Harlan, John Marshall, the Elder (1833–1911)

John Marshall Harlan the Elder was the first justice on the U.S. Supreme Court to argue consistently that the Fourteenth Amendment to the U.S. Constitution applied the Bill of Rights to state action via the amendment’s due process and privileges and immunities clauses. This idea is called ‘‘incorporation theory’’ because it holds that the Fourteenth Amendment incorporates the Bill of Rights. Harlan’s distinctive judicial record—including his support for incorporation theory, for the application of the Bill of Rights to all United States territory, and for civil rights protections for black Americans—arose from his loyalty to a vision of constitutional nationalism. These were some of the legal issues that provoked impassioned dissents from Justice Harlan and earned him the title of Great Dissenter.

Slaveholder and Unionist

The future justice’s father, James Harlan, a Kentucky slaveholder and Whig Party leader, instilled this constitutional nationalism in his son. The Whig Party broke apart over the slavery issue during the 1850s, but John Harlan’s devotion to the Union prompted him to organize a Union Army regiment in 1861 at the start of the Civil War. Harlan’s position as a proslavery Unionist became an increasingly uncomfortable one as President Abraham Lincoln decided that the emancipation of Southern slaves was a military necessity. Harlan resigned his commission in the army in early 1863, shortly after the Emancipation Proclamation and his father’s death. For the next four years, Harlan reminded the voters at every election that the war had been fought to save the Union, not in order to free the slaves.

But a series of events forced Harlan to reconsider. He had devoted himself to both the Constitution and a benign vision of slavery, but he faced a new constitution as the war ended in early 1865. First, the states ratified the Thirteenth Amendment that freed the slaves in late 1865, and then, the Fourteenth Amendment that guaranteed civil rights to black citizens in late 1868. Harlan also faced former Confederates who terrorized freed blacks and white Unionists in Kentucky. Harlan came to believe that the Civil War amendments to the Constitution were a providential correction of the original proslavery flaws of the founding document. When Harlan ran as a Republican for governor of Kentucky in 1871, he defended the civil rights of blacks as a fulfillment of the country’s mission and celebrated the end of slavery. But these were not popular ideas among Kentucky white men. Harlan lost that election and the next in 1875. But, he had caught the attention of Rutherford B. Hayes who would be elected president in 1876. As a Republican and a Southern nominee to the Supreme Court, Harlan fulfilled Hayes’s political and regional agendas. Despite some opposition, Harlan was confirmed by the U.S. Senate in 1877.

Justice Harlan became a champion of black civil rights by dissenting from the Court’s stingy interpretations of the Thirteenth and Fourteenth Amendments in the Civil Rights Cases in 1883 and Plessy v. Ferguson in 1896. In the first, the Court held that private owners of businesses that served the public, such as railroads and inns, might segregate or exclude blacks. According to the Court, the Thirteenth Amendment did not apply because segregation was not a badge of slavery; the Fourteenth Amendment did not apply because it targeted only the states. But in the second decision, the Court held that a state law ordering segregation did not violate the civil rights of blacks either; such a law only affected so-called social rights. Harlan dissented alone and vigorously each time that segregation was the kind of racial discrimination that the amendments were meant to end. In his Plessy dissent, Harlan declared that the Constitution is color blind.

Justice Harlan followed out the logic of his view that the amendments had fundamentally altered the relationship of the states to the country’s citizens by arguing that the Fourteenth Amendment incorporated the provisions of the Bill of Rights. This interpretation violated rules of constitutional draftsmanship according to which nothing is repeated and a term used once has the same meaning when used again. The Fifth Amendment guarantees due process, so according to these rules, other rights and liberties found in the Fifth Amendment and in the other amendments are not covered by the term ‘‘due process of law.’’ Harlan objected that such a conclusion would lead to decisions contrary to fundamental principles of republican government.

Incorporation Theory

Harlan argued for incorporation theory for the first time in his dissent from Hurtado v. California in 1884. California had altered its constitution in 1879 to eliminate a grand jury indictment for felonies in favor of prosecution on information filed by the district attorney. Speaking for the Court, Justice Stanley Matthews declared that so long as fundamental rights were protected, the state could use any process so long as the process was not arbitrary or partial. The Fourteenth Amendment’s due process clause did not incorporate the Fifth Amendment’s guarantee against self-incrimination: ‘‘No person shall be held for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand jury.. . .’’ Justice Harlan dissented alone. In other public forums, he voiced a heart-felt veneration for the jury system as the embodiment of republican government. Juries allowed the ordinary men of the community to do justice and confounded the hasty opinions of the ignorant and the snobbish concerns of legal experts. From the bench, he responded vigorously to the argument of Hurtado’s attorney that a grand jury indictment for a capital crime was a venerable, timehonored institution under both English and American law that protected public liberty and private rights. The Fourteenth Amendment fulfilled the founders’ plans by applying these essential guarantees to individuals confronted with the power of the states. Harlan explained that the secrecy of grand jury investigations protected those targeted because of their race or because of popular hostility from mobs, abuses of official power, and personal vendettas.

Only in O’Neil v. Vermont in 1892 did Harlan find some support from his brethren for incorporation theory. O’Neil was a New York liquor merchant who had been convicted by a Vermont court for selling his goods in Vermont, a dry state. O’Neil was convicted of 307 separate sales and sentenced by a justice of the peace to a fine of over $9,000 or a potential seventy-nine-year sentence; the county court reduced the fine to $6,140 or fifty-four years. O’Neil appealed to the Supreme Court, which ruled that the Eight Amendment, which prohibits cruel and unusual punishment, did not apply to the states. Both Justices Stephen J. Field and Harlan filed dissents. Field protested that O’Neil would be serving far more jail time than criminals convicted of manslaughter or highway robbery. Field went on to argue that such shipments were a part of interstate commerce and so outside of state jurisdiction. Justice Harlan disagreed with Field’s Commerce Clause argument, but he seconded Field’s point on incorporation theory. He argued that none of the fundamental rights of life, liberty, and property as guaranteed by the U.S. Constitution could be abridged by a state since the adoption of the Fourteenth Amendment. These included those guarantees found in the Bill of Rights and others. O’Neil was a high mark in Justice Harlan’s success in advancing incorporation theory among his brethren, for Justice David J. Brewer concurred in his dissent as well.

Justice Harlan expanded upon the constitutional necessity of a common law jury trial in his dissent from Maxwell v. Dow in 1900. The Court had approved prosecution on information again as well as Utah’s decision to reduce the number of jurors in a jury trial from twelve to eight. Justice Rufus Peckham declared for the Court that the number of persons in a jury was up to the state so long as the same process applied to all defendants. But the founders’ Bill of Rights remained Harlan’s touchstone. He did not see how anyone could doubt that the founding fathers considered the privileges and immunities found in the Bill of Rights to be vital to the personal security of American citizens. He detailed a parade of horrible hypotheticals in which states violated every provision of the Bill of Rights, such as Utah would establish Mormonism as the state religion, and another jurisdiction would burn criminals at the stake. According to Peckham’s reasoning, Harlan warned, the Court could not hold any of these actions to be violations of the Constitution. It was no answer that none of these horrors had yet come to pass. He argued that liberty depends not merely on the absence of oppression; it requires the existence of constitutional checks on the power to oppress. As Justice Matthews had in Hurtado, Justice Peckham minimized the national government’s role in protecting rights in Maxwell. He also minimized the protections found in the privileges and immunities clause of the Fourteenth Amendment. As in Hurtado, the other justices approved these innovations in Maxwell and Justice Harlan dissented alone. Only he feared a frightening constitutional future should this line of argument prevail.

Justice Harlan believed one of his dire prophecies had come true in regards to the guarantees of the First Amendment: the free press clause. In 1907, Justice Oliver Wendell Holmes, Jr. held that the Fourteenth Amendment did not prevent the Supreme Court of Colorado from punishing a newspaper publisher for running articles that questioned its motives in Patterson v. Colorado in 1907. The state court had held that the cases mentioned by the publisher were still technically pending (because the litigants might petition for a rehearing) and that such comments interfered with the course of justice and contrary to the public welfare. When the publisher appealed to the Court, Justice Holmes held that such a judgment was entirely a state question. Justice David J. Brewer protested in dissent that the Court should confront the constitutional issue raised and determine Patterson’s rights. Justice Harlan went much further. He wrote an impassioned dissent arguing that the Fourteenth Amendment applied the First Amendment’s guarantees of freedom of speech and of the press to the states. He made the most of what little the Court had acceded to black citizens by citing the Civil Rights Cases and United States v. Cruikshank (1876) in order to demonstrate that the right of the people to assemble and to petition their government—a right found in the First Amendment—was an aspect of national Citizenship. It followed that citizens were guaranteed the First Amendment rights of freedom of speech and of the press as well, not merely freedom from prior restraints—as Justice Holmes had indicated—but also from subsequent punishment. The public welfare could not trump these constitutional privileges. Justice Harlan concluded that freedom of speech and of the press were essential components of liberty guaranteed by the Constitution from interference from the nation or by the states.

A year later, Harlan again argued alone and fruitlessly in favor of incorporation theory when he dissented from Twining v. New Jersey in 1908. Albert C. Twining and his codefendant were bank directors who had been convicted of trying to mislead a bank examiner. The state judge, following state rulings, had suggested that the jurors might take into consideration the failure of the men to testify in their own defense and their attorneys objected. Justice William H. Moody held for the Court that the Fifth Amendment clause against self-incrimination was not incorporated in the Fourteenth Amendment. The protection against self-incrimination was a modern invention, he reasoned, and could not be ranked among the essential protections. Justice Harlan again harked back to the founders to protest. He wrote that the men who had decided the federal Constitution would have would have been appalled at the idea that immunity from self-incrimination had not been a fundamental principle of English common law. Again, he conjured up a parade of horrors contrary to American law and the spirit of American liberty.

The Insular Cases

Harlan was equally troubled when the Court determined that Congress might refuse to apply the whole of the Bill of Rights to federal territory that it controlled following the Spanish-American War in 1898. In the Insular Cases of 1901, Delima v. Bidwell and Downes v. Bidwell, a divided Court determined that some rights would be retained by the territorial inhabitants of Puerto Rico, but refused to specify which. The dissenters, Justice Harlan among them, were appalled at the implications of the decision. They were also unimpressed by the insistence of the Court that the administration of an overseas empire demanded certain flexibility in regards to constitutional rights. Justice Harlan warned that if the Court’s decision was allowed to stand, the United States would end an era of liberty protected by a written constitution into an era of legislative tyranny. Justice Harlan also dissented from Hawaii v. Mankichi in 1903 when the Court held that the Constitution did not require a grand jury indictment or a jury of twelve in federal territories. When the Court held that there was no constitutional guarantee of a jury trial in the Philippines in Dorr v. United States in 1904, Harlan declared its reasoning to be revolting to his mind. It was as though the majority thought the Constitution read, ‘‘The trial of all crimes, except in cases of impeachment, and except where Filipinos are concerned, shall be by jury.’’

From Eccentric to Prophet

When Justice Harlan drew up a list of decisions that he wanted gathered in a volume to commemorate his work on the bench, he included his dissenting opinions from the Civil Rights Cases, Hurtado, Plessy, Maxwell, Twining, Hawaii v. Mankichi, and Dorr. Although Harlan would not have approved of the piecemeal incorporation of the Bill of Rights into the Fourteenth Amendment that occurred in the twentieth century, he would have probably approved of the results. Gitlow v. New York in 1925 marked the beginning by holding freedom of speech and of the press were included in the Due Process Clause of the Fourteenth Amendment. Twining was overruled in Malloy v. Hogan in 1964. Criminal defendants benefited further from Powell v. Alabama in 1932, which held that due process in state court requires that counsel for indigents charged with capital crimes, and Gideon v. Wainwright in 1963, which required counsel for all indigent state felony defendants. But it was Brown v. Board of Education in 1954, the first public school desegregation decision, that overturned Plessy and brought sustained scholarly attention to Justice Harlan. He has been a perennial presence on lists of great judges ever since. In the decades after his death, Justice Harlan was considered something of an eccentric for his dissents in civil rights and civil liberties cases. By the mid-twentieth century, he was being hailed as a prophet for these very same opinions.

LINDA PRZYBYSZEWSKI

References and Further Reading

• Bartosic, Florian, The Constitution, Civil Liberties and John Marshall Harlan, Kentucky Law Journal 46 (1958): 407–77.
• Fairman, Charles, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, Stanford Law Review 2 (1949): 5–173.
• Przybyszewski, Linda. The Republic According to John Marshall Harlan. Chapel Hill: University of North Carolina Press, 1999.
• Waite, Edward F., How ‘‘Eccentric’’ Was Mr. Justice Harlan? Minnesota Law Review 37 (1953): 173–87.
• Westin, Alan F., John Marshall Harlan and the Constitutional Rights of Negroes: The Transformation of a Southerner, Yale Law Journal 66 (1957): 637–710.

Cases and Statutes Cited

• Brown v. Board of Education, 347 U.S. 483 (1954)
• Civil Rights Cases, 109 U.S. 3 (1883)
• Delima v. Bidwell, 182 U.S. 244 (1901)
• Dorr v. United States, 195 U.S. 138 (1904)
• Downes v. Bidwell, 182 U.S. 1 (1901)
• Gideon v. Wainwright, 372 U.S. 335 (1963)
• Gitlow v. New York, 268 U.S. 652 (1925)
• Hawaii v. Mankichi, 190 U.S. 197 (1903)
• Hurtado v. California, 110 U.S. 516 (1884)
• Malloy v. Hogan, 378 U.S. 1 (1964)
• Maxwell v. Dow, 176 U.S. 581 (1900)
• O’Neil v. Vermont, 144 U.S. 343 (1892)
• Patterson v. Colorado, 205 U.S. 454 (1907)
• Plessy v. Ferguson, 163 U.S. 537 (1896)
• Powell v. Alabama, 287 U.S. 45 (1932)
• Twining v. New Jersey, 211 U.S. 78 (1908)
• United States v. Cruikshank, 92 U.S. 542 (1876)

See also Bill of Rights: Structure; Brown v. Board of Education, 347 U.S. 483 (1954); Civil Rights Cases, 109 U.S. 3 (1883); Cruel and Unusual Punishment Generally; Fourteenth Amendment; Gideon v. Wainwright, 372 U.S. 335 (1963); Gitlow v. New York, 268 U.S. 652 (1925); Grand Jury Indictment (V); Jury Trial; Plessy v. Ferguson, 163 U.S. 537 (1896); Powell v. Alabama, 287 U.S. 45 (1932); Press Clause (I): Framing and History from Colonial Period up to Early National Period; Prior Restraints; Privileges and Immunities (XIV); Self-Incrimination (V): Historical Background; Thirteenth Amendment; United States v. Cruikshank, 92 U.S. 542 (1876)