John Marshall Harlan (1833-1911) was the lone voice on the U.S. Supreme Court supporting legal equality for African Americans during the late 19th and early 20th centuries.

John Marshall Harlan was born on June 1, 1833, in Boyle County, Ky. He graduated from Centre College in 1850, then studied law at the University of Transylvania and in the office of his father, a former congressman and Federal district attorney. In 1861 he moved to Louisville to begin his own lucrative law practice.

Originally a Whig, Harlan supported the Constitutional Union party in 1860 and remained a unionist when the Civil War broke out. He recruited a regiment which fought on the side of the North but resigned his colonelcy in 1863 in order to succeed his father as the state attorney general. After the war Harlan entered politics as a Republican, gaining the support of black and white Kentuckians.

Reconstruction in the South

The origins and social credentials of Harlan and many other Kentucky Republicans throw doubt on the often-used generalization that white Republicans in the Reconstruction South were all disreputable, out-of-state "carpetbaggers" who exploited unsophisticated former slaves. Indeed, Harlan regarded the electorate as discerning voters and anticipated close and even unfavorable attention from black voters when, during his race for governor, he agreed to represent an alleged member of the Ku Klux Klan accused of participating in a lynching. Harlan (who won the case) contended that every man, whatever his politics, deserved as good a lawyer as he could pay for.

In the Republican convention of 1876, Harlan nominated his law partner Benjamin H. Bristow but, seeing the contest deadlock between Bristow and James G. Blaine, released Bristow's delegates and secured the nomination of Rutherford B. Hayes. One personal result was a break between Harlan and Bristow, whose careers had been closely parallel. Meanwhile, Harlan, in strong presidential favor, was named associate justice of the U.S. Supreme Court, taking his seat in December 1877.

Supreme Court Justice

During the racially tense decades that followed, Justice Harlan was almost the only man in high Federal office who spoke for the equal rights of African Americans. This concern would have cost him any elective post, but life tenure on the Court allowed his voice to be heard. Harlan alone dissented in U.S. v. Harris (1882), in which the 14th Amendment was declared not to provide African Americans with Federal protection, even from lynching. He dissented again in the Civil Rights Cases (1883), in which the equal protection clause of the 14th Amendment was held not to guarantee equal access for African Americans to privately owned places of public entertainment or accommodation.

Harlan's most famous dissent was in Plessy v. Ferguson (1896). The 14th Amendment says, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"; Harlan contended that a Louisiana law segregating African Americans into separate railroad cars was a violation thereof. Separate was not equal, he argued in a minority opinion, and he predicted, correctly, that "Jim Crow" segregation would soon extend far beyond railroad cars. He was also a dissenter in Berea College v. Kentucky (1908), which held that a Kentucky school segregation law could be made to apply to a long-integrated private college.

His Sense of Constitutionality

Harlan's contribution to racial justice was less an appeal to egalitarianism or to feelings of white guilt than to white feelings of self-confidence. In Plessy, he included an appeal to Anglo-Saxon pride which, he suggested, needed no assistance from segregation laws. Indeed, he saw no inconsistency in his championship both of the rights of oppressed African Americans and of burgeoning corporate enterprises. In his view each deserved protection from infringement on the basic right to develop to full capacity.

Harlan was also committed to the idea that the nation, as well as individuals, should maintain its strength. He dissented when the Supreme Court declared that the income tax was unconstitutional (Pollock v. Farmer's Loan and Trust Company, 1895). Similarly, in support of the premise that the states had "police power" to provide for the public welfare, Harlan joined Oliver Wendell Holmes in dissenting in Lochner v. New York (1905).

A firm believer that the American Constitution and laws passed within its framework meant what they said, Harlan accepted neither Justice Stephen J. Field's appeal to "natural law" in the 19th century nor Chief Justice Edward Douglass White's doctrine of the "rule of reason" in the 20th, as he made clear in his dissent in Standard Oil Company v. U.S. (1911). The majority had held that certain monopolistic practices in restraint of trade were "reasonable" and, hence, allowable despite the Sherman Antitrust Act. Harlan died on Oct. 14, 1911, in Washington, D.C.

In 1857 Harlan had married Malvina F. Shanklin; they had six children. In 1955 his grandson and namesake was appointed to the court on which the first John Marshall Harlan had long been the most distinguished justice.

Associated Events

Further Reading

• The only biography is Frank Latham, Great Dissenter: John Marshall Harlan (1970). The Bristow Papers at the Library of Congress are important. A study of Harlan is Floyd Barzilia Clark, The Constitutional Doctrines of Justice Harlan (1915; 2d ed. 1969). Allison Dunham and Philip B. Kurland, eds., Mr. Justice (1956; rev. ed. 1964), has a biographical sketch of Harlan. Leo Pfeffer, This Honorable Court: A History of the United States Supreme Court (1965), is a good background study.
• Beth, Loren P., John Marshall Harlan: the last Whig justice, Lexington, Ky.: University Press of Kentucky, 1992.
• Yarbrough, Tinsley E., Judicial enigma: the first justice Harlan, New York: Oxford University Press, 1995.