John Marshall Harlan (June 1, 1833 – October 14, 1911) was an American
lawyer
A lawyer is a person who practices law. The role of a lawyer varies greatly across different legal jurisdictions. A lawyer can be classified as an advocate, attorney, barrister, canon lawyer, civil law notary, counsel, counselor, solicitor ...
and politician who served as an
associate justice of the
U.S. Supreme Court 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
Civil liberties are guarantees and freedoms that governments commit not to abridge, either by constitution, legislation, or judicial interpretation, without due process. Though the scope of the term differs between countries, civil liberties may ...
, including the ''
Civil Rights Cases'', ''
Plessy v. Ferguson
''Plessy v. Ferguson'', 163 U.S. 537 (1896), was a landmark U.S. Supreme Court decision in which the Court ruled that racial segregation laws did not violate the U.S. Constitution as long as the facilities for each race were equal in qualit ...
'', 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 during which Earl Warren served as Chief Justice. Warren replaced the deceased Fred M. Vinson as Chief Justice in 1953, and Warren remained in office until ...
and onward. 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 him ...
was also a Supreme Court justice.
Born into a prominent,
slave
Slavery and enslavement are both the state and the condition of being a slave—someone forbidden to quit one's service for an enslaver, and who is treated by the enslaver as property. Slavery typically involves slaves being made to per ...
-holding family near
Danville, Kentucky
Danville is a home rule-class city in Boyle County, Kentucky, United States. It is the seat of its county. The population was 17,236 at the 2020 Census. Danville is the principal city of the Danville Micropolitan Statistical Area, which includ ...
, Harlan experienced a quick rise to political prominence. When the
American Civil War
The American Civil War (April 12, 1861 – May 26, 1865; also known by other names) was a civil war in the United States. It was fought between the Union ("the North") and the Confederacy ("the South"), the latter formed by states ...
broke out, Harlan strongly supported the
Union
Union commonly refers to:
* Trade union, an organization of workers
* Union (set theory), in mathematics, a fundamental operation on sets
Union may also refer to:
Arts and entertainment
Music
* Union (band), an American rock group
** ''U ...
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 Civil War. The Proclamation changed the legal st ...
, he served in the war until 1863, when he won election as
Attorney General of Kentucky
The Attorney General of Kentucky is an office created by the Kentucky Constitution. (Ky.Const. § 91). Under Kentucky law, they serve several roles, including the state's chief prosecutor (KRS 15.700), the state's chief law enforcement officer ( ...
. 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. After the
1876 presidential election, newly-inaugurated President
Rutherford B. Hayes
Rutherford Birchard Hayes (; October 4, 1822 – January 17, 1893) was an American lawyer and politician who served as the 19th president of the United States from 1877 to 1881, after serving in the U.S. House of Representatives and as govern ...
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 dissented in both the ''Civil Rights Cases'' (1883) and ''Plessy v. Ferguson'' (1896), which permitted state and private actors to engage in
segregation. He also wrote dissents in major cases such as ''
Pollock v. Farmers' Loan & Trust Co.'' (1895), which struck down a federal income tax; ''
United States v. E. C. Knight Co.'' (1895), which severely limited the power of the federal government to pursue antitrust actions; ''
Lochner v. New York'' (1905), which invalidated a state law setting maximum working hours on the basis of
substantive due process
Substantive due process is a principle in United States constitutional law that allows courts to establish and protect certain fundamental rights from government interference, even if only procedural protections are present or the rights are unen ...
; and ''
Standard Oil Co. of New Jersey v. United States'' (1911), which 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 poss ...
. 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 Bill of Rights have been made applicable to the states. When the Bill of Rights was ratified, the courts held that its protections extended only to the ...
, and his majority opinion in ''
Chicago, Burlington & Quincy Railroad Co. v. City of Chicago'' (1897) incorporated the
Takings Clause.
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.
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, often referred to as the House of Representatives, the U.S. House, or simply the House, is the Lower house, lower chamber of the United States Congress, with the United States Senate, Senate being ...
and served as
Secretary of State of Kentucky
The secretary of state of Kentucky is one of the constitutional officers of the U.S. state of Kentucky. It is now an elected office, but was an appointed office prior to 1891. The current secretary of state is Republican Michael Adams, who was ...
. 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 capital city of the Commonwealth of Kentucky, United States, and the seat of Franklin County. It is a home rule-class city; the population was 28,602 at the 2020 census. Located along the Kentucky River, Frankfort is the prin ...
. He was named after
Chief Justice of the United States John Marshall
John Marshall (September 24, 1755July 6, 1835) was an American politician and lawyer who served as the fourth Chief Justice of the United States from 1801 until his death in 1835. He remains the longest-serving chief justice and fourth-longes ...
, whom his father admired.
John had several older brothers, including a
mixed-race
Mixed race people are people of more than one race or ethnicity. A variety of terms have been used both historically and presently for mixed race people in a variety of contexts, including ''multiethnic'', ''polyethnic'', occasionally ''bi-eth ...
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) was a gold rush that 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 ...
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
''Plessy v. Ferguson'', 163 U.S. 537 (1896), was a landmark U.S. Supreme Court decision in which the Court ruled that racial segregation laws did not violate the U.S. Constitution as long as the facilities for each race were equal in qualit ...
''."
After attending school in Frankfort, John Harlan enrolled at
Centre College. He was a member of
Beta Theta Pi
Beta Theta Pi (), commonly known as Beta, is a North American social fraternity that was founded in 1839 at Miami University in Oxford, Ohio. One of North America's oldest fraternities, as of 2022 it consists of 144 active chapters in the Unite ...
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 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: 1851–1863
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
An adjutant general is a military chief administrative officer.
France
In Revolutionary France, the was a senior staff officer, effectively an assistant to a general officer. It was a special position for lieutenant-colonels and colonels in staf ...
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
The Know Nothing party was a nativist political party and movement in the United States in the mid-1850s. The party was officially known as the "Native American Party" prior to 1855 and thereafter, it was simply known as the "American Party". ...
, 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
The term county judge is applied as a descriptor, sometimes as a title, for a person who presides over a county court. In most cases, such as in Northern Ireland and the Victorian County Courts, a county judge is a judicial officer with civil ...
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. Its county seat is Frankfort, the state capital. The county was formed in 1795 from parts of Woodford, Mercer and Shelby c ...
. The following year, he renounced his allegiance to the Know Nothings and joined the state's
Opposition Party
Parliamentary opposition is a form of political opposition to a designated government, particularly in a Westminster-based parliamentary system. This article uses the term '' government'' as it is used in Parliamentary systems, i.e. meaning ...
, 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 movement to end slavery. In Western Europe and the Americas, abolitionism was a historic movement that sought to end the Atlantic slave trade and liberate the enslaved people.
The British ...
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 Massa ...
in the
1860 presidential election. Harlan agreed to serve as a
presidential elector
The United States Electoral College is the group of presidential electors required by the Constitution to form every four years for the sole purpose of appointing the president and vice president. Each state and the District of Columbia app ...
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 an American lawyer, politician, and statesman who served as the 16th president of the United States from 1861 until his assassination in 1865. Lincoln led the nation thro ...
's victory in the 1860 election, Harlan sought to prevent Kentucky from seceding. He wrote several pro-
Union
Union commonly refers to:
* Trade union, an organization of workers
* Union (set theory), in mathematics, a fundamental operation on sets
Union may also refer to:
Arts and entertainment
Music
* Union (band), an American rock group
** ''U ...
editorials, represented the Union in state court, and joined a militia known as the Crittenden Union
Zouave
The Zouaves were a class of light infantry regiments of the French Army serving between 1830 and 1962 and linked to French North Africa; as well as some units of other countries modelled upon them. The zouaves were among the most decorated uni ...
s.
After the state legislature voted to expel all
Confederate forces from the state, Harlan recruited a company that was mustered into the service as the
10th Kentucky Infantry. Harlan served in the
Western Theater of the American Civil War until the death of his father James in February 1863. At that time, Harlan resigned his commission as
colonel
Colonel (abbreviated as Col., Col or COL) is a senior military 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 colonel was typically in charge ...
and returned to Frankfort to support his family.
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 an office created by the Kentucky Constitution. (Ky.Const. § 91). Under Kentucky law, they serve several roles, including the state's chief prosecutor (KRS 15.700), the state's chief law enforcement officer ( ...
. 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 Civil War. The Proclamation changed the legal st ...
and supported Democratic candidate
George B. McClellan
George Brinton McClellan (December 3, 1826 – October 29, 1885) was an American soldier, Civil War Union general, civil engineer, railroad executive, and politician who served as the 24th governor of New Jersey. A graduate of West Point, McCl ...
'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."
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. In the aftermath of his defeat, Harlan joined the Republican Party, and he supported
Ulysses S. Grant's candidacy in the
1868 presidential election.
[Luxenberg (2019), pp. 206–209] Moving to
Louisville, Harlan formed a successful partnership with John E. Newman, a former circuit court judge, and like Harlan, 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 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 26th Governor of Kentucky from 1871 to 1875, and territorial governor of Montana from 1887 to 1889. He ascended to the office of governor by three different means. First, he su ...
, 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) was a United States federal law that empowered the President ...
, 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, seeking to position Bristow as a more electable alternative to Republican front-runner
James G. Blaine
James Gillespie Blaine (January 31, 1830January 27, 1893) was an American statesman and Republican politician who represented Maine in the U.S. House of Representatives from 1863 to 1876, serving as Speaker of the U.S. House of Representativ ...
. When
Rutherford B. Hayes
Rutherford Birchard Hayes (; October 4, 1822 – January 17, 1893) was an American lawyer and politician who served as the 19th president of the United States from 1877 to 1881, after serving in the U.S. House of Representatives and as govern ...
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 or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general.
In some jurisdictions, attorneys general also have exec ...
, 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 e ...
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 18 ...
.
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, in Washington, D.C. Established in 1865, GW Law is the oldest top law school in the national capital. GW Law offers the largest range of cou ...
.
[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 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
Howell Edmunds Jackson (April 8, 1832 – August 8, 1895) was an American attorney, politician, and jurist who served as an Associate Justice of the Supreme Court of the United States from 1893 until his death in 1895. His brief tenure on the Su ...
. 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 ...
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 ...
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 the courts can and should go beyond the applicable law to consider broader societal implications of its 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 United States law, public accommodations are generally defined as facilities, whether publicly or privately owned, that are used by the public at large. Examples include retail stores, rental establishments, and service establishments as well ...
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''. 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 from 1870 to 1892. He was also a member of the Electoral Commission that decided ...
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 or miscegenation laws are laws that enforce racial segregation at the level of marriage and intimate relationships by criminalizing interracial marriage and sometimes also sex between members of different races. Anti-misc ...
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'' (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 ...
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. It was passed by Congress and is named for Senator John Sherman, its principal author.
T ...
. 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) to ensure fair rates, to eliminate ...
(ICC).
''Plessy v. Ferguson''
In 1896, Associate Justice
Henry Billings Brown
Henry Billings Brown (March 2, 1836 – September 4, 1913) was an associate justice of the Supreme Court of the United States from 1891 to 1906.
Although a respected lawyer and U.S. District Judge before ascending to the high court, Brown ...
delivered the majority decision in ''
Plessy v. Ferguson
''Plessy v. Ferguson'', 163 U.S. 537 (1896), was a landmark U.S. Supreme Court decision in which the Court ruled that racial segregation laws did not violate the U.S. Constitution as long as the facilities for each race were equal in qualit ...
'', 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 protecti ...
." 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.
Later cases, 1897–1911
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." 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
( , , ; 'right of blood') is a principle of nationality law by which citizenship is determined or acquired by the nationality or ethnicity of one or both parents. Children at birth may be citizens of a particular state if either or both of th ...
'' (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'' (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 a term used in a variety of contexts, usually by nationalist movements who want to secede from a larger polity (usually in the form of an empire, but also in a multi-ethnic ...
justice of the Supreme Court, arguing consistently in the
Insular Cases (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 (; fil, Pilipinas, links=no), officially the Republic of the Philippines ( fil, Republika ng Pilipinas, links=no),
* bik, Republika kan Filipinas
* ceb, Republika sa Pilipinas
* cbk, República de Filipinas
* hil, Republ ...
,
Hawaii
Hawaii ( ; haw, Hawaii or ) is a state in the Western United States, located in the Pacific Ocean about from the U.S. mainland. It is the only U.S. state outside North America, the only state that is an archipelago, and the only ...
,
Guam
Guam (; ch, Guåhan ) is an organized, unincorporated territory of the United States in the Micronesia subregion of the western Pacific Ocean. It is the westernmost point and territory of the United States (reckoned from the geographic cen ...
, and
Puerto Rico
Puerto Rico (; abbreviated PR; tnq, Boriken, ''Borinquen''), officially the Commonwealth of Puerto Rico ( es, link=yes, Estado Libre Asociado de Puerto Rico, lit=Free Associated State of Puerto Rico), is a Caribbean island and unincorporated ...
, 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 state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the individual pe ...
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'' (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'' (1908), holding that Congress did not have the power to ban "
yellow-dog contract
A yellow-dog contract (a yellow-dog clause of a contract, also known as an ironclad oath) is an agreement between an employer and an employee in which the employee agrees, as a condition of employment, not to be a member of a labor union. In the ...
s".
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'' (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'' (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 poss ...
, 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.
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 refers to 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 s ...
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 neighborhood of Washington, D.C., United States. It is across the stree ...
, Washington, D.C., where his body resides along with those of three other justices.
[ ]Supreme Court Historical Society
The Supreme Court Historical Society (SCHS) is a Washington, D.C.-based private, nonprofit organization dedicated to preserving and communicating the history of the U.S. Supreme Court. The Society was founded in 1974 by U.S. Chief Justice Warren ...
at Internet Archive
The Internet Archive is an American digital library with the stated mission of "universal access to all knowledge". It provides free public access to collections of digitized materials, including websites, software applications/games, music, ...
. 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.
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 liberal arts college in Lake Forest, Illinois. Founded in 1857 as Lind University by a group of Presbyterian ministers, the college has been coeducational since 1876 and an undergraduate-focused liberal arts in ...
. Their second son,
James S. Harlan, practiced in Chicago and served as attorney general of
Puerto Rico
Puerto Rico (; abbreviated PR; tnq, Boriken, ''Borinquen''), officially the Commonwealth of Puerto Rico ( es, link=yes, Estado Libre Asociado de Puerto Rico, lit=Free Associated State of Puerto Rico), is a Caribbean island and unincorporated ...
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) to ensure fair rates, to eliminate ...
. Their youngest son,
John Maynard Harlan, also practiced in Chicago and served as an
alderman
An alderman is a member of a municipal assembly or council in many jurisdictions founded upon English law. The term may be titular, denoting a high-ranking member of a borough or county council, a council member chosen by the elected members the ...
. 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 him ...
, served as a Supreme Court Associate Justice from 1955 until 1971.
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 part of the Reformed tradition within Protestantism that broke from the Roman Catholic Church in Scotland by John Knox, who was a priest at St. Giles Cathedral (Church of Scotland). Presbyterian churches derive their na ...
, he favored the
Old School branch of that denomination, opposed
higher criticism
Historical criticism, also known as the historical-critical method or higher criticism, is a branch of criticism that investigates the origins of ancient texts in order to understand "the world behind the text". While often discussed in terms of ...
, and stridently adhered to
Calvinism
Calvinism (also called the Reformed Tradition, Reformed Protestantism, Reformed Christianity, or simply Reformed) is a major branch of Protestantism that follows the theological tradition and forms of Christian practice set down by John ...
.
[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, and 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," and 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 also 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 the
Liberty ship
Liberty ships were a class of cargo ship built in the United States during World War II under the Emergency Shipbuilding Program. Though British in concept, the design was adopted by the United States for its simple, low-cost construction. M ...
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 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 research university in Louisville, Kentucky. It is part of the Kentucky state university system. When founded in 1798, it was the first city-owned public university in the United States and one o ...
and at the
Library of Congress
The Library of Congress (LOC) is the research library that officially serves the United States Congress and is the '' de facto'' national library of the United States. It is the oldest federal cultural institution in the country. The libra ...
in Washington. Other papers are collected at many other libraries.
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, is an English translation of the Christian Bible for the Church of England, which was commissioned in 1604 and published in 1611, by sponsorship of K ...
Bible
The Bible (from Koine Greek , , 'the books') is a collection of religious texts or scriptures that are held to be sacred in Christianity, Judaism, Samaritanism, and many other religions. The Bible is an anthologya compilation of texts of ...
to the Supreme Court.
This Bible had become known as the "Harlan Bible", and as of 2015, has been signed by every succeeding Supreme Court justice after taking the oath of office.
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 o ...
*
*
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, and so they serve until they die, resign, retir ...
*
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
Notes
References
Citations
Works cited
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Further reading
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online review
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External links
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Oyez Project, U.S. Supreme Court Multimedia – John M. Harlan Sixth Circuit
U.S. Court of Appeals
The United States courts of appeals are the intermediate appellate courts of the United States federal judiciary. The courts of appeals are divided into 11 numbered circuits that cover geographic areas of the United States and hear appeals fro ...
.
*
*
''Centre's John Marshall Harlan praised as civil rights pioneer'' (March 5, 2009)at
Centre College.
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{{DEFAULTSORT:Harlan, John Marshall
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Burials at Rock Creek Cemetery
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People from Boyle County, Kentucky
People of Kentucky in the American Civil War
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Harlan family