Harlan, John Marshall (1833–1911)

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Among the Justices of the Supreme Court, few have provoked more diverse reactions from colleagues, contemporaries, and later generations than the first Justice John Marshall Harlan. Despite a distinguished tenure of over thirty-three years (1877–1911), during which he participated in many cases of constitutional significance and established himself as one of the most productive, independent, and voluble members of the Court, both jurists and historians were inclined to hold Harlan in low esteem from his death in 1911 to the middle of the twentieth century. But two signal events in 1954—the Court's implicit adoption of Harlan's famous solitary dissent in plessy v. ferguson (1896) in its decision of the public school segregation cases, brown v. board of education and bolling v. sharpe, and President dwight d. eisenhower's appointment of his distinguished grandson and namesake to the highest bench—prompted historians to reevaluate the first Justice Harlan. No longer belittled and neglected, Harlan now began to be recast as a great dissenter who had foretold many of the most fundamental developments in later constitutional interpretation: the virtually complete incorporation of the bill of rights into the fourteenth amendment; the inherent inequality of racial segregation; and the plenary power of Congress under the commerce clause. How can one account for the wide disparity between the traditional and revisionist interpretations of Mr. Justice Harlan?

Harlan was born in 1833 in Kentucky, the son of a two-term whig member of the United States House of Representatives. A stern Presbyterian, young Harlan grew up during the worsening estrangement of the South and the Union. Kentucky, as a border state, was sharply divided. Harlan was graduated from Centre College, and, at twenty, completed his law courses at Transylvania University and was admitted to the Kentucky bar.

Harlan participated actively as a moderate in the political struggles that racked the country on the eve of the civil war. In 1859 he ran for Congress, but was narrowly defeated. A traditional southern gentleman and conservative, he refused to join the Republican party or to support abraham lincoln's 1860 campaign. He supported the Constitutional Union party which sought the peaceful preservation of the status quo.

After the attack on Fort Sumter, Kentucky declined to furnish troops. Harlan volunteered to fight on the northern side and, in the fall of 1861, organized the Tenth Kentucky Volunteer Infantry. Harlan rose rapidly to the rank of colonel and served as acting commander of a brigade until he resigned his military commission in 1863 upon the death of his father.

Shortly after returning to civilian life, Harlan campaigned for the Constitutional Union party and was elected attorney general of Kentucky, a post he held until 1867. Harlan stumped for General George McClellan in the presidential election of 1864, bitterly criticizing the Lincoln administration. He opposed the thirteenth amendment and continued to hold slaves until forced to free them.

In 1867, however, Harlan changed his party affiliation, becoming the unsuccessful Republican gubernatorial candidate. As a southern slaveholder and Whig he had long sought to support both slavery and a strong national government—a position that grew increasingly difficult in the political environment of antebellum Kentucky, where supporters of slavery based their political programs on opposition to the federal government. In the end Harlan resolved his dilemma in favor of the national government. Contending that he would rather be right than consistent, Harlan publicly repudiated his views favoring slavery and defended the civil war amendments as necessary to the reconstruction of the Union. A second try for the Kentucky governorship in 1871 also ended in failure.

At the national level, Harlan supported ulysses s. grant in the presidential election of 1868 and had attained sufficient prominence by 1872 to have been proposed as a vice-presidential candidate. Four years later Harlan led the Kentucky delegation to the Republican convention. When it became apparent that his friend, Benjamin Bristow, could not win, Harlan threw the Kentucky delegation's support to rutherford b. hayes, enabling Hayes narrowly to defeat James G. Blaine and obtain the nomination.

On October 16, 1877, President Hayes nominated Harlan to the Supreme Court, an appointment that was widely regarded as a payment for political services rendered. Until five days before his death on October 15, 1911, for almost thirty-four years, Harlan served on the Court. With the exception of john marshall and joseph story, none of its members up to that time had taken part in so many decisions that ultimately so crucially affected the future of American constitutionalism.

Harlan served on the Supreme Court during a period of rapid social and economic change. Although the era of reconstruction had passed, the effect of the postwar amendments on the federal system remained a topic of bitter constitutional dispute. The Court was also increasingly obliged to rule on constitutional challenges to the validity of state and federal statutes purporting to regulate the economy in the public interest.

Harlan brought to the Court two fundamental convictions drawn from his upbringing and early experiences in Kentucky politics. He believed in a strong national government, especially in the spheres of commerce and economic development. Hence Harlan would view federal laws regulating the economy much more favorably than similar state initiatives. Second, he would ardently support the rights of blacks, although he had developed that posture only late in his political career. While Harlan never wavered in his judicial support for black rights and a strong national economy, the political implications of his Whig principles varied widely during his judicial tenure. When he came to the Court in 1877 Harlan quickly established himself as its foremost defender of private contracts against state regulation since Marshall. Indeed, throughout his long career Harlan closely scrutinized any state law that impinged on private property rights. He often voted to invalidate such statutes under the contract, just compensation, or equal protection clauses.

After the passage of the interstate commerce act of 1877 and the sherman antitrust act of 1890, however, Harlan came to look quite favorably upon national, as opposed to state, regulation of the economy. Harlan's Whig philosophy explains much of his apparent inconsistency in decisions concerning private property rights. Harlan generally upheld national economic regulation, but often voted to strike down state economic regulations that discriminated against interstate commerce without furthering significantly an important state interest under the police power.

During his thirty-four years on the Court, Harlan articulated a broad body of constitutional principles respecting both governmental powers and individual rights. A convinced believer in legislative authority and judgment, he abhorred and denounced what he viewed as "judicial legislation" and advocated a straightforward application of the law as set forth in the Constitution and legislative enactments. But when it came to determining the provisions of a given law, his view was unique: "It is not the words of the law but the internal sense of it that makes the law: the letter is the body; the sense and reason of the law is the soul" (civil rights cases, 1883).

Justice Harlan lifted the practice of employing legislative intent as a guide to the sound construction of the law to the level of a philosophical principle. In addition, he, above all others, had an all but religious reverence for the Constitution as the fundamental instrument of the ideals of American democracy. A fervent Marshall disciple, he viewed the Court as the ultimate guardian of the Constitution. Harlan also adhered to Marshall's views on the proper distribution of powers within the federal system.

With respect to congressional power under the interstate commerce clause, Harlan was a liberal national constitutionalist, with an almost slavish devotion to Chief Justice Marshall's opinions in general, and gibbons v. ogden (1824) in particular. Harlan displayed his broad interpretation of the commerce power most forcefully in opinions construing the Interstate Commerce Act of 1887 and the Sherman Antitrust Act of 1890. He dissented in Texas & Pacific Railroad Co. v. Interstate Commerce Commission (1896) and interstate commerce commission v. alabama midland railway co. (1897) when the Court interpreted the Interstate Commerce Act as not granting the commission the power either to void discriminatory railroad rates or to set nondiscriminatory rates itself. Harlan believed that these decisions went far "to make that commission a useless body for all practical purposes, and to defeat many of the important objectives designed to be accomplished by the various enactments of Congress relating to interstate commerce.…" Congress eventually agreed, amending the Interstate Commerce Act to give the commission the powers for which Harlan had contended in his dissents.

When the Court emasculated the Sherman Antitrust Act, Justice Harlan, again in dissent, registered his strong advocacy of congressional power and the spirit of the law. In united states v. e. c. knight co. (1895) the Court narrowly interpreted the Sherman Act as applying to monopolies in interstate commerce but not to intrastate monopolies in manufacture of goods; it also stated that Congress lacked power under the commerce clause to regulate manufacturing. In the majority's view, "Commerce succeeds to manufacture, and is not a part of it." Yet Harlan insisted that the statute applied because the goods, although manufactured in one state, entered into interstate commerce. Four decades later, in the wagner act cases (1937), Harlan's expansive view of congressional power under the commerce clause would become the generally accepted view.

Although Harlan held to a broad interpretation of national power under the commerce clause, he nonetheless supported some positive uses of state police power that affected interstate commerce. He believed that, although a state might not—under the guise of inspection laws—discriminate against meat imported from out of state (minnesota v. barber, 1890), it might require certain passenger stops of interstate railroad trains unless Congress had superseded local laws. Indeed, Harlan thought that state power should prevail if the statute in question affected interstate commerce "only incidentally" and furthered an important state interest under the police power—as was the case with state laws prohibiting the importation or sale of intoxicating liquor (bowman v. chicago & northwestern railway, 1888). Whether agreeing or dissenting, however, Harlan consistently stood for the freedom of commerce and the rights of citizens of other states. While he upheld state enactments genuinely aiming to protect the public morals, safety, health, or convenience, he strongly expressed his disapproval of those that appeared to have been enacted for the ulterior purpose of discriminating against commerce from other states.

Although fervently opposed to Justice stephen j. field ' s natural rights philosophy, Harlan strongly defended the Bill of Rights and, in spite of his border state origin, became a vigorous and eloquent advocate of a nationalistic interpretation of the Thirteenth, Fourteenth, and fifteenth amendments. Harlan's most celebrated civil rights dissent, Plessy v. Ferguson (1896), became law in the unanimous Warren Court holding in Brown v. Board of Education (1954). It was in Plessy, dissenting alone from the Court's decision upholding a Louisiana "Jim Crow" train-segregation statute under the separate but equal doctrine, that Harlan had warned: "The thin disguise of "equal' accommodations … will not mislead anyone, nor atone for the wrong this day done.…"

However, it was his dissent in the civil rights cases (1883) that Harlan considered as his most notable. There the majority ruled that Congress lacked power under the Fourteenth Amendment to protect blacks against private discrimination; Harlan, in contrast, argued that Congress could prohibit discrimination "by individuals or corporations exercising public functions or authority, against any citizen because of his race or previous condition of servitude."

In these and other cases involving racial discrimination, Harlan demonstrated his belief that the Thirteenth Amendment meant more than the mere prohibition of one person's owning another as property. He urged that the framers of the Thirteenth, Fourteenth, and Fifteenth Amendments could not have expected the very states that had held blacks in bondage willingly to protect their new civil rights. Harlan thus championed congressional authority to define and regulate the entire body of civil rights of citizens.

Although Justice Harlan's dissents in racial segregation cases have received widespread attention, some of the most critical questions presented to the Court during his tenure centered on what later came to be termed the in-corporation doctrine. Harlan joined the Court after a pattern of decisions had been set. Alone, except for Field, among Justices of his time, Harlan viewed the due process clause of the Fourteenth Amendment as encompassing at least the first eight amendments of the Bill of Rights (for example, hurtado v. california, 1884), a stand for which he was still severely castigated more than sixty years later by Justice felix frankfurter, in Adamson v. California (1947). The process of "selective incorporation" of Bill of Rights guarantees, which was nearly complete by the end of the Warren Court, vindicated Justice Harlan's position in practice, if not in theory.

Interestingly, the emphasis accorded Harlan's famous dissents in civil rights cases concerning life and liberty interests resulted in a widespread neglect of his staunch defense of property rights. In contract clause cases involving states' attempts either to void or alter their obligations to bondholders, or to amend corporate charters without express reservation of the right to do so, Harlan strongly asserted the contractual rights of the individual. Under the equal protection clause Harlan voted to strike down state laws that imposed special contractual duties on corporations without imposing similar obligations on individuals.

More significant, Harlan wrote the opinion in Chicago, Burlington Quincy Railroad Co. v. Chicago (1898), frequently cited as the first "incorporation" of a Bill of Rights provision, the Fifth Amendment's just compensation clause, into the Fourteenth Amendment's due process clause. The famous rate case of smyth v. ames (1898) provided an indication of how far Harlan would go in striking down, under substantive due process principles, an exercise of state police power. Speaking for the Court, he voided a Nebraska statute that pegged intrastate freight rates, on the grounds that the rates were so low as to deprive railroads of property without due process of law. A public utility, asserted Harlan, has a judicially enforceable constitutional right to a "reasonable return" upon the "fair value" of its operating assets. (See fair return on fair value.)

Harlan's constitutional doctrines evoked diverse reactions from contemporaries and later generations: patronization, neglect, disdain, and praise. His colleague and friend, Justice david j. brewer, described Harlan as a simple man who "retired at eight, with one hand on the Constitution and the other on the Bible, safe and happy in perfect faith in justice and righteousness." Justice oliver wendell holmes patronized him in private as "old Harlan … the last of the tobacco-spitting judges." Contemporaneous observers of the Court viewed Harlan as a militant dissenter who was inflexible on civil rights.

How could Harlan's contemporaries and historians in the first half of the twentieth century have held him in such low esteem when the prophetic nature of his many dissents appears so obvious today? Part of the answer is that traditional and revisionist interpreters of Justice Harlan have employed widely different analytical perspectives. Viewed narrowly in comparison with his contemporaries, Harlan was simply an "eccentric exception" on the Court. Many of his most famous dissents were solos. His constitutional doctrines were often "out of tune with the times."

Harlan's eccentricity, however, was principled. In a letter of 1870 Harlan described his conception of the proper role of a Justice as that of "an independent man, with an opportunity to make a record that will be remembered long after he is gone." Throughout his tenure on the Court Harlan was constantly concerned with broad questions of the public interest; consequently his opinions often contained extraneous matter, referring to circumstances with no direct bearing on the case at hand.

When the Court in pollock v. farmers ' loan & trust company (1895) decided that a tax on the income from land and personal property constituted direct taxation and thereby held unconstitutional the recently enacted Federal Income Tax Act, Harlan vehemently dissented. He correctly warned that the Court's decision would make a constitutional amendment necessary for the imposition of the income tax. Harlan's contemporaries, however, saw his denunciation of judicial legislation and his appeals to practical considerations as ignorance of the principles of legal argumentation.

Recent admirers have perhaps too strongly emphasized Harlan's opinion on civil rights and civil liberties, recasting him as a Jeffersonian Democrat. Although he strongly defended the Bill of Rights against state action and private action clothed in public functions, Harlan viewed himself as a staunch adherent to the views of John Marshall and rejected thomas jefferson's states' rights views. Moreover, Harlan was one of the most vigorous defenders of individual property rights ever to sit on the Court, as his opinion in Adair v. United States (1908) illustrated. His strict construction of the contract and just compensation clauses and his adherence to substantive property protections under the due process clause have been soundly rejected by subsequent Courts.

The composite figure emerging from history is that of a Southern gentlemen of the nineteenth century—absolute confidence in the correctness of his own views; a firm belief that human beings could clearly discern between right and wrong; and an inability to understand, once he had made this distinction, how any reasonable man could disagree with him. An ardent disciple of Chief Justice Marshall's views of the proper judicial role and the nature of the federal system, Harlan was an egalitarian when confronted with questions of civil rights.

But today's distinction between property and liberty interests, with enhanced judicial solicitude for the latter, found no place in Harlan's constitutional philosophy. This antebellum slaveholder applied substantive due process equally to liberty and property interests.

Although Harlan's legacy thus contains elements out of tune with contemporary constitutional fashion, many of his dissents presaged what our nation would become in the second half of the twentieth century. Succeeding generations owe a great debt to this solitary dissenter. Because his philosophy contained a touch of immortality, he will be numbered among the great Justices of the Supreme Court (and he was so voted as one of but twelve "greats" in a 1970 study).

Henry J. Abrham


Abraham, Henry J. 1955 John Marshall Harlan: A Justice Neglected. Virginia Law Review 41:871–891.

Clark, Floyd B. 1915 The Constitutional Doctrines of John Marshall Harlan. Baltimore: Johns Hopkins University Press.

Friedman, Leon and Israel, Fred L. 1969 Pages 1281–1295 in The Justices of the United States Supreme Court, 1789–1969. New York: Chelsea House.

Watt, Richard F. and Orlikoff, Richard M. 1953 The Coming Vindication of Mr. Justice Harlan. Illinois Law Journal 44: 13–40.

Westin, Alan F. 1958 The First Justice Harlan: A Self-Portrait from his Private Papers. Kentucky Law Journal 46:321–357.

White, G. Edward 1975 John Marshall Harlan I: The Precursor. American Journal of Legal History 19:1–21.

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Harlan, John Marshall (1833–1911)

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