Justice John Marshall Harlan (1833-1911) – Guest Essayist: Daniel A. Cotter

John Marshall Harlan: The Great Dissenter

John Marshall Harlan served more than thirty-three years on the Supreme Court, the sixth longest term in the Court’s history.  During his long tenure, Harlan became known as “The Great Dissenter,” signing more than 300 dissenting opinions from 1877-1911.  Harlan’s grandson, John Marshall Harlan II, would later also serve on the Supreme Court.

Early Life and Career

Harlan was born at Harlan’s Station, near Danville, Kentucky, to Elizabeth (nee Davenport) and James Harlan.  Harlan’s family was a prominent slave-owning family.  Harlan’s father had served as a United States Representative from Kentucky and also in various political roles at the state level.  Harlan attended Centre College, graduating with honors in 1850.  Harlan’s dad wanted his son to follow in his footsteps as a lawyer, but rather than working directly as an apprentice at his dad’s practice, Harlan first attended Transylvania University before finishing his legal studies at his dad’s firm.  

Harlan served as state adjutant general for eight years, from 1851 to 1859, when he resigned after being elected as county judge for Franklin County, Kentucky.  After Abraham Lincoln became president in 1860, Harlan advocated for Kentucky to remain in the Union.  In 1861, he formed and led a Union infantry regiment, the 10th Kentucky infantry, withdrawing and returning home in 1863 when his father died. 

Upon his return, Harlan successfully ran for the position of Attorney General of Kentucky, where he served the next four years.  In 1867, Harlan moved to Louisville, where he formed a law firm partnership.  In addition, politics took up much of Harlan’s time, and in both 1871 and 1875, he unsuccessfully ran for governor. 

Harlan’s positions on slavery evolved during his career.  He was against secession, but also supported slavery and opposed the Emancipation Proclamation and the Thirteenth Amendment, the latter on the grounds it infringed on state sovereignty.   

Supreme Court

President Ulysses S. Grant nominated Harlan to the Court on October 16, 1877, to fill the vacancy created by Justice David Davis’ resignation to become a United States Senator.  On November 29, 1877, the Senate unanimously confirmed Harlan, and he took his seat the same day as the 44th Justice of the U.S. Supreme Court and second from Kentucky.

Harlan sat on the Court until his death on October 14, 1911. During his time on the Court, Harlan was a prolific writer, penning more than 1,100 decisions in his almost 34 years.  Harlan often was alone in dissent.  For example, in the landmark decision, Plessy v. Ferguson (1896), only Justice Harlan dissented and argued that the “separate but equal” mandate was a violation of the Thirteenth and Fourteenth Amendments.  Harlan asserted the Thirteenth Amendment was intended to apply to all “badges of slavery or servitude” and that the “Constitution is color-blind, and neither knows nor tolerates classes among citizens,” concluding:

In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.

In an earlier case reviewing the Civil Rights Act of 1875, Harlan was also the lone dissenter.  In the Civil Rights Cases (1883), the Court held that the Civil Rights Act was unconstitutional because Congress had no authority under the Fourteenth Amendment to regulate private conduct and the Thirteenth Amendment abolished only slavery.  In his powerful dissent, Harlan concluded:

My brethren say that when a man has emerged from slavery, and by the aid of beneficient legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men’s rights are protected. It is, I submit, scarcely just to say that the colored race has been the special favorite of the laws. What the nation, through congress, has sought to accomplish in reference to that race is, what had already been done in every state in the Union for the white race, to secure and protect rights belonging to them as freemen and citizens; nothing more. The one underlying purpose of congressional legislation has been to enable the black race to take the rank of mere citizens. The difficulty has been to compel a recognition of their legal right to take that rank, and to secure the enjoyment of privileges belonging, under the law, to them as a component part of the people for whose welfare and happiness government is ordained. At every step in this direction the nation has been confronted with class tyrany, which a contemporary English historian says is, of all tyrannies, the most intolerable, ‘for it is ubiquitous in its operation, and weighs, perhaps, most heavily on those whose obscurity or distance would withdraw them from the notice of a single despot.’ To-day it is the colored race which is denied, by corporations and individuals wielding public authority, rights fundamental in their freedom and citizenship. At some future time it may be some other race that will fall under the ban. If the constitutional amendments be enforced, according to the intent with which, as I conceive, they were adopted, there cannot be, in this republic, any class of human beings in practical subjection to another class, with power in the latter to dole out to the former just such privileges as they may choose to grant. The supreme law of the land has decreed that no authority shall be exercised in this country upon the basis of discrimination, in respect of civil rights, against freemen and citizens because of their race, color, or previous condition of servitude. To that decree—for the due enforcement of which, by appropriate legislation, congress has been invested with express power—every one must bow, whatever may have been, or whatever now are, his individual views as to the wisdom or policy, either of the recent changes in the fundamental law, or of the legislation which has been enacted to give them effect.

Civil Rights Cases, 109 U.S. 3, 61-62 (1883).

Harlan also dissented in other types of cases, including a famous dissent in Pollock v. Farmers’ Loan and Trust Co. (1895), in which the majority found unapportioned federal taxes unconstitutional. 

Conclusion

According to www.historynet.com, John Marshall Harlan is one of the nine greatest justices who have served on the Supreme Court; the site groups Harlan with Justices Hugo Black and Joseph Story as the “Three Towering Visionaries.” His pointed and passionate dissents in the areas of the Fourteenth Amendment and in separate not being equal eventually became the majority view.  His most famous dissent was in Plessy, which would remain the law of the land for almost sixty years until 1954, when the Supreme Court issued its unanimous decision in Brown v. Board of Education.  Harlan, the lone dissenter, was ultimately vindicated.         

Dan Cotter is a partner at Butler Rubin Saltarelli & Boyd LLP and an Adjunct Professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. The article contains his opinions and is not to be attributed to anyone else.

One Response to “Justice John Marshall Harlan (1833-1911) – Guest Essayist: Daniel A. Cotter”

  1. Publius Senex Dassault says:

    Thank you for another educational and enjoyable essay.

    Regarding Harlan’s descent on Civil Rights Cases (1883) – WOW.

    What a contrast between Harlan’s upward transformation from slave owner, salve institution supporter to lone protector of former slaves on SCOTUS and Taney’s downward spiral from slave emancipator before to the Civil War to using his position on SCOTUS to justify and institutionalize Jim Crow laws.

    This whole series is a Ken Burn’s documentary in essay format. Booyah to CA!!

    PSD

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