Erik Visits an American Grave, Part 1,033

This is the grave of John Marshall Harlan.

Born in 1833 in Boyle County, Kentucky, Harlan grew up as a member of the slaveholding elite. His father was a huge slaver and leading Whig in the state, one of Henry Clay‘s most important allies in the state and a member of Congress for a time. In fact, the boy was named after the Supreme Court justice John Marshall. Like many if not most slavers, his father routinely raped his slaves and had at least one son by a slave. What made him different is that he actually raised the boy not that differently than his other sons, so the kid was almost a real brother to John Marshall Harlan. In fact, he later made a lot of money in the California gold rush. I wouldn’t necessarily mention this normally but Harlan’s major contribution to American life requires this context of growing up where a Black person was seen as, if not equal, at least a person.

Harlan went to school in Frankfort and then went to Centre College. He studied for the law at Transylvania College in 1850 and was admitted to the bar in 1853. Even before he graduated, in 1851, he was named adjutant general of the state by the Whig governor. With the Whigs collapsing, Harlan became a Know-Nothing, not because he was anti-Catholic but because they held the same politics around development as the Whigs and he could not become a Republican due to that party’s opposition to slavery expansion. During the lead-up to the Civil War, he took the positions of so many Kentucky Whigs and supported John Bell‘s Constitutional Union Party, criticizing both Republican anti-slavery and southern fireeaters. But this attempting to ride the fence was impossible after South Carolina seceded. And Harlan in the end was a Unionist. So while not a supporter of Lincoln, Harlan recruited a company of troops that became the Kentucky 10th Infantry. He was a colonel in that outfit and remained in the military in 1863, when his father died. At that point, he resigned and took over the family property, which still included slaves.

Harlan was still a slaver at heart. He strongly disliked Lincoln, opposed the Emancipation Proclamation, and thought the Thirteenth Amendment was an outrageous violation of states’ rights. He supported George McClellan‘s 1864 Democratic presidential candidacy over Lincoln. But when the war ended, he refused to join the Democratic Party because for him it was the party of treason. So he reluctantly became a Republican and then just ran with it. He was a big supporter of Grant‘s campaign in 1868. He even became a moderate supporter of Reconstruction, though he opposed the Civil Rights Act of 1875 as having gone too far. He couldn’t get elected in Kentucky as a Republican, as the state had committed its fealty to the Confederacy in 1866. He ran as the Republican nominee in 1871 and 1875 and was blown out both times. Meanwhile, he focused on his law practice, got rich, and was a leading figure in the postwar development of his home state. In this, he continued the Whig tradition of Clay, no matter what party he might support.

In 1876, Harlan was a key player in getting Rutherford B. Hayes the Republican presidential nomination. As was usual in these times, political conventions were a real battle between different factions and led to minor compromise candidates being puked up. That was certainly the case that year. Harlan pushed hard to have his Kentucky friend and law partner Benjamin Bristow placed for nomination. But he was more committed to not letting James Blaine get the nomination. So when Bristow had no shot, he pulled the Kentucky delegation’s support and gave it to Hayes.

Hayes was no great president. But he did know how to pay off his political allies. In 1877, David Davis left the Court to join the Senate. So Hayes immediately had a vacancy. The South was still pissed about Hayes being president. So he wanted to throw a sop to them and name a southerner. It was Harlan, despite his lack of experience on the national stage. Thus, we had the unusual situation of a Republican naming a former slaveholder to the Supreme Court a mere 12 years after the end of the Civil War. The Stalwarts were not happy, but, again, Hayes knew how to pay a political debt.

Harlan almost didn’t stick with the Court. He didn’t really that have that much money. As a lawyer, he could make money but private practice was out due to his Court service. Of course, the family investment in human property was stripped back in 1865 without compensation. Harlan had three sons and he had every intention of sending them to the best colleges. So he almost quit to make money. But instead, he taught law on the side.

During these years, the Supreme Court, like the Republican Party generally, was sprinting to the right, now ignoring the needs of the ex-slaves, completely indifferent to other racial minorities, and outright hostile to labor unions or any government regulation of the economy. And yet…it was the former slaveholder who saw that laws to protect Black Americans were constitutional. Simply put, he believed the Civil War and then the Reconstruction Amendments changed the relationship between the federal government and the states. His colleagues, many of whom were one-time abolitionists, did not. So Harlan became a major dissenter in case after case on Black rights. He was the only dissenters in the loathsome 1883 Civil Rights Cases, where Republicans truly demonstrated they no longer cared about Black people. Now, don’t get it wrong–Harlan was no racial egalitarian. He’s not your hero. Don’t get a tattoo to go along with your RBG tat. He was a guy who was pretty racist. He just thought the law protected Black people, a least a little. This now put him on the left-wing of white Republicans, even as he was barely a Republican. For example, he might have been the single good justice on the Civil Rights Cases, but he totally went with the majority in the unanimous Pace v. Alabama, which ruled that anti-miscegenation laws were constitutional.

Harlan also was better than your average justice on the economic questions of the time. The Fuller Court was of course absolutely awful on these issues, a complete travesty of anything looking like justice. So to be fair, this was a low bar. As a firm believer in a strong central government, and really the last Clay supporter in power, he was for the principle of federal regulation. He was very angry in the 5-4 decision in Pollock v. Farmers Loan & Trust that overthrew the federal income tax. He was the only dissenter in U.S. v. E.C. Knight Co., when the Court basically destroyed the government’s antitrust power based on its pro-corporate principles. Sometimes, he was in the majority of these cases, such as in Northern Securities v. U.S., which ruled that the Sherman Anti-Trust Act could be used to break up a corporation. But that doesn’t mean he was pro-labor. He wrote the majority opinion in Adair v. U.S., which ruled that Congress couldn’t ban yellow-dog contracts, which made not joining a union a condition of employment. On the other hand, he dissented in Lochner. In short, he was an economic nationalist who realized that an active federal government was necessary to implement that vision. He wasn’t always consistent in this, but he was still a far sight ahead of most of the Republican elites on these issues.

And then there’s Plessy. The slaveholder was the only dissenter in the 8-1 decision to rule separate but equal segregation constitutional. The man was no anti-racist. After Plessy was decided, he was fine with the follow-up Cumming v. Richmond County Board of Education that ruled that if under separate but equal there was no accommodations for Black Americans. After all, the decision was made. He was also extremely anti-Chinese and wanted to ban American born Chinese from citizenship, as he stated in the dissent to U.S. v. Wong Kim Ark. In case, you weren’t clear how he felt, his dissent stated, “There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States…. I allude to the Chinese race.” Ah. Thanks for clearing that one up John.

Now, imperialism was a complicated issue. Anti-imperialism beliefs took a variety of forms. So you could be totally racist and be anti-imperialist. Such was John Marshall Harlan. He routinely issued opinions that gave full rights to the people of the territories conquered by the United States in 1898, which was the sort of thing that gave Americans–whose racism was more exclusive than that of Europe–pause about this whole imperialist project. Basically, Harlan believed that colonialism undermined the American republican project.

Harlan remained a highly active judge to the point of his death in 1911. By all accounts, he really liked being on the Supreme Court, even given how often he was in the minority. But when he did die, he left so little money for his family that the rest of the Court had to take up a fundraiser for his widow. He was 78 years old when he died. His grandson, named after him, would later serve on the Court from 1955-71.

John Marshall Harlan is buried in Rock Creek Cemetery, Washington, D.C.

If you would like this series to visit other Supreme Court justices of the Gilded Age, you can donate to cover the required expenses here. David Brewer is in Leavenworth, Kansas and Henry Brown is in Detroit. Previous posts in this series are archived here.