Harlan, John Marshall

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.Fourteenth Amendment;John Marshall Harlan[Harlan]Incorporation doctrineHayes, Rutherford B.;nominations to the CourtFourteenth Amendment;John Marshall Harlan[Harlan]Incorporation doctrine

John Marshall Harlan

(Library of Congress)

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.

A Career of Dissent

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[case]Civil Rights Cases[Civil Rights Cases] (1883) and again in Plessy v. Ferguson[case]Plessy v. Ferguson[Plessy v. Ferguson] (1896), Harlan stood alone in seeking a generous interpretation of the Civil War amendments. The Civil Rights Cases struck down the Civil Rights Act of 1875,Civil Rights Act of 1875 which provided African Americans equal access to hotels, theaters, and other privately owned places of business that were open to the public. The law was unconstitutional, Justice Joseph P. Bradley ruled, because there was no discriminatory state action; the Fourteenth Amendment did not reach private discrimination. Harlan’s eloquent dissent written with the same pen and inkwell Chief Justice Roger Brooke Taney used for Scott v. Sandford (1857) criticized the majority for a formalistic interpretation that sacrificed the “substance and spirit” of the recent amendments. Similarly, when the rest of the justices established the separate but equal doctrine in Plessy, Harlan objected to the legalization of caste through the “thin disguise” of what were termed equal accommodations. Insisting that the Constitution is color-blind, Harlan predicted that the Plessy case would eventually prove as pernicious as Scott v. Sandford, a prophecy that was eventually justified in Brown v. Board of Education (1954).

Harlan’s commitment to racial equality did not completely overcome his background, however. In Pace v. Alabama[case]Pace v. Alabama[Pace v. Alabama] (1883), Harlan agreed with a unanimous decision that interracial fornication could be punished more severely than that within a race as long as the punishment was identical for each offender, a position that is difficult to square with Harlan’s notion of a color-blind Constitution.

Harlan spoke for the future once again in Hurtado v. California[case]Hurtado v. California[Hurtado v. California] (1884). His dissent maintained that the due process clause of the Fourteenth Amendment made the provisions of the Bill of Rights applicable to the states. Harlan held this position consistently throughout his long judicial career, but it was not until 1925 that the Supreme Court began its piecemeal process of nationalizing the Bill of Rights.

Economic Issues

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.[case]E. C. Knight Co., United States v.[E. C. Knight Co., United States v.] (1895), for example, for making an artificial distinction between manufacturing and commerce that threatened to leave the federal government helpless in its attempts to control monopolies. Dissenting again in the income tax case Pollock v. Farmers’ Loan and Trust Co.[case]Pollock v. Farmers’ Loan and Trust Co.[Pollock v. Farmers’ Loan and Trust Co.] (1895), Harlan complained bitterly that the majority ruling against the constitutionality of the federal income taxIncome tax was a gross injustice to ordinary citizens. Harlan’s view was vindicated with the Sixteenth Amendment in 1913.

Harlan grounded his bitter denunciation of the majority opinion in Lochner v. New York[case]Lochner v. New York[Lochner v. New York] (1905) in concrete evidence regarding the health hazards of baking. He argued that the police powersPolice powers of the state overrode the freedom of contract, the idea that the Fourteenth Amendment forbade government interference between employer and employee. In contrast, Harlan wrote the majority opinion in Adair v. United States[case]Adair v. United States[Adair v. United States] (1908), which struck down a federal law outlawing yellow dog (antiunion) contractsYellow dog contracts on interstate railroads. He asserted the equality of bargaining power between employer and employee and pronounced the law an “arbitrary interference with the liberty of contract.”

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[case]Standard Oil Co. v. United States[Standard Oil Co. v. United States] (1911), he denounced the rule of reason,Rule of reason which the case wrote into the Sherman Antitrust Act (1890) as “judicial legislation.” Standard Oil, along with a similar dissent in United States v. American Tobacco Co. (1911), brought him public acclaim.

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.Harlan, John Marshall

Further Reading

  • 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.

Fourteenth Amendment

Hurtado v. California

Incorporation doctrine

Plessy v. Ferguson

Pollock v. Farmers’ Loan and Trust Co.


State action