Prior to joining the Supreme Court, Harlan’s judicial philosophies were modeled after early Federalist ideology. He was a great admirer of James Madison and he also idolized Justice John Marshall. However, it cannot be overlooked that religion also had a major influence in his life. So much so, that during his time on the court his colleague and friend Justice David Brewer once magnificently stated every night Harlan slept “with one hand upon the Bible and the other upon the Constitution."1
Historians and legal scholars often label Harlan as being ‘The Great Dissenter” on the Supreme Court. During the thirty-four years that he served, of the 703 opinions the court handed down he concurred just 100 times while dissenting a total 316.2 Harlan took an absolutist approach when interpreting the Constitution and he often took the unpopular position of defending the rights of former slaves in an effort to end discrimination and racism based heavily on his interpretations of the thirteenth, fourteenth, and fifteenth amendments. In contrast to his fellow justices, he interpreted the new amendments in a different way which frequently resulted in Harlan not concurring with the majority opinion on the high court.
Strangely, it must be noted that Harlan was not always a staunch advocate for African American civil rights and equal opportunity. In fact, his views on slavery resembled what many other notable Republican Party politicians (including President Abraham Lincoln) believed prior to the Civil War which was that slavery should be allowed to exist only in the regions it already existed. However, in the years after the Civil War (where Harlan served as a Union officer), Harlan completely reversed his beliefs about slavery and (even though he was a former slave) embarked on a mission of crusading for social justice and equality for all regardless of skin color.
Unlike the majority of politicians and judges at the time, in the north and south alike, Harlan admitted the errors of his former stance on slavery only six years after the Civil War ended. Exhibiting a great amount of humbleness unprecedented at the time he accepted the fact that African Americans were now equals before the law. An excellent example of his transformation was evident in an 1871 speech he gave as a Republican candidate for governor. He stated, "It is true that almost the entire people of Kentucky, at one period in their history, were opposed to freedom, citizenship and suffrage of the Colored race. It is true that I was at one time in my life opposed to conferring these privileges upon them." Compared to the majority of those in south, Harlan demonstrated he was not resistant to use the power of the federal government and the constitution to improve the lives of former slaves when in his speech he stated he was “thoroughly persuaded that the only mode by which the nation could liberate itself from the conflicts and passions gendered by the war ... was to pass these Constitutional Amendments .... They are irrevocable results of the War." Famously, he closed his speech by stating "let it be said that I am right rather than consistent."3
In the following pages, several landmark Supreme Court cases that were decided when Harlan served will be analyzed. It will be proven the opinions he wrote while on the high court would eventually became the law of the land as the twentieth century passed into the twenty first.
Surprisingly, to this day only one (detailed) biography has been written about Harlan by historian and biographer Loren P. Beth. He claims that the historical legacy of “The Great Dissenter” was based on his personal philosophy which was not shared at the time by other Supreme Court justices. Beth states that two major factors influenced Harlan. First, was his strong belief in that he had a “firm belief in a strong national government with ample powers to carry out the activities assigned to it by the Constitution” Second, was “his great humanitarian heart, which led him to a belief in human dignity and freedom surpassing that held by any other justice of his day ... his heart led him to sound conclusions."4
During the Reconstruction Era, Southern Democrats and Northern Republicans in Congress sought continually to place newly freed slaves in a position of inferiority and keep them as far away as possible from the white population. Unfortunately, they were successful and in doing so they were allowed to continue to affirm their dominance in the form of Harrenvolk Democracy.
While the majority of the Supreme Court
and nation continued to resist racial integration in the late
nineteenth century, Harlan's former Republican beliefs slowly melted
away and, as proven by his dissents in several cases, he now belonged
to a party of his own and danced to the beat of his own drum.
Historian Edward G. White states that Harlan ended up not being
influenced by any forces outside of what he believed to be the right
thing that should be done at the time. White summarizes that while
Harlan was on the court he:
Had no integrated theory of judging,
only his own convictions; he read the imperatives of his office only
as a mandate to dispense his individualized kind of justice.
Ultimately, his jurisprudence resists categorization, except as
result-orientation, and his reputation becomes peculiarly vulnerable
to changes in social attitudes."5
Harlan was a warrior and crusader for social justice on the court. But, he often stood alone and frustrated as he was surrounded by mostly immoral men who (unlike himself) were not insistent on allowing the federal government to use it's obvious powers (as stated in the new amendments) to assist in creating a nation of which all people regardless of race and class would be able to prosper and have equal protection under law. As professors William E. Reed and William C. Berman state, “Harlan's position seems to have been a lonely one: while his civil rights views appealed to the still potent but waning idealism of emancipation, they alienated him from the mainstream of power which had lost interest in the rights of Negroes.”6
Shortly after his death in 1911, Chief
Justice of the Supreme Court Edward Douglas White stated in a tribute
that the justices on the court saw Harlan as:
A justice not resting upon mere
metaphysical conceptions or distinctions of casuistry concerning the
lines of separation between right and wrong, but a justice based upon
what seemed to him to be a common sense of justice, getting an
ever-present and vivid purpose to uphold the right and to frustrate
the wrong and ever to see to it that the weak were not overmastered
by the strong.7
Yet, with the majority of justices often leaving Harlan alone in his dissents, it raises a perplexing question. By admitting Harlan was a true defender of justice who stood on the right side of the law, would not one then argue that those opposed to him were on the wrong side of the law?
In the following pages, it will be shown that even though Harlan was often in the minority when dissenting, time has redeemed and vindicated the man as his dissenting opinions he wrote at the time were, in hindsight, been proven throughout the twentieth century to be prophetic in nature and eventually the accepted judicial norms. Additionally, his dissents are also relevant as the twenty-first century continues to pass. Harlan was a judicial prophet, and his place in history has gone seriously unappreciated (as previously indicated that only one biography has been written).
His dissents eventually became the precedence of which, when implemented in the high court, liberty and justice for all can apply to all peoples regardless of race, gender, and creed. Harlan, we shall see, deserves the designation of not only being “The Great Dissenter” but also “The Great Prophet.” For example, in the 1938 case United States v. Carolene Products “footnote four” was written which set the precedent for the court to use strict scrutiny in deciding cases where discrimination against minorities could result.
Harlan's dissenting opinions he
authored in Plessy v. Ferguson and the Civil Rights cases are herald
by most scholar being his most popular. Plessy, in particular is easy
to remember because in 1954, when Brown v. Board of Education was
decided, Harlan was ultimately proven to be in the right instead of
wrong. When comparing the wording of Harlan's dissents in Plessy with
Brown it is easy for one to come to the conclusion that when it was
effectively ruled that separate was no longer equal, Justice Earl
Warren he could have simply informed “refer to Justice Harlan's
dissents in Plessy!” There, Harlan scribed the words which would be
significant throughout the entire history of the Supreme Court and
entire nation when he said:
Our Constitution is color-blind, and
neither knows nor tolerates classes among citizens. In respect of
civil rights, all citizens are equal before the law. The humblest is
the peer of the most powerful. The law regards man as man, and takes
no account of his surroundings or of his color when his civil rights
as guaranteed by the supreme law of the land are involved.8
Harlan also added in regards to
separate being considered equal that:
Such a system is inconsistent with the
guarantee given by the Constitution to each State of a republican
form of government, and may be stricken down by Congressional action,
or by the courts in the discharge of their solemn duty to main the
supreme law of the land, anything in the Constitution or laws of any
State to the contrary notwithstanding.9
Prior to the Plessy case, Harlan's personal philosophies and beliefs were also demonstrated in his dissents issued in the 1883 Civil Rights cases. Harlan’s realistic and absolutist beliefs are shown when in regards to his interpretation of the Fourteenth Amendment he stated that it “simply declares, in effect, that since the nation has established universal freedom in this country, for all time, there shall be no discrimination, based merely upon race or color.” The injustice and revulsion he had to the majorities decision was also revealed when he stated that “discrimination practiced by corporations or individuals .. is a badge of servitude the imposition of which Congress may prevent under its power, by appropriate legislation, to enforce the thirteenth and fourteenth amendments.”10
Harlan saw segregation for what it really was and that was racism and discrimination of the Negro race that (according his interpretation of the Thirteenth and Fourteenth Amendments) was just another form of slavery. It is not difficult to imagine the level of frustration that Harlan must have felt when writing his dissents. When Harlan argued for equal rights and protection of minorities under federal law, other justices and politicians either misunderstood or intentionally failed to respect their rights and listen to his opinion.
As industrialization spread throughout the nation in the late decades of the nineteenth and early twentieth century, Harlan realized he was fighting a losing battle against menacing forces which would make his crusade for civil rights futile. Harlan's judicial opinions in his later years on the court then turned towards attacking monopolies and giant corporations. He realized that corporations, if left unregulated by state and/or federal governments, would only lead to a massive inequality of wealth with the vast majority of people (regardless of race) financially at the mercy of wealthy elites. For example, in 1911, shortly before Harlan passed away, he wrote his last dissent in the case Standard Oil Company of New Jersey v. United States. There, he stated:
The Nation had been rid of human
slavery – fortunately, as all now feel – 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.”11
While Harlan is often known throughout history as being exact on his predictions about how race relations would transform throughout the twentieth century, it should not be overlooked that his predictions about wealth centralization were not only as accurate but perhaps even more accurate. Currently, in the second decade of the twenty-first century, the wealth gap between the rich and poor is greater than it was during the early twentieth century. While race relations and equal opportunity in our present times are certainly far better now compared to decades prior, the lessons to be learned from Harlan’s dissents in the following cases are perhaps even more significant today than many realize.
For instance, in the 1895 case United
States v. EC Knight, it was determined that any action taken against
manufacturing monopolies would need to be taken by individual states
and not the federal government. Harlan was the only one to dissent
and he wrote:
In my judgment, the general government
is not placed by the Constitution in such a condition of helplessness
that it must fold its arms and remain inactive while capital
combines, under the name of a corporation, to destroy competition,
not in one State only, but throughout the entire country, in the
buying and selling of articles – especially the necessaries of life
– that go into commerce among the States.12
The authority of the federal government to prevent private wealth from getting too isolated into the hands of a few back then (but even more so today) left the government nearly powerless in lowering the nation’s debt. In recent years, rather than put the will of the people and good of the country ahead of uncontrolled corporate profit, raising taxes (which would increase government revenue and lower the nation’s debt) on the wealthy have been unanimously and successfully blocked by Republican Party politicians.
Harlan predicted this scenario occurring only a century ago and this led him to believe that in times of national turmoil (such as a war) states’ taxing rights as well as rich elites needed to yield power to the taxing authority to the federal government. He believed that for the good of the nation as a whole a federal income tax would be needed to keep the nation financially strong. This warning, which often can go overlooked and take a backseat to Harlan’s civil rights dissents stands as a prophetic warning that wealth centralized into the few could prevent the federal government from being economically strong during times national emergencies.
The warnings that Harlan made all the way back in 1895 have been proven to be highly applicable to the welfare of the nation’s government. For example, in the 1895 case Pollock v. Farmers' Loan and Trust Company, Harlan stated, “I cannot assent to an interpretation of the Constitution that impairs and cripples the just powers of the National Government in the essential matter of taxation.” He found that his colleagues ruling otherwise were “inconsistent with the fundamental principles of our social organization” and the American people “ought not be subjected to the domination of aggregated wealth any more than the property of the country should be at the mercy of the lawless.”13 Here, we see Harlan's religious beliefs and sense of justice perfectly demonstrated as he continually stood up for those unfortunate while sticking to absolutist and federalist judicial beliefs.
Nine years later, the 1904 case Northern Securities Company v. United States, thankfully the court began to constitutionally legitimize the ability of individual state as well as the powers of the federal to support new laws enacted by President Theodore Roosevelt's “trust busting” attempts. Harlan, in one of the rare instances that spoke for the majority, handed down the ruling in the case. Here, a glimpse of what was to come in the future is noticeable as Harlan’s judicial philosophy slowly but surely became shared across the high court. Harlan stated that the court ruled that private businesses unfairly “seek shelter behind the reserved rights of the States and even behind the constitutional guarantees of liberty of contract … (but) that does not imply liberty in a corporation or individuals to defy the national will, when legally expressed.”14
In the Northern Securities Case, Harlan prophesized that unregulated corporate power only creates a state of financial inequality that (in time) has proven too often to negatively affect the majority of the population. As Professor of law Edward G. White states in regards to Harlan’s predictions coming true, “for Harlan federal anti-trust legislation was intended to insure that the weak were not mastered by the strong, which for him was an essential part of doing justice.”15 Additionally, White realizes that Harlan knew that “a federal income tax, whose effect was to place the costs of national economic growth on those who could most easily bear them was compatible with view, shows that he knew the future was going to require a strong national government. Invalidation of that tax by the court he considered disastrous.”16 Harlan would be proven right in his assumptions decades later when a federal income tax was finally enacted which would prove essential after the U.S. entered WWII and after became a global super power.
White also acknowledges that during the late 1930s and 1960s Harlan’s dissents eventually became the law of the land as “once a maverick, Harlan has become a visionary prophet.” He also states “one generation's eccentric has become another's visionary"17
Presently there is far too little gives credit and importance to exactly how accurate the predictions contained in Harlan's dissents were at the time which a century later have been proven accurate and true. As far back as 1955, Beth provided perhaps one of the greatest statements which stand as a testament to the prophetic mind that Harlan had while serving in the Supreme Court. Beth wrote:
The foregoing survey of Justice Harlan's major dissents furnishes a striking illustration of the usefulness of the dissenting opinion in Supreme Court practice. The dissenting opinion provides an argument opposing that of the majority which may be seized upon by lawyers and urged in succeeding cases with some hope of success. It calls attention to defects in the position of the majority forcing are thinking and perhaps strengthening of that position. It further calls the majority to the bar of public opinion and enlightened legal opinion. The rather dramatic nature of the dissenting opinions of Justice Harlan is reinforced by the fact that many of them were single dissents. Never, perhaps, has one judicial dissenter had such success in forecasting the future course of constitutional law.18
Nothing could be further from the
Berman, William C. and Read, William E.
“Papers of the First Justice Harlan at the University of
Louisville.” The American Journal of Legal History 11, no. 1
Beth, Loren P. “Justice Harlan and the Uses of Dissent.” The American Political Science Review 9, no. 2 (1955): 1085-1104.
Kutler, Stanley I, ed. The Supreme Court and the Constitution: Readings in American Constitutional History. 3rd ed. New York: W.W. Norton & Company, 1998.
Liu, Goodwin. “The First Justice Harlan.” California Law Review 96, no. 5 (2008): 1383-1393.
O'Brien, Molly Townes. “Justice John Marshall Harlan as Prophet: The Plessy Dissenter's Color- Blind Constitution.” William & Mary Bill of Rights Journal 6, no. 3 (1998): 753-775.
Porter, Maria Cornelia Aldis. “John Marshall Harlan the Elder & Federal Common Law: A Lesson from History.” The Supreme Court Review (1972): 103-134.
White, Edward D. “A Tribute to Mr. Justice Harlan.” The North American Review 195, no. 676 (1912): 289-292.
White, Edward G. “John Marshall Harlan I: The Precursor.” The American Journal of Legal History 19, no. 1 (1975): 1-21.
J. Abraham, “John Marshall Harlan: A Justice Neglected,”
Virginia Law Review 41, no. 7 (1955): 875.
3Goodwin Liu, “The First Justice Harlan,” California Law Review 96, no. 5 (2008): 1388-1389.
4Loren P. Beth, “Justice Harlan and the Uses of Dissent,” The American Political Science Review 49, no. 2 (1955): 1104.
5Edward G. White, “John Marshall Harlan I: The Precursor,” The American Journal of Legal History 19, no 1 (1975): 21.
6William C. Berman and William E. Read, “Papers of the First Justice Harlan at the University of Louisville,” The American Journal of Legal History 11, no. 1 (1967): 67.
7Edward Douglas White, “A Tribute to Mr. Justice Harlan,” The North American Review 195, no. 676 (1912): 290-291.
8Stanley I. Kutler, ed., The Supreme Court and the Constitution: Readings in American Constitutional History, 3rd ed. (New York: W.W. Norton & Company, 1998), 220.
15Edward G. White, 10.
16Edward G. White, 13.
17Edward G. White, 21.