John Marshall Harlan 1833-1911, American jurist, associate justice of the U.S. Supreme Court (1877-1911), b. Boyle co., Ky., grad. Centre College, 1850. Admitted to the bar in 1853, he served in the Civil War as a colonel in the Union army until 1863, when he became attorney general of Kentucky. He took a leading part in the violent political struggles of the day, becoming after the war a leader of the conservative Republicans; he was defeated for the governorship, however, in 1872 and 1875. As head of the Kentucky delegation to the Republican national convention in 1876, he played a leading role in the nomination of Rutherford B. Hayes . In Oct., 1877, Hayes appointed him to the U.S. Supreme Court.

A man of strong and independent convictions and, on the whole, a strict constructionist, Harlan became known as a dissenter. In the "insular cases" (1901) he protested against the decision that denied the residents of the new U.S. possessions the national benefits of the Constitution. He upheld the police power of the states, dissented in the civil-rights cases (1883) and the income-tax case (1894), and argued that the court had no right to read the word unreasonable into the Sherman Act in the decisions against the Standard Oil and American Tobacco trusts. A firm defender of civil liberties and civil rights, Justice Harlan dissented vigorously in Plessy v. Ferguson (1896), in which the Supreme Court enunciated the "separate but equal" doctrine justifying segregation. In 1893, President Benjamin Harrison appointed him to the tribunal to settle the Bering Sea Fur-Seal Controversy (see under Bering Sea ) at Paris.

Bibliography: See the memoirs of his wife, M. S. Harlan, Some Memories of a Long Life, 1854-1911 (2002); F. B. Clark, The Constitutional Doctrines of Justice Harlan (1915); F. Latham, The Great Dissenter (1970).

Harlan, John Marshall (1833–1911), justice of the U.S. Supreme Court, 1877–1911.A native of Boyle County, Kentucky, John Marshall Harlan, during his thirty‐four‐year tenure on the Supreme Court, supported a strong national economy based on free trade among the states and expansive readings of the due process and equal protection clauses of the Fourteenth Amendment. Harlan's somewhat idiosyncratic perspective as a judge was most vividly articulated in his 361 dissenting opinions.

Harlan wrote famous civil rights dissents in the Civil Rights Cases (1883), Hurtado v. California (1886), and Plessy v. Ferguson (1896). In the Civil Rights Cases, he defended the constitutionality of the Civil Rights Act of 1875, which guaranteed “full and equal enjoyment” of public accommodations to all citizens. In Hurtado, Harlan became the first to espouse the theory that all the protections enumerated in the Bill of Rights should be considered part of the right of “due process” guaranteed by the Fourteenth Amendment, thereby making the Bill of Rights a protection against infringements by the states as well as by the federal government. He pressed this position with little success. In Plessy, Harlan dissented from the majority's support for the constitutionality of “separate but equal” transportation facilities for blacks and whites, insisting that state laws segregating the races on public transportation denied blacks equal protection of the laws.

Harlan's constitutional decisions on issues of political economy upheld what he considered important boundaries between the regulatory spheres of the federal government and the states. He believed in strong federal power to maintain the free flow of commerce, but he also upheld the police powers of the states in cases such as Lochner v. New York (1905), involving state regulation of the banking industry, so long as he did not find any commercial self‐interest motivating the legislation.

Harlan's approach was opinionated, intractable, and impassioned. In the words of Chief Justice Edward Douglass White, “he could lead but he could not follow.” Nevertheless, on issues involving racial discrimination and civil rights, his isolated views subsequently resonated with many late twentieth‐century Americans.
See also Economic Regulation; Segregation, Racial.

Bibliography

G. Edward White , John Marshall Harlan—The Precursor, in The American Judicial Tradition, pp. 129–45, 2d. ed., 1988.
Loren Beth , John Marshall Harlan: The Last Whig Justice, 1992.

G. Edward White

John Marshall Harlan (1833-1911)

Supreme court justice

Sources

Supreme Court. John Marshall Harlan was one of the most influential Supreme Court justices in history, partly because he disagreed with his colleagues on some of the most pivotal cases to appear before the court. “He could lead but he could not follow. . . . His was not the temper of a negotiator,” Attorney General George Wickersham said of Harlan. In his thirty-four years on the court, Harlan wrote opinions on 703 cases, but he was more noted for his 316 vigorous dissents. Harlan disagreed profoundly with Justice Stephen Field, the court’s intellectual giant, for whom liberty of contract and natural rights became almost sacred, untouchable by state of federal law. Harlan was more willing to let state legislatures regulate business enterprise and working conditions and did not think judges should base decisions on their own political philosophy.

Political Background. Harlan was born in Boyle County, Kentucky. During the Civil War Harlan and his father were staunch unionists. President Abraham Lincoln rewarded the elder Harlan by appointing him federal prosecutor of the state; the younger Harlan, who unsuccessfully ran for Congress in 1861, became a colonel in the state’s volunteer infantry. Though he supported the Union, Harlan was a harsh critic of the Lincoln administration. He supported the Constitutional Union presidential nominee in 1860 and in 1864 campaigned actively for Democratic candidate George McClellan. Harlan opposed the Thirteenth Amendment to end slavery as a “flagrant invasion of the right of self government” that he would oppose even “if there were not a dozen slaves in Kentucky.” After the war Harlan became reconciled to the importance of Reconstruction, the federal policy that emancipated African Americans and extended full citizenship rights to them. At the 1876 Republican convention he supported Rutherford B. Hayes. When Hayes became president, he sent Harlan to Louisiana to resolve a dispute between white Democrats and black Republicans. In October 1877 Hayes appointed Harlan to the Supreme Court. Harlan was confirmed despite opposition from southerners for his support of Reconstruction and from Republicans for his criticism of Lincoln.

Civil Rights Cases. Harlan’s first major dissent was in the Civil Rights Cases (1883), when the court struck down the 1875 Civil Rights Act. The court found this law, which forbade racial discrimination in public accommodations, to be beyond the power of Congress. Harlan, who had seen the racial turmoil of the 1860s and 1870s, recognized what would happen if private prejudices were codified into law. According to Harlan racial discrimination in public accommodations was a “badge of servitude” that Congress had to prohibit under the provisions of the Thirteenth Amendment. He also evoked the Fourteenth Amendment, which granted the federal government the affirmative power to protect U.S. citizens.

Judicial Restraint. Harlan consistently admonished his fellow justices to show judicial restraint in their renderings. He opposed the court’s substitution of its own opinion for that of the Congress or a state’s legislature. When the court struck down the income-tax law in Pollock v. Farmers’ Loan £sf Trust Company (1895), Harlan dissented and warned the other justices that they were not judging the law but were entering into a political debate in which they had no part. He affirmed that Congress had a right to levy taxes. As for the argument that giving Congress the power to levy a tax on income or to protect the civil rights of American citizens would destroy the rights of the states, Harlan responded that “the best friends of states rights . . . are those who recognize the Union as possessing all the powers granted to it in the Constitution, whether expressly or by implication.”

Legacy. Though Harlan was often a lone voice, his vitriolic dissents have fared much better than many of his colleagues’ majority opinions. In United States v. E. C. Knight Company (1895) Harlan advocated a broader role for the federal government in regulating the economy, and in Plessy v. Ferguson (1896) he rejected the doctrine of “separate but equal.” In both of these cases, as well as in Civil Rights and Pollock, his dissenting opinions later became law. Harlan lectured on constitutional law at Columbian (now George Washington) University from 1889 until his death. In 1893 he served on the Bering Sea Arbitration Tribunal, which settled a dispute between the United States and Great Britain over Alaskan fisheries. His grandson, John Marshall Harlan II, was also a Supreme Court justice and noted dissenter.

Sources

John E. Semonche, Charting the Future: The Supreme Court Responds to a Changing Society, 1890-1920 (Westport, Conn.: Greenwood Press, 1978);

Tinsley E. Yarbrough, Judicial Enigma: The First Justice Harlan (New York: Oxford University Press, 1995).