Eleanor Finch
John Marshall Harlan II was a US Supreme Court Justice from 1955 to 1971. Harlan was nominated by President Eisenhower to the United States Court of Appeals for the Second Circuit in 1954, and to the Supreme Court in 1955. He was known for his fearless independence, often dissenting from the Court, and became known as 'The Great Dissenter'. He was also known for his powerful voice and speaking style, and his respect for his fellow justices, clerks, and attorneys. Harlan's most famous dissent was in Plessy v. Ferguson, in which the Court condoned the separate but equal theory of racial segregation. He wrote that our Constitution is color-blind, and neither knows nor tolerates classes among citizens. He also dissented in Lochner v. New York, which epitomized an era in which the Court often struck down economic regulations on substantive due process grounds. In another case, Harlan wrote that the Due Process Clause protected a wide range of fundamental rights, including those not specifically mentioned in the Constitution.
| Characteristics | Values |
|---|---|
| Political affiliations | Whig, Know Nothing, Republican |
| Stance on slavery | Anti-abolitionist |
| Stance on segregation | Anti-segregation |
| Stance on the Constitution | Believed the Constitution is colourblind, and does not tolerate classes among citizens |
| Stance on the Due Process Clause | Protected a wide range of fundamental rights, including those not specifically mentioned in the Constitution |
| Stance on freedom of expression | Supported freedom of expression, including the right to wear a jacket emblazoned with "Fuck the Draft" |
| Stance on civil rights | Supported civil rights for Black Americans, Filipinos, and Hawaiians |
| Stance on income tax | Supported federal income tax |
| Stance on antitrust laws | Supported antitrust laws |
| Stance on labour rights | Supported labour rights, including the right to membership in a labour organization |
| Stance on public health | Supported compulsory vaccination laws |
| Stance on birthright citizenship | Opposed birthright citizenship for children of Chinese workers who were not themselves on a path to American citizenship |
| Stance on Chinese Exclusion Act | Supported the Chinese Exclusion Act |
| Stance on equal protection | Supported equal protection for Chinese victims of white vigilantes in California |
| Personal characteristics | Tall, red-haired, handsome, powerful voice, speaking style |
| Personal relationships | Treated fellow Justices, clerks, and attorneys with respect and consideration, maintained good relationships with fellow Justices despite disagreements |
| Career | County judge, Kentucky Attorney General, Circuit Judge, Associate Justice of the Supreme Court |
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What You'll Learn
John Marshall Harlan was a slave holder but opposed secession
John Marshall Harlan was a slave holder and advocate of slavery, but he opposed secession. Born in 1833 into a prominent slave-holding family in Kentucky, Harlan was a slave holder himself and initially opposed emancipation and the Reconstruction Amendments. He owned a few household slaves and did not emancipate them until he was forced to by the Thirteenth Amendment in December 1865, which he described as a "flagrant invasion of the right of self-government." Despite his earlier opposition to emancipation, Harlan underwent a significant political transformation after the Civil War. He joined the Republican Party in 1868, embracing the party's platform of civil rights for Black Americans.
Harlan's transformation from a slave holder to a supporter of civil rights for Black Americans was influenced by several factors. Firstly, he was raised in a family where his father abhorred the brutality of slavery and his mother also had a distaste for it. Additionally, Harlan's wife, Mallie, is said to have influenced his views, as she wrote in her memoir that John had imbibed "a deep dislike of involuntary servitude in any form" from his father and teachers. Harlan's political transformation was also shaped by the collapse of the middle ground between the major parties, forcing him to choose a new party. He chose the Republicans, whose beliefs aligned with his new stance on civil rights for Black Americans.
During the secession crisis that followed Abraham Lincoln's victory in the 1860 election, Harlan worked tirelessly to keep Kentucky in the Union, writing several pro-Union editorials. He supported the Constitutional Union ticket of John Bell and Edward Everett in the 1860 election and served as a presidential elector for Bell. Harlan's support for the Union and his transformation on the issue of civil rights for Black Americans were significant shifts from his earlier advocacy of slavery.
Harlan's views on slavery and his opposition to secession were complex and evolving. While he initially defended slavery and opposed emancipation, he later embraced the Republican Party's commitment to civil rights for Black Americans. His transformation demonstrates a recognition of the fundamental rights and privileges of citizenship for all, regardless of race.
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He was the lone dissenting justice in Plessy v. Ferguson
John Marshall Harlan was the lone dissenting justice in Plessy v. Ferguson, a landmark U.S. Supreme Court decision that ruled that racial segregation laws did not violate the U.S. Constitution as long as the facilities for each race were equal in quality. This doctrine became known as "separate but equal".
In 1892, Homer Plessy, a man of mixed race, deliberately boarded a whites-only train car in New Orleans, violating Louisiana's Separate Car Act of 1890, which mandated "equal but separate" railroad accommodations for white and black passengers. Plessy was arrested and charged with violating the Act. At his trial, his lawyers argued that the charges should be dismissed on the grounds that the Act was unconstitutional. However, Judge John Howard Ferguson denied the request, and the Louisiana Supreme Court upheld this ruling on appeal.
Plessy then appealed to the U.S. Supreme Court. In May 1896, the Supreme Court issued a 7-1 decision against Plessy, ruling that the Louisiana law did not violate the Fourteenth Amendment to the U.S. Constitution. The Court rejected Plessy's lawyers' arguments that the law implied the inferiority of black people and gave deference to state legislatures' power to make laws on health, safety, and morals.
Justice John Marshall Harlan was the lone dissenting voice in this decision. He strongly disapproved of the majority opinion, writing that the judgment would prove to be as pernicious as the Dred Scott Case. He accepted the appellant's argument that segregation imposed ""badges of slavery or servitude" on African Americans and violated the Thirteenth and Fourteenth Amendments. Harlan wrote, "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens... The arbitrary separation of citizens on the basis of race... is a badge of servitude wholly inconsistent with the civil freedom and equality before the law established by the Constitution."
Harlan's dissent in Plessy v. Ferguson has been remembered as courageous and influential. Thurgood Marshall, the lead attorney in the NAACP's fight to end segregation, often read from Harlan's dissent to stay motivated during low moments. In the 1954 case of Brown v. Board of Education, which finally overturned Plessy v. Ferguson, Marshall cited Harlan's words in his arguments.
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He supported civil rights for Black Americans
John Marshall Harlan was a Republican who supported the party's Reconstruction policies and its platform of civil rights for Black Americans. In 1868, he supported Ulysses S. Grant's candidacy in the presidential election.
Harlan's most famous dissent came in Plessy v. Ferguson, in which the Court condoned the "separate but equal" theory of racial segregation. The only dissenting justice, Harlan wrote:
> "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 arbitrary separation of citizens on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution."
Harlan's dissent in Plessy v. Ferguson was cited in Brown v. Board of Education, the 1954 case that finally overturned Plessy v. Ferguson. Thurgood Marshall, the lead attorney in the NAACP's fight to end segregation, admired Harlan's courage, and often quoted him to bolster his spirits in low moments.
Harlan also dissented when the Supreme Court refused to grant civil rights protections to Chinese victims of white vigilantes in California. He was also the court’s strongest supporter of granting full constitutional rights to Filipinos and Hawaiians.
Harlan's approach to the Due Process Clause was that judges should be limited in the Due Process area by "respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms".
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He was nominated to the Supreme Court by President Eisenhower
John Marshall Harlan II was nominated by President Dwight D. Eisenhower on January 13, 1954, to serve as a judge on the United States Court of Appeals for the Second Circuit. He was confirmed by the Senate on February 9, 1954, and received his commission the following day.
Harlan had previously appeared before this court multiple times and was acquainted with many of the judges. However, his service on the Court of Appeals was short-lived, as he was elevated to the Supreme Court soon after.
On January 10, 1955, President Eisenhower nominated Harlan as an associate justice of the Supreme Court of the United States, succeeding Robert H. Jackson. Upon his nomination, Harlan summoned reporters to his chambers in New York, where he expressed his deep honour at the appointment. He was confirmed by the Senate on March 16, 1955, by a vote of 71-11, and was sworn into office on March 28, 1955.
Harlan's time on the Supreme Court was marked by his fearless independence and his respect for his fellow justices. He often disagreed with the Court's decisions, but he never criticised his colleagues personally. He was particularly known for his dissents in several landmark cases, including Yates v. United States, Watkins v. United States, and Cohen v. California. In the latter case, he penned a majority opinion upholding freedom of expression, which has been hailed as one of the greatest opinions ever written on the subject.
Harlan's approach to the Constitution was characterised by his belief in substantive due process. He interpreted the Due Process Clause as protecting a wide range of fundamental rights, not just those explicitly mentioned in the text of the Constitution. This approach, according to Justice Byron White, showed "respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms".
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He was known as the Great Dissenter
John Marshall Harlan, who served as a justice on the U.S. Supreme Court from 1877 until his death in 1911, became known as the "Great Dissenter" due to his fearlessness in dissenting from the Court, often on his own. His most famous dissent came in Plessy v. Ferguson, in which the Court approved the "separate but equal" doctrine of racial segregation. The lone dissenter, Harlan wrote:
> "Our Constitution is colorblind, 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 arbitrary separation of citizens on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution."
Harlan's Plessy dissent was cited in Brown v. Board of Education, the 1954 case that finally overturned Plessy v. Ferguson. Thurgood Marshall, who served as chief counsel for the NAACP in Brown, admired Harlan's courage, and often quoted his Plessy dissent.
Harlan's other notable dissents include:
- Lochner v. New York, in which the Court struck down economic regulations on substantive due process grounds, such as the freedom to contract.
- The Civil Rights Cases, where he dissented from the narrow interpretation of the Thirteenth and Fourteenth Amendments.
- A decision striking down a federal income tax, where he warned that voiding the income tax would hamstring the federal government in the event of war when tariff revenue dried up.
- A decision that weakened antitrust laws.
- United States v. Wong Kim Ark, in which he joined a dissent rejecting the idea that children born to Chinese workers who were not themselves on the path to becoming American citizens should be granted birthright citizenship.
- The Supreme Court's refusal to grant civil rights protections to Chinese victims of white vigilantes in California, where he sharply dissented.
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Frequently asked questions
John Marshall Harlan is known as the "Great Dissenter" for his fearlessness in dissenting from the Court, often on his own. His most famous dissent came in Plessy v. Ferguson, in which the Court condoned the "separate but equal" theory of racial segregation.
John Marshall Harlan is often remembered for his quote, "Our Constitution is colorblind, and neither knows nor tolerates classes among citizens."
John Marshall Harlan subscribed to the doctrine that the Due Process Clause provided procedural guarantees and protected a wide range of fundamental rights, including those not specifically mentioned in the text of the Constitution.
John Marshall Harlan is remembered as one of the Supreme Court's greatest justices. He is known for his fearless dissent in Plessy v. Ferguson and his strong support for civil rights, including for Chinese immigrants, Filipinos, and Hawaiians. He also taught constitutional law at the Columbian Law School, now known as the George Washington University Law School.
