John Marshall Harlan

John Marshall Harlan

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

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office = Associate Justice of the United States Supreme Court
termstart = December 10 1877
termend = October 14 1911
nominator = Rutherford B. Hayes
appointer =
predecessor = David Davis
successor = Mahlon Pitney
office2 =
termstart2 =
termend2 =
nominator2 =
appointer2 =
predecessor2 =
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birthdate = birth date|1833|6|1|mf=y
birthplace = Boyle County, Kentucky, U.S.
deathdate = death date and age|1911|10|14|1833|6|1|mf=y
deathplace = Washington, D.C., U.S.
spouse =

John Marshall Harlan (June 1, 1833 – October 14, 1911) was an American Supreme Court associate justice. He is most notable as the lone dissenter in the famous 1896 case of "Plessy v. Ferguson", which upheld Southern segregation statutes. He was also the first Supreme Court justice to have earned a modern law degree.

Biographical information

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

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

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

Tenure at the Supreme Court

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

As the Court moved away from interpreting the Reconstruction Amendments to protect African Americans, Harlan wrote several eloquent dissents in support of equal rights for African Americans and racial equality. In "the Civil Rights Cases" (1883), the Supreme Court struck down the Civil Rights Act of 1875, holding that the act exceeded Congressional powers. Harlan alone dissented, vigorously, charging that the majority had subverted the Reconstruction Amendments: "The substance and spirit of the recent amendments of the constitution have been sacrificed by a subtle and ingenious verbal criticism."

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

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

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

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

"Plessy v. Ferguson" (1896)

In 1896, the Supreme Court handed down one of the most infamous decisions in U.S. history, "Plessy v. Ferguson" (1896), which established the doctrine of "separate but equal" as it legitimized both Southern and Northern segregation practices. The Court, speaking through Justice Henry B. Brown, held that separation of the races was not inherently unequal, and any inferiority felt by blacks at having to use separate facilities was an illusion: "We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of any-thing found in the act, but solely because the colored race chooses to put that construction upon it." [ "Plessy v. Ferguson", 163 U.S. 537 (1896) at Findlaw] "] (While the Court held that separate facilities had to be equal, in practice the facilities designated for blacks were invariably inferior.)

Harlan was once again alone in dissenting. He wrote: Cquote|The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. Harlan argued that the Louisiana law at issue in the case, which forced separation of white and black passengers on railway cars, was a "badge of servitude" that degraded African-Americans, and correctly predicted that the Court's ruling would become as infamous as its ruling in the Dred Scott case.

While Harlan is still admired by many civil rights leaders, his observations in the "Plessy" dissent concerning the Chinese in America suggest the same sort of racist attitudes towards the Chinese that segregationists had towards African-Americans. [ [ Gabriel J. Chin, "The Plessy Myth: Justice Harlan and the Chinese Cases," 82 Iowa Law Review 151 (1996)] ] He opined: “There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race.” [ Plessy v ] at] Harlan also attacked the hypocrisy of the "Plessy" decision by pointing out that the perceived "Chinese race” were in fact allowed to ride with white citizens while Negroes who "perhaps, risked their lives for the preservation of the Union" were not. Two years later, he referenced a quote in which the Chinese were described as members of a "distinct race and religion, remaining strangers in the land, residing apart by themselves, tenaciously adhering to the customs and usage of their own country, unfamiliar with our institutions and religion, and apparently incapable of assimilating with our people." [ [ FindLaw | Cases and Codes ] at]

Death and legacy

Harlan died on October 14, 1911, after 33 years with the Supreme Court, one of the longest tenures in history. Many regard Harlan as one of the most important, controversial, and visionary Supreme Court Justices in U.S. History.

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

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

There are collections of Harlan's papers at the University of Louisville in Louisville, Kentucky, and at the Manuscript Division of the Library of Congress in Washington, DC. Both are open for research.

He is buried in Rock Creek Cemetery, Washington, DC.


* Linda Przybyszewski: "The Republic According to John Marshall Harlan." University of North Carolina Press, Chapel Hill 1999, ISBN 0-8078-4789-5
* Loren P. Beth: "John Marshall Harlan: The Last Whig Justice." University Press of Kentucky, Lexington 1992, ISBN 0-8131-1778-XThe Harlan Scholars of the University of Louisville/Brandeis School of Law, named for Justice Harlan, is a undergraduate organization for students interested in attending law school.


External links

* [ U.S. Supreme Court Multimedia - John M. Harlan]
* [ University of Louisville, Louis D. Brandeis School of Law Library - Harlan Collection]
* [ Gabriel J. Chin, "The First Justice Harlan By The Numbers: Just How Great was the Great Dissenter?," 33 Akron Law Review 629 (1999)]

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