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H, Harlan, John Marshall

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

Harlan, John Marshall

(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.

John Marshall Harlan

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 (p. 420) 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, (p. 421) 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 (p. 422) 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.

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