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John Harlan was born in Boyle County, Kentucky, on 1st June, 1833. He worked as a lawyer and county judge before joining the Union Army during the American Civil War. Harlan commanded an infantry regiment but was critical of Abraham Lincoln and objected to the Emancipation Proclamation.
After the war Harlan attacked the Thirteenth Amendment which abolished slavery. However, after the emergence of racist organizations such as the Ku Klux Klan he changed his mind and became a supporter of the Radical Republicans and the Reconstruction Acts.
In 1877 President Rutherhood Hayes appointed Harlan as a member of the Supreme Court. Over the next few years Harlan showed he was a strong supporter of African-American civil rights. In 1883 he dissented from the majority view that Congress could not punish discrimination against African Americans by private persons. As a member of the Supreme Court Harlan was a consistent supporter of the Thirteenth Amendment and Fourteenth Amendment. and warned that African Americans were in danger of being consigned to a "permanent condition of legal inferiority." In 1896 he was the only member of the Supreme Court who believed that segregation in railway cars was unconstitutional.
In 1897 New York Legislature passed a law that set the hours of bakers at no more than ten hours a day or sixty a week. In 1905 the owner of a bakery was fined $50 for violating the law. He appealed to the Supreme Court and it voted 5-4 that the law was unconstitutional. Harlan and Oliver Wendell Holmes were two of those four justices who disagreed with the decision that was to hold back the passing of social welfare legislation.
John Harlan died in Washington on 14th October, 1911.
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. 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 colour-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 colour when his civil rights as guaranteed by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.
Sixty millions of whites are in no danger from the presence here of 8 million blacks. The destinies of the two races in this country are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law. What can more certainly arouse race hate, what will more certainly create and perpetuate a feeling of distrust between these races than state enactments, which, in fact, proceed on the ground that coloured citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens?
It is plain that this statute was enacted in order to protect the physical well-being of those who work in bakery and confectionery establishments. It may be that the statute had its origin, in part, in the belief that employers and employees in such establishments were not upon an equal footing, and that the necessities of the latter often compelled them to submit to such exactions as unduly taxed their strength. Be this as it may, the statute must be taken as expressing the belief of the people of New York that, as a general rule, and in the case of the average man, labour in excess of sixty hours during a week in such establishments may endanger the health of those who thus labour.
I submit that this Court will transcend its functions if it assumes to annul the statute of New York. It must be remembered that this statute does not apply to all kinds of business. It applies only to work in bakery and confectionery establishments, in which, as all know, the air constantly breathed by workmen is not as pure and helpful as that to be found in some other establishments or out-of-doors. Professor Hirt in his treatise on the Diseases of the Workers has said: "The labour of the bakers is among the hardest and most laborious imaginable, because it has to be performed under conditions injurious to the health of those engaged in it."
All who recall the condition of the country in 1890 will remember that there was everywhere, among the people generally, a deep feeling of unrest. The nation had been rid of human slavery, but the conviction was universal that the country was in real danger from another kind of slavery sought to be fastened on the American people, namely, the slavery that would result from aggregations of capital in the hands of a few individuals and corporations controlling, for their own profit and advantage exclusively, the entire business of the country, including the production and sale of the necessaries of life. Such a danger was thought to be then imminent, and all felt that it must be met firmly and by such statutory regulations as would adequately protect the people against oppression and wrong.
Harlan Family In America: A Brief History
We have come here to Mount Pleasant, Iowa, to celebrate the 310th anniversary of the Harlan family in America. There are today perhaps twenty thousand Harlans in the United States and a somewhat larger number of those with other names who are descendants or relatives of Harlans.
Most of us Harlans are descendants of two English brothers, George and Michael Harlan, who arrived in 1687 at New Castle, Delaware, then part of the colony of Pennsylvania, and of a third brother, Thomas, who never came to America but some of his sons arrived fifty years later. The Harlans are only a small proportion, of course, of the entire United States population, but even so they are a nationwide extended family deeply embedded in our national history.
In the years since 1687 the Harlans have spread and multiplied. They have taken part, sometimes in a major way, in the great migrations that peopled this country, and in most of the great events of American history. Though the Harlans certainly were not aristocrats in either England or America, as my father used to say, "they generally married above their station." Wives, take note.
Harlans have prospered and have been responsible citizens wherever they settled, except possibly for a few black sheep best forgotten on this occasion. Though no Harlan so far has grown up to be President, the family's history includes two members of Congress, a U.S. Senator, a member of President Lincoln's cabinet, and two justices of the United States Supreme Court. We have cause for pride in our family name, and we also have reason to gather in support of the family as an institution in a period when it is threatened by extreme individualism.
For the detailed knowledge we have of our family history, we are all heavily indebted to Alpheus H. Harlan, who in 1914 published a History and Genealogy of the Harlan Family. He had labored on this book for twenty-three years without the aid of a computer. It not only contains the skeleton family tree but includes a wealth of biographical information, letters and other documents. It is an astoundingly accurate piece of work that no Harlan family member should be without. Any of you cousins who know your grandfather's or grandmother's name will probably be able to trace your ancestry back twelve generations to the first Harlans in America. Alpheus Harlan's book is back in print again and you can own a copy and pass it on to your children.
We have only fragmentary knowledge of the Harlands in England, all with a d on the end of their name. They were pretty much centered in the north of England, around Durham and in the North Riding of Yorkshire, which some of you may know from James Herriots books about people and animals of the Yorkshire Dales. One has only to look in the local telephone books of York and Durham to find several pages of Harlands listed, presumably distant cousins of ours but removed by many generations.
There was a Richard Harland who sided with the winning Royalists in the English Civil War and was rewarded by Charles II in 1660 with the ownership of Sutton Hall, a manor surrounded by a large estate which had belonged to the crown. It passed to another family in the 19th Century, however, and we don't even know precisely the relationship of those Harlands to us American Harlans.
The earliest paternal ancestor of the Harlans in America that we know much about was James Harland (1)*, son of William Harland. James was called a yeoman, not an aristocrat nor a gentleman, born near Durham, England, about 1625. He was the father of Thomas (2), George (3) and Michael Harlan (4), and had his three sons baptized in the Church of England, at the formerly Catholic monastery of Monkwearmouth near Durham. Britain was in constant religious conflict all through the Reformation, when ordinary people began reading the Bible for themselves, and the Harlands took part in that turmoil.
As George and Michael were growing up in the mid 1600s, a radical religious movement swept over England led by the Reverend George Fox, known as the Society of Friends, more often called the Quakers. This denomination had no clergy, practiced freedom of worship, and opposed all forms of violence including war and slavery. With such ideas, it naturally became banned and persecuted by the established church and the government. George and Michael Harlan and their brother Thomas became Quakers, and were forced to flee to northern Ireland, England's first colony, only to find that English persecution followed them there. Meanwhile, William Penn, the Quaker son of a British admiral, was granted the colony of Pennsylvania, where his Quaker co-religionists found a haven, as did other persecuted sects such as the German Mennonites. George and Michael Harlan and George's wife, Elizabeth, and four children sailed from Belfast, Ireland, to the new colony in 1687, Just six years after its first settlement at Philadelphia.
George Harlan had bought land in what is now Delaware before leaving Ireland. He became one of the leading citizens, and when William Penn decided that the "three lower counties," that is, Delaware, were so remote from Philadelphia that they needed their own government, he appointed George Harlan one of the governors. Soon, however, George moved to the Brandywine valley of Pennsylvania as a farmer near to where his brother Michael had already settled.
George Harlan was elected to the Pennsylvania Assembly in 1712, but died two years later, leaving nine children. His brother Michael, about ten years younger, married three years after reaching America. He was not as prominent as his brother, but his will and the inventory of his estate show him to have been a prosperous farmer. Michael died in 1729, leaving eight children. Many of his descendants moved to New York and then westward along the northern tier of states. Meanwhile their brother Thomas's descendants arrived in Pennsylvania from Ireland and joined the Harlan gene pool in America, mostly in Quaker country.
From these three brothers with their large families, most of the Harlans in America are descended. Most of them dropped the d on the end of their name, not because they were illiterate, but because spelling did not become standardized until the 19th Century. Their vigor, sexual energy, and restlessness helped to expand and populate this country of ours.
In every generation elder sons and daughters tended to main where they were bom, whereas younger sons moved south and west. Take, for example, my own line of descent. The founder George Harlan's younger son, James Harlan (11), moved all the way over the Blue Ridge into Frederick County in western Virginia. He remained a Quaker until his death about 1760, had ten children, and was buried at a Friends Meeting House. His son George (45), bom in 1718, spent most of his life on the family farm in Frederick County, Virginia, remained a Quaker, and died about 1760. Of George's sons, Jehu Harlan (212) moved to the adjacent county, now Berkeley County, West Virginia, where he established a farm and gristmill at Falling Waters, still a local landmark and still owned by his descendants.
But the American Revolution was approaching and with it the opening up of the West beyond the Appalachians. In 1774, a year before Lexington and Concord, Jehu's brothers, Silas (215) and James (216), crossed the Proclamation Line that the British government had drawn to try to separate white settlers from the Indians, who after a century of supporting the French were now allies of the British government. Silas and James were in Captain James Harrod's party of pioneers who went down the Ohio in canoes and up the Salt River to found Harrodsburgh, Kentucky, the first permanent white settlement across the Appalachians. Soon afterward they moved seven miles away and built a stockaded fort they called Harlan Station. James farmed while his brother Silas went off to fight the British and Indians. Silas became a major under George Rogers Clark and died a hero at the battle of Blue Lick Springs, Kentucky, in 1782. Harlan Countv, Kentucky, was named after him. James was later a captain in the War of 1812. Most of the east-coast Harlans, as Quaker pacifists, stayed out of the American Revolution, but the western Harlans did take part. In four generations a peaceful Quaker family had sired an Indian fighter. Silas had no children, but his brother James became my ancestor.
Among James Harlan's nine children was John Caldwell Harlan (844), who became postmaster of Harrodsburgh and a large meatpacker and dealer in livestock. His daughter Sarah Ann Harlan (2960) married her first cousin Benjamin Harlan (873), and they were my great-grandparents. Both they and her father, John Caldwell Harlan, moved to Maury County in the Tennessee bluegrass, where they both had large livestock farms. Thus, I am doubly a Harlan, which probably explains my extra large nose and prominent cars. Among other things, my ancestors raised jackasses and mules - maybe thats where my ears come from!
Before leaving the Kentucky Harlans, however, let me say that they played a prominent part in our family history and in American history. During the time between the Revolution and the Civil War, many Harlans moved on both sides of the Ohio River, all through the rich farm lands of Ohio, Indiana, and Illinois as well as Kentucky and Tennessee, and they were a very close extended family as time passed. James Harlan (845), my great-grandmother's uncle and my great-grandfather's first cousin, became a lawyer, a leading state official and a congressman. Abraham Lincoln appointed him the U.S. District Attorney for Kentucky. He moved to the state capital, Lexington.
His son was John Marshall Harlan (2969), who was a colonel in the Union Army, a political leader in keeping Kentucky in the Union, and eventually Associate Justice of the U.S. Supreme Court. John Marshall Harlan was one of the greatest men ever to serve on the U.S. Supreme Court. During a conservative era of the Supreme Court he became the chief liberal dissenter on the court and for many years, the only dissenter. In his dissenting opinions in the Civil Rights Cases of 1883 he spoke out for the rights of African Americans guaranteed by the 13th, 14th and 15th Amendments. His dissent against the segregation of black people in the infamous Plessy decision of 1896 was a legal landmark, and used much the same reasoning that the Court later followed in the Brown decision of 1954 that ended legal segregation of public schools. He was in the minority in favor of the constitutionality of the federal income tax when it first came before the Supreme Court.
And yet, John Marshall Harlan had been a slaveowner, as his father was before him. History is full of such contradictions. Justice Harlan had a black half-brother, Robert J. Harlan, whom the family taught to read and write. They allowed him to go into business for himself in Harrodsburgh, Lexington, and Cincinnati. In 1849 he went to California in the gold rush, returned with $50,000 said to be gambling winnings, went back to Kentucky and bought his freedom. In later life he became a racehorse owner and trainer, a leading local Republican, and later a federal officeholder in Washington. Robert Harlan won't be found in Alpheus Harlan's history, but his life is on record in other histories and documents.
Harlans were on both sides of the Civil War, but without having an actual count, I would say more of them were on the Union side. That was true not only of the northern Harlans, but the Kentucky Harlans, and even the Tennessee Harlans. And then there were Quaker Harlans and Whig Harlans who opposed the war. My grandfather, George Henry Harlan (3095), who was nineteen when the Civil War ended, was dying to join the Confederate Army, but his father wouldn't let him volunteer and made him continue to make money driving hogs and horses back and forth through the battle lines for sale to both armies. But all his life, my grandfather felt deprived of his battle experience, and whenever a Confederate veteran passed on the road near his farm, he invited him home to dinner to pump him for his war stories. A Harlan from Maryland was the chief surgeon of the Union Navy during the Civil War. There were many from the upper Ohio valley who fought for the Union in their state militia units.
The Harlan who played the most prominent part in the Civil War era, however, was James Harlan (2297) of Mount Pleasant, Iowa. Born in Illinois, he grew up in a pioneer settlement in Indiana, got a good early schooling and graduated from what is now DePauw University. Immediately after college he moved to Iowa to become president of what became Iowa Wesleyan College, then was elected state school superintendent, and finally to the U.S. Senate, where he served for 18 years. In April, 1865, shortly before Lincoln died he appointed James Harlan to be Secretary of the Interior, serving for more than a year before returning to the U.S. Senate. While Secretary of the Interior, he compiled a list of some eighty clerks to be fired as lazy, immoral or disloyal. Reportedly, he visited Walt Whitman's desk in his absence and found evidence he was writing poetry while on duty and fired him. Many years later H. L. Mencken wrote that "one day in 1865 brought together the greatest poet America had produced and the world's damnedest ass." Let us attribute that remark, however, more to Mencken's admiration of Whitman than as a true characterization of Harlan, whom Mencken never met.
James Harlan certainly met the standards of his time and of his home state, which sent him back to the Senate in 1866. After retiring from the Senate, he returned to Mount Pleasant to take up again the presidency of Iowa Wesleyan College and lived there until his death in 1899. H's daughter, Mary Eunice (5864), married Abraham Lincoln's son, Robert Todd Lincoln, who served as U.S. Ambassador to Great Britain and was for many years president of the Pullman Palace Car Company.
Meanwhile, other restless Harlans were moving west all the way to the Pacific. Some died on the prairies and in the Rocky Mountains, but George Harlan (852) made it all the way to California in 1845-46. He was one of the Kentucky Harlans, but 'had lived earlier in Ohio, Indiana, and Michigan. Inspired by a guidebook he had read, he set out from Niles, Michigan, with his wife, six children, a 90-year-old mother-in-law, and assorted nieces and nephews.
Wintering at Lexington, Missouri, the Harlans joined some 500 other emigrants along the Oregon Trail in the spring of 1846. While following the Platte River they joined forces with the Donner family of Illinois and learned that the author of their guidebook would meet them at Fort Bridger in southwestern Wyoming and personally guide them to California. They were among the few families that chose that option, and the guide talked them into a shortcut. This turned out to be like many of the shortcuts in life. Unfortunately the guide hadn't bothered to scout all the details of the route, and the Harlan party discovered after leaving Fort Bridger that it wasn't well suited to handle their 66 wagons. They had to make their own wagon road, later used by the Mormons to reach Utah. They had to fell trees, use a river bed full of boulders, pull wagons up sharp inclines with ropes and winches, and traverse the Great Salt Lake desert.
Along the Humboldt River they met hostile Indians who began to kill oxen and stragglers on foot. George Harlan sent his nephew Jacob (2984) to John Sutter in California for oxen and supplies, and with this help they were able to cross the Sierra Nevada before the winter snows. They were the last wagon train to reach California that year. The Donners, a couple of weeks behind them, were snowed in and were unable to traverse what became known as Donner Pass in the Sierra Nevada Mountains, where 35 died and others were reduced to cannibalism in one of the worst disasters of the westward movement.
George Harlan settled in Santa Clara County, California, and had a large family. Members of the Harlan family acquired a large part of the Big Sur, where they had a cattle ranch and practiced sound conservation until finally agreeing in the 20th Century to turn it over to the government to be part of the Big Sur public park. For information on the California Harlans, I am indebted to writings by William K. Harlan of Walnut Creek, California.
Alpheus Harlan's history ends at the beginning of the 20th Century, but that is not to say that our family story comes to an end there. It is up to you, the Harlans of the 20th and 21st centuries, to bring our family saga up to date. Rather than regale you with details about present-day Harlans, I want to close with a few thoughts about what family is all about. We have cause for pride in the individual achievements of outstanding Harlans. We should keep in mind, however, that for every major historical character there were a thousand others who were simply self-reliant, solid citizens who made a contribution to society. Most of the early Harlans were farmers in a country that was overwhelmingly rural and agricultural, whereas the more prominent Harlans were mostly political leaders and professional men. In recent times, as corporations have come to dominate commercial agriculture and our country has become more urban and industrial, the family farm has become an endangered species.
At present, when large organizations and extreme individualists are both eroding the strength of the family unit, it behooves us to meet here in America's heartland on this Fourth of July weekend of national renewal, to strengthen our bonds with one another as an extended family. Environment is precious and irreplaceable, but so is heredity. You who bear the Harlan name or are descended from Harlans should be aware that you come from great stock, and you ought to remember where you came from.
Louis R. Harlan is University Distinguished Professor Emeritus of History at the University of Maryland. Born near West Point, Mississippi, he grew up in Atlanta and attended Emory University (B.A., 1943), Vanderbilt University (M.A., 1948), and Johns Hopkins University (Ph.D., 1955).
He is the author of Separate and Unequal (1958), a study of Southern public schools. His two volume biography of the African American leader, Booker T. Washington (1972 and 1983) won the Bancroft Prize and Beveridge Prize in History and the Pulitzer Prize for Biography in 1984. His latest book is All at Sea: Coming of Age in World War II (1996). He also was the chief editor of The Booker T. Washington Papers (14 vols., 1972-89).
(Numbers in parentheses indicate those assigned to individual Harlans in Alpheus H. Harlan's History of the Harlan Family in America.)
John Harlan - History
This article originally appeared in the 1996 No. 1 issue of Kentucky Humanities, published by the Kentucky Humanities Council, 206 East Maxwell St., Lexington, KY 40508-2316. Reprinted with permission.
In 1896, in the case of Plessy v. Ferguson, the Supreme Court of the United States made what turned out to be one of its most notorious decisions. By a vote of 7-1 (one justice did not participate), the Court approved the principle of separate but equal, which for the next half-century and more was used to justify laws mandating segregation in every area of life in the South, from transportation to education to public accommodations. The one lonely, courageous dissenter against the Plessy v. Ferguson decision was a Kentuckian, Associate Justice John Marshall Harlan.
At issue was a Louisiana law compelling segregation of the races in rail coaches. To test the law's constitutionality, Homer Plessy, a Louisianan of mixed race, made a point of getting arrested for sitting in the whites-only section of a train car. When his case reached the Supreme Court, Plessy argued that enforced segregation in theoretically separate-but-equal accommodations compromised the principle of legal equality and marked blacks as inferior. The Court majority disagreed, declaring the law constitutional while saying it stamped blacks with "a badge of inferiority" only if "the colored race chooses to put that construction upon it."
But if his fellow justices found no objections to the Louisiana law, John Harlan could find little else. He wrote:
"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 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. It cannot be justified upon any legal grounds."
Futhermore, argued Harlan, the decision would poison relations between the races.
"What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments, which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? That, as all will admit, is the real meaning of such legislation."
Even a full century after its delivery in 1896, Harlan's eloquent defense of civil rights for black Americans retains its power. Indeed, it was a fount of inspiration for one of the great lawyers of the century, the late Supreme Court Justice Thurgood Marshall. At a 1993 ceremony in memory of Marshall, a colleague, Constance Baker Motley, recalled that when Marshall was the lead attorney in the NAACP's fight to end segregation, he picked himself up in low moments by reading aloud from Harlan's dissent. And he cited it in Brown v. Board of Education, the 1954 case that finally overturned Plessy v. Ferguson. As quoted in Judicial Enigma, a new biography of Harlan, Judge Motley said: "Marshall admired the courage of Harlan more than any justice who has ever sat on the Supreme Court. Even Chief Justice Earl Warren's forthright and moving decision for the court in Brown did not affect Marshall in the same way. Earl Warren was writing for a unanimous Supreme Court. Harlan was a solitary and lonely figure writing for posterity."
"Our constitution is colorblind." It was Marshall's favorite Harlan quotation, and is now so familiar that we take it for granted. But to get to the point of coining it in his great dissent of 1896, John Harlan of Kentucky, one-time slave owner and defender of slavery, had to come a very long way.
That, of course, is the big question about Harlan: How did he get from where he started to where he ended, from defending slavery to defending the rights of the former slaves? His youth and early political career didn't point in that direction. Harlan was born June 1, 1833, at Harlan's Station in Boyle (then southern Mercer) County. The Harlans were a prominent, slaveholding Kentucky family. Harlan county was named for John's great uncle Silas, who died at the Battle of Blue Licks in 1782. His father, James, was a lawyer and politician who served two terms in Congress in the 1830's and later held several public offices in Kentucky, among them secretary of state and attorney general. His mother, Eliza Shannon Davenport Harlan, was the daughter of a Boyle County farmer. She married James Harlan in 1822. John was the sixth of their nine children.
Named for the great U. S. chief justice, John Marshall Harlan was raised to the law. His education was splendid - B. B. Sayre's private academy in Frankfort (Kentucky had no public schools), followed by Centre College in Danville, very near his birthplace, and law school at Transylvania University in Lexington. (Law schools were rare then - most lawyers were trained as apprentices in law offices. When he joined the Supreme Court in 1877, John Harlan was the only law-school graduate among the nine justices then sitting.)
In 1852, the new graduate joined his father's Frankfort law practice, and plunged into politics. His father was a Whig, a close friend and staunch supporter of the great Whig, Henry Clay. As John embarked on his political odyssey, he too was a Whig. But the Whigs didn't last long - the party disintegrated over the slavery question in the early 1850s. It was the first but not the last party to expire on John. By the time he became a Republican in 1868, he had lent his talents to a bevy of parties. Six feet two inches tall, redhaired and handsome, with a powerful voice and speaking style, his skill on the campaign trail won Harlan renown, and elections - county judge of Franklin County in 1858, Kentucky attorney general in 1863. But his party hopping left a bad taste in some mouths. In 1859, the Lexington Statesman acidly observed that Harlan had "accomplished as many somersaults in his brief career as any man in the country." And at that point he still had plenty of political bounce left in him.
But whether he was with the Whigs, whose belief in a strong national government permanently influenced his thinking, or the Know Nothings, whose campaign against foreigners and Catholics he briefly joined, or one of several other parties, Harlan was consistent on one issue: slavery. He defended it vigorously and often, arguing against abolition as a violation of private property rights. At the same time, he was convinced that the Union must be preserved, leading him to enlist on the Union side in the Civil War in 1861. Col. J. M. Harlan commanded a Kentucky regiment that was celebrated for helping rout the forces of Confederate raider John Hunt Morgan in 1862.
Harlan continued to argue that the federal government should not meddle in the slavery question. The Union's goal in taking up arms, he said in a wartime speech, "was not for the purpose of giving freedom to the Negro." He swore he would quit the army if President Lincoln signed the Emancipation Proclamation. When the Proclamation took effect on Jan. 1, 1863, Harlan denounced it as "unconstitutional and null and void." He did not resign over it, although, due to the death of his father, he did leave the army within a few months to care for his family and resume his career in law and politics.
The Emancipation Proclamation did not apply to Kentucky, since the state was not part of the Confederacy. John Harlan owned a few household slaves, and he did not free them until the ratification of the Thirteenth Amendment to the U. S. Constitution forced him to in December 1865. The amendment, he said, was a "flagrant invasion of the right of self-government which deprived the states of the right to make their own policies. He would oppose it," he said, ". . .if there were not a dozen slaves in Kentucky."
Hardly more than two years after this statement, Harlan turned his final and most amazing political somersault: He became a Republican, joining the party of Lincoln, whose policies he had so reviled. It was the party of freedom for black Americans, the party of the Thirteenth Amendment, which ended slavery, and the Fourteenth and Fifteenth Amendments, which extended the rights and privileges of citizenship to the freed slaves. Once a bitter critic of these Reconstruction Amendments, Harlan was suddenly, and willingly, their proponent. In 1871, he said: "I have lived long enough to feel and declare that . . . the most perfect despotism that ever existed on this earth was the institution of African slavery. . . . With slavery it was death or tribute. . . . It knew no compromise, it tolerated no middle course. I rejoice that it is gone." As to his spectacular flip-flop on the issue, Harlan said: "Let it be said that I am right rather than consistent."
Now Harlan was on the way to his great dissent, but why did he take this fork in the road? In Judicial Enigma, his highly praised study of Harlan, Tinsley E. Yarbrough says one reason was simple expediency. To continue his political career, Harlan had to finally join either the Republicans or the Democrats. For several years, he had been a leader of the Conservative Union Party and its short-lived successor, the Union Democratic Party, which occupied a shaky middle ground between the major parties. The Conservative Unionists held the Union sacred, which put them out of step with Kentucky's secessionist-dominated Democrats, and they were against civil rights for the former slaves, which made them anathema to the Republicans. By 1868, this middle ground had collapsed, forcing Harlan to choose a new party. He chose the Republicans. Republicans believed in civil rights for black Americans, and now, whatever his past views, so did John Harlan. He embraced Republican doctrines as readily as he had embraced the doctrines of other parties in the past.
But expediency didn't fully account for his choice. In John Marshall Harlan, The Last Whig Justice, the only other scholarly biography of Harlan, Loren P. Beth suggests that for years Harlan's private racial attitudes had been more liberal than his public statements, which were fueled by "a partisan enthusiasm and the desire to win elections . . . with a resulting split between the private and the public man."
Indeed, there are numerous factors in Harlan's background that might have softened his racial attitudes. Though he owned household slaves, Harlan's father abhorred the brutality of the system. In an incident that became legend in the family, an outraged James once walked up to a whip-wielding slave driver in the streets of Frankfort and called the man "a damned scoundrel." The family hero, Henry Clay, opposed slavery in principle and favored gradual emancipation. So did many of John's teachers at Centre and Transylvania. John's wife Mallie, an Evansville, Indiana, native whom he married in 1856, wrote in a memoir that John had imbibed "a deep dislike of involuntary servitude in any form" from his father and teachers. Mallie's own distaste for slavery also may have influenced his views.
Then there was John's slave half-brother Robert, who was treated to some degree as a member of the family. According to some accounts, James Harlan once tried, unsuccessfully, to send Robert to school along with his other children. Robert lived most of his life in Ohio and did very well, but in the early 1860's he moved to England, mainly to escape the racial climate in this country. He returned only after the deterioration of his stateside investments undermined his English lifestyle, which included a fine house, servants, and deep involvement in thoroughbred racing. Though they maintained only limited contact, John must have known of the obstacles racism had thrown up in Robert's path. That knowledge may have made him more sensitive to racial injustice.
The terrorism that the Ku Klux Klan and similar groups inflicted upon blacks in Kentucky immediately following the war also pushed Harlan toward the Republicans. He was appalled by the arson, beatings, and murders, and the revulsion he felt was reinforced by his friendship with a leading Republican, Benjamin Bristow, who as U. S. Attorney for Kentucky prosecuted the white terrorists with a crusader's zeal.
Harlan took up the cause of Kentucky Republicanism with the same kind of energy. Though he lost in both of his runs for governor, in 1871 and 1875, he is credited with making the party viable in Kentucky politics. In 1876, he helped Rutherford B. Hayes win the Republican presidential nomination. In the spring of 1877, the newly inaugurated Hayes had the chance to fill a Supreme Court vacancy. After his first choice, Harlan's friend Bristow, proved too controversial within the party, the President turned to Harlan.
During his Senate confirmation, critics questioned whether Harlan's Republican beliefs were sincere. Harlan swore they were, and once he joined the Court in December 1877, he no doubt felt a need to prove it. No longer a politician scratching for votes, he was free to do so. His resolve was bolstered by his wife and children, who had embraced his new views on race. And once he began writing dissents that defended the rights of black citizens - Plessy was not the only one - reinforcement poured in. Many blacks expressed appreciation and offered encouragement, including the most visible black leader of the day, Frederick Douglass, with whom Harlan maintained warm relations for more than two decades.
The title "The Great Dissenter" has been applied to a number of justices over the years, but it probably fits John Harlan best. His dissents from the decisions of his colleagues were numerous and, at times, fierce. In private he was quiet, courteous, and good-humored, devoted to his family and the Presbyterian church, revered by his students. But he was a passionate jurist. As he himself once admitted, his deep feelings about a case could show up in his voice and manner as he delivered an opinion from the bench. Newspaper accounts described one of his dissents as an "harangue," during which he pounded the desk and shook his finger under the noses of his fellow justices.
Whatever the manner of their delivery, a number of his dissents are classics. They range over many issues, but it is the dissents in civil rights cases that have won him a place on some modern lists of the court's greatest justices. Plessy v. Ferguson was his masterpiece, but he also registered memorable dissents in 1883, when the Court declared the Civil Rights Act of 1875 unconstitutional, and in 1908, when the Court upheld Kentucky's infamous Day Law, which banned integrated education in private schools. The law was aimed at Berea College, which had been integrated since its opening in 1866. In that dissent, Harlan asked:
"Have we become so inoculated with prejudice of race that an American Government, professedly based on the principles of freedom, and charged with the protection of all citizens alike, can make distinctions between such citizens in the matter of their voluntary meeting for innocent purposes simply because of their respective races?"
While he was ahead of most of his contemporaries on the race issue, John Harlan was still a man of the 19th century. A close reading of the Plessy dissent reveals the complexity of his racial views. In it he asserts the legal equality of blacks, saying there is no dominant class of citizens, yet also predicts that white dominance "in prestige, in achievements, in education, in wealth and in power" will continue "for all time." To Harlan, as Loren Beth put it in his book, "equality was more a constitutional principle than a personal belief." That's why, Beth wrote in a recent letter, Harlan could "continue, even after Plessy, to regard blacks as inferior in some respects. His comments about blacks were frequently paternalistic in tone, and there is little doubt that he did not favor social mixing of races." On rare occasions, reports Tinsley Yarbrough, Harlan let a racial slur or joke slip into his correspondence. As Yarbrough observes, "flawed human beings are responsible for civilization's advances as well as its retrogressions."
John Harlan died on Oct. 14, 1911, ending a Supreme Court tenure of almost 34 years, still one of the longest ever. "Harlan's stand on the Court is remarkable, coming when it did, and against the united opinions of his brethren," writes Beth. "It thus constitutes an enduring legacy." The heart of that legacy is the Plessy dissent, which attracted little attention a century ago because the kind of segregation it protested was already well-established. Since then, however, the dissent has inspired many of those who have worked to make real its vision of a colorblind Constitution. As one of the greatest of them, Thurgood Marshall, realized, it is the Plessy dissent's context as well as its content that make it truly remarkable. Harlan's great dissent was an act of lonely courage. That is surely one of the main sources of its lasting power: It cost him, as enduring legacies usually do.
The Great Dissenter and His Half-Brother
He was known as “the Great Dissenter,” and he was the lone justice to dissent in one of the Supreme Court’s most notorious and damaging opinions, in Plessy v. Ferguson in 1896. In arguing against his colleagues’ approval of the doctrine of “separate but equal,” John Marshall Harlan delivered what would become one of the most cited dissents in the court’s history.
Then again, Harlan was remarkably out of place among his fellow justices. He was the only one to have graduated from law school. On a court packed with what one historian describes as “privileged Northerners,” Harlan was not only a former slave owner, but also a former opponent of the Reconstruction Amendments, which abolished slavery, established due process for all citizens and banned racial discrimination in voting. During a run for governor of his home state of Kentucky, Harlan had defended a Ku Klux Klan member for his alleged role in several lynchings. He acknowledged that he took the case for money and out of his friendship with the accused’s father. He also reasoned that most people in the county did not believe the accused was guilty. “Altogether my position is embarrassing politically,” he wrote at the time, “but I cannot help it.”
One other thing set Harlan apart from his colleagues on the bench: He grew up in a household with a light-skinned, blue-eyed slave who was treated much like a family member. Later, John’s wife would say she was somewhat surprised by “the close sympathy existing between the slaves and their Master or Mistress.” In fact, the slave, Robert Harlan, was believed to be John’s older half-brother. Even John’s father, James Harlan, believed that Robert was his son. Raised and educated in the same home, John and Robert remained close even after their ambitions put thousands of miles between them. Both lives were shaped by the love of their father, a lawyer and politician whom both boys loved in return. And both became extraordinarily successful in starkly separate lives.
Robert Harlan was born in 1816 at the family home in Harrodsburg, Kentucky. With no schools available for black students, he was tutored by two older half-brothers. While he was still in his teens, Robert displayed a taste for business, opening a barbershop in town and then a grocery store in nearby Lexington. He earned a fair amount of cash—enough that on September 18, 1848, he appeared at the Franklin County Courthouse with his father and a $500 bond. At the age of 32, the slave, described as “six feet high yellow big straight black hair Blue Gray eyes a Scar on his right wrist about the size of a dime and Also a small Scar on the upper lip,” was officially freed.
Robert Harlan went west, to California, and amassed a small fortune during the Gold Rush. Some reports had him returning east with more than $90,000 in gold, while others said he’d made a quick killing through gambling. What is known is that he returned east to Cincinnati in 1850 with enough money to invest in real estate, open a photography business, and dabble quite successfully in the race horse business. He married a white woman, and although he was capable of “passing” as white himself, Robert chose to live openly as a Negro. His financial acumen in the ensuing years enabled him to join the Northern black elite, live in Europe for a time, and finally return to the United States to become one of the most important black men in his adopted home state of Ohio. In fact, John’s brother James sometimes went to Robert for financial help, and family letters show that Robert neither requested nor expected anything in return.
By 1870, Robert Harlan caught the attention of the Republican Party after he gave a rousing speech in support of the 15th Amendment, which guarantees the right to vote “regardless of race, color or previous condition of servitude.” He was elected a delegate to the Republican National Convention, and President Chester A. Arthur appointed him a special agent to the U. S. Treasury Department. He continued to work in Ohio, fighting to repeal laws that discriminated on the basis of race, and in 1886 he was elected as a state representative. By any measure, he succeeded in prohibitive circumstances.
John Harlan’s history is a little more complicated. Before the Civil War, he had been a rising star in the Whig Party and then the Know Nothings during the war, he served with the 10th Kentucky Infantry and fought for the Union in the Western theater. But when his father died, in 1863, John was forced to resign and return home to manage the Harlan estate, which included a dozen slaves. Just weeks after his return, he was nominated to become attorney general of Kentucky. Like Robert, John became a Republican, and he was instrumental in the eventual victory of the party’s presidential candidate in 1876, Rutherford B. Hayes. Hayes was quick to show his appreciation by nominating Harlan to the Supreme Court the following year. Harlan’s confirmation was slowed by his past support for discriminatory measures.
Robert and John Harlan remained in contact throughout John’s tenure on the court to 1911, years in which the justices heard many race-based cases, and time and again proved unwilling to interfere with the South’s resistance to civil rights for former slaves. But Harlan, the man who had opposed the Reconstruction Amendments, began to change his views. Time and again, such as when the Court ruled that the Civil Rights Act of 1875 was unconstitutional, Harlan was a vocal dissenter, often pounding on the desk and shaking his finger at his fellow justices in eloquent harangues.
“Have we become so inoculated with prejudice of race,” Harlan asked, when the court upheld a ban on integration in private schools in Kentucky, “that an American Government, professedly based on the principles of freedom, and charged with the protection of all citizens alike, can make distinctions between such citizens in the matter of their voluntary meeting for innocent purposes simply because of their respective races?”
His critics labeled him a “weather vane” and a “chameleon” for his about-faces in instances where he’d once argued that the federal government had no right to interfere with its citizens’ rightfully owned property, be it land or Negroes. But Harlan had an answer for his critics: “I’d rather be right than consistent.”
Wealthy and accomplished, Robert Harlan died in 1897, one year after his brother made his “Great Dissent” in Plessy v. Ferguson. The former slave lived to be 81 years old at a time when the average age expectancy for black men was 32. There were no records of correspondence between the two brothers, only confirmations from their respective children of introductions to each others’ families and acknowledgments that the two brothers had stayed in contact and had become Republican allies throughout the years. In Plessy, the Supreme Court upheld the constitutionality of Louisiana’s right to segregate public railroad cars by race, but what John Harlan wrote in his dissent reached across generations and color lines.
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 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 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. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.
The doctrine of “separate but equal” persisted until 1954, when the court invalidated it in Brown v. Board of Education during that half-century, Jim Crow laws blocked racial justice for generations. But John Harlan’s dissent in Plessy gave Americans hope. One of those Americans was Thurgood Marshall, the lawyer who argued Brown he called it a “bible” and kept it nearby so he could turn to it in uncertain times. “No opinion buoyed Marshall more in his pre-Brown days,” said NAACP attorney Constance Baker Motley.
Books: Loren P. Beth, John Marshall Harlan, the Last Whig Justice, University of Kentucky Press, 1992. Malvina Shanklin Harlan, Some Memories of a Long Life, 1854-1911, (Unpublished, 1915), Harlan Papers, University of Louisville.
By Peter s. Canellos
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The man behind a legal revolution
Written by the award-winning Peter S. Canellos, The Great Dissenter is the definitive biography of an American hero who stood against all the forces of Gilded Age America: Supreme Court Justice John Marshall Harlan.
Almost a century after his death, it was Harlan’s words that helped end segregation, and gave our country civil rights and modern economic freedom. But his legacy would not have been possible without the courage of Robert Harlan, a slave who John’s father raised like a son in the same household.
Spanning from the Civil War to the Civil Rights movement and beyond, this compelling biography of Harlan is also an epic rendering of the American legal system’s greatest failures and most inspiring successes.
Additional Book Details
|Release Date:||June 8, 2021|
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The Great Dissenter: The Story of John Marshall Harlan, America's Judicial Hero
The definitive, sweeping biography of an American hero who stood against all the forces of Gilded Age America to fight for civil rights and economic freedom: Supreme Court Justice John Marshall Harlan.
"Written in lively prose and enriched with colorful character sketches and a firm command of the legal issues involved, this is a masterful introduction to two fascinating figures in American history. " — Publishers Weekly (starred review)
"The riveting story of a courageous Kentucky lawyer who initiated significant challenges to anti–civil rights measures during an era of ubiquitous bigotry. An impressive work of deep research that moves smoothly along biographical as well as legal lines." — Kirkus Review (starred review)
They say that history is written by the victors. But not in the case of the most famous dissenter on the Supreme Court. Almost a century after his death, it was John Marshall Harlan’s words that helped end segregation, and gave us our civil rights and our modern economic freedom.
But his legacy would not have been possible without the courage of Robert Harlan, a slave who John’s father raised like a son in the same household. After the Civil War, Robert emerges as a political leader. With Black people holding power in the Republican Party, it is Robert who helps John land his appointment to the Supreme Court.
At first, John is awed by his fellow justices, but the country is changing. Northern whites are prepared to take away black rights to appease the South. Giant trusts are monopolizing entire industries. Against this onslaught, the Supreme Court seemed all too willing to strip away civil rights and invalidate labor protections. As case after case comes before the court, challenging his core values, John makes a fateful decision: He breaks with his colleagues in fundamental ways, becoming the nation’s prime defender of the rights of Black people, immigrant laborers, and people in distant lands occupied by the United States.
Harlan’s dissents, particularly in Plessy v. Ferguson, were widely read and a source of hope for decades. Thurgood Marshall called Harlan’s Plessy dissent his “Bible”—and his legal roadmap to overturning segregation. In the end, Harlan’s words built the foundations for the legal revolutions of the New Deal and Civil Rights eras.
Spanning from the Civil War to the Civil Rights movement and beyond, The Great Dissenter is an epic rendering of the American legal system’s greatest failures and most inspiring successes.
John Harlan - History
Primary Source Document
Plessy v. Ferguson, 163 U.S. 537 (1896)
In Plessy v. Ferguson the Supreme Court held that the state of Louisiana did not violate the Fourteenth Amendment by establishing and enforcing a policy of racial segregation in its railway system. Justice John Marshall Harlan wrote a memorable dissent to that decision, parts of which are quoted today by both sides of the affirmative action controversy. One statement often quoted by opponents of race-conscious affirmative action programs is Harlan's assertion that the Constitution is "color-blind," which can be found in the excerpts below.
Judge Harlan's dissent
In respect of civil rights, common to all citizens, the Constitution of the United States does not, I think permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. Every true man has pride of race, and under appropriate circumstances which the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper. But I deny that any legislative body or judicial tribunal may have regard to the race of citizens which the civil rights of those citizens are involved. Indeed, such legislation as that here in question is inconsistent not only with that equality of rights which pertains to citizenship, national and state but with the personal liberty enjoyed by everyone within the United States.
It was said in argument that the statute of Louisiana does not discriminate against either race but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Everyone knows that the statues in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travellers. The thing to accomplish was, under the guise of giving equal accommodations for whites and blacks, to compel the latter to keep to themselves while travelling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary. The fundamental objection, therefore, to the statues is that it interferes with the personal freedom of citizens. If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so, and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each.
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 the 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 in 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.
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. It cannot be justified upon any legal grounds
If evils will result from the commingling of the two races upon public highways established for the benefit of all, they will 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 the 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 anyone, nor atone for the wrong this day done.
I do not deems it necessary to review the decisions of state courts to which reference was made in argument. Some, and the most important to them are wholly inapplicable, because rendered prior to the adoption of the last amendments of the Constitution, when colored people had very few rights which the dominant race felt obliged to respect. Others were made at a time when public opinion, in many localities was dominated by the institution of slavery, when it would not have been safe to do justice to the black man and when, so far as the rights of blacks were concerned, race guides in the era introduced by the recent amendments of the supreme law, which established universal freedom, gave citizenship to all born or naturalized in the Untied States and residing here, obliterated the race line from our systems of governments, national and state, and placed our free institutions upon the broad and sure foundation of the equality of all men before the law.
For the reasons state, I am constrained to withhold my assent from the opinion and judgment of the majority.
: Birth: :: Date: 02 JAN 1716 :: Place: Kennet Twp, Chester County, PA : Birth:
:: Date: 02 JAN 1716:: Place: Kennet, Chester, Pennsylvania, USA<ref>Source: #S49 Page: Database online. Data: Text: Record for James Duck Harlan</ref> Found multiple copies of BIRT DATE. Using 02 JAN 1716
: Birth: :: Date: 1716:: Place: Chester, Pennsylvania, USA<ref>Source: #S49 Page: Database online. Data: Text: Record for George Harland</ref>
: Birth: :: Date: 1716:: Place: Kennet Twp, Chester, Pennsylvania, United States<ref>Source: #S49 Page: Database online. Data: Text: Record for George Harlan</ref> Found multiple copies of BIRT DATE. Using 1716
: Husband: John Harlan : Wife: Sarah Wickersham : Marriage: :: Date: 5 APR 1740:: Place: Kennett, Chester, Pennsylvania<ref>Source: #S409 Page:p. 46-48</ref>
: Husband: George Harlan : Child: John Harlan : Child: Rebecca Harlan : Child: Dinah Harlan : Child: Joel Harlan : Child: Michael Harlan : Child: Hannah Harlan : Child: George Harlan : Marriage: :: Date: 1715:: Place: Chester County, Pennsylvania<ref>Source: #S409 Page: p. 46-48</ref>
: Residence: :: Place: Middlesex County, NJ<ref>Source: #S49 Page: Database online. Data: Text: Record for James Duck Harlan</ref>
: Death: :: Date: 04 MAY 1740:: Place: Chester, Pennsylvania, USA<ref>Source: #S49 Page: Database online. Data: Text: Record for George Harland</ref>
: Death: :: Date: 1767:: Place: Chester, Pennsylvania, United States<ref>Source: #S49 Page: Database online. Data: Text: Record for George Harlan</ref> Found multiple copies of DEAT DATE. Using 04 MAY 1740Array
: Death: :: Date: OCT 1787:: Place: Frederick, Frederick, Maryland, USA<ref>Source: #S49 Page: Database online. Data: Text: Record for James Duck Harlan</ref>
: Death: :: Date: BEF 1790 :: Place: Fredrick Co., MD (now Washington Co.) Found multiple copies of DEAT DATE. Using OCT 1787Array
John Marshall Harlan
Historical Marker #1606, located at the Boyle County Courthouse in Danville, commemorates John Marshall Harlan, a Boyle County native, Civil War veteran, and U.S. Supreme Court justice.
Born a few miles west of Danville in 1833, Harlan's family lived there and in Harrodsburg before moving to Frankfort. Harlan graduated from Centre College in 1850, studied law at Transylvania University, and then opened a legal practice in Frankfort. There, he also became the Franklin County judge executive.
When the Civil War erupted, Harlan was a staunch Unionist. He worked to keep Kentucky in the Union and raised the 10th Kentucky (Union) Infantry Regiment, which fought in several battles and skirmishes. In addition, in late 1862, Harlan commanded a brigade while fighting near Hartsville and Rome, Tennessee. In several instances, Harlan chased Confederate raider and Kentucky native John Hunt Morgan. Harlan's military career, however, was cut short when his father died in 1863. Although he was reputedly being considered for promotion to brigadier general, Harlan resigned his commission and returned to Frankfort in order to handle his father's business affairs.
Elected Kentucky attorney general, after the war he twice unsuccessfully ran for governor on the Republican ticket. In 1877, after supporting Rutherford B. Hayes for president, Hayes appointed Harlan to the U.S. Supreme Court. Harlan held that seat until 1911. There, he became known as the "Great Dissenter." His most famous lone dissent was Plessy v. Ferguson in which he argued against the decision to allow "separate but equal" public facilities (including schools) for African Americans. As the historical marker explains, "he authored 1161 opinions, spoke for the Court 745 times and wrote 316 dissents. Harlan was a highly respected jurist because of his individualism, dedication, and courage. He dissented with vigor, often alone, on issues of civil rights, interstate commerce, and income tax. Many of his dissents became the law of the land."
Harlan died in Washington, D.C. in 1911. Today, he is remembered as being one of the great justices of the United States Supreme Court.
John Marshall Harlan (1833-1911)
Born in Boyle Co. and a graduate
of Centre College, 1850, Harlan
practiced law in central Ky. after
1853. Although against Lincoln and
abolition in 1860, he was a strong
Unionist during Civil War recruited
10th Ky. Infantry. Elected Attorney
General of Ky. in 1863. Supported
rebuilding Union and amendments
13-15. Named to Supreme Court by
Pres. Hayes served nearly 34 yrs.
Kentucky's "Great Dissenter"
During Harlan's Supreme Court
tenure he authored 1161 opinions,
spoke for the Court 745 times and
wrote 316 dissents. Harlan was a
highly respected jurist because of
his individualism, dedication and
courage. He dissented with vigor,
often alone, on issues of civil
rights, interstate commerce and
income tax. Many of his dissents
became the law of the land.
Harlan was born on June 1, 1833, in Kentucky into a family of lawyers. His father James Harlan served a US Congressman, Secretary of State, and later as a state legislator. He had a brother named Robert who was mixed-race. Brought up together, Robert had an early influence on Harlan, raising awareness on issues of racism. Harlan enrolled at Centre College before pursuing law at Transylvania University. He practiced under his father and got admitted to Kentucky Bar in 1853.
Harlan got his first job as a military chief administrative officer of the state when he was only 18. Like his father James, he was also a member of the Whig party. But very soon he switched his allegiance to the xenophobic and anti-Catholic Native American Party, despite himself being a devout Christian fundamentalist. After joining the Opposition Party a year later, Harlan played a key role in forming the 10th Kentucky Volunteer Infantry Regiment. He also served as a colonel in the Western Theater of the American Civil War.
In 1863, he became the Attorney General of Kentucky. Five years later he joined the Republican Party. Harlan continued his law practice alongside active politics when he opened a law firm along with fellow Republican John E. Newman. In 1877, President Rutherford B. Hayes for whom Harlan had campaigned in the run-up to the Presidential Election, nominated the latter for the position of associate justice in the Supreme Court.
Harlan served in the Seventh Circuit in Chicago till 1896 before shifting to the Sixth Circuit in Kentucky. However, Harlan was constantly in debts, and to alleviate monetary woes, he started teaching constitutional law at the Columbian Law School.
Harlan came to be known for his dissent against the Civil Rights Cases and the infamous Plessy vs. Ferguson case of 1896. The Supreme Court failed to honour the Reconstruction Amendments when they held the Civil Rights Act of 1875 as unconstitutional. Harlan also dissented, upholding his anti-racial views in prominent cases like Giles v. Harrisand Lochner v. New York.Plessy vs. Ferguson, which is regarded as one of the worst decisions in the history of the American justice system, supported racial segregation regarding the use of public facilities. Harlan was the lone dissenter in the case that was decided by a vote of 7 to 1. Harlan&rsquos harsh critique of the Supreme Court&rsquos decision was much publicized. The maverick justice, however, was against the increasing number of Chinese immigrants in the States as he showed in his dissent in United States v. Wong Kim Ark case.