John Marshall Harlan

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John Marshall Harlan
John Marshall Harlan, Supreme Court collection, photograph by Handy Studios.[1]
Associate Justice of the United States Supreme Court
In office
November 29, 1877[2] – October 14, 1911
Nominated by Rutherford B. Hayes
Preceded by David Davis
Succeeded by Mahlon Pitney
Attorney General of Kentucky
In office
Personal details
Born (1833-06-01)June 1, 1833
Boyle County, Kentucky, U.S.
Died Script error: The function "death_date_and_age" does not exist.
Washington, D.C., U.S.
Political party Republican (1868 and after)
Other political
Whig Party
Know Nothing
Opposition Party
Constitutional Union Party
Spouse(s) Malvina French "Mallie" Shanklin (m. 1856; his death 1911)
Children 6
Alma mater Centre College
Transylvania University
Religion Presbyterian
Signature J. Marshall Harlan

John Marshall Harlan (June 1, 1833 – October 14, 1911) was an American lawyer and politician from Kentucky who served as an associate justice on the U.S. Supreme Court.

Harlan was born at Harlan's Station, 5 miles (8.0 km) west of Danville, Kentucky on Salt River Road, in 1833 to a prominent family. He attended school in Frankfort and then graduated from Centre College. Harlan entered Kentucky politics in 1851, and served a variety of positions, most notably Attorney General of Kentucky, from 1863 to 1867.[3] When the American Civil War broke out, Harlan strongly supported the Union, although he opposed the Emancipation Proclamation and supported slavery.[4] However, after the election of Ulysses S. Grant as President in 1868, he reversed his views and became a strong supporter of civil rights. In 1877, Harlan was appointed a member of the Supreme Court.

A Christian fundamentalist, Harlan's Christian beliefs strongly shaped his views during his tenure as Supreme Court justice.[5] He is best known for his role as the lone dissenter in the Civil Rights Cases (1883), and Plessy v. Ferguson (1896), which, respectively, struck down as unconstitutional federal anti-discrimination legislation and upheld southern segregation statutes. These dissents, among others, led to his nickname of "The Great Dissenter". Harlan died in 1911, at the age of 78.

Early life and education

Harlan was born at Harlan's Station, 5 miles (8.0 km) west of Danville, Kentucky on Salt River Road, in 1833, to a prominent slaveholding family, whose earliest members had settled in the region in 1779 in the last part of the American Revolutionary War. Harlan's father was James Harlan, a lawyer and politician who served as US Congressman from Kentucky (1835–1839), Secretary of State of Kentucky (1840–1844) and state legislator (1845–1851); his mother, Elizabeth, née Davenport, was the daughter of a pioneer from Virginia.

John had several older brothers, possibly including a mulatto half-brother, Robert James Harlan, born in 1816 into slavery. His father raised him in his own household and had the boy tutored by his older half-brothers. According to historian Allyson Hobbs, Robert became highly successful, making a fortune in the California Gold Rush before returning east and settling in Cincinnati, Ohio.[6] He "remained close to the other Harlans;" she suggests this might have influenced his half-brother John Marshall Harlan, "who argued on behalf of equal rights under the law in 'Plessy v. Ferguson'."[6]

After attending school in Frankfort, John Harlan enrolled at Centre College. He was a member of Beta Theta Pi and graduated with honors. Though his mother wanted Harlan to become a merchant, James insisted that his son follow him into the legal profession, and Harlan joined his father's law practice in 1852. While James Harlan could have trained his son in the office as was the norm of "reading the law" in that era, he sent John to attend law school at Transylvania University in 1853, where George Robertson and Thomas Alexander Marshall were among his instructors.[7]



A member of the Whig Party like his father, Harlan got an early start in politics when, in 1851, he was offered the post of adjutant general of the state by governor John L. Helm. He served in the post for the next eight years, which gave him a statewide presence and familiarity with many of Kentucky's leading political figures. With the Whig Party's dissolution in the early 1850s, Harlan shifted his affiliation to the Know Nothings, despite his discomfort with their opposition to Catholicism. Harlan's personal popularity within the state was such that he was able to survive the decline of the Know Nothing movement in the late 1850s, winning election in 1858 as the county judge for Franklin County, Kentucky. The following year, he renounced his allegiance to the Know Nothings and joined the state's Opposition Party, serving as their candidate in an unsuccessful attempt to defeat William E. Simms for the seat in Kentucky's 8th congressional district.[8]

During the 1860 presidential election, Harlan supported the Constitutional Union candidate, John Bell. In the secession crisis that followed Abraham Lincoln's victory, Harlan sought to prevent Kentucky from seceding. When the state legislature voted to create a new militia, Harlan organized and led a company of zouaves before recruiting a company that was mustered into the service as the 10th Kentucky Infantry. Harlan served in the Western Theater of the American Civil War until the death of his father James in February 1863. At that time Harlan resigned his commission as colonel and returned to Frankfort in order to support his family.[9]

Three weeks after leaving the army, Harlan was nominated by the Union Party as their nominee to become the Attorney General of Kentucky. Campaigning on a platform of vigorous prosecution of the war, he won the election by a considerable margin. As attorney general for the state, Harlan issued legal opinions and advocated for the state in a number of court cases. Party politics, however, occupied much of his time; Harlan campaigned for Democrat George McClellan in the 1864 presidential election and worked as a junior partner to the state Democratic party in the aftermath of the Civil War. After losing a bid for reelection as attorney general, Harlan joined the Republican Party in 1868.[10]

Moving to Louisville, Harlan formed a partnership with John E. Newman, a former circuit court judge and, like Harlan, a Unionist turned Republican. Their firm prospered, and they took in a new partner, Benjamin Bristow, in 1870. In addition to his legal practice, Harlan worked to build up the Republican Party organization in the state, and ran unsuccessfully as the party's nominee for governor of Kentucky in both 1871 and 1875. Despite his defeats, he earned a reputation as a campaign speaker and Republican activist. In the 1876 presidential election, Harlan worked to nominate Bristow as the Republican party's nominee, though when Rutherford B. Hayes emerged as the compromise candidate, Harlan switched his delegation's votes and subsequently campaigned on Hayes' behalf.[11]

Although Harlan had opposed secession during the Civil War,[4] he supported slavery and opposed the Emancipation Proclamation.[4][12] Harlan also opposed the Thirteenth Amendment when it was proposed, on the grounds that it violated state sovereignty.[4] However, after the election of Ulysses S. Grant as U.S. President in 1868, he renounced those views and switched to supporting civil rights, endorsing the Thirteenth and Fourteenth Amendment to the United States Constitution.[4][12]

United States Supreme Court

The Supreme Court, headed by Melville Fuller, 1898; with Harlan in the front row, 2nd from left.


Though considered for a number of positions in the new administration, most notably for Attorney General, initially the only job Harlan was offered was as a member of a commission sent to Louisiana to resolve disputed statewide elections there. Justice David Davis, however, had resigned from the Supreme Court in January 1877 after being selected as a United States Senator by the Illinois General Assembly. Seeking a replacement, Hayes settled on Harlan, and formally submitted his name to the Senate on October 16. Though Harlan's nomination prompted some criticism from Republican stalwarts, he was confirmed unanimously on November 29, 1877.[13]

Life on the Court

Harlan greatly enjoyed his time as a justice, serving until his death in 1911. From the start, he established good relationships with his fellow justices and he was close friends with a number of them. Still, money problems continually plagued him, particularly as he began to put his three sons through college. Debt was a constant concern, and in the early 1880s, he considered resigning from the Court and returning to private practice. He ultimately elected to remain on the Court but supplemented his income by teaching constitutional law at the Columbian Law School, which later became the law school of George Washington University.[14]

When Harlan began his service, the Supreme Court faced a heavy workload that consisted primarily of diversity and removal cases, with only a few constitutional issues. Justices also rode circuit in the various federal judicial circuits; though these usually corresponded to the region from which the justice was appointed, due to his junior status, Harlan was assigned the Seventh Circuit based in Chicago. Harlan rode the Seventh Circuit until 1896, when he switched to his home circuit, the Sixth, upon the death of its previous holder, Justice Howell Edmunds Jackson.[15]


As the Court moved away from interpreting the Reconstruction Amendments to protect Black Americans, Harlan wrote several dissents in support of equal rights for Black Americans and racial equality. In the Civil Rights Cases (1883), the Supreme Court struck down the Civil Rights Act of 1875, holding that the act exceeded Congressional powers. Only Harlan 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."

Harlan voted with the majority in Pace v. Alabama (1883), which ruled that anti-miscegenation laws are constitutional; this case was not reversed until Loving v. Virginia (1966).

Harlan was the first justice to argue that the Fourteenth Amendment incorporated the Bill of Rights (making rights guarantees applicable to the individual states), in Hurtado v. California (1884). His argument was later adopted by Hugo Black. Today, most of the protections of the Bill of Rights and Civil War amendments are incorporated, though not by the theory advanced by Harlan.

John Marshall Harlan

In 1896, the Supreme Court handed down one of the most famous decisions in U.S. history, Plessy v. Ferguson (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. Brown, 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."[16] (While the Court held that separate facilities had to be equal, in practice the facilities designated for blacks were invariably inferior.)

Alone, Harlan dissented about the Louisiana law at issue, which forced separation of white and black passengers on railway cars, saying that it was a "badge of servitude"[16] that degraded African-Americans, and claimed that the Court's ruling would become as infamous as its ruling in the Dred Scott case.

In his Plessy dissent, he wrote:

The 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. But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.... If evils will result from the commingling of the two races upon public highways established for the benefit of all, they will be infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race. We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow-citizens, our equals before the law. The thin disguise of 'equal' accommodations for passengers in railroad coaches will not mislead any one, nor atone for the wrong this day done.

Harlan did not embrace the idea of full social racial equality. While he appeared to advocate for equality among those of different races and for a color-blind Constitution, in his Plessy dissent he also stated "[t]here is a race so different from our own that we do not permit those belonging to it to become citizens of the United States.... I allude to the Chinese race." In United States v. Wong Kim Ark (1898), Harlan joined Chief Justice Fuller's dissent proclaiming the dangers of having large numbers of Chinese immigrants in the United States.[17] The Court's holding was that persons of Chinese descent born in the United States were citizens by birth. Fuller and Harlan argued that the principle of jus sanguinis (that is, the concept of a child inheriting his or her father's citizenship by descent regardless of birthplace) had been more pervasive in U.S. legal history since independence.[18][19] In the view of the minority, excessive reliance on jus soli (birthplace) as the principal determiner of citizenship would lead to an untenable state of affairs in which "the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the presidency, while children of our citizens, born abroad, were not".[20]

Harlan was also the most stridently anti-imperialist justice on the Supreme Court,[citation needed] arguing consistently in the Insular Cases (from 1901 to 1905) 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 minority.[21] In Hawaii v. Mankichi (1903) his opinion stated: "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 system entirely foreign to the genius of our Government and abhorrent to the principles that underlie and pervade our Constitution."

Harlan also dissented in Giles v. Harris (1903), a case challenging the use of grandfather clauses to restrict voting rolls and de facto exclude blacks.

Harlan dissented in Lochner v. New York (1905), but he agreed with the majority "that there is a liberty of contract which cannot be violated even under the sanction of direct legislative enactment."

Harlan's partial dissent in the 1911 Standard Oil anti-trust decision (Standard Oil Company of New Jersey v. United States, 221 U.S. 1) penetratingly addressed issues of statutory construction reaching beyond the Sherman Anti-Trust Act itself.[22]

Personal life

In 1856, Harlan married Malvina French Shanklin, the daughter of an Indiana businessman. Theirs was a happy marriage, which lasted until Harlan's death. They had six children, three sons and three daughters. Their eldest son, Richard, became a Presbyterian minister and educator who served as president of Lake Forest College from 1901 until 1906. Their second son, James S. Harlan, practiced in Chicago and served as attorney general of Puerto Rico before being appointed to the Interstate Commerce Commission in 1906 and becoming that body's chairman in 1914. Their youngest son, John Maynard, also practiced in Chicago and served as an alderman before running unsuccessfully for mayor in both 1897 and 1905; John Maynard's son, John Marshall Harlan II, served as a Supreme Court Associate Justice from 1955 until 1971.[23]

Religious beliefs

Harlan was a fundamentalist Christian, and his Christian beliefs played a large role in his life, as a Supreme Court justice, and in general.[5][12] During his tenure as a Justice, he was an elder at the New York Avenue Presbyterian Church in Washington D.C.,[24] and there he taught a Sunday school class of middle aged men from 1896 until his death in 1911.[24][4]

Later life and death

Harlan died on October 14, 1911, after 33 years with the Supreme Court, the third-longest tenure on the court up to that time (and the sixth-longest ever). He was buried in Rock Creek Cemetery, Washington, D.C. where his body resides along with those of three other justices.[25][26][27]


Harlan, who suffered from financial problems throughout his tenure on the Court, left minimal assets for the support of his widow, Malvina Shanklin Harlan, and two unmarried daughters. In the months following Harlan's death, leading members of the Supreme Court Bar established a fund for the benefit of the Harlan survivors.[28]

There are 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.[29]

Named for 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 school.[30] Harlan is commemorated by John Marshall Harlan Community Academy High School, a Chicago public high school.[31] 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.[32] 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, considered by many to be far ahead of his time, were celebrated and remembered by many.[32]

On March 12, 1906, Harlan donated a King James Version Bible to the Supreme Court.[33] This Bible had become known as the "Harlan Bible," and, as of 2015, has been signed by every succeeding Supreme Court justice after taking the oath of office.[33] As of 2015, the American Judicial Alliance (AJA), a Christian judicial organization, is attempting to place a copy of the Harlan Bible in every courtroom in the United States.[34][35]

See also


  1. John Marshall Harlan, Biography, Bibliography, Location of papers Sixth Circuit U.S. Court of Appeals.
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  5. 5.0 5.1 Przybyszewski (1999), pgs. 47–60.
  6. 6.0 6.1 DANZY SENNANOV, Review: "'A Chosen Exile,' by Allyson Hobbs", New York Times, 23 November 2014, accessed 4 April 2015
  7. Beth (1992), pgs. 7–8, 13–17.
  8. Beth (1992), pgs. 18–19, 29–37.
  9. Beth (1992), pgs. 38–68.
  10. Beth (1992), pgs. 68–80.
  11. Beth (1992), pgs. 81–109.
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  13. Beth (1992), pgs. 110–113, 119–129.
  14. Beth (1992), pgs. 134–137, 143–145.
  15. Beth (1992), pgs. 137-9, 158–9.
  16. 16.0 16.1 Plessy v. Ferguson, 163 U.S. 537 (1896) at Findlaw"
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  18. Wong Kim Ark, 169 U.S. at 709.
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  20. United States v. Wong Kim Ark, 169 U.S. 649, 715 (1898).
  21. Beth (1992), p. 250.
  22. Beth (1992), p. 200.
  23. Beth (1992), pgs. 22–23, 188–189.
  24. 24.0 24.1 Przybyszewski (1999), p. 48.
  25. John Marshall Harlan memorial at Find a Grave.
  26. Christensen, George A. (1983) Here Lies the Supreme Court: Gravesites of the Justices, Yearbook at the Wayback Machine (archived September 3, 2005) Supreme Court Historical Society at Internet Archive.
  27. See also, Christensen, George A., Here Lies the Supreme Court: Revisited, Journal of Supreme Court History, Volume 33 Issue 1, Pages 17 – 41 (19 Feb 2008), University of Alabama.
  28. Ira Brad Matetsky, "The Harlan Fund", 16 Green Bag 2d 23 (Autumn 2012).
  29. John Marshall Harlan, Location of papers, Bibliography and Biography Sixth Circuit U.S. Court of Appeals.
  30. Harlan Scholars Program
  31. Harlan Community Academy
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Further reading

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External links

Legal offices
Preceded by
Andrew J. James
Attorneys General of Kentucky
Succeeded by
John Rodman
Preceded by Associate Justice of the Supreme Court of the United States
November 29, 1877 – October 14, 1911
Succeeded by
Mahlon Pitney