Among the Justices of the Supreme Court, few have provoked more diverse reactions from colleagues, contemporaries, and later generations than the first Justice John Marshall Harlan. Despite a distinguished tenure of over thirty-three years (1877?1911), during which he participated in many cases of constitutional significance and established himself as one of the most productive, independent, and voluble members of the Court, both jurists and historians were inclined to hold Harlan in low esteem from his death in 1911 to the middle of the twentieth century. But two signal events in 1954?the Court's implicit adoption of Harlan's famous solitary dissent in PLESSY V. FERGUSON (1896) in its decision of the public school SEGREGATION cases, BROWN V. BOARD OF EDUCATION and BOLLING V. SHARPE, and President DWIGHT D. EISENHOWER'S appointment of his distinguished grandson and namesake to the highest bench?prompted historians to reevaluate the first Justice Harlan. No longer belittled and neglected, Harlan now began to be recast as a great dissenter who had foretold many of the most fundamental developments in later constitutional interpretation: the virtually complete INCORPORATION of the BILL OF RIGHTS into the FOURTEENTH AMENDMENT; the inherent inequality of racial segregation; and the plenary power of Congress under the COMMERCE CLAUSE. How can one account for the wide disparity between the traditional and revisionist interpretations of Mr. Justice Harlan?
Harlan was born in 1833 in Kentucky, the son of a two-term WHIG member of the United States House of Representatives. A stern Presbyterian, young Harlan grew up during the worsening estrangement of the South and the Union. Kentucky, as a border state, was sharply divided. Harlan was graduated from Centre College, and, at twenty, completed his law courses at Transylvania University and was admitted to the Kentucky bar.
Harlan participated actively as a moderate in the political struggles that racked the country on the eve of the CIVIL WAR. In 1859 he ran for Congress, but was narrowly defeated. A traditional southern gentleman and conservative, he refused to join the Republican party or to support ABRAHAM LINCOLN'S 1860 campaign. He supported the Constitutional Union party which sought the peaceful preservation of the status quo.
After the attack on Fort Sumter, Kentucky declined to furnish troops. Harlan volunteered to fight on the northern side and, in the fall of 1861, organized the Tenth Kentucky Volunteer Infantry. Harlan rose rapidly to the rank of colonel and served as acting commander of a brigade until he resigned his military commission in 1863 upon the death of his father.
Shortly after returning to civilian life, Harlan campaigned for the Constitutional Union party and was elected attorney general of Kentucky, a post he held until 1867. Harlan stumped for General George McClellan in the presidential election of 1864, bitterly criticizing the Lincoln administration. He opposed the THIRTEENTH AMENDMENT and continued to hold slaves until forced to free them.
In 1867, however, Harlan changed his party affiliation, becoming the unsuccessful Republican gubernatorial candidate. As a southern slaveholder and Whig he had long sought to support both SLAVERY and a strong national government?a position that grew increasingly difficult in the political environment of antebellum Kentucky, where supporters of slavery based their political programs on opposition to the federal government. In the end Harlan resolved his dilemma in favor of the national government. Contending that he would rather be right than consistent, Harlan publicly repudiated his views favoring slavery and defended the civil war amendments as necessary to the reconstruction of the Union. A second try for the Kentucky governorship in 1871 also ended in failure.
At the national level, Harlan supported ULYSSES S. GRANT in the presidential election of 1868 and had attained sufficient prominence by 1872 to have been proposed as a vice-presidential candidate. Four years later Harlan led the Kentucky delegation to the Republican convention. When it became apparent that his friend, Benjamin Bristow, could not win, Harlan threw the Kentucky delegation's support to RUTHERFORD B. HAYES, enabling Hayes narrowly to defeat James G. Blaine and obtain the nomination.
On October 16, 1877, President Hayes nominated Harlan to the Supreme Court, an appointment that was widely regarded as a payment for political services rendered. Until five days before his death on October 15, 1911, for almost thirty-four years, Harlan served on the Court. With the exception of JOHN MARSHALL and JOSEPH STORY, none of its members up to that time had taken part in so many decisions that ultimately so crucially affected the future of American constitutionalism.
Harlan served on the Supreme Court during a period of rapid social and economic change. Although the era of RECONSTRUCTION had passed, the effect of the postwar amendments on the federal system remained a topic of bitter constitutional dispute. The Court was also increasingly obliged to rule on constitutional challenges to the validity...