John Marshall Harlan


 * 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 (June 1, 1833 – October 14, 1911) was a Kentucky lawyer and politician who served as an associate justice on the Supreme Court. He is most notable as the lone dissenter in the Civil Rights Cases (1883), and Plessy v. Ferguson (1896), which, respectively, struck down as unconstitutional federal anti-discrimination legislation and upheld Southern segregation statutes. These dissents, among others, led to his nickname, "the Great Dissenter."

Early life and political career
Harlan was born into a prominent Kentucky slaveholding family whose presence in the region dated back to 1779. Harlan's father was James Harlan, a lawyer and politician; his mother, Elizabeth, née Davenport, was the daughter of a pioneer from Virginia. After attending school in Frankfort, Harlan enrolled at Centre College, where he was a member of Beta Theta Pi and graduated with honors. Though his mother wanted Harlan to become a merchant, James insisted that his son follow him into the legal profession, and Harlan joined his father's law practice in 1852. Yet while James Harlan could have trained his son in the office as was the norm in that era, he sent John to attend law school at Transylvania University in 1853, where George Robertson and Thomas Alexander Marshall were among his instructors.

A member of the Whig Party like his father, Harlan got an early start in politics when, in 1851, he was offered the post of adjutant general of the state by the governor at that time, John L. Helm. He served in the post for the next eight years, which gave him a statewide presence and familiarized him with many of Kentucky's leading political figures. With the Whig Party's dissolution in the early 1850s, he shifted his affiliation to the Know Nothings, despite his discomfort with their opposition to Catholicism. Harlan's personal popularity within the state was such that he was able to survive the decline of the Know Nothing movement in the late 1850s, winning election as the county judge for Franklin County, Kentucky in 1858. The following year, he renounced his allegiance to the Know Nothings and joined the state's Opposition Party, serving as their candidate in an unsuccessful attempt to defeat William E. Simms for the seat in Kentucky's 8th congressional district.

During the 1860 presidential election, Harlan supported the Constitutional Union candidate, John Bell. In the secession crisis that followed Abraham Lincoln's victory, Harlan sought to prevent Kentucky from seceding. When the state legislature voted to create a new militia Harlan organized and led a company of zouaves before recruiting a company that was mustered into the service as the 10th Kentucky Infantry. Harlan served in the Western theater until the death of his father James in February 1863, whereupon Harlan resigned his commission as colonel and returned to Frankfort in order to support his family.

Three weeks after leaving the army, Harlan was nominated by the Union Party as their nominee to become the Attorney General of Kentucky. Campaigning on a platform of vigorous prosecution of the war, he won the election by a considerable margin. As attorney general for the state, Harlan issued legal opinions and advocated for the state in a number of court cases. Party politics, however, occupied much of his time; Harlan campaigned for Democrat George McClellan in the 1864 presidential election and worked as a junior partner to the state Democratic party in the aftermath of the Civil War. After losing a bid for reelection as attorney general, Harlan joined the Republican Party in 1868.

Moving to Louisville, Harlan formed a partnership with John E. Newman, a former circuit court judge and, like Harlan, a Unionist turned Republican. There their firm prospered, and they took in a new partner, Benjamin Bristow, in 1870. In addition to his legal practice, Harlan worked to build up the Republican Party organization in the state, and ran unsuccessfully as the party's nominee for governor of Kentucky in both 1871 and 1875. Despite his defeats, he earned a reputation as a campaign speaker and Republican activist. In the 1876 presidential election, Harlan worked to nominate Bristow as the Republican party's nominee, though when Rutherford B. Hayes emerged as the compromise candidate, Harlan switched his delegation's votes and subsequently campaigned on Hayes's behalf.

Nomination
Though considered for a number of positions in the new administration, most notably for Attorney General, initially the only job Harlan was offered was as a member of a commission sent to Louisiana to resolve disputed statewide elections there. Justice David Davis, however, had resigned from the Supreme Court in January 1877 after being selected as a United States Senator by the Illinois General Assembly. Seeking a replacement, Hayes settled on Harlan, and formally submitted his name to the Senate on October 16. Though Harlan's nomination prompted some criticism from Republican stalwarts, he was confirmed unanimously on November 29, 1877.

Life on the Court
Harlan greatly enjoyed his time as a justice, which would last for the remainder of his life. From the start, he established good relationships with his fellow justices and he was close friends with a number of them. Still, money problems continually plagued him, particularly as he began to put his three sons through college. Debt was a constant concern, and in the early 1880s, he considered resigning from the Court and returning to private practice. He ultimately elected to remain on the Court but supplemented his income by teaching constitutional law at the Columbian Law School, which later became the law school of George Washington University.

When Harlan began his service the Supreme Court faced a heavy workload that consisted primarily of diversity and removal cases, with only a few constitutional issues. Justices also rode circuit in the various federal judicial circuits; though these usually corresponded to the region from which the justice was appointed, Harlan was assigned the Seventh Circuit due to his junior status. Harlan rode the Seventh Circuit until 1896, when he switched to his home circuit, the Sixth, upon the death of its previous holder, Justice Howell Edmunds Jackson.

Jurisprudence
As the Court moved away from interpreting the Reconstruction Amendments to protect Black Americans, Harlan wrote several dissents in support of equal rights for Black 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. Only Harlan 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." Harlan also dissented in Giles v. Harris (1903), a case challenging the use of grandfather clauses to restrict voting rolls and de facto exclude blacks.

Harlan did not embrace the idea of full social racial equality. In his Plessy dissent, Harlan wrote: [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. 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. Harlan was also viewed by some as oppositional toward other races, such as Chinese. In 1898 Harlan joined Chief Justice Fuller's dissent in United States v. Wong Kim Ark, dissenting from the Court's holding that persons of Chinese descent born in the United States were citizens by birth. Fuller and Harlan argued that the principle of jus sanguinis (that is, the concept of a child inheriting his or her father's citizenship by descent regardless of birthplace) had been more pervasive in U.S. legal history since independence. In the view of the minority, excessive reliance on jus soli (birthplace) as the principal determiner of citizenship would lead to an untenable state of affairs in which "the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the presidency, while children of our citizens, born abroad, were not". It is alleged they 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.

On the other hand, Harlan voted with the majority in Pace v. Alabama (1883), which ruled that anti-miscegenation laws are constitutional.

Harlan was the first justice to argue that the Fourteenth Amendment incorporated the Bill of Rights (making rights guarantees applicable to the individual states), in Hurtado v. California (1884). His argument was later adopted by Hugo Black. Today, most of the protections of the Bill of Rights and Civil War amendments 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) his opinion stated: "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 dissented in Lochner v. New York, but 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)
In 1896, the Supreme Court handed down one of the most famous 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." (While the Court held that separate facilities had to be equal, in practice the facilities designated for blacks were invariably inferior.)

Alone, Harlan dissented about the Louisiana law at issue, which forced separation of white and black passengers on railway cars, saying that it was a "badge of servitude" that degraded African-Americans, and claimed 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....

If evils will result from the commingling of the two races upon public highways established for the benefit of all, they will be infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race. We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow-citizens, our equals before the law. The thin disguise of 'equal' accommodations for passengers in railroad coaches will not mislead any one, nor atone for the wrong this day done."

While Harlan appeared to advocate for equality among those of different races and for a color-blind Constitution, in his dissent he also stated "[t]here is a race so different from our own that we do not permit those belonging to it to be come citizens of the United States.... I allude to the Chinese race." In United States v. Wong Kim Ark (1898), Harlan joined a dissent proclaiming the dangers of having large numbers of Chinese immigrants in the United States.

Family and personal life
In 1856, Harlan married Malvina French Shanklin, the daughter of an Indiana businessman. Theirs was a happy marriage, which lasted until Harlan's death. They had six children, three sons and three daughters. Their eldest son, Richard, became a Presbyterian minister and educator who served as president of Lake Forest College from 1901 until 1906. Their second son, James S. Harlan, practiced in Chicago and served as attorney general of Puerto Rico before being appointed to the Interstate Commerce Commission in 1906 and becoming that body's chairman in 1914. Their youngest son, John Maynard, also practiced in Chicago and served as an alderman before running unsuccessfully for mayor in both 1897 and 1905; John Maynard's son, John Marshall Harlan II, served as a Supreme Court Associate Justice from 1955 until 1971.

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.

Death, honors 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). He was buried in Rock Creek Cemetery, Washington, D.C. where his body resides along with those of three other justices.

Harlan, who suffered from financial problems throughout his tenure on the Court, left minimal assets for the support of his widow, Malvina Shanklin Harlan, and two unmarried daughters. In the months following Harlan's death, leading members of the Supreme Court Bar established a fund for the benefit of the Harlan survivors.

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. 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. Harlan is commemorated by John Marshall Harlan Community Academy High School a Chicago Public High 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. 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.