An early champion of modern American constitutional law, Harlan is remembered as the “Great Dissenter” on the Supreme Court for his crusade for a nationalistic interpretation of the Fourteenth Amendment broad enough to protect the rights of African Americans and to apply the first eight amendments to the states.
As a Kentuckian and former slave owner, Harlan was an unlikely candidate for a position as the Supreme Court’s defender of black rights in the late nineteenth century. Harlan had opposed emancipation and objected to the Civil War amendments. However, like the great chief justice (John Marshall) for whom he was named, Harlan was a nationalist at heart.
John Marshall Harlan
Harlan, like his father, was a staunch Whig. He completed his undergraduate work at Centre College, studied law at Transylvania University in Lexington, then read law in his father’s office. Following his admission to the bar in 1853, he rose quickly in Whig ranks. Harlan affiliated with the Know-Nothings when the Whig Party ceased to exist, serving a one-year term on the Franklin County bench. He served the Union army as a lieutenant colonel, returning to his father’s law practice when the elder Harlan died in 1863. From 1863 to 1867 he was attorney general of Kentucky, serving under the Constitutional Unionist banner.
Harlan’s conversion to Republican Party principles could not have been easy. Like most of his fellow Kentuckians, he found uncompensated emancipation a bitter pill to swallow. However, Harlan was a devout Christian with a paternalistic regard for the well-being of the former slaves. When the Constitutional Unionist Party died, he was forced to choose between Democratic terrorism and the Republican principle of equality before the law. After choosing Republicanism, Harlan ran unsuccessfully for governor in 1871 and 1875.
Harlan, head of the Kentucky delegation to the 1876 Republican Party convention, secured the presidential nomination for Hayes with his vote and those of the other delegates. When the contested election results were finally settled and Hayes inaugurated, he rewarded Harlan with a Supreme Court seat.
Harlan’s nationalism ran counter to the philosophy of the other justices. During his long tenure, the Court used the Fourteenth Amendment to protect the property rights of the rich, ignoring the civil rights protections the amendment afforded to African Americans. Not one to compromise or negotiate where he held strong convictions, Harlan castigated the Court for its errors, often accompanying his dissents with table thumping and finger wagging.
In the Civil Rights Cases
Harlan’s commitment to racial equality did not completely overcome his background, however. In Pace v. Alabama
Harlan spoke for the future once again in Hurtado v. California
In the economic sphere, Harlan generally although somewhat inconsistently opposed the majority’s growing tendency to favor the interests of business and capital. He scolded the Court in United States v. E. C. Knight Co.
Harlan grounded his bitter denunciation of the majority opinion in Lochner v. New York
During his final year on the bench, Harlan continued to protest the Court’s support for big business. Although he agreed with the majority’s trust-busting efforts in Standard Oil Co. v. United States
Until the civil rights era of the twentieth century, Harlan was underrated as a Supreme Court justice. Fellow justices jokingly claimed he was afflicted with “dissent-ery,” and legal scholars considered him eccentric and out of tune with his time. His reputation soared after Brown v. Board of Education (1954), although it is difficult to reconcile Harlan’s insistence on a color-blind Constitution with affirmative action.
Bader, William H., and Roy M. Mersky, eds. The First One Hundred Eight Justices. Buffalo, N.Y.: William S. Hein, 2004. Beth, Loren P. John Marshall Harlan: The Last Whig Justice. Lexington: University Press of Kentucky, 1992. Ely, James W., Jr. The Fuller Court: Justices, Rulings, and Legacy. Santa Barbara, Calif.: ABC-Clio, 2003. Shoemaker, Rebecca S. The White Court: Justices, Rulings, and Legacy. Santa Barbara, Calif.: ABC-Clio, 2004. Stephenson, Donald Grier, Jr. The Waite Court: Justices, Rulings, and Legacy. Santa Barbara, Calif.: ABC-Clio, 2003. Westin, Alan F. “John Marshall Harlan and the Constitutional Rights of Negroes: The Transformation of a Southerner.” Yale Law Journal 66 (April, 1957): 637-710. White, G. Edward. “John Marshall Harlan I: The Precursor.” The American Judicial Tradition: Profiles of Leading American Judges. New York: Oxford University Press, 1988. Yarbrough, Tinsley. Judicial Enigma: The First Justice Harlan. New York: Oxford University Press, 1995.
Civil Rights Cases
E. C. Knight Co., United States v.
Hurtado v. California
Plessy v. Ferguson
Pollock v. Farmers’ Loan and Trust Co.