John Marshall Harlan

John Marshall Harlan
Harlan, c. 1865–1880
John Marshall Harlan
Born	1 6, 1833
Birthplace	Boyle County, Kentucky, U.S.
Died	Template:Death date and age Washington, D.C., U.S.
Nationality	American
Occupation	Lawyer, politician, jurist
Known for	Lone dissenter in Plessy v. Ferguson and the Civil Rights Cases; advocacy for incorporation of the Bill of Rights
Education	Centre College (BA), Transylvania University
Spouse(s)	Malvina Shanklin Harlan
Children	6
Awards	Statue at Centre College (2025)

John Marshall Harlan (June 1, 1833 – October 14, 1911) was an American lawyer, politician, and jurist who served as an Associate Justice of the Supreme Court of the United States from 1877 until his death in 1911. Born into a prominent, slave-holding family in Boyle County, Kentucky, Harlan rose through the ranks of Kentucky politics as an attorney general and Union Army colonel during the American Civil War before being appointed to the nation's highest court by President Rutherford B. Hayes. Over a tenure spanning nearly thirty-four years, Harlan became one of the most consequential figures in American constitutional law, earning the sobriquet "The Great Dissenter" for his forceful and often solitary opposition to the Court majority in landmark cases involving civil rights, federal regulatory power, and economic liberty. His lone dissent in Plessy v. Ferguson (1896), in which he argued that the Constitution is "color-blind," became one of the most celebrated judicial opinions in American history, anticipating the Supreme Court's eventual repudiation of racial segregation by more than half a century. Though largely overlooked in the decades immediately following his death, Harlan's jurisprudence has been the subject of renewed scholarly attention, with many legal historians now ranking him among the most important justices in the Court's history.

Early Life

John Marshall Harlan was born on June 1, 1833, in Boyle County, Kentucky, near the town of Danville. He was named after Chief Justice John Marshall, reflecting his family's deep engagement with the law and public life. His father, James Harlan, was a prominent Kentucky lawyer and politician who served in the United States Congress and held the office of Attorney General of Kentucky. His mother was Elizabeth Davenport. The Harlan family was among the slaveholding elite of Kentucky, and young John Marshall grew up on a plantation where enslaved people were part of the household.

Among Harlan's siblings was Robert James Harlan, a mixed-race man believed to be the half-brother of John Marshall Harlan through their father. Robert Harlan achieved considerable prominence in his own right as a businessman and political figure in Ohio. Another brother, James Harlan Jr., also had a career in public life.

The Harlan household was steeped in the traditions of the Whig Party, and James Harlan's political connections ensured that his son had early exposure to the workings of government and the legal profession. The elder Harlan was a close associate of Henry Clay, the dominant political figure in antebellum Kentucky, and the ideals of Clay's "American System"—including support for internal improvements, a national bank, and protective tariffs—profoundly shaped the younger Harlan's political outlook and his belief in the importance of a strong national government.

At a young age, Harlan entered public service. He was appointed Adjutant General of Kentucky on April 16, 1851, a post he held until September 12, 1859, serving under Governors John L. Helm, Lazarus W. Powell, and Charles S. Morehead. This early administrative role gave Harlan significant experience in state government and military affairs, experience that would prove valuable during the tumultuous years ahead.

Education

Harlan received his undergraduate education at Centre College in Danville, Kentucky, graduating with a Bachelor of Arts degree in 1850. Centre College, one of the oldest institutions of higher learning in the state, provided Harlan with a classical education that emphasized rhetoric, logic, and the liberal arts. He then pursued legal studies at Transylvania University in Lexington, Kentucky, one of the foremost law schools in the antebellum South and West. The legal training Harlan received at Transylvania grounded him in common law traditions and constitutional principles, and he was admitted to the Kentucky bar shortly after completing his studies. His father's influence and connections helped facilitate his early entry into both the legal profession and politics.

Career

Early Political and Legal Career

Following his admission to the bar, Harlan established a law practice in Frankfort, Kentucky, and quickly became involved in politics. Initially a member of the Whig Party, like his father, Harlan shifted his political affiliations several times during the turbulent 1850s as the Whig Party disintegrated over the issue of slavery. He briefly aligned with the Know Nothing movement from approximately 1854 to 1858, then joined the Opposition Party, and subsequently supported the Constitutional Union Party in the election of 1860. These shifting affiliations reflected the complicated political landscape of a border state like Kentucky, where loyalties were divided between North and South, and where the question of slavery's future generated intense debate.

Throughout this period, Harlan was a slaveholder himself and initially opposed the abolition of slavery. His political positions in the 1850s and early 1860s were characteristic of many Kentucky Unionists who supported the preservation of the Union but resisted the more radical antislavery measures advocated by the Republican Party.

Civil War Service

When the American Civil War broke out in 1861, Harlan was a firm supporter of the Union cause. He organized and recruited the 10th Kentucky Infantry Regiment for the Union Army, receiving a commission as a colonel. Before taking command of the 10th Kentucky Infantry, Harlan had briefly served as captain of the Crittenden Union Zouaves from August to October 1861.

Despite his loyalty to the Union, Harlan opposed President Abraham Lincoln's Emancipation Proclamation of 1863, viewing it as an unconstitutional exercise of executive power and a threat to the property rights of loyal slaveholders in border states like Kentucky. This position was not uncommon among Kentucky Unionists, many of whom fought to preserve the Union while simultaneously defending the institution of slavery.

Harlan served in the field until 1863, when he resigned his military commission following the death of his father. That same year, he was elected Attorney General of Kentucky, taking office on September 1, 1863, under Governor Thomas Bramlette. He served in this capacity until September 3, 1867, providing legal counsel to the state government during the difficult final years of the war and the early period of Reconstruction.

Transition to the Republican Party

Harlan's post-war political career was marked by a dramatic transformation in his views on race and civil rights. He lost his bid for re-election as attorney general in 1867 and, in 1868, joined the Republican Party. This shift was a remarkable departure for a former slaveholder and opponent of emancipation, and it placed Harlan firmly in the camp of the party that had championed the abolition of slavery and the passage of the Reconstruction Amendments.

Harlan quickly emerged as the leader of the Kentucky Republican Party and ran unsuccessfully as the Republican candidate for governor of Kentucky on two occasions. Although he was unable to win statewide office in a state that remained dominated by the Democratic Party, his prominence within Republican circles brought him to national attention. He played a pivotal role in the Republican National Convention of 1876, where his support helped secure the presidential nomination for Rutherford B. Hayes.

Appointment to the Supreme Court

In recognition of Harlan's support during the contested 1876 election, President Hayes nominated him to the Supreme Court of the United States on October 17, 1877, to fill the seat vacated by Justice David Davis. Harlan was confirmed by the Senate and took his seat on December 10, 1877. At the age of forty-four, he began a tenure on the Court that would last nearly thirty-four years, one of the longest in the Court's history.

Supreme Court Tenure

Harlan's jurisprudence on the Supreme Court was shaped by three principal convictions: a belief in a strong national government with broad authority to protect individual rights, sympathy for the economically disadvantaged, and the view that the Thirteenth, Fourteenth, and Fifteenth Amendments had fundamentally altered the constitutional relationship between the federal government and the states. These convictions placed him frequently at odds with the prevailing judicial philosophy of his era, which tended to favor limited federal power, states' rights, and laissez-faire economic principles.

Civil Rights Cases (1883)

One of Harlan's earliest and most significant dissents came in the Civil Rights Cases of 1883, in which the Court struck down the Civil Rights Act of 1875, holding that the Fourteenth Amendment prohibited only state action, not discrimination by private individuals and businesses. Harlan was the sole dissenter. He argued that the Thirteenth Amendment gave Congress broad power to eliminate the "badges and incidents" of slavery, including racial discrimination by private actors, and that the Fourteenth Amendment authorized Congress to protect the civil rights of all citizens against both state and private interference.

Plessy v. Ferguson (1896)

Harlan's most celebrated dissent came in Plessy v. Ferguson (1896), in which the Court upheld a Louisiana law requiring racial segregation on railroad cars under the doctrine of "separate but equal." In his lone dissent, Harlan wrote that "our Constitution is color-blind, and neither knows nor tolerates classes among citizens," a phrase that became one of the most quoted passages in American constitutional law. Harlan argued that the segregation law was inconsistent with the personal liberty guaranteed by the Constitution and warned that the decision would "stimulate aggressions" upon the rights of African Americans. His dissent stood in stark contrast to the majority opinion and would not be vindicated until the Court's decision in Brown v. Board of Education in 1954, nearly six decades later.

Economic and Regulatory Cases

Harlan's dissenting philosophy extended beyond civil rights to encompass significant questions of economic regulation and federal power. In Pollock v. Farmers' Loan & Trust Co. (1895), Harlan dissented from the Court's decision striking down a federal income tax, arguing that Congress possessed the constitutional authority to levy such a tax. This dissent was eventually vindicated by the ratification of the Sixteenth Amendment in 1913.

In United States v. E. C. Knight Co. (1895), Harlan dissented from the majority's narrow interpretation of the Sherman Antitrust Act, which effectively limited the federal government's power to regulate manufacturing monopolies. Harlan argued for a more expansive reading of the Commerce Clause that would allow Congress to address the growing concentration of economic power in the hands of large corporations.

In Lochner v. New York (1905), the Court invalidated a New York state law limiting the working hours of bakery employees, holding that the law violated the due process clause of the Fourteenth Amendment by interfering with the liberty of contract. Harlan wrote a dissent arguing that the state had a legitimate interest in protecting the health and welfare of workers and that the Court was improperly substituting its own economic preferences for the judgment of the legislature. The Lochner decision became a symbol of judicial overreach and was ultimately repudiated during the New Deal era.

In Standard Oil Co. of New Jersey v. United States (1911), one of Harlan's final cases, he dissented from the majority's adoption of the "rule of reason" in antitrust law, arguing that the Sherman Act prohibited all restraints of trade, not merely those deemed "unreasonable" by the courts.

Incorporation of the Bill of Rights

Harlan was the first Supreme Court justice to advocate the incorporation of the Bill of Rights—the doctrine that the protections of the Bill of Rights apply to state governments through the Fourteenth Amendment. His majority opinion in Chicago, Burlington & Quincy Railroad Co. v. City of Chicago (1897) incorporated the Takings Clause of the Fifth Amendment, holding that the Fourteenth Amendment's due process clause required states to provide just compensation when taking private property for public use. This decision was a landmark in the development of incorporation doctrine, which would be gradually extended to encompass most of the Bill of Rights over the course of the twentieth century.

Giles v. Harris (1903)

Harlan also dissented in Giles v. Harris (1903), a case in which the Court declined to intervene against Alabama's systematic disenfranchisement of Black voters through discriminatory voter registration practices. The majority, in an opinion by Justice Oliver Wendell Holmes Jr., held that the Court could not provide an effective remedy. Harlan's dissent argued that the Court had a duty to protect the constitutional right to vote.

Teaching Career

In addition to his judicial duties, Harlan served as a professor of law at George Washington University Law School (then known as the Columbian University Law School) for much of his time on the Court. He taught constitutional law to generations of law students while simultaneously shaping constitutional doctrine through his opinions and dissents.

Personal Life

In 1856, Harlan married Malvina French Shanklin, the daughter of a prominent Indiana family. The couple had six children, including sons James Harlan and John Maynard Harlan. Malvina Harlan later wrote a memoir of their life together, which provided valuable insights into her husband's character and judicial career.

Harlan's grandson, John Marshall Harlan II, followed in his grandfather's footsteps and served as an Associate Justice of the Supreme Court from 1955 to 1971. The younger Harlan, while sharing his grandfather's name, developed a distinct judicial philosophy that was generally more conservative, particularly on questions of federalism and judicial restraint.

Harlan maintained his residence in Washington, D.C., throughout his long tenure on the Court. He was known for his imposing physical presence, his passionate delivery of opinions from the bench, and his deep religious faith as a Presbyterian.

John Marshall Harlan died on October 14, 1911, in Washington, D.C., at the age of seventy-eight, having served on the Supreme Court for nearly thirty-four years. He was buried at Rock Creek Cemetery in Washington, D.C.

Recognition

Harlan's contributions to American jurisprudence have been honored in numerous ways. Several schools and institutions bear his name, including John Marshall Harlan High School in San Antonio, Texas, which was established by the Northside Independent School District. The University of Louisville maintains the John Marshall Harlan Collection in its law library, preserving papers and documents related to his life and career.

In 2025, Centre College, Harlan's alma mater, dedicated a new campus sculpture honoring his legacy. The statue, created by artist Ed Hamilton, was unveiled during the college's homecoming weekend in October 2025. The dedication ceremony highlighted Harlan's role as a defender of constitutional principles and his significance as one of Centre College's most distinguished graduates.

The Oyez Project at IIT Chicago-Kent College of Law maintains a comprehensive profile of Harlan's judicial career, cataloging his opinions and providing audio and textual resources for scholars and the public.

Legacy

John Marshall Harlan was largely forgotten in the decades immediately following his death, as the legal doctrines he had championed in his dissents remained outside the mainstream of American constitutional thought. The Court continued to uphold racial segregation under the "separate but equal" doctrine established in Plessy v. Ferguson and maintained a restrictive view of federal regulatory power well into the twentieth century.

Harlan's reputation underwent a dramatic reassessment beginning in the mid-twentieth century. The Supreme Court's unanimous decision in Brown v. Board of Education (1954), which struck down racial segregation in public schools, explicitly vindicated the principles Harlan had articulated in his Plessy dissent nearly sixty years earlier. The Warren Court of the 1950s and 1960s adopted many of the positions Harlan had championed, including the incorporation of the Bill of Rights, the expansion of federal civil rights protections, and a broader interpretation of congressional power under the Commerce Clause and the Reconstruction Amendments.

Legal scholars have increasingly recognized Harlan as a figure whose constitutional vision was far ahead of his time. His dissents in the Civil Rights Cases, Plessy v. Ferguson, Lochner v. New York, and other landmark cases are now standard reading in American law schools and are frequently cited by judges, lawyers, and scholars. Some scholars have argued that Harlan's contributions to American constitutional law surpass those of his more celebrated contemporaries, including Justice Oliver Wendell Holmes Jr.

Harlan's legacy also raises complex questions about moral and intellectual transformation. His journey from slaveholder and opponent of emancipation to the Supreme Court's most forceful advocate for racial equality is one of the most remarkable personal transformations in American legal history. Scholars continue to debate the factors that drove this evolution, including the influence of his relationship with his half-brother Robert James Harlan, his experiences during the Civil War and Reconstruction, and his deep religious convictions.

The Politico journalist who profiled Harlan in 2023 noted that his story remains relevant in an era of ongoing debates about the role of the Supreme Court in American democracy and the meaning of constitutional equality. As long as questions of race, civil rights, and the limits of governmental power remain central to American public life, the legacy of "The Great Dissenter" continues to resonate.