Harlan, John Marshall (b. Boyle County, Ky., 1 June 1833; d. Washington, D.C., 14 Oct. 1911; interred Rock Creek Cemetery, Washington, D.C.), associate justice, 1877–1911. Raised in privileged circles on the border between North and South, Harlan had much in common with his namesake, the great chief justice from Virginia. Of a slaveowning family, himself briefly a slaveowner, Harlan was personally acquainted with the South's “peculiar institution.” A fervent believer in the Constitution, Harlan also looked to law and the institutions of government to preserve the Union, notwithstanding social differences. Yet Harlan was to carry the Marshall tradition into a very different world. An almost exact contemporary of chief Justice Melville Fuller, under whom Harlan served for twenty‐three years, he was forced to confront the issues raised by the near breakup of the Union: the emancipation of the slaves and the constitutional amendments that consolidated the North's victory.

Early Career

Harlan's father, a staunch Whig and close friend of Henry Clay, was a successful lawyer and electable politician, serving successively as United States congressman, Kentucky secretary of state, state legislator, and state attorney general. Completing his education by a stay at Centre College in Danville, Kentucky, the young Harlan then studied law at Transylvania University and in his father's law office. Admitted to the Kentucky bar in 1853, he seemed destined to follow his father in a career as a Whig lawyer‐politician, but the deaths of Clay and Daniel Webster the previous year had deprived the party of enlightened leadership in troubled times. Trying demagogic nativism, Whigs like the senior and junior Harlan became Know‐Nothings, a gambit that was ultimately doomed but that brought the younger Harlan his first elective office as county judge in 1858. The years as an active Know‐Nothing also piled up a host of recorded racist and states' rights speeches that were later to embarrass their author.

The secession crisis in 1861 revealed Harlan's true colors: Union blue. Commissioned a lieutenant colonel in the United States Army, he speedily raised a company of infantry volunteers. The senior Harlan's sudden death in 1863 caused Col. Harlan to resign his commission and take over his father's unfinished business. Characteristically, the young veteran plunged promptly into politics; running as a Constitutional Unionist (the Whigs' new party), he was elected state attorney general. At war's end the Unionists faded as a political force and Harlan cast in his lot with the Republicans. In his professional career the move was reflected in his law partnership with Benjamin Bristow, soon to be Grant's secretary of the treasury. Despite Harlan's best efforts—he ran twice for governor—the Kentucky Republicans failed to thrive. It was his good fortune, however, to head the Kentucky delegation to the Republican national convention in 1876, when his timely swing to Rutherford B. Hayes secured the outcome. After the contested presidential election and the ordeal of the scrutiny by the Electoral Commission, Hayes was declared the victor. The new president moved quickly to settle unfinished business and named a commission of five, including Harlan, to report on which of two rival Louisiana state governments was legitimate. In keeping with the president's policy of ending Reconstruction, the commission advised in favor of the Democrats, despite the fact that the same returning board that had certified the Hayes electors had also certified the state Republican candidates. On inauguration Hayes had inherited a Supreme Court vacancy caused by Justice David Davis's precipitate resignation (apparently to avoid service on the Electoral Commission; see Extrajudicial Activities). Consistent with his policy of reconciliation, Hayes was determined to name a Southerner. Admirably qualified and politically deserving, the forty‐four‐year‐old Harlan was the obvious choice.

Service on the Court

Although his tenure on the Court was long, almost as long as Marshall's, and despite the fact that he wrote often and at length, Harlan's reputation at his death thirty‐four years later seemed unlikely to exceed those of his colleagues, Justices Joseph P. Bradley, Stephen J. Field, and Samuel F. Miller—even, perhaps, that of the lackluster Chief Justice Fuller. In his defense of private property he was if anything more zealous than other judges of the Gilded Age, being particularly stern in his refusal to countenance state or municipal debt repudiation (see Property Rights). What has brought him the interest and respect of posterity was not, however, his conventional views but rather what he wrote in certain of his dissents (see Dissent). So frequent and vigorous were Harlan's disagreements with the majority on everything from civil rights and due process to the federal income tax and antitrust law that he was joshingly said by his colleagues to suffer from “dissent‐ery.” To many he seemed to be no more than “an eccentric exception,” which is what Justice Felix Frankfurter called him in Adamson v. California (1947; p. 62), but because important aspects of his dissents were to gain majorities years after his death, he came to be seen as a twentieth‐century liberal born too soon.

What has secured Harlan's modern reputation more than anything else, perhaps, is his position on the civil rights of the newly freed African‐Americans, a position all the more compelling coming from a former slaveowner and speechifying Know‐Nothing. Alive to all the ironies, Harlan was pleased to write his blistering dissent in the Civil Rights Cases (1883) with the very pen and inkwell that Chief Justice Roger Taney had used when composing the opinion of the Court in Dred Scott v. Sandford (1857). While the majority struck down key provisions of the Civil Rights Act of 1875, Harlan maintained that segregation in public accommodation was a “badge of slavery” that Congress could constitutionally outlaw under the enforcement section of the Thirteenth Amendment. His own approach to statutory construction was in striking contrast to the majority's crabbed reading: “It is not the words of the law but the internal sense of it that makes the law: the letter of the law is the body; the sense and reason of the law is the soul” (p. 26). He scathingly contrasted the Court's post–Reconstruction reluctance to recognize national power to defend the civil rights of ex‐slaves with its pre–Civil War zeal “for the protection of slavery and the rights of the master of fugitive slaves” (p. 53). In the notorious case of Plessy v. Ferguson (1896), upholding Jim Crow laws, Harlan again dissented. Crashing through the argument in favor of separate but equal treatment for African‐Americans, he passionately urged the Court to take judicial notice of what “every one knows”: “The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves” (p. 557). In the latter‐day civil rights movement, associated with Brown v. Board of Education (1954), which overruled Plessy, Harlan's dissents were seen as a more honorable past than that of the Court's majority.

In another area of posthumous vindication, Fourteenth Amendment law, Harlan's dissents again pointed the way of the future. While the majority consistently ruled that the amendment's protection against state action was not necessarily that detailed by the Bill of Rights against federal action, Harlan stoutly maintained the view that “‘due process of law,’ within the meaning of the national Constitution, does not import one thing with reference to the powers of the States, and another with reference to the powers of the general government” (Hurtado v. California, 1884, p. 541). Beginning with scattered cases in the 1920s and developing into a steady stream of holdings in the 1950s and 1960s, the so‐called incorporation theory, that is, that the Fourteenth Amendment incorporates most of the Bill of Rights, steadily became law (see State Action).

On another topic, the federal income tax, Harlan's vindication came by way of constitutional amendment rather than judicial volte‐face. Dissenting in *Pollock v. Farmers' Loan & Trust Co. (1895), which invalidated the federal income tax on the dubious ground of the constitutional provision against direct taxes not proportioned to state population, Harlan berated the majority for overturning precedent and engaging in judicial legislation. Again pointing to the reality involved, he acidly observed that “the practical effect of the decision today is to give to certain kinds of property a position of favoritism and advantage” (p. 685). The Sixteenth Amendment overturned Pollock in 1913, two years after Harlan's death.

But Harlan's prophetic spirit was by no means infallible. The same preference for the simple solution that limits judicial discretion, which brought him prematurely to the incorporation theory, led Harlan to resist the majority's reading of the rule of reason into the Sherman Antitrust Act in Standard Oil v. United States (1911); his very last published opinion, in United States v. American Tobacco Co. (1911), denounced the doctrine as usurping the functions of Congress. It was this view on the heated issue of “trust busting” that won him contemporary popularity. On questions of substantive due process—to what extent the Constitution limits the power of government to regulate the economy—Harlan was unpredictable. He wrote the opinion of the Court in Smyth v. Ames (1898), striking down a Nebraska statute setting railroad rates on the ground that it violated the Due Process Clause of the Fourteenth Amendment by not allowing the companies a “fair return” on the “fair value” of their property; the effect, whether intended or not, was to place the work of all state railroad commissions under court surveillance. By contrast, in Lochner v. New York (1905), which invalidated New York's eight‐hour‐day law for bakers, Harlan dissented—a dissent overshadowed by Oliver Wendell Holmes's more trenchant statement. By contrast again, in Adair v. United States (1908), which invalidated a federal law prohibiting “yellow dog” (antiunion) contracts on interstate railroads, Harlan wrote for the majority, over Holmes's ringing dissent. “The employer and employee have equality of right,” Harlan unrealistically explained, “and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract, which no government can legally justify in a free land” (p. 175). (See Labor; Contract, Freedom of.)

Character and Legacy

Cases such as the latter led Holmes to deny that Harlan shone “either in analysis or generalization.” “He had a powerful vise,” Holmes wrote, “the jaws of which couldn't be got nearer than two inches to each other.” Even with respect to race relations Harlan's prophetic vision reached only so far. His justly famous dissent in Plessy includes this unqualified affirmation: “Our Constitution is color‐blind, and neither knows nor tolerates classes among citizens” (p. 559), a doctrine that cannot be squared with modern affirmative action programs.

Because he unsparingly pointed out the real‐world consequences of many judicial decisions, Harlan was criticized by the formalist legal scholars of his day for including extraneous matter in his dissents. Confident in his convictions, he regularly risked breaches in judicial decorum: reading his dissent in the Income Tax Case, he pounded his fist on the desk and wagged his finger in the faces of the chief justice and Justice Field. Charles Evans Hughes once remarked to Frankfurter that he had heard even worse: in the days of Bradley and Harlan the justices “actually shook fists at one another.” Justice David J. Brewer, a close friend, described the source of Harlan's certitude: “He retires at eight with one hand on the Constitution and the other on the Bible, safe and happy in a perfect faith in justice and righteousness.” At Harlan's memorial service Attorney General George W. Wickersham candidly conceded: “He could lead but he could not follow … His was not the temper of a negotiator.” A more emollient temperament might have left Harlan in the minority less often, although it is unlikely, given his strong‐willed colleagues. More likely, his doughtiness enabled him to persevere in often solitary dissent, expressing with realism some of the best instincts of his day.

Despite his active participation in judicial life Harlan also taught constitutional law at Columbian (now George Washington) University from 1889 until his death. In 1893 he served on the Bering Sea Arbitration Tribunal, which settled a dispute between the United States and the British Empire over Alaskan fur‐seal fisheries. Harlan had married Malvina F. Shanklin in 1856 and fathered six children; his grandson John Marshall Harlan II was also a justice of United States Supreme Court.

See also Due Process, Substantive; Judicial Review; Race and Racism.

Bibliography

Henry J. Abraham , John Marshall Harlan: A Justice Neglected, Virginia Law Review 41 (1955): 871–891.
Floyd Barzilia Clark , The Constitutional Doctrines of Justice Harlan (1915).
Alan F. Westin , Mr. Justice Harlan, in Mr. Justice, edited by Allison Dunham and Philip B. Kurland, rev. ed. (1964).
G. Edward White , The American Judicial Tradition: Profiles of Leading American Judges (1976), chap. 6, John Marshall Harlan I: The Precursor.

John V. Orth

HARLAN, JOHN MARSHALL

John Marshall Harlan served as an associate justice of the U.S. Supreme Court from 1877 to 1911. Harlan, a native of Kentucky, is best remembered for his dissenting opinions in cases that upheld restrictions on the civil rights of African Americans, most notably in plessy v. ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896). Harlan's dissents served to enlarge his judicial reputation as attitudes and laws changed concerning state-mandated segregation.

Harlan was born in Boyle County, Kentucky, on June 1, 1833. The son of a prominent lawyer and politician, Harlan graduated from Centre College and then studied law at Transylvania University, both located in Kentucky. He was admitted to the Kentucky bar in 1853. As a young man, Harlan sought his own political career. He was elected a county judge in 1858, but relocated to Louisville in 1861 to establish a successful law practice.

With the beginning of the Civil War in 1861, Harlan joined the Union army as a lieutenant colonel and commanded a company of infantry volunteers. Upon the death of his father, he resigned his commission and returned to his law practice in Louisville. There, he became an active member of the republican party.He made two unsuccessful efforts at getting himself elected governor of Kentucky, but proved more successful at helping others, securing the presidential nomination of rutherford b. hayes at the 1876 Republican National Convention.

Hayes took office in 1877, after a difficult election. One of his first acts was to appoint Harlan to the U.S. Supreme Court. Harlan, at age forty-four, joined a Court that, for the length of his tenure, was economically conservative and philosophically opposed to the enlargement of federal power. In addition, the Court deferred to the policies of southern states on racial segregation.

During his long tenure on the bench, Harlan gained prominence as a frequent dissenter. With a temperament that was better suited to leading than following, Harlan did not have the ability to negotiate compromise. Instead, he relied on

his dissenting opinions to voice his often prophetic judgments.

In pollock v. farmers' loan & trust co., 157 U.S. 429, 15 S. Ct. 673, 39 L. Ed. 759 (1895), the Court held that the federal income tax was unconstitutional. Harlan dissented, arguing that the Court was ignoring precedent and acting as a legislator rather than a court. He noted that "the practical effect of the decision today is to give to certain kinds of property a position of favoritism and advantage." Harlan was vindicated in 1913 when the sixteenth amendment overturned Pollock and authorized Congress to impose a federal income tax.

In 1883, the Supreme Court struck down Congress's attempt to outlaw racial discrimination in places of public accommodation, including hotels, taverns, restaurants, theaters, streetcars, and railroad passenger cars. The majority decided in the civil rights cases, 109 U.S. 3, 3 S. Ct. 18, 27 L. Ed. 835 (1883), that the civil rights act of 1875 violated the fourteenth amendment. It determined that the amendment prohibited only official, state-sponsored discrimination and could not reach discrimination practiced by privately owned places of public accommodation.

Justice Harlan, in his dissent, argued that segregation in public accommodations was a "badge of slavery" for the recently freed African Americans, and that the act could be constitutionally justified by looking to the thirteenth amendment. This amendment gave Congress the authority to outlaw all "badges and incidents" of slavery. Harlan pointed out that before the Civil War, the Supreme Court protected the rights of slaveholders. Less than twenty years after the abolition of slavery, the Court refused to extend its power and authority to protect the former slaves. Not until the passage of title II of the Civil Rights Act of 1964 (42 U.S.C.A. § 2000a et seq.) would the federal government ultimately achieve the desegregation of public accommodations.

Harlan's most famous dissent came in Plessy. At issue in this case was an 1890 Louisiana law that required passenger trains operating within the state to provide "equal but separate" accommodations for "white and colored races." The Supreme Court upheld the law on a 7–1 vote, thus putting a stamp of approval on all laws that mandated racial segregation. In his majority opinion, Justice henry b. brown concluded that the Fourteenth Amendment "could not

have intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality."

Justice Harlan, the lone dissenter, responded that the "arbitrary separation of citizens on the basis of race" was equivalent to the imposition of a "badge of servitude" on African Americans. He cut through the legal arguments to proclaim that the real intent of the law was not to give equal accommodations but to compel African Americans "to keep to themselves." He concluded that this was unacceptable because "our Constitution is color-blind, and neither knows nor tolerates classes among citizens."

Sixty years later, Harlan's vision was embraced by the Supreme Court in brown v. board of education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), when it overturned Plessy and rejected the "separate-but-equal" doctrine. With Brown, the modern civil rights movement gained its first major victory, setting the stage for the dismantling of the jim crow laws, which had required racial discrimination in the South.

"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."
—John Marshall Harlan

Justice Harlan also taught constitutional law at Columbian University (now George Washington University) and served on the Bering Sea Arbitration Tribunal of 1893, which resolved a dispute between the United States and Great Britain over the hunting of seals inhabiting the Bering Sea area of Alaska.

Harlan died October 14, 1911. His grandson, john marshall harlan ii, also served on the Supreme Court.

further readings

Chin, Gabriel J. 1999. "The First Justice Harlan by the Numbers: Just How Great Was 'the Great Dissenter?'" Akron Law Review 32 (summer): 629–55.

Harlan, Malvina Shanklin. 2002. Some Memories of a Long Life, 1854–1911. New York: Modern Library.

——, and Linda Przybyszewski. 2001. "Memoir: Some Memories of a Long Life, 1854–1911." Journal of Supreme Court History 26 (July): 97–212.

Przybyszewski, Linda. 1999. The Republic According to John Marshall Harlan. Chapel Hill: Univ. of North Carolina Press.

Oliver Pollock 1737–1823, American merchant, b. Ireland. He arrived in America at the age of 23 and became a successful merchant. After moving to New Orleans, Pollock speculated advantageously in land and in the slave trade and gained the confidence of the Spanish government. He contributed generously to the cause of the colonies in the American Revolution, obtained supplies from the Spanish, and helped finance George Rogers Clark's conquest of the Northwest. After the war the American government met its debts to him, but repayment was tardy and incomplete.

Bibliography: See biography by J. A. James (1937, repr. 1970).