If Justice John Marshall Harlan had written only one opinion, his legacy would still be secure.
Supreme Court Justice John Marshall Harlan (1833-1911)
His solo dissent in Plessy v. Ferguson (1896), denouncing “separate but equal” racial segregation, is the greatest judicial dissent in American history.
But Harlan’s 30-plus years on the court were marked by other great opinions. As America retreated from Reconstruction and as the court resisted the Progressive Era, Harlan stood fast and, often, alone. Years later, when the law moved in Harlan’s direction, he stood vindicated.
THE GREAT DISSENTER
By Peter S. Canellos
(Simon & Schuster, 609 pages, $32.50)
In our own time, America finds itself grappling with the same questions that Harlan did: race, monopoly, the rule of law, and judges’ role in our constitutional republic. This is an ideal moment to study his opinions—and the principles that undergirded them. Peter S. Canellos offers both in “The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero.”
Harlan was born in 1833 to a prominent, slave-holding Kentucky family. His father named him after the great Chief Justice John Marshall, and raised him to revere Kentucky’s own great man, Henry Clay. He studied law and followed politics but, like so many of Clay’s acolytes, was left politically homeless in the 1850s after the Whig Party’s demise.
He won acclaim in 1855 with a statewide speaking tour. But his message of moderation, compromise and union, Mr. Canellos tells us, left him “preaching the virtues of a system that was collapsing under the weight of its own contradictions.” Two years later, Chief Justice Roger Taney and six other Supreme Court justices declared in the Dred Scott case that black people were not American citizens and that Congress had no power to prohibit slavery, and thus no power to enact the Missouri Compromise or other Union-preserving legislation. In 1859, while running for Congress in Kentucky, Harlan urged his countrymen to accept the Dred Scott decision, saying that it had settled the slavery question. But when Abraham Lincoln’s election spurred Southern secession, Harlan fought for the Union and nearly saw action at Shiloh.
Harlan lost his prewar bid for Congress, but after the war his fortunes turned. First, in 1863, he was elected Kentucky’s attorney general. Then in 1876 he led Benjamin Bristow’s campaign for the Republican Party’s presidential nomination. Bristow lost to Rutherford B. Hayes, but Harlan’s performance earned him a place in Hayes’s administration and then an appointment to the Supreme Court in 1877, where he would serve until his death in 1911.
Mr. Canellos, an editor at Politico and formerly the editorial-page editor of the Boston Globe, intertwines Harlan’s life and work with those of other prominent figures of the era. The most fascinating is Robert Harlan, one of John’s father’s slaves. After he was emancipated in 1848, Robert made a small fortune in the California gold rush and eventually became a leading figure in Ohio politics. While a DNA test in 2001 cast significant doubt on the possible blood ties between Robert and the Harlans, Robert’s life is infused into Mr. Canellos’s account of John Harlan’s two most notable judicial opinions.
In the Civil Rights Cases (1883), the court held that the 13th Amendment, which abolished slavery, didn’t empower Congress to prohibit discrimination by privately owned railroads or inns. Dissenting alone, Harlan pointed to myriad precedents in which the court recognized that “common carriers” and public accommodations, though privately owned, enjoyed special privileges and bore special duties. He concluded that their discrimination against blacks was “a badge of servitude” that Congress could prohibit.
He returned to these themes in Plessy, again dissenting alone. When the court upheld the state-mandated racial segregation of railcars, Harlan wrote that race-based discrimination was a “badge” of slavery barred by the 13th Amendment and an evil that was eradicated by the 14th Amendment’s broader provisions for equal protection of the laws as well as the privileges or immunities of U.S. citizenship. “Our constitution is color-blind,” Harlan wrote, “and neither knows nor tolerates classes among its citizens.” His words inspired later generations of lawyers to press forward to victory in Brown v. Board of Education (1954).
Mr. Canellos devotes attention to other Harlan dissents that eventually attracted majority support, on issues that challenge us again today.
In U.S. v. E.C. Knight Co. (1895), he dissented from the court’s interpretation of the Constitution and of the new Sherman Antitrust Act. The court had held that Congress’s power to regulate interstate “commerce” didn’t extend to the regulation of manufacturing, but Harlan, invoking Chief Justice Marshall’s opinions for the court, argued that it did. The Constitution, he said, enumerated powers to serve “objects of interest to the people of all the states,” and thus the court should not impose a view “so rigid, technical, and narrow” that those objects could not be achieved.
Finally, in Lochner v. New York (1905), the court declared that New York’s law limiting the working hours of bakery employees violated their freedom of contract. Harlan’s dissent—long overshadowed by Justice Oliver Wendell Holmes’s own—urged judicial restraint for a law that was not clearly prohibited by constitutional text. Before long, “Lochner” became shorthand for judicial activism.
Mr. Canellos rescues these cases from law-school casebooks and situates them in American history. His account also demonstrates the distinctively republican character of Harlan’s jurisprudence. Harlan recognized that the federal government could act as a bulwark for America’s foundational principles of liberty and equality, thus protecting its citizens from the dangers posed by state governments and private monopolies.
Harlan’s account of our “color-blind” Constitution will surely (and rightly) attract attention in the years ahead. And his criticism of monopoly power will echo in today’s debates over big-tech companies and social-media platforms. We would all do well to look more deeply into the ideas and ideals that informed his dissents and the qualities of character that enabled him to stand alone in their defense.
Mr. White is a resident scholar at the American Enterprise Institute and co-director of George Mason University’s Gray Center for the Study of the Administrative State.
But Harlan’s 30-plus years on the court were marked by other great opinions. As America retreated from Reconstruction and as the court resisted the Progressive Era, Harlan stood fast and, often, alone. Years later, when the law moved in Harlan’s direction, he stood vindicated.
THE GREAT DISSENTER
By Peter S. Canellos
(Simon & Schuster, 609 pages, $32.50)
In our own time, America finds itself grappling with the same questions that Harlan did: race, monopoly, the rule of law, and judges’ role in our constitutional republic. This is an ideal moment to study his opinions—and the principles that undergirded them. Peter S. Canellos offers both in “The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero.”
Harlan was born in 1833 to a prominent, slave-holding Kentucky family. His father named him after the great Chief Justice John Marshall, and raised him to revere Kentucky’s own great man, Henry Clay. He studied law and followed politics but, like so many of Clay’s acolytes, was left politically homeless in the 1850s after the Whig Party’s demise.
He won acclaim in 1855 with a statewide speaking tour. But his message of moderation, compromise and union, Mr. Canellos tells us, left him “preaching the virtues of a system that was collapsing under the weight of its own contradictions.” Two years later, Chief Justice Roger Taney and six other Supreme Court justices declared in the Dred Scott case that black people were not American citizens and that Congress had no power to prohibit slavery, and thus no power to enact the Missouri Compromise or other Union-preserving legislation. In 1859, while running for Congress in Kentucky, Harlan urged his countrymen to accept the Dred Scott decision, saying that it had settled the slavery question. But when Abraham Lincoln’s election spurred Southern secession, Harlan fought for the Union and nearly saw action at Shiloh.
Harlan lost his prewar bid for Congress, but after the war his fortunes turned. First, in 1863, he was elected Kentucky’s attorney general. Then in 1876 he led Benjamin Bristow’s campaign for the Republican Party’s presidential nomination. Bristow lost to Rutherford B. Hayes, but Harlan’s performance earned him a place in Hayes’s administration and then an appointment to the Supreme Court in 1877, where he would serve until his death in 1911.
Mr. Canellos, an editor at Politico and formerly the editorial-page editor of the Boston Globe, intertwines Harlan’s life and work with those of other prominent figures of the era. The most fascinating is Robert Harlan, one of John’s father’s slaves. After he was emancipated in 1848, Robert made a small fortune in the California gold rush and eventually became a leading figure in Ohio politics. While a DNA test in 2001 cast significant doubt on the possible blood ties between Robert and the Harlans, Robert’s life is infused into Mr. Canellos’s account of John Harlan’s two most notable judicial opinions.
In the Civil Rights Cases (1883), the court held that the 13th Amendment, which abolished slavery, didn’t empower Congress to prohibit discrimination by privately owned railroads or inns. Dissenting alone, Harlan pointed to myriad precedents in which the court recognized that “common carriers” and public accommodations, though privately owned, enjoyed special privileges and bore special duties. He concluded that their discrimination against blacks was “a badge of servitude” that Congress could prohibit.
He returned to these themes in Plessy, again dissenting alone. When the court upheld the state-mandated racial segregation of railcars, Harlan wrote that race-based discrimination was a “badge” of slavery barred by the 13th Amendment and an evil that was eradicated by the 14th Amendment’s broader provisions for equal protection of the laws as well as the privileges or immunities of U.S. citizenship. “Our constitution is color-blind,” Harlan wrote, “and neither knows nor tolerates classes among its citizens.” His words inspired later generations of lawyers to press forward to victory in Brown v. Board of Education (1954).
Mr. Canellos devotes attention to other Harlan dissents that eventually attracted majority support, on issues that challenge us again today.
In U.S. v. E.C. Knight Co. (1895), he dissented from the court’s interpretation of the Constitution and of the new Sherman Antitrust Act. The court had held that Congress’s power to regulate interstate “commerce” didn’t extend to the regulation of manufacturing, but Harlan, invoking Chief Justice Marshall’s opinions for the court, argued that it did. The Constitution, he said, enumerated powers to serve “objects of interest to the people of all the states,” and thus the court should not impose a view “so rigid, technical, and narrow” that those objects could not be achieved.
Finally, in Lochner v. New York (1905), the court declared that New York’s law limiting the working hours of bakery employees violated their freedom of contract. Harlan’s dissent—long overshadowed by Justice Oliver Wendell Holmes’s own—urged judicial restraint for a law that was not clearly prohibited by constitutional text. Before long, “Lochner” became shorthand for judicial activism.
Mr. Canellos rescues these cases from law-school casebooks and situates them in American history. His account also demonstrates the distinctively republican character of Harlan’s jurisprudence. Harlan recognized that the federal government could act as a bulwark for America’s foundational principles of liberty and equality, thus protecting its citizens from the dangers posed by state governments and private monopolies.
Harlan’s account of our “color-blind” Constitution will surely (and rightly) attract attention in the years ahead. And his criticism of monopoly power will echo in today’s debates over big-tech companies and social-media platforms. We would all do well to look more deeply into the ideas and ideals that informed his dissents and the qualities of character that enabled him to stand alone in their defense.
Mr. White is a resident scholar at the American Enterprise Institute and co-director of George Mason University’s Gray Center for the Study of the Administrative State.
