John Marshall Harlan
John Marshall Harlan was an American lawyer and politician who served as an associate justice of the Supreme Court of the United States from 1877 until his death in 1911. He is often called "The Great Dissenter" due to his many dissents in cases that restricted civil liberties, including the Civil Rights Cases, Plessy v. Ferguson, and Giles v. Harris. Many of Harlan's views expressed in his notable dissents would become the official view of the Supreme Court starting from the 1950s Warren Court and onward.
Born into a prominent, slave-holding family near Danville, Kentucky, Harlan experienced a quick rise to political prominence. When the American Civil War broke out, Harlan strongly supported the Union and recruited the 10th Kentucky Infantry. Despite his opposition to the Emancipation Proclamation, he served in the war until 1863, when he was elected attorney general of Kentucky. Harlan lost his re-election bid in 1867 and joined the Republican Party in the following year, quickly emerging as the leader of the Kentucky Republican Party. In 1877, President Rutherford B. Hayes appointed Harlan to the Supreme Court.
Harlan's jurisprudence was marked by his life-long belief in a strong national government, his sympathy for the economically disadvantaged, and his view that the Reconstruction Amendments had fundamentally transformed the relationship between the federal government and the state governments. He was the sole dissenter in both the Civil Rights Cases and Plessy v. Ferguson, which permitted state and private actors to engage in ethnic segregation. He also wrote dissents in major cases such as Pollock v. Farmers' Loan & Trust Co. that struck down a federal income tax, United States v. E. C. Knight Co. that severely limited the power of the federal government to pursue antitrust actions, Lochner v. New York that invalidated a state law setting maximum working hours on the basis of substantive due process; and Standard Oil Co. of New Jersey v. United States that established the rule of reason. He was the first Supreme Court justice to advocate the incorporation of the Bill of Rights, and his majority opinion in Chicago, Burlington & Quincy Railroad Co. v. City of Chicago incorporated the Takings Clause.
Harlan was largely forgotten in the decades after his death, but many scholars now consider him to be one of the greatest Supreme Court justices of his era. His grandson John Marshall Harlan II later served on the Supreme Court from 1955 to 1971.
Early life and education
Harlan was born in 1833 at Harlan's Station, 5 miles west of Danville, Kentucky, on Salt River Road. He was born into a prominent slaveholding family whose earliest members had settled in the region in 1779. Harlan's father was James Harlan, a lawyer and prominent Whig politician who represented Kentucky in the United States House of Representatives and served as Secretary of State of Kentucky. Harlan's mother, Elizabeth, née Davenport, was the daughter of a pioneer from Virginia. Harlan grew up on the family estate near Frankfort, Kentucky. He was named after Chief Justice of the United States John Marshall, whom his father admired. The first ancestor of the Harlan family was George Harlan, an Englishman who arrived to the American Colony of Pennsylvania in the 1600s.John had several older brothers, including a mixed-race half-brother, Robert James Harlan, born in 1816 into slavery, and whom his father raised in his own household and had tutored by Richard and James Harlan, two of John Marshall Harlan's older brothers. According to historian Allyson Hobbs, Robert became highly successful, making a fortune in the California Gold Rush before returning east and settling in Cincinnati, Ohio. He "remained close to the other Harlans"; she suggests this might have influenced his half-brother John Marshall Harlan, "who argued on behalf of equal rights under the law in Plessy v. Ferguson."
After attending school in Frankfort, John Harlan enrolled at Centre College. He was a member of Beta Theta Pi and graduated with honors. Though his mother wanted Harlan to become a merchant, James insisted that his son follow him into the legal profession, and Harlan joined his father's law practice in 1852. While James Harlan could have trained his son in the office, as was the norm of "reading the law" in that era, he sent John to attend law school at Transylvania University in 1850, where George Robertson and Thomas Alexander Marshall were among his instructors. Harlan finished his legal education in his father's law office and was admitted to the Kentucky Bar in 1853.
Politician and lawyer
Rise: 1851–1861
A member of the Whig Party like his father, Harlan got an early start in politics when, in 1851, he was offered the post of adjutant general of the state by governor John L. Helm. He served in the post for the next eight years, which gave him a statewide presence and familiarity with many of Kentucky's leading political figures. With the Whig Party's dissolution in the early 1850s, Harlan shifted his affiliation to the Know Nothings, despite his discomfort with their opposition to Catholicism. Harlan's personal popularity within the state was such that he was able to survive the decline of the Know Nothing movement in the late 1850s, winning election in 1858 as the county judge for Franklin County, Kentucky. The following year, he renounced his allegiance to the Know Nothings and joined the state's Opposition Party, serving as their candidate in an unsuccessful attempt to defeat Democrat William E. Simms for the seat in Kentucky's 8th congressional district.Throughout the 1850s, Harlan criticized both abolitionists and pro-slavery radicals. Like many other anti-secession Southerners, he supported the Constitutional Union ticket of John Bell and Edward Everett in the 1860 presidential election. Harlan agreed to serve as a presidential elector for Bell, and he delivered speeches on behalf of the party throughout Kentucky during the campaign. In the secession crisis that followed Republican candidate Abraham Lincoln's victory in the 1860 election, Harlan sought to prevent Kentucky from seceding.
Military Service: 1861–1863
When the Civil War erupted in April 1861, John Marshall Harlan was a staunch Unionist who worked tirelessly to keep Kentucky in the Union, writing several pro-Union editorials and representing the Union in state court. On August 13, 1861, After the state legislature voted to expel all Confederate forces from Kentucky, Harlan recruited and was elected captain of the newly organized Crittenden Union Zouaves, a militia unit formed to support the Union cause. By October 4, 1861, Harlan and his command were officially enrolled into the Union Army. Soon after, on October 20, 1861, he was mustered in as Colonel of the 10th Kentucky Volunteer Infantry Regiment in Lebanon, Kentucky, for a three-year term.In September 1861, Harlan played a key role in the defense of Lebanon Junction, Kentucky, a vital transportation hub. Under General William T. Sherman, Harlan's unit worked to secure ammunition and defend strategic railroad bridges. In one notable incident, Harlan personally led efforts to transport supplies across the Rolling Fork River after Confederate forces burned the bridge, earning commendation for his resourcefulness and determination.
The 10th Kentucky Infantry soon became part of General George H. Thomas’s division. On January 19, 1862, Harlan fought at the Battle of Mill Springs, a significant Union victory that disrupted Confederate operations in Kentucky. In April 1862, his regiment participated in the Siege of Corinth, Mississippi, following the Union victory at the Battle of Shiloh.
Harlan’s most notable engagement came on December 29, 1862, during a skirmish with Confederate cavalry commander John Hunt Morgan at the Rolling Fork River Bridge, known as "Morgan's Christmas Raid." After marching his forces from Munfordville to Elizabethtown, Harlan led his troops to defend the bridge, engaging Morgan’s forces with cannon and rifle fire. This skirmish successfully disrupted Morgan’s attempt to destroy critical railroad bridges, preserving vital Union supply lines. In his official report, Harlan claimed that his command "saved the Rolling Fork Bridge and most probably prevented any attempt to destroy the bridge at Shepherdsville," safeguarding property essential to Union operations in the Western Theater.
Throughout his military service, Harlan publicly argued that the Union's goal in taking up arms was to preserve the Union rather than abolish slavery. In a wartime speech, he asserted that the war "was not for the purpose of giving freedom to the Negro." Harlan vowed to resign if President Lincoln signed the Emancipation Proclamation, which he denounced as "unconstitutional and null and void" when it took effect on January 1, 1863. However, contrary to public perception, Harlan did not resign over the proclamation.
Harlan's resignation came after the sudden death of his father on March 6, 1863, prompting him to leave the army to care for his family and resume his legal and political career. He formally resigned his commission on March 17, 1863. In his resignation letter, Harlan expressed his regret at leaving the army and reaffirmed his dedication to the Union cause, writing:
“It was my fixed purpose to remain in the Federal army until it had effectually suppressed the existing armed rebellion and restored the authority of the national government over every part of the nation.... That cause will always have the warmest sympathies of my heart, for there are no conditions upon which I will consent to a dissolution of the Union."Harlan's time in the army was not without moments of controversy and complexity. In the fall of 1861, during an encounter near Elizabethtown, Harlan and his unit came across Confederate General Basil Duke, who was traveling incognito in civilian clothes to visit his wife in Lexington. Despite being recognized by Harlan, Duke was allowed to escape when Harlan discreetly pressed his foot on the brake of the handcar carrying Union soldiers, preventing them from stopping to apprehend Duke. Harlan later explained that he believed Duke was merely on his way to visit his wife and was not acting as a spy.