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.

John Marshall Harlan (June 1, 1833 – October 14, 1911) was an American Supreme Court associate justice and Union Army officer. He is most notable as the lone dissenter in the infamous Civil Rights Cases (1883), and Plessy v. Ferguson (1896), which, respectively, struck down as unconstitutional federal antidiscrimination legislation and 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. He was the first commanding officer of the 10th Kentucky Infantry.

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." Harland also dissented in Giles v. Harris (1903), a case challenging the use of grandfather clauses to restrict voting rolls and de facto exclude blacks.

At the same time, however, Harlan did not embrace the idea of full social racial equality. For example, in his Plessy dissent, Harlan wrote that [t]he 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. Harlan also exhibited antipathy toward other races, such as Chinese. For example, in 1898 Harlan joined Chief Justice Fuller's dissent in United States v. Wong Kim Ark, in which they objected to the Court's holding that persons of Chinese descent born in the United States were citizens by birth. In the dissent, Fuller and Harlan denounced the presence within our territory of large numbers of Chinese laborers, 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.

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, most 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." (While the Court held that separate facilities had to be equal, in practice the facilities designated for blacks were invariably inferior.)

Alone in dissent, Harlan argued that the Louisiana law at issue, 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.

He wrote:

Death and legacy

Harlan died on October 14, 1911, after 33 years with the Supreme Court, the third-longest tenure on the court up to that time (and the sixth-longest ever). Many people who knew him 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, D.C.. Both are open for research. Other papers are collected at many other libraries.

His remains are buried in Rock Creek Cemetery, Washington, DC.

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.

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. [56369]

In 2009, with the 200th anniversary of Abraham Lincoln's birth coinciding with the election of the first black American president, Harlan's views on civil rights - far ahead of his time - were celebrated and remembered by many. [56370]

See also

• List of Justices of the Supreme Court of the United States
• List of law clerks of the Supreme Court of the United States
• List of United States Chief Justices by time in office
• List of U.S. Supreme Court Justices by time in office

• 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

1. Plessy v. Ferguson, 163 U.S. 537 (1896) at Findlaw"
2. John Marshall Harlan, Location of papers, Bibliography and Biography Sixth Circuit U.S. Court of Appeals.
3. John Marshall Harlan memorial at Find a Grave.

References

Further reading

External links

• Chin, Gabriel J., "The First Justice Harlan By The Numbers: Just How Great was the Great Dissenter?," 33 Akron Law Review 629 (1999).
• Retrieved on 2009-04-17
• Oyez Project, U.S. Supreme Court Multimedia - John M. Harlan.
• John Marshall Harlan, Bibliography, Biography and location of papers, Sixth Circuit U.S. Court of Appeals.
• Supreme Court Historical Society, John Marshall Harlan (including official portrait).
• University of Louisville, Louis D. Brandeis School of Law Library - Harlan Collection.
• [56371].