of the United States 1888-1910. New York: The Macmillan Company. 
• Martin, Fenton S.; Goehlert, Robert U. (1990). The U.S. Supreme Court: A Bibliography. Washington, D.C.: Congressional Quarterly Books. ISBN 0871875543. 
• Urofsky, Melvin I. (1994). The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing. pp. 590. ISBN 0815311761. 

External links

Wikisource has original text related to this article: Author: John Marshall Harlan

Wikimedia Commons has media related to: John Marshall Harlan

• Chin, Gabriel J., "The First Justice Harlan By The Numbers: Just How Great was the Great Dissenter?," 33 Akron Law Review 629 (1999).
• John Marshall Harlan at Find a Grave Retrieved on 2009-04-17
• Oyez Project, U.S. Supreme Court Multimedia - John M. Harlan.
• John Marshall Harlan, Bibliography, Biography and location of papers, Sixth Circuit U.S. Court of Appeals.
• Supreme Court Historical Society, John Marshall Harlan (including official portrait).
• University of Louisville, Louis D. Brandeis School of Law Library - Harlan Collection.
• [3].

Legal offices
Preceded by Andrew J. James	Attorneys General of Kentucky 1861 – 1865	Succeeded by John Rodman
Preceded by David Davis	Associate Justice of the Supreme Court of the United States December 10, 1877 – October 14, 1911	Succeeded by Mahlon Pitney

Supreme Court of the United States

The Waite Court Chief Justice: Morrison Remick Waite (1874–1888) 1877–1880: N. Clifford | N.H. Swayne | S.F. Miller | S.J. Field | Wm. Strong | J.P. Bradley | W. Hunt | J.M. Harlan 1881: N. Clifford | S.F. Miller | S.J. Field | J.P. Bradley | W. Hunt | J.M. Harlan | Wm. B. Woods | S. Matthews 1882–1887: S.F. Miller | S.J. Field | J.P. Bradley | J.M. Harlan | Wm. B. Woods | S. Matthews | H. Gray | S. Blatchford 1888: S.F. Miller | S.J. Field | J.P. Bradley | J.M. Harlan | S. Matthews | H. Gray | S. Blatchford | L.Q.C. Lamar II The Fuller Court Chief Justice: Melville Weston Fuller (1888–1910) 1888–1889: S.F. Miller | S.J. Field | J.P. Bradley | J.M. Harlan | S. Matthews | H. Gray | S. Blatchford | L.Q.C. Lamar II 1890–1891: S.J. Field | J.P. Bradley | J.M. Harlan | H. Gray | S. Blatchford | L.Q.C. Lamar II | D.J. Brewer 1891–1892: S.J. Field | J.P. Bradley | J.M. Harlan | H. Gray | S. Blatchford | L.Q.C. Lamar II | D.J. Brewer | H.B. Brown 1892–1893: S.J. Field | J.M. Harlan | H. Gray | S. Blatchford | L.Q.C. Lamar II | D.J. Brewer | H.B. Brown | Geo. Shiras, Jr. 1893: S.J. Field | J.M. Harlan | H. Gray | S. Blatchford | D.J. Brewer | H.B. Brown | Geo. Shiras, Jr. | H.E. Jackson 1894–1895: S.J. Field | J.M. Harlan | H. Gray | D.J. Brewer | H.B. Brown | Geo. Shiras, Jr. | H.E. Jackson | E.D. White 1896–1897: S.J. Field | J.M. Harlan | H. Gray | D.J. Brewer | H.B. Brown | Geo. Shiras, Jr. | E.D. White | R.W. Peckham 1898–1902: J. M. Harlan | H. Gray | D.J. Brewer | H.B. Brown | Geo. Shiras, Jr. | E.D. White | R.W. Peckham | J. McKenna 1902–1903: J. M. Harlan | D.J. Brewer | H.B. Brown | Geo. Shiras, Jr. | E.D. White | R.W. Peckham | J. McKenna | O.W. Holmes 1903–1906: J. M. Harlan | D.J. Brewer | H.B. Brown | E.D. White | R.W. Peckham | J. McKenna | O.W. Holmes | Wm. R. Day 1906–1909: J. M. Harlan | D.J. Brewer | E.D. White | R.W. Peckham | J. McKenna | O.W. Holmes | Wm. R. Day | Wm. H. Moody Jan–Mar 1910: J. M. Harlan | D.J. Brewer | E.D. White | J. McKenna | O.W. Holmes | Wm. R. Day | Wm. H. Moody | H.H. Lurton Mar–Jul 1910: J. M. Harlan | E.D. White | J. McKenna | O.W. Holmes | Wm. R. Day | Wm. H. Moody | H.H. Lurton The White Court Chief Justice: Edward Douglass White (1910–1921) 1910: J. M. Harlan | J. McKenna | O.W. Holmes | Wm. R. Day | Wm. H. Moody | H.H. Lurton | C.E. Hughes 1911: J. M. Harlan | J. McKenna | O.W. Holmes | Wm. R. Day | H.H. Lurton | C.E. Hughes | W. Van Devanter | J.R. Lamar

Persondata
NAME	Harlan, John Marshall
ALTERNATIVE NAMES
SHORT DESCRIPTION	Union United States Army officer
DATE OF BIRTH	June 1, 1833
PLACE OF BIRTH	Boyle County, Kentucky
DATE OF DEATH	October 14, 1911
PLACE OF DEATH	Washington, D.C.

This entry is from Wikipedia, the leading user-contributed encyclopedia. It may not have been reviewed by professional editors (see full disclaimer)