John Marshall Harlan (June
1, 1833 – October 14, 1911) was an American Supreme
justice and Union Army
- 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
He is most notable as the lone dissenter
in the infamous Civil Rights Cases
Plessy v. Ferguson
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
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.
Col. John M.
He was a Whig
like his father; after the
party's dissolution, he participated in several parties, including
the Know Nothings
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
. He was the first
commanding officer of the 10th Kentucky
Harlan firmly supported slavery but fought to preserve the Union.
He had said he would resign if President
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
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
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
(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
a case challenging the use of grandfather clauses to restrict
voting rolls and de facto
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
the Bill of
Rights (making rights guarantees applicable to the states), in
His argument would later be adopted by Hugo
. 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.
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
(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
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
Plessy v. Ferguson (1896)
John Marshall Harlan
In 1896, the Supreme Court handed down one of the most infamous
decisions in U.S. history, Plessy
(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.
, 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
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
Death and legacy
Harlan died on October 14, 1911, after 33 years with the Supreme
on the court up to that time (and the
). 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
; his grandson, John Marshall Harlan II
, was also a
Supreme Court Associate Justice (1955-71).
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.
remains are buried in Rock Creek Cemetery, Washington, DC.
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
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.
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. 
- Plessy v. Ferguson, 163 U.S. 537 (1896) at
- John Marshall Harlan, Location of papers,
Bibliography and Biography Sixth Circuit U.S. Court of
- John Marshall Harlan memorial at Find a Grave.