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John Marshall Harlan (June 1, 1833 – October 14, 1911) was an American lawyer and politician who served as an
associate justice of the Supreme Court of the United States An associate justice of the Supreme Court of the United States is a Justice (title), justice of the Supreme Court of the United States, other than the chief justice of the United States. The number of associate justices is eight, as set by the J ...
from 1877 until his death in 1911. He is often called "The Great Dissenter" due to his many dissents in cases that restricted civil liberties, including the ''
Civil Rights Cases The ''Civil Rights Cases'', 109 U.S. 3 (1883), were a group of five landmark cases in which the Supreme Court of the United States held that the Thirteenth and Fourteenth Amendments did not empower Congress to outlaw racial discrimination by ...
'', '' Plessy v. Ferguson'', and '' Giles v. Harris''. Many of Harlan's views expressed in his notable dissents would become the official view of the Supreme Court starting from the 1950s
Warren Court The Warren Court was the period in the history of the Supreme Court of the United States from 1953 to 1969 when Earl Warren served as the chief justice. The Warren Court is often considered the most liberal court in U.S. history. The Warren Cou ...
and onward. Born into a prominent, slave-holding family near
Danville, Kentucky Danville is a list of Kentucky cities, home rule-class city and the county seat of Boyle County, Kentucky, United States. The population was 17,236 at the 2020 United States census, 2020 census. Danville is the principal city of the Danville Micr ...
, Harlan experienced a quick rise to political prominence. When the
American Civil War The American Civil War (April 12, 1861May 26, 1865; also known by Names of the American Civil War, other names) was a civil war in the United States between the Union (American Civil War), Union ("the North") and the Confederate States of A ...
broke out, Harlan strongly supported the Union and recruited the 10th Kentucky Infantry. Despite his opposition to the
Emancipation Proclamation The Emancipation Proclamation, officially Proclamation 95, was a presidential proclamation and executive order issued by United States President Abraham Lincoln on January 1, 1863, during the American Civil War. The Proclamation had the eff ...
, he served in the war until 1863, when he was elected
attorney general of Kentucky The attorney general of Kentucky is the chief legal officer of the U.S. state of Kentucky, created by the Kentucky Constitution (Ky.Const. § 91). Under Kentucky law, they serve several roles, including the state's chief prosecutor (KRS 15.700), ...
. Harlan lost his re-election bid in 1867 and joined the Republican Party in the following year, quickly emerging as the leader of the Kentucky Republican Party. In 1877, President
Rutherford B. Hayes Rutherford Birchard Hayes (; October 4, 1822 – January 17, 1893) was the 19th president of the United States, serving from 1877 to 1881. Hayes served as Cincinnati's city solicitor from 1858 to 1861. He was a staunch Abolitionism in the Un ...
appointed Harlan to the Supreme Court. Harlan's jurisprudence was marked by his life-long belief in a strong national government, his sympathy for the economically disadvantaged, and his view that the
Reconstruction Amendments The , or the , are the Thirteenth, Fourteenth, and Fifteenth amendments to the United States Constitution, adopted between 1865 and 1870. The amendments were a part of the implementation of the Reconstruction of the American South which oc ...
had fundamentally transformed the relationship between the federal government and the state governments. He was the sole dissenter in both the ''Civil Rights Cases'' (1883) and ''Plessy v. Ferguson'' (1896), which permitted state and private actors to engage in ethnic segregation. He also wrote dissents in major cases such as '' Pollock v. Farmers' Loan & Trust Co.'' (1895) that struck down a federal income tax, '' United States v. E. C. Knight Co.'' (1895) that severely limited the power of the federal government to pursue antitrust actions, ''
Lochner v. New York ''Lochner v. New York'', 198 U.S. 45 (1905), was a List of landmark court decisions in the United States, landmark decision of the Supreme Court of the United States, U.S. Supreme Court holding that a New York (state), New York State statute th ...
'' (1905) that invalidated a state law setting maximum working hours on the basis of
substantive due process due process is a principle in United States constitutional law that allows courts to establish and protect substantive laws and certain fundamental rights from government interference, even if they are unenumerated elsewhere in the U.S. Consti ...
; and ''
Standard Oil Co. of New Jersey v. United States ''Standard Oil Co. of New Jersey v. United States''(1911), was a landmark U.S. Supreme Court decision that ruled that John D. Rockefeller's petroleum conglomerate Standard Oil had illegally monopolized the American petroleum industry and order ...
'' (1911) that established the
rule of reason The rule of reason is a legal doctrine used to interpret the Sherman Antitrust Act, one of the cornerstones of United States antitrust law. While some actions like price-fixing are considered illegal ''per se', ''other actions, such as pos ...
. He was the first Supreme Court justice to advocate the
incorporation of the Bill of Rights In United States constitutional law, incorporation is the doctrine by which portions of the United States Bill of Rights, Bill of Rights have been made applicable to the U.S. state, states. When the Bill of Rights was ratified, the courts held t ...
, and his majority opinion in '' Chicago, Burlington & Quincy Railroad Co. v. City of Chicago'' (1897) incorporated the
Takings Clause The Fifth Amendment (Amendment V) to the United States Constitution creates several constitutional rights, limiting governmental powers focusing on criminal procedures. It was ratified, along with nine other amendments, in 1791 as part of the Bi ...
. Harlan was largely forgotten in the decades after his death, but many scholars now consider him to be one of the greatest Supreme Court justices of his era. His grandson
John Marshall Harlan II John Marshall Harlan (May 20, 1899 – December 29, 1971) was an American lawyer and jurist who served as an associate justice of the U.S. Supreme Court from 1955 to 1971. Harlan is usually called John Marshall Harlan II to distinguish hi ...
later served on the Supreme Court from 1955 to 1971.


Early life and education

Harlan was born in 1833 at Harlan's Station, 5 miles (8.0 km) west of Danville, Kentucky, on Salt River Road. He was born into a prominent slaveholding family whose earliest members had settled in the region in 1779. Harlan's father was James Harlan, a lawyer and prominent Whig politician who represented Kentucky in the
United States House of Representatives The United States House of Representatives is a chamber of the Bicameralism, bicameral United States Congress; it is the lower house, with the U.S. Senate being the upper house. Together, the House and Senate have the authority under Artic ...
and served as Secretary of State of Kentucky. Harlan's mother, Elizabeth, ''née'' Davenport, was the daughter of a pioneer from Virginia. Harlan grew up on the family estate near
Frankfort, Kentucky Frankfort is the List of capitals in the United States, capital city of the U.S. state of Kentucky. It is a list of Kentucky cities, home rule-class city and the county seat, seat of Franklin County, Kentucky, Franklin County in the Upland Sou ...
. He was named after
Chief Justice of the United States The chief justice of the United States is the chief judge of the Supreme Court of the United States and is the highest-ranking officer of the U.S. federal judiciary. Appointments Clause, Article II, Section 2, Clause 2 of the U.S. Constitution g ...
John Marshall John Marshall (September 24, 1755July 6, 1835) was an American statesman, jurist, and Founding Fathers of the United States, Founding Father who served as the fourth chief justice of the United States from 1801 until his death in 1835. He remai ...
, whom his father admired. The first ancestor of the Harlan family was George Harlan, an Englishman who arrived to the American
Colony of Pennsylvania The Province of Pennsylvania, also known as the Pennsylvania Colony, was a British North American colony founded by William Penn, who received the land through a grant from Charles II of England in 1681. The name Pennsylvania was derived from ...
in the 1600s. John had several older brothers, including a
mixed-race The term multiracial people refers to people who are mixed with two or more races and the term multi-ethnic people refers to people who are of more than one ethnicities. A variety of terms have been used both historically and presently for mul ...
half-brother, Robert James Harlan, born in 1816 into slavery, and whom his father raised in his own household and had tutored by Richard and James Harlan, two of John Marshall Harlan's older brothers. According to historian Allyson Hobbs, Robert became highly successful, making a fortune in the
California Gold Rush The California gold rush (1848–1855) began on January 24, 1848, when gold was found by James W. Marshall at Sutter's Mill in Coloma, California. The news of gold brought approximately 300,000 people to California from the rest of the U ...
before returning east and settling in Cincinnati, Ohio. He "remained close to the other Harlans"; she suggests this might have influenced his half-brother John Marshall Harlan, "who argued on behalf of equal rights under the law in '' Plessy v. Ferguson''." After attending school in Frankfort, John Harlan enrolled at
Centre College Centre College, formally Centre College of Kentucky, is a Private college, private Liberal arts colleges in the United States, liberal arts college in Danville, Kentucky, United States. Chartered by the Kentucky General Assembly in 1819, the col ...
. He was a member of
Beta Theta Pi Beta Theta Pi (), commonly known as Beta, is a North American social Fraternities and sororities in North America, fraternity that was founded in 1839 at Miami University in Oxford, Ohio. One of North America's oldest fraternities, , it consist ...
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. While James Harlan could have trained his son in the office, as was the norm of "reading the law" in that era, he sent John to attend law school at
Transylvania University Transylvania University is a private university in Lexington, Kentucky, United States. It was founded in 1780 and is the oldest university in Kentucky. It offers 46 major programs, as well as dual-degree engineering programs, and is Higher educ ...
in 1850, where George Robertson and Thomas Alexander Marshall were among his instructors.Beth (1992), pp. 7–8, 13–17. Harlan finished his legal education in his father's law office and was admitted to the Kentucky Bar in 1853.


Politician and lawyer


Rise: 1851–1861

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 governor John L. Helm. He served in the post for the next eight years, which gave him a statewide presence and familiarity with many of Kentucky's leading political figures. With the Whig Party's dissolution in the early 1850s, Harlan 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 in 1858 as the county judge for
Franklin County, Kentucky Franklin County is a county located in the U.S. state of Kentucky. As of the 2020 census, the population was 51,541, making it the second-least populous capital county in the United States after Hughes County, South Dakota. Its county seat ...
. The following year, he renounced his allegiance to the Know Nothings and joined the state's
Opposition Party In politics, the opposition comprises one or more political parties or other organized groups that are opposed to the government (or, in American English, the administration), party or group in political control of a city, region, state, coun ...
, serving as their candidate in an unsuccessful attempt to defeat Democrat William E. Simms for the seat in Kentucky's 8th congressional district. Throughout the 1850s, Harlan criticized both
abolitionists Abolitionism, or the abolitionist movement, is the political movement to end slavery and liberate enslaved individuals around the world. The first country to fully outlaw slavery was France in 1315, but it was later used in its colonies. T ...
and pro-slavery radicals. Like many other anti-secession Southerners, he supported the Constitutional Union ticket of John Bell and
Edward Everett Edward Everett (April 11, 1794 – January 15, 1865) was an American politician, Unitarian pastor, educator, diplomat, and orator from Massachusetts. Everett, as a Whig, served as U.S. representative, U.S. senator, the 15th governor of Mas ...
in the
1860 presidential election United States presidential election, Presidential elections were held in the United States on November 6, 1860. The History of the Republican Party (United States), Republican Party ticket of Abraham Lincoln and Hannibal Hamlin emerged victoriou ...
. Harlan agreed to serve as a
presidential elector In the United States, the Electoral College is the group of presidential electors that is formed every four years for the sole purpose of voting for the president and vice president in the presidential election. This process is described in ...
for Bell, and he delivered speeches on behalf of the party throughout Kentucky during the campaign. In the secession crisis that followed Republican candidate
Abraham Lincoln Abraham Lincoln (February 12, 1809 – April 15, 1865) was the 16th president of the United States, serving from 1861 until Assassination of Abraham Lincoln, his assassination in 1865. He led the United States through the American Civil War ...
's victory in the 1860 election, Harlan sought to prevent Kentucky from seceding.


Military Service: 1861–1863

When the Civil War erupted in April 1861, John Marshall Harlan was a staunch Unionist who worked tirelessly to keep Kentucky in the Union, writing several pro- Union editorials and representing the Union in state court. On August 13, 1861, After the state legislature voted to expel all
Confederate A confederation (also known as a confederacy or league) is a political union of sovereign states united for purposes of common action. Usually created by a treaty, confederations of states tend to be established for dealing with critical issu ...
forces from Kentucky, Harlan recruited and was elected
captain Captain is a title, an appellative for the commanding officer of a military unit; the supreme leader or highest rank officer of a navy ship, merchant ship, aeroplane, spacecraft, or other vessel; or the commander of a port, fire or police depa ...
of the newly organized Crittenden Union Zouaves, a militia unit formed to support the Union cause. By October 4, 1861, Harlan and his command were officially enrolled into the Union Army. Soon after, on October 20, 1861, he was mustered in as
Colonel Colonel ( ; abbreviated as Col., Col, or COL) is a senior military Officer (armed forces), officer rank used in many countries. It is also used in some police forces and paramilitary organizations. In the 17th, 18th, and 19th centuries, a colon ...
of the 10th Kentucky Volunteer Infantry Regiment in Lebanon, Kentucky, for a three-year term. In September 1861, Harlan played a key role in the defense of Lebanon Junction, Kentucky, a vital transportation hub. Under General William T. Sherman, Harlan's unit worked to secure ammunition and defend strategic railroad bridges. In one notable incident, Harlan personally led efforts to transport supplies across the Rolling Fork River after Confederate forces burned the bridge, earning commendation for his resourcefulness and determination. The 10th Kentucky Infantry soon became part of General George H. Thomas’s division. On January 19, 1862, Harlan fought at the Battle of Mill Springs, a significant Union victory that disrupted Confederate operations in Kentucky. In April 1862, his regiment participated in the Siege of Corinth, Mississippi, following the Union victory at the Battle of Shiloh. Harlan’s most notable engagement came on December 29, 1862, during a skirmish with Confederate cavalry commander John Hunt Morgan at the Rolling Fork River Bridge, known as " Morgan's Christmas Raid." After marching his forces from Munfordville to Elizabethtown, Harlan led his troops to defend the bridge, engaging Morgan’s forces with cannon and rifle fire. This skirmish successfully disrupted Morgan’s attempt to destroy critical railroad bridges, preserving vital Union supply lines. In his official report, Harlan claimed that his command "saved the Rolling Fork Bridge and most probably prevented any attempt to destroy the bridge at Shepherdsville," safeguarding property essential to Union operations in the Western Theater. Throughout his military service, Harlan publicly argued that the Union's goal in taking up arms was to preserve the Union rather than abolish slavery. In a wartime speech, he asserted that the war "was not for the purpose of giving freedom to the Negro." Harlan vowed to resign if President Lincoln signed the
Emancipation Proclamation The Emancipation Proclamation, officially Proclamation 95, was a presidential proclamation and executive order issued by United States President Abraham Lincoln on January 1, 1863, during the American Civil War. The Proclamation had the eff ...
, which he denounced as "unconstitutional and null and void" when it took effect on January 1, 1863. However, contrary to public perception, Harlan did not resign over the proclamation. Harlan's resignation came after the sudden death of his father on March 6, 1863, prompting him to leave the army to care for his family and resume his legal and political career. He formally resigned his commission on March 17, 1863. In his resignation letter, Harlan expressed his regret at leaving the army and reaffirmed his dedication to the Union cause, writing:
“It was my fixed purpose to remain in the Federal army until it had effectually suppressed the existing armed rebellion and restored the authority of the national government over every part of the nation. ... That cause will always have the warmest sympathies of my heart, for there are no conditions upon which I will consent to a dissolution of the Union."
Harlan's time in the army was not without moments of controversy and complexity. In the fall of 1861, during an encounter near Elizabethtown, Harlan and his unit came across Confederate General Basil Duke, who was traveling incognito in civilian clothes to visit his wife in Lexington. Despite being recognized by Harlan, Duke was allowed to escape when Harlan discreetly pressed his foot on the brake of the handcar carrying Union soldiers, preventing them from stopping to apprehend Duke. Harlan later explained that he believed Duke was merely on his way to visit his wife and was not acting as a spy.


Party leader: 1863–1877

Weeks after leaving the Army, Harlan was nominated by the Union Party to run for
Attorney General of Kentucky The attorney general of Kentucky is the chief legal officer of the U.S. state of Kentucky, created by the Kentucky Constitution (Ky.Const. § 91). Under Kentucky law, they serve several roles, including the state's chief prosecutor (KRS 15.700), ...
. 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.Beth (1992), pp. 68–80. Though still a committed unionist, he opposed Lincoln's
Emancipation Proclamation The Emancipation Proclamation, officially Proclamation 95, was a presidential proclamation and executive order issued by United States President Abraham Lincoln on January 1, 1863, during the American Civil War. The Proclamation had the eff ...
and supported Democratic candidate
George B. McClellan George Brinton McClellan (December 3, 1826 – October 29, 1885) was an American military officer and politician who served as the 24th governor of New Jersey and as Commanding General of the United States Army from November 1861 to March 186 ...
's unsuccessful campaign in the 1864 presidential election. Harlan also opposed ratification of the Thirteenth Amendment, attacking it as a "direct interference, by a portion of the states, with the local concerns of other states." Harlan's attitudes toward slavery remained complex throughout the war. He owned a few household slaves and did not emancipate them until forced to by the Thirteenth Amendment in December 1865, which he described as "a flagrant invasion of the right of self-government." After the end of the Civil War in 1865, Harlan initially refused to join either the Democratic Party, which he viewed as too accepting of former rebels, or the Republican Party, whose
Reconstruction Reconstruction may refer to: Politics, history, and sociology *Reconstruction (law), the transfer of a company's (or several companies') business to a new company *''Perestroika'' (Russian for "reconstruction"), a late 20th century Soviet Union ...
policies he opposed. He sought re-election in 1867 on a
third-party Third party may refer to: Business * Third-party source, a supplier company not owned by the buyer or seller * Third-party beneficiary, a person who could sue on a contract, despite not being an active party * Third-party insurance, such as a veh ...
ticket, but lost his office in a Democratic sweep of the state.Luxenberg (2019), pp. 206–209 Despite his earlier opposition to
emancipation Emancipation generally means to free a person from a previous restraint or legal disability. More broadly, it is also used for efforts to procure Economic, social and cultural rights, economic and social rights, civil and political rights, po ...
and the
Reconstruction Amendments The , or the , are the Thirteenth, Fourteenth, and Fifteenth amendments to the United States Constitution, adopted between 1865 and 1870. The amendments were a part of the implementation of the Reconstruction of the American South which oc ...
, Harlan underwent a significant political transformation after his defeat. He joined the Republican Party in 1868, supporting the party's
Reconstruction Reconstruction may refer to: Politics, history, and sociology *Reconstruction (law), the transfer of a company's (or several companies') business to a new company *''Perestroika'' (Russian for "reconstruction"), a late 20th century Soviet Union ...
policies and its platform of civil rights for Black Americans. He supported
Ulysses S. Grant Ulysses S. Grant (born Hiram Ulysses Grant; April 27, 1822July 23, 1885) was the 18th president of the United States, serving from 1869 to 1877. In 1865, as Commanding General of the United States Army, commanding general, Grant led the Uni ...
's candidacy in the 1868 presidential election. Moving to
Louisville Louisville is the most populous city in the Commonwealth of Kentucky, sixth-most populous city in the Southeast, and the 27th-most-populous city in the United States. By land area, it is the country's 24th-largest city; however, by populatio ...
, Harlan formed a successful partnership with John E. Newman, a former circuit-court judge who, like Harlan, was a Unionist turned Republican.Beth (1992), pp. 81–109. In 1870, Harlan and Newman briefly took on a new partner,
Benjamin Bristow Benjamin Helm Bristow (June 20, 1832 – June 22, 1896) was an American lawyer and politician who served as the 30th U.S. Treasury Secretary and the first Solicitor General. A Union military officer, Bristow was a Republican Party reformer an ...
, but President Grant appointed Bristow as U.S. solicitor general later that year. While growing his legal practice, Harlan also worked to build up the Republican Party organization in the state. He served as the Republican nominee for
governor of Kentucky The governor of the Commonwealth of Kentucky is the head of government of the Commonwealth (U.S. state), Commonwealth of Kentucky. Sixty-two men and one woman have served as governor of Kentucky. The governor's term is four years in length; sinc ...
in
1871 Events January–March * January 3 – Franco-Prussian War: Battle of Bapaume – Prussians win a strategic victory. * January 18 – Proclamation of the German Empire: The member states of the North German Confederation and the sout ...
; though he finished a distant second to incumbent Democratic Governor
Preston Leslie Preston Hopkins Leslie (March 8, 1819 – February 7, 1907) was the List of Governors of Kentucky, 26th Governor of Kentucky from 1871 to 1875, and Governors of Montana Territory, territorial governor of Montana from 1887 to 1889. He ascended to ...
, Harlan nonetheless established himself as the leader of the Kentucky Republican Party during the campaign. Harlan's views on Reconstruction shifted in the early 1870s, and he came to support Reconstruction measures such as the
Enforcement Act of 1870 The Enforcement Act of 1870, also known as the Civil Rights Act of 1870 or First Ku Klux Klan Act, or Force Act (41st Congress, Sess. 2, ch. 114, , enacted May 31, 1870, effective 1871), is a United States federal law that empowers the Presiden ...
, though he still opposed the
Civil Rights Act of 1875 The Civil Rights Act of 1875, sometimes called the Enforcement Act or the Force Act, was a United States federal law enacted during the Reconstruction era in response to civil rights violations against African Americans. The bill was passed by the ...
as a federal overreach. Harlan reluctantly accepted the party's gubernatorial nomination in 1875, and he once again lost by a substantial margin, this time to Democrat James B. McCreary. The following year, Harlan worked to nominate Bristow at the
1876 Republican National Convention The 1876 Republican National Convention was a presidential nominating convention held at the Exposition Hall in Cincinnati, Ohio on June 14–16, 1876. President Ulysses S. Grant had considered seeking a third term, but with various scandals, a ...
, seeking to position Bristow as a more electable alternative to Republican front-runner James G. Blaine. When
Rutherford B. Hayes Rutherford Birchard Hayes (; October 4, 1822 – January 17, 1893) was the 19th president of the United States, serving from 1877 to 1881. Hayes served as Cincinnati's city solicitor from 1858 to 1861. He was a staunch Abolitionism in the Un ...
instead emerged as the compromise candidate, Harlan switched his delegation's votes and subsequently campaigned on Hayes' behalf in the 1876 election.


Supreme Court Justice


Nomination

Though Harlan was considered for several positions in the new administration, most notably
Attorney General In most common law jurisdictions, the attorney general (: attorneys general) or attorney-general (AG or Atty.-Gen) is the main legal advisor to the government. In some jurisdictions, attorneys general also have executive responsibility for law enf ...
, initially the only job he 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 elected to the
Senate A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...
by the
Illinois General Assembly The Illinois General Assembly is the legislature of the U.S. state of Illinois. It has two chambers, the Illinois House of Representatives and the Illinois Senate. The General Assembly was created by the first state constitution adopted in ...
. Seeking to appoint a Southerner to the Supreme Court in the aftermath of the acrimonious and disputed 1876 presidential election, Hayes settled on Harlan. Though Harlan's nomination prompted some criticism from Republican Stalwarts, he was confirmed unanimously by the Senate on November 29, 1877,Beth (1992), pp. 110–113, 119–129. and took the judicial oath of office on December 10, 1877.


Life on the Court

Harlan greatly enjoyed his time as a justice, serving until his death in 1911. From the start, he established good relationships with his fellow justices and he was close friends with a number of them. Though Harlan often disagreed with the other justices, occasionally quite vociferously, he was able to separate differences over legal matters from personal relationship. During his tenure, 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 decided to remain on the Court, but supplemented his income by teaching constitutional law at the Columbian Law School, which later became the
George Washington University Law School The George Washington University Law School (GW Law) is the law school of George Washington University, a Private university, private research university in Washington, D.C. Established in 1865, GW Law is the oldest law school in Washington, D. ...
.Beth (1992), pp. 134–137, 143–145. When Harlan began his service, the Supreme Court faced a heavy workload that consisted primarily of
diversity Diversity, diversify, or diverse may refer to: Business *Diversity (business), the inclusion of people of different identities (ethnicity, gender, age) in the workforce *Diversity marketing, marketing communication targeting diverse customers * ...
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, due to his junior status, Harlan was assigned the
Seventh Circuit The United States Court of Appeals for the Seventh Circuit (in case citations, 7th Cir.) is the U.S. federal court with appellate jurisdiction over the courts in the following districts: * Central District of Illinois * Northern District of Ill ...
based in Chicago. 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. Harlan became the senior associate justice on the Court following the retirement of
Stephen Johnson Field Stephen Johnson Field (November 4, 1816 – April 9, 1899) was an American jurist. He was an Associate Justice of the United States Supreme Court from May 20, 1863, to December 1, 1897, the second longest tenure of any justice. Prior to this ap ...
in 1897, and he served as acting chief justice after the death of
Melville Fuller Melville Weston Fuller (February 11, 1833 – July 4, 1910) was an American politician, attorney, and jurist who served as the eighth chief justice of the United States from 1888 until his death in 1910. Staunch conservatism marked his t ...
in 1910.


Jurisprudence

During Harlan's tenure on the Supreme Court, major Supreme Court decisions tended to address issues arising from industrialization and the
Reconstruction Amendments The , or the , are the Thirteenth, Fourteenth, and Fifteenth amendments to the United States Constitution, adopted between 1865 and 1870. The amendments were a part of the implementation of the Reconstruction of the American South which oc ...
. Beginning in the 1880s, the Supreme Court increasingly began to adopt a laissez-faire philosophy, striking down economic regulations while at the same time allowing states to curtail the rights of African Americans.White (1975), pp. 2–3 Harlan differed from many of his colleagues, often voting to uphold federal regulations and to protect the civil rights of African Americans. His judicial opinions were influenced by his life-long belief in a strong national government, his sympathy for the economically disadvantaged, and his view that the Reconstruction Amendments had fundamentally transformed the relationship between the federal government and the state governments. Though Harlan believed the Court had the power to review state and federal actions on a broad array of topics, he tended to oppose
judicial activism Judicial activism is a judicial philosophy holding that courts can and should go beyond the applicable law to consider broader societal implications of their decisions. It is sometimes used as an antonym of judicial restraint. The term usually ...
in favor of deference to legislatures.


Earlier cases, 1877–1896

Congress had passed the Civil Rights Act of 1875 in the waning days of Reconstruction, outlawing segregation in
public accommodations In public relations and communication science, publics are groups of individual people, and the public (a.k.a. the general public) is the totality of such groupings. This is a different concept to the sociological concept of the ''Öffentlichk ...
such as railroads. The Supreme Court did not rule on the Civil Rights Act of 1875 until 1883, when it struck down the law in ''
Civil Rights Cases The ''Civil Rights Cases'', 109 U.S. 3 (1883), were a group of five landmark cases in which the Supreme Court of the United States held that the Thirteenth and Fourteenth Amendments did not empower Congress to outlaw racial discrimination by ...
''. In his majority opinion, Justice
Joseph P. Bradley Joseph Philo Bradley (March 14, 1813 – January 22, 1892) was an American jurist who served as an Associate Justice of the Supreme Court of the United States, associate justice of the Supreme Court of the United States from 1870 to 1892. He ...
held that the Thirteenth Amendment "simply abolished slavery," and that the Fourteenth Amendment did not authorize Congress to bar racial discrimination by private actors. 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 argued that the Fourteenth Amendment gave Congress the authority to regulate public accommodations, and further argued that the Thirteenth Amendment empowered Congress to "eradicate" the vestiges of slavery, such as restrictions on freedom of movement. Harlan joined the Court's unanimous decision in '' Pace v. Alabama'' (1883), which ruled that
anti-miscegenation laws Anti-miscegenation laws are laws that enforce racial segregation at the level of marriage and intimate relationships by criminalizing interracial marriage sometimes, also criminalizing sex between members of different races. In the United Stat ...
were 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 ''Hurtado v. California'', 110 U.S. 516 (1884),. was a landmark case decided by the United States Supreme Court that allowed state governments, as distinguished from the federal government, to avoid using grand juries in criminal prosecutions. ...
'' (1884). Harlan was one of four justices to file a dissenting opinion in '' Pollock v. Farmers' Loan & Trust Co.'' (1895), which struck down a federal income tax levied by the Wilson–Gorman Tariff Act of 1894. Harlan described the majority opinion as a "disaster to the country" because it "impairs and cripples the just powers of the national government." He was the sole dissenter in another 1895 case, '' United States v. E. C. Knight Co.'', in which the Court severely curtailed the power of the federal government to pursue
antitrust Competition law is the field of law that promotes or seeks to maintain market competition by regulating anti-competitive conduct by companies. Competition law is implemented through public and private enforcement. It is also known as antitrust l ...
actions under the
Sherman Antitrust Act The Sherman Antitrust Act of 1890 (, ) is a United States antitrust law which prescribes the rule of free competition among those engaged in commerce and consequently prohibits unfair monopolies. It was passed by Congress and is named for S ...
. In his dissent, he wrote that "the common government of all the people is the only one that can adequately deal with a matter which directly and injuriously affects the entire commerce of the country." During the 1890s, he also wrote several dissents in cases where Court decisions curtailed the regulatory powers of the
Interstate Commerce Commission The Interstate Commerce Commission (ICC) was a regulatory agency in the United States created by the Interstate Commerce Act of 1887. The agency's original purpose was to regulate railroads (and later Trucking industry in the United States, truc ...
(ICC).


''Plessy v. Ferguson''

In 1896, Associate Justice Henry Billings Brown delivered the majority decision in '' Plessy v. Ferguson'', which established the doctrine of "
separate but equal Separate but equal was a legal doctrine in United States constitutional law, according to which racial segregation did not necessarily violate the Fourteenth Amendment to the United States Constitution, which nominally guaranteed "equal protectio ...
." Whereas the ''Civil Rights Cases'' had struck down a federal law barring segregation by private actors, the Court's opinion in ''Plessy'' allowed state governments to engage in segregation. Rejecting the argument that segregation violated the Thirteenth Amendment, Brown wrote that "a statute which implies merely a legal distinction between the white and colored races has no tendency to destroy the legal equality of the two races, or reestablish a state of involuntary servitude." In response to the plaintiff's claims regarding the Fourteenth Amendment, Brown wrote that the Fourteenth Amendment was designed to "enforce the absolute equality of the two races before the law," but added that the amendment "could not have been intended to abolish distinction based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either." Harlan, the lone dissenting justice, strongly disapproved of the majority opinion, writing that "the judgement this day rendered, will, in time, prove to be quite as pernicious as the decision made by this tribunal in the '' Dred Scott Case''". He accepted the appellant's argument that the Thirteenth Amendment barred segregation in public accommodations, as he believed that segregation imposed "badges of slavery or servitude" upon African Americans. He also accepted the appellant's argument that the segregation in public accommodations violated the Fourteenth Amendment on the basis that these accommodations constituted "public highway " He further wrote that "our Constitution is color-blind, and neither knows nor tolerates classes among citizens." Harlan rejected the idea that the law in question was race-neutral, writing that "everyone knows that the statute in question as intendedto exclude colored people from coaches occupied by or assigned to white persons," adding that the law was "cunningly devised" to overturn the results of the Civil War. Harlan did not embrace the idea of full social racial equality. While he had appeared to advocate for equality among those of different races and for a color-blind Constitution, in his ''Plessy'' dissent, he also stated " ere is a race so different from our own that we do not permit those belonging to it to become citizens of the United States... I allude to the Chinese race."


Later cases, 1897–1911

In '' United States v. Wong Kim Ark'' (1898), Harlan joined Chief Justice Fuller's dissent proclaiming the dangers of having large numbers of Chinese immigrants in the United States. The Court's holding was that persons of Chinese descent born in the United States were citizens by birth. Fuller and Harlan argued that the principle of ''
jus sanguinis ( or , ), meaning 'right of blood', is a principle of nationality law by which nationality is determined or acquired by the nationality of one or both parents. Children at birth may be nationals of a particular state if either or both of thei ...
'' (that is, the concept of a child inheriting their 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 ''Jus soli'' ( or , ), meaning 'right of soil', is the right of anyone born in the territory of a state to nationality or citizenship. ''Jus soli'' was part of the English common law, in contrast to ''jus sanguinis'' ('right of blood') ass ...
'' (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".''United States v. Wong Kim Ark'', . Harlan was also the most staunchly
anti-imperialist Anti-imperialism in political science and international relations is opposition to imperialism or neocolonialism. Anti-imperialist sentiment typically manifests as a political principle in independence struggles against intervention or influenc ...
justice of the Supreme Court, arguing consistently in the
Insular Cases The Insular Cases are a series of opinions by the Supreme Court of the United States in 1901 about the status of U.S. territories acquired in the Spanish–American War. Some scholars also include cases regarding territorial status decided up unt ...
(from 1901 to 1905) 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 The Philippines, officially the Republic of the Philippines, is an Archipelagic state, archipelagic country in Southeast Asia. Located in the western Pacific Ocean, it consists of List of islands of the Philippines, 7,641 islands, with a tot ...
,
Hawaii Hawaii ( ; ) is an island U.S. state, state of the United States, in the Pacific Ocean about southwest of the U.S. mainland. One of the two Non-contiguous United States, non-contiguous U.S. states (along with Alaska), it is the only sta ...
,
Guam Guam ( ; ) is an island that is an Territories of the United States, organized, unincorporated territory of the United States in the Micronesia subregion of the western Pacific Ocean. Guam's capital is Hagåtña, Guam, Hagåtña, and the most ...
, and
Puerto Rico ; abbreviated PR), officially the Commonwealth of Puerto Rico, is a Government of Puerto Rico, self-governing Caribbean Geography of Puerto Rico, archipelago and island organized as an Territories of the United States, unincorporated territo ...
, 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 delivered the majority opinion in '' Chicago, Burlington & Quincy Railroad Co. v. City of Chicago'' (1897), holding that
due process Due process of law is application by the state of all legal rules and principles pertaining to a case so all legal rights that are owed to a person are respected. Due process balances the power of law of the land and protects the individual p ...
required fair compensation to be given for any private property seized by the state. The decision incorporated the Fifth Amendment's Takings Clause, representing the first time that part of the Bill of Rights was applied to state governments. The Court would not incorporate another provision of the Bill of Rights until ''
Gitlow v. New York ''Gitlow v. New York'', 268 U.S. 652 (1925), was a landmark decision of the United States Supreme Court holding that the Fourteenth Amendment to the United States Constitution had extended the First Amendment's provisions protecting freedom of spe ...
'' (1925). Harlan wrote the majority opinion in '' Northern Securities Co. v. United States'', the first time the Court upheld the use of the Sherman Antitrust Act to break up a large corporation.Shoemaker (2004), pp. 38–39 Harlan also wrote the majority opinion in ''
Adair v. United States ''Adair v. United States'', 208 U.S. 161 (1908), was a US labor law case of the Supreme Court of the United States, United States Supreme Court which declared that bans on "yellow-dog contract, yellow-dog" contracts (that forbade workers from joi ...
'' (1908), holding that Congress did not have the power to ban " yellow-dog contracts". During his final years on the Court, Harlan continued to write dissents in major cases, such as '' Giles v. Harris'' (1903), a case challenging the use of grandfather clauses to restrict voting rolls and ''de facto'' exclude blacks. He also dissented in ''
Lochner v. New York ''Lochner v. New York'', 198 U.S. 45 (1905), was a List of landmark court decisions in the United States, landmark decision of the Supreme Court of the United States, U.S. Supreme Court holding that a New York (state), New York State statute th ...
'' (1905), 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." In his dissent in '' Hodges v. United States'' (1906), Harlan reiterated his belief that the Thirteenth Amendment empowered Congress to protect African Americans from discrimination and violence. He was the lone dissenter in ''
Ex parte Young ''Ex parte Young'', 209 U.S. 123 (1908), is a United States Supreme Court case that allows suits in federal courts for injunctions against officials acting on behalf of states of the union to proceed despite the State's sovereign immunity, when ...
'' (1908), arguing that the Eleventh Amendment prevented suits against state officials acting on behalf of the state. In his partial dissent in the 1911 case of '' Standard Oil Company of New Jersey v. United States'', Harlan argued against the Court's establishment of the
rule of reason The rule of reason is a legal doctrine used to interpret the Sherman Antitrust Act, one of the cornerstones of United States antitrust law. While some actions like price-fixing are considered illegal ''per se', ''other actions, such as pos ...
, which held that in some extenuating circumstances a trust should not be broken up even if it has a monopoly. In both ''Standard Oil'' and '' United States v. American Tobacco Co.'' (1911), Harlan strongly criticized the majority opinion for adopting the rule of reason; as the rule was not present in the original legislation, he believed that the Court was usurping Congress's legislative prerogatives. On March 12, 1906, Harlan donated a
King James Version The King James Version (KJV), also the King James Bible (KJB) and the Authorized Version (AV), is an Early Modern English Bible translations, Early Modern English translation of the Christianity, Christian Bible for the Church of England, wh ...
Bible The Bible is a collection of religious texts that are central to Christianity and Judaism, and esteemed in other Abrahamic religions such as Islam. The Bible is an anthology (a compilation of texts of a variety of forms) originally writt ...
to the Supreme Court. This Bible had become known as the "Harlan Bible". As of 2015, this Bible has been signed by every succeeding Supreme Court justice after taking the oath of office.


Death

Harlan died on October 14, 1911, after 33 years serving on the Supreme Court, the third-longest tenure on the court up to that time and sixth-longest ever. He was the last veteran of the
Waite Court The Waite Court was the Supreme Court of the United States from 1874 to 1888, when Morrison Waite served as the seventh Chief Justice of the United States. Waite succeeded Salmon P. Chase as Chief Justice after the latter's death. Waite served as ...
to remain on the bench. He was buried in
Rock Creek Cemetery Rock Creek Cemetery is an cemetery with a natural and rolling landscape located at Rock Creek Church Road, NW, and Webster Street, NW, off Hawaii Avenue, NE, in the Petworth (Washington, D.C.), Petworth neighborhood of Washington, D.C., across ...
, Washington, D.C., where his body resides along with those of three other justices.
Supreme Court Historical Society The Supreme Court Historical Society (SCHS) describes itself as "a Washington, D.C.–based private, nonpartisan, not for profit 501(c)(3) membership organization dedicated to preserving and communicating the history of the U.S. Supreme Court, in ...
at
Internet Archive The Internet Archive is an American 501(c)(3) organization, non-profit organization founded in 1996 by Brewster Kahle that runs a digital library website, archive.org. It provides free access to collections of digitized media including web ...
.


Personal life


Family

In December 1856, Harlan married Malvina French Shanklin, the daughter of an Indiana businessman. According to friends and Shanklin's memoirs, 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 served as president of
Lake Forest College Lake Forest College is a Private college, private Liberal arts colleges in the United States, liberal arts college in Lake Forest, Illinois. Founded in 1857 as Lind University by a group of Presbyterian ministers, the college has been coeducatio ...
. Their second son, James S. Harlan, practiced in Chicago and served as attorney general of
Puerto Rico ; abbreviated PR), officially the Commonwealth of Puerto Rico, is a Government of Puerto Rico, self-governing Caribbean Geography of Puerto Rico, archipelago and island organized as an Territories of the United States, unincorporated territo ...
and chairman of the
Interstate Commerce Commission The Interstate Commerce Commission (ICC) was a regulatory agency in the United States created by the Interstate Commerce Act of 1887. The agency's original purpose was to regulate railroads (and later Trucking industry in the United States, truc ...
. Their youngest son, John Maynard Harlan, also practiced in Chicago and served as an
alderman An alderman is a member of a Municipal government, municipal assembly or council in many jurisdictions founded upon English law with similar officials existing in the Netherlands (wethouder) and Belgium (schepen). The term may be titular, denotin ...
. John Maynard's son,
John Marshall Harlan II John Marshall Harlan (May 20, 1899 – December 29, 1971) was an American lawyer and jurist who served as an associate justice of the U.S. Supreme Court from 1955 to 1971. Harlan is usually called John Marshall Harlan II to distinguish hi ...
, served as a Supreme Court Associate Justice from 1955 until 1971. Harlan had suffered from financial problems throughout his tenure on the Court and 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.


Religious beliefs

Harlan was fervently religious, and legal scholar James W. Gordon argued that his faith ”was the most important lens through which he viewed the people and events of his life”. A conservative
Presbyterian Presbyterianism is a historically Reformed Protestant tradition named for its form of church government by representative assemblies of elders, known as "presbyters". Though other Reformed churches are structurally similar, the word ''Pr ...
, he favored the Old School branch of that denomination, opposed
higher criticism Historical criticism (also known as the historical-critical method (HCM) or higher criticism, in contrast to lower criticism or textual criticism) is a branch of criticism that investigates the origins of ancient texts to understand "the world b ...
, and stridently adhered to
Calvinism Reformed Christianity, also called Calvinism, is a major branch of Protestantism that began during the 16th-century Protestant Reformation. In the modern day, it is largely represented by the Continental Reformed Christian, Presbyteri ...
.Przybyszewski (1999), p. 57 During his tenure as a justice, he was an elder at the New York Avenue Presbyterian Church in Washington, D.C.,Przybyszewski (1999), p. 48. and there he taught a Sunday school class of middle-aged men from 1896 until his death in 1911.


Legacy

Harlan was largely forgotten in the decades after his death, but his reputation began to improve in the mid-twentieth century. Many scholars now consider him to be one of the greatest Supreme Court justices of his era. He is most known for his reputation as the "Great Dissenter". He is especially remembered for his dissent in ''Plessy v. Ferguson''. Historian D. Grier Stephenson writes that "more than any justice with whom he served, Harlan understood the Reconstruction Amendments to establish a nationally protected right against racial discrimination, although it is a measure of the Court that he frequently articulated those promises in dissent". Legal scholar Bernard Schwartz writes that "Harlan's key dissents have generally been affirmed in the court of history. A century later, his rejection of the narrow view toward civil rights adopted by the Court majority has been generally approved." Harlan's view that the Fourteenth Amendment made the provisions of the Bill of Rights applicable to the states has largely been adopted by the Supreme Court. Harlan is commemorated by John Marshall Harlan Community Academy High School, a Chicago public high school, as well as by John Marshall Harlan High School in Texas. During
World War II World War II or the Second World War (1 September 1939 – 2 September 1945) was a World war, global conflict between two coalitions: the Allies of World War II, Allies and the Axis powers. World War II by country, Nearly all of the wo ...
the
Liberty ship Liberty ships were a ship class, class of cargo ship built in the United States during World War II under the Emergency Shipbuilding Program. Although British in concept, the design was adopted by the United States for its simple, low-cost cons ...
was built and named in his honor. 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. Named for Justice Harlan, the "Harlan Scholars" of the University of Louisville/
Louis D. Brandeis School of Law Louis may refer to: People * Louis (given name), origin and several individuals with this name * Louis (surname) * Louis (singer), Serbian singer Other uses * Louis (coin), a French coin * HMS ''Louis'', two ships of the Royal Navy See also * ...
is an undergraduate organization for students interested in attending law school. Collections of Harlan's papers are at the
University of Louisville The University of Louisville (UofL) is a public university, public research university in Louisville, Kentucky, United States. It is part of the Kentucky state university system. Chartered in 1798 as the Jefferson Seminary, it became in the 19t ...
and at the
Library of Congress The Library of Congress (LOC) is a research library in Washington, D.C., serving as the library and research service for the United States Congress and the ''de facto'' national library of the United States. It also administers Copyright law o ...
in Washington. Other papers are collected at many other libraries.


See also

*
List of justices of the Supreme Court of the United States The Supreme Court of the United States is the highest-ranking judicial body in the United States. Its membership, as set by the Judiciary Act of 1869, consists of the chief justice of the United States and eight associate justices, any six of ...
* List of law clerks of the Supreme Court of the United States (Seat 8) *
List of United States Supreme Court justices by time in office A total of 116 people have served on the Supreme Court of the United States, the highest judicial body in the United States, since it was established in 1789. Supreme Court justices have life tenure, meaning that they serve until they die, resig ...
* 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 *
List of United States federal judges by longevity of service These are lists of Article III United States federal judges by longevity of service. Senate confirmation along with presidential appointment to an Article III court entails a lifelong appointment, unless the judge is impeached, resigns, retires, ...


Notes


References


Citations


Works cited

* * * * * * * * *


Further reading

* *
online review
* * * * * * * * *


External links

* *
Oyez Project, U.S. Supreme Court Multimedia – John M. Harlan


Sixth Circuit U.S. Court of Appeals. * *
''Centre's John Marshall Harlan praised as civil rights pioneer'' (March 5, 2009)
at
Centre College Centre College, formally Centre College of Kentucky, is a Private college, private Liberal arts colleges in the United States, liberal arts college in Danville, Kentucky, United States. Chartered by the Kentucky General Assembly in 1819, the col ...
. , - {{DEFAULTSORT:Harlan, John Marshall 1833 births 1911 deaths 20th-century American judges American people of English descent American people of Scotch-Irish descent American Presbyterians American prosecutors Burials at Rock Creek Cemetery Centre College alumni County judges in Kentucky George Washington University faculty Harlan family Justices of the Supreme Court of the United States Kentucky attorneys general Kentucky Know Nothings Kentucky Oppositionists Kentucky Republicans Kentucky Unionists Kentucky Whigs People from Boyle County, Kentucky People of Kentucky in the American Civil War Politicians from Danville, Kentucky Politicians from Louisville, Kentucky Southern Unionists in the American Civil War Transylvania University alumni Union army officers United States federal judges appointed by Rutherford B. Hayes United States Supreme Court justices who owned slaves