Centrepiece Online | Fall 2011

“Our Constitution Is Color-Blind”

The Enduring Legacy of John Marshall Harlan-1850

The centennial of John Marshall Harlan-1850’s death on Oct. 14 is an occasion to remember his extraordinary life. Named for an influential Supreme Court chief justice, Harlan would eventually join the original John Marshall on a list of the 12 greatest Supreme Court justices of all time.

He made his reputation by standing at odds with his brethren on the court, particularly as they repeatedly picked apart civil rights laws passed during Reconstruction.

How did a Kentuckian who had once owned slaves and had called Lincoln’s Emancipation Proclamation “unconstitutional and null and void,” become the protector of those the Supreme Court and Southern states so enthusiastically sought to disenfranchise?

One biographer calls him an “enigma.” Another notes how appalled he was at the white terrorism that ran riot through Kentucky after the Civil War. Perhaps Harlan himself explained it best.

“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,” he said in 1871. “I rejoice that it is gone . . . Let it be said that I am right rather than consistent.”

John Harlan was born in 1833 in what is now Boyle County, Ky., the sixth of nine children. He enrolled at Centre as a junior, following three older brothers (William L. Harlan-1845, Henry Clay Harlan, who did not graduate, and James Harlan-1850). Reflecting on his Centre years nearly four decades later, Harlan recalled that his alma mater had been “a power for good, not only in Kentucky, but throughout the West and South,” and he appreciated that it was still educating “sound scholars and worthy citizens.”

Although his mother had arranged for him to work for a distant relative in Philadelphia after graduation, his lawyer father insisted that he “had not named [his son] ‘John Marshall’ . . . only to have him spend his life in the counting room of a mercantile house.”

So off young Harlan went to earn a law degree at Transylvania. He practiced his profession with his father and brothers in Frankfort, was a county judge for a year (his only previous judicial experience before joining the Supreme Court), served as Kentucky attorney general, and made unsuccessful runs for Congress and governor (twice).

A tall man—six foot two—with red hair, a commanding presence, and a remarkable work ethic, he was devoted to his wife, Malvina, their six children, and the Presbyterian Church. He enjoyed golf and baseball, playing both into his 70s.

Harlan had joined the Union Army during the Civil War, rising to the rank of colonel with the 10th Kentucky Infantry. But although he raised 800 men to fight for the Union, it was because he wanted to keep the country together, not because he believed in emancipation. He did not free his own slaves until the law required it.

In 1877, President Rutherford B. Hayes appointed him to the Supreme Court. At the age of 44, Harlan began the career through which he would leave his enduring mark on the nation. (Many years later his grandson and namesake would also serve on the Supreme Court.)

Over the course of nearly 34 years on the high court bench, Harlan wrote 703 majority opinions. But he earned his nickname, the “Great Dissenter,” for his many contrary dissents—a total of 380—delivered with a passion that often surprised his listeners.

Reporting on one such case in 1895, the New York Sun wrote: “He pounded the desk, shook his finger under the noses of the Chief Justice and Mr. Justice Field, turned more than once almost angrily upon his colleagues of the majority, and expressed his dissent from their conclusions in a tone and language more appropriate to a stump speech at a Populist barbecue than to an opinion on a question of law before the Supreme Court of the United States.”

Harlan himself later denied that his presentation had been quite so florid, though he acknowledged that he felt strongly about the decision.

His most famous dissent came in 1896 with the court’s Plessy v. Ferguson ruling. In upholding a Louisiana law that required passenger trains to provide separate accommodations by race, the court established the shameful principal of “separate but equal.”

Harlan, alone, disagreed.

“Our Constitution is color-blind, and neither knows or tolerates classes among citizens,” he declared. “In respect of civil rights, all citizens are equal before the law. . . . 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.”

Plessy proved that in spite of amendments 13 (prohibiting slavery), 14 (guaranteeing the same rights and equal protection of those rights to all citizens), and 15 (right to vote regardless of race), integration in this country was but a chimera.

It would take nearly six decades before Harlan’s prophetic vision of equal treatment under the law would be realized. In 1954, Plessy became the basis for the landmark Brown v. Board of Education decision that finally overturned legal segregation by ruling that separate school buildings were inherently not equal. In case after case to follow, state-mandated segregation laws were found to be unconstitutional.

Thurgood Marshall, the future Supreme Court justice who argued Brown for the plaintiffs, cited Plessy in presenting his case. In fact, said Marshall’s judicial colleague Constance Baker Motley, Marshall repeatedly looked to Harlan for inspiration.

“Marshall admired the courage of Harlan more than any justice who has ever sat on the Supreme Court,” recalled Motley in 1993. “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.”

Harlan remained on the court until his death on Oct. 14, 1911, at the age of 78. The importance of his judicial legacy would not be recognized for many years.

“[H]e wasn’t a 20th-century liberal,” says Harlan biographer Linda Przybyszewski. “But he was making sense out of his life. What he did was incredibly amazing and was clearly based on principle. He was trying to live up to his principles. He didn’t always manage it, but he did it better than most people.

She adds that he “was one of the few white people in power to insist that black Americans had an unlimited potential, which they should be free to pursue.”

As Harlan told his law students in 1898, “This world is big enough for us all, and this country is big enough for us all. And if a man gets along, whether he be white or black, there is room in this broad free land of ours, for all of us.”

John Marshall Harlan-1850 lived part of his childhood in what is now the Beaumont Inn in Harrodsburg, Ky. (owned by the late Thomas and Elizabeth Ransdell Dedman ’38 and ’40 and now by their son Chuck Dedman ’75 and his wife, Helen Williams Dedman ’75).

Fred M. Vinson-1909, 1911 Law was chief justice when the Supreme Court first heard Brown v. Board of Education in 1952 but died before a decision was reached.