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John Marshall Harlan: The Last Whig Justice

Loren P. Beth
Copyright Date: 1992
Edition: 1
Pages: 328
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    John Marshall Harlan
    Book Description:

    Harlan. Known today to every student of constitutional law, principally for his dissenting opinions in early racial discrimination cases, Harlan was an important actor in every major public issue that came before the Supreme Court during his thirty-three-year tenure.

    Named by a hopeful father for Chief Justice John Marshall, Harlan began his career as a member of the Kentucky Whig slavocracy. Loren Beth traces the young lawyer's development from these early years through the secession crisis and Civil War, when Harlan remained loyal to the Union, both as a politician and as a soldier. As Beth demonstrates, Harlan gradually shifted during these years to an antislavery Republicanism that still emphasized his adherence to the Whig principles of Unionism and national power as against states' rights.

    Harlan's Supreme Court career (1877-1911) was characterized by his fundamental disagreement with nearly every judicial colleague of his day. His ultimate stance -- as the Great Dissenter, the champion of civil rights, the upholder of the powers of Congress -- emerges as the logical outgrowth of his pre-Court life. Harlan's significance for today's reader is underlined by the Supreme Court's adoption, beginning in the 1930s, of most of his positions on the Fourteenth Amendment and the Commerce Clause of the Constitution.

    This fine biography is also an important contribution to constitutional history. Historians, political scientists, and legal scholars will come from its pages with renewed appreciation for one of our judicial giants.

    eISBN: 978-0-8131-4985-1
    Subjects: History, Law, Political Science

Table of Contents

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  1. Front Matter
    (pp. i-ii)
  2. Table of Contents
    (pp. iii-iv)
  3. Preface
    (pp. v-vi)
  4. Introduction
    (pp. 1-4)

    When on June 1, 1833, Eliza Davenport Harlan presented her husband, James, with a fifth son, the young parents named him John Marshall Harlan. Just then entering upon his thirty-year career as one of Kentucky’s most prominent lawyer-politicians, James was an ardent follower of the great Whig leader Henry Clay. Chief Justice John Marshall had become the elderly patron saint of the Whig party, establishing as constitutional law the central tenets that it espoused. Having already named one son Henry Clay and determined that his sons would be lawyers like himself, James undoubtedly felt that it was most appropriate to...

  5. Part I. The Road to the Supreme Court

    • 1 Kentucky Childhood, 1833-1854
      (pp. 7-20)

      The Harlans were pioneers. From generation to generation they moved away from their native countryside. They were yeoman farmers typically looking for better land.¹ This tradition was begun by George and Michael Harland, sons of Thomas. George was born about 1650 in the hamlet of Monkwearmouth, then in rural County Durham, now part of the city of Sunderland, in England. George and Michael were, or became, Quakers and migrated to northern Ireland, presumably as part of the Anglo-Scottish “colonization” of that troubled area begun under Oliver Cromwell’s rule. After George married an Elizabeth Duck, of whom nothing is known, George...

    • 2 Kentucky Lawyer-Politician, 1855-1860
      (pp. 21-39)

      John Harlan as a young man had the normal interest in the fair sex; nevertheless he does not seem to have had any serious affairs until he met his future wife. Thomas T. Crittenden—a nephew of the famous senator, and a future governor of Missouri—was living in Frankfort during the 1850s, and the two young lawyers were good friends. Tom later wrote that they “often visited together the beautiful young ladies of the city and State.” In fact, Crittenden continued, John Harlan “introduced me to the fair, handsome Kentuckian who afterwards became my wife, and he was one...

    • 3 Kentucky Unionist, 1861
      (pp. 40-52)

      Louisville on the eve of the Civil War was Kentucky’s largest city and only real metropolis, with a population approaching seventy thousand. The eleventh largest city in the country, Louisville had just enhanced its importance by the construction of railroads to Nashville and to Memphis, and it enjoyed a thriving interchange business between a prosperous hinterland and the rest of the nation as well as, more generally, between the Mississippi River and the Northeast. Although a canal had been built around the Falls of the Ohio, it was not large enough to accommodate the new generation of steamboats, so transshipment...

    • 4 Union Soldier, 1861-1863
      (pp. 53-67)

      Harlan’s military experience began with the expedition to Muldraugh’s Hill in September 1861. The war had come to Kentucky, ending the dream of neutrality, when Confederate forces occupied Columbus and Hickman in the west, Bowling Green in the south, and Cumberland Gap in the east. Federal forces reacted by throwing troops into Paducah to protect the Ohio River line. Early in September Simon Buckner had declared for the Confederacy, taking most of the state guard with him; he was promptly appointed a brigadier general and given command of the forces around Bowling Green, which was seized on September 17. Buckner...

    • 5 Into the Political Wilderness, 1863-1867
      (pp. 68-80)

      The reasons Harlan adduced for his resignation from the army were, as far as they went, valid enough. Certainly his superior officers accepted them. But one must read the dominant motivation between the lines. What Harlan did not say was that his father’s financial support was no longer available, for his mother of course, but just as certainly for himself and his family, who had probably been at least partially dependent. In view of the incapacitation of one brother and the unreliability of the other, John Harlan was now the breadwinner for the whole family.

      The family posed problems. Unhappy...

    • 6 Kentucky Republican, 1868-1875
      (pp. 81-97)

      John Harlan’s decision to return to Louisville was not prompted merely by the political situation in Frankfort. Another reason was doubtless the same as the one that prompted his first move to the metropolis in 1861. It was still true that making a living as a lawyer was likely to be much easier in the large city of Louisville, especially since Harlan no longer had the backing of his father’s practice and reputation. His income as attorney general had, of course, been taken away by the voters of Kentucky. He had thenceforth to subsist entirely on what he could earn...

    • 7 Kingmaker, 1876
      (pp. 98-105)

      By 1875 the political and judicial careers of John M. Harlan were inextricably entwined with the destiny of his law partner, Ben Bristow. It is one of the ironies of politics that having achieved so much with each other’s help, the two eventually split completely. After Harlan’s appointment to the Supreme Court Bristow not only left the firm, but he never even spoke as a friend to John again.¹

      One problem was that the two were not only partners, friends, and political allies: they were also competitors. Both were ambitious, honest, and public-spirited men, and both, at times, allowed their...

    • 8 The Fruits of Success, 1877
      (pp. 106-118)

      John Harlan returned to Louisville after the convention disappointed, naturally, that his partner had failed to receive the nomination. On the other hand, he felt that the choice of Hayes was, under the circumstances, perhaps better than Republican reformers might have expected. For there was no doubt that Hayes would represent the reform wing of the party and lure back the Liberal Republicans who had run Horace Greeley on a separate ticket in 1872.¹ The widespread disgust with the corruption surrounding Grant had thus prevented the nomination of anyone tarred with the same brush, such as Blaine. The Democratic candidate,...

    • 9 Political Reward, 1877
      (pp. 119-130)

      Associate Justice David Davis, “Lincoln’s Manager,” was elected to the Senate by the Illinois legislature on January 25,1877, and resigned his seat on the Court effective March 4. Thus Rutherford B. Hayes knew, even before his own election was certain, that a Supreme Court vacancy would need filling. Speculation about the appointment naturally began immediately, but the possibilities, in January and February, were wide open, since there was still a good chance that the new president would be a Democrat. It remains mysterious, however, why Hayes took so long to make his appointment, when one might have expected that the...

  6. Part II. Judicial Career

    • 10 Associate Justice, 1877-1887
      (pp. 133-155)

      On December 10, 1877, at the age of forty-four, John Marshall Harlan was installed as Associate Justice of the Supreme Court. The ceremonies were social as well as legal events in those days. Harlan’s induction was attended not only by his own proud wife but also by many Washington dignitaries and friends, including Lucy Hayes.¹ Taking the oath of office, John must have thought of those great Americans who had preceded him on the Court, especially his namesake, the Great Chief Justice; equally, he must have looked back with both affection and nostalgia on the crowded years that had brought...

    • 11 Associate Justice, 1887-1897
      (pp. 156-171)

      In May 1887 Justice Woods died, ending the brief period of stability on the Court that characterized the mid-1880s. In fact, so rapid was the turnover that by 1897 Harlan and Gray were the only holdovers from the Waite Court. The transition was the more remarkable in that the strong judges—Miller, Bradley, and Field—were succeeded by appointments of pronounced mediocrity. The Court in 1897 contained only one “great” justice, and that was Harlan. Gray and White, and perhaps Fuller, were above average. The rest, often having short tenures, were average at best.

      Harlan’s most memorable opinions, of course,...

    • 12 Associate Justice, 1897-1911
      (pp. 172-190)

      Justice Stephen J. Field’s long-awaited retirement in 1897 left Harlan the senior justice. It also brought up, not for the first time, the question of the sixty-four-year-old Kentuckian’s own retirement. This was a question upon which Harlan had frequently speculated, without reaching a firm conclusion. In Paris in 1893 he had written that a professorship at a law school, with a pension, was a position for which he would be “greatly tempted to surrender my present position. . . . I could imagine nothing more agreeable to me than to spend the balance of my life in that sort of...

    • Illustrations
      (pp. None)
  7. Part III. Judicial Opinions

    • 13 Interstate Commerce
      (pp. 193-207)

      True to his Clay Whig inheritance, John Harlan maintained a strong nationalism throughout his judicial career. This is nowhere better exemplified than by his record on antitrust cases, an area that typifies his constitutional jurisprudence in other ways as well. The Supreme Court’s treatment of antitrust law in the period up to Harlan’s death is a more than twice-told tale.¹ At the same time, Harlan’s differences with his colleagues strikingly demonstrate the pervasive American love-hate relationship with “big business,” a feature that still exists today.

      Harlan himself, characteristically, was in no doubt about the dangers of monopolies or trusts in...

    • 14 Substantive Due Process
      (pp. 208-215)

      Over the years, probably more constitutional scholarship has concentrated on the Fourteenth Amendment’s due process clause than on any other single constitutional provision.¹ Progressive historians cited it as the major instance of the Court’s surrender to “the corporations” and its acceptance of laissez-faire economic theories.² A revisionist school of more conservative writers argues that this surrender was never more than partial but usually agrees that substantive due process was an illegitimate construction of the clause.³ Contemporary liberals embrace it, not for its protection of economic liberties, but because it can be equally well used to protect other private rights (such...

    • 15 Criminal Procedures in the States
      (pp. 216-222)

      If the Fourteenth Amendment’s due process clause meant anything obvious, it was that all “persons” must be accorded fair treatment in state criminal proceedings. Fair treatment could most properly be interpreted as following the forms of justice that were traditionally regarded as necessary, beginning with those spelled out in the Fourth through the Eighth amendments, even though these had never been applied to the states. Even if the termpersonswas narrowed to include only freed slaves, however, the Court in practice did very little to assure this kind of due process. While it came by the 1890s to look...

    • 16 Civil Rights
      (pp. 223-239)

      The Thirteenth Amendment, ratified in 1865, prohibited slavery or “involuntary servitude” from existing in the United States, thus setting a constitutional seal on the results of the Civil War.Slavery,at least in its American context, is a clear enough term that it has caused no difficulties for the courts. The wordsinvoluntary servitude,on the other hand, can pose problems, since they represent something less than slavery (how much?) that is still unconstitutional. Justice Harlan approached the words literally, as was his habit, and was again out of step with his brethren on the Supreme Court. Ironically, the first...

    • 17 The Income Tax
      (pp. 240-248)

      Although Justice Harlan is best known today for his powerful dissents in the racial discrimination and criminal procedure areas, he was most famous, or infamous, to his contemporaries for his emotionally delivered dissenting opinion in the income tax cases.¹ The swirl of controversy surrounding these cases has never died completely, even though the adoption of the Sixteenth Amendment reversed the decisions themselves. Dispute has centered around the constitutional arguments, the political attitudes of the judges, the sectional nature of the votes, leaks to the newspapers, and the heated dissension among the members of the Court—dissension that spilled over into...

    • 18 The Insular Cases
      (pp. 249-256)

      The American empire—the words have an almost antiquated ring. It is difficult to remember that we still have an empire of sorts and even more difficult to recall that there was once a great debate over whether democracy was consistent with the holding of colonies. Even though Americans decided after the Spanish-American War to acquire and keep noncontiguous areas populated largely by people of other ethnic, political, and cultural backgrounds, the American conscience has always been troubled over the question of whether we should keep people permanently in a status of second-class citizenship. This troubled conscience accounts for the...

    • 19 Other Issues
      (pp. 257-264)

      John Marshall Harlan’s reputation as a jurist was made principally in the areas surveyed in preceding chapters. Obviously he participated in the Court’s activities fully, however. He wrote numerous opinions, both for the majority and in dissent, on other issues, not all of which involved constitutional questions. It is worth looking briefly at the more important of these other areas, if only to illustrate the breadth of the subjects upon which Supreme Court justices had to formulate opinions in Harlan’s time. As in the earlier chapters, we will concentrate on those areas in which the Kentuckian wrote opinions that either...

    • 20 Man, Politician, Judge
      (pp. 265-271)

      What manner of man was John Marshall Harlan? At this date, and with the documentary gaps existing, one cannot say with certainty, perhaps, and yet some things have become obvious. Harlan was, first of all, the quintessential family man. A tender and loving husband, a concerned and caring father, and a responsible son and sibling—these characteristics shine through everything that is known about Harlan. His relations with Mallie can be adduced from various sources: their letters to each other, Mallie’s recorded reminiscences, and the testimony of family members as well as outsiders. John quite certainly was not a dominating...

  8. Chronology
    (pp. 272-274)
  9. A Note on Sources
    (pp. 275-276)
  10. Notes
    (pp. 277-302)
  11. Index of Cases Cited
    (pp. 303-306)
  12. General Index
    (pp. 307-313)