Supreme Court Justice, former Adjutant General, changes view on arbitration and advances civil liberties and equality

History Article by John Trowbridge, Kentucky National Guard

Justice John Marshall Harlan

“In view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is colorblind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.” –John Marshall Harlan.

The words above were written in 1896, as a dissent in the hallmark civil rights case of Plessy v. Ferguson, by Associate Justice of the United States Supreme Court John Marshall Harlan.

John Marshall Harlan, born June 1, 1833, at Harlan’s Station in Boyle County (then Mercer), Kentucky, was sixth of nine children. His parents, James and Eliza Shannon Davenport Harlan, both of Boyle County, were wealthy slaveholders and held prominence in the commonwealth.

Harlan County, Kentucky, derived its name after John’s relative, his great uncle Silas, who died at the Battle of Blue Licks in 1782.

His father, James, was a lawyer by profession and later a politician who served two terms in Congress during the 1830’s. He would also serve as Kentucky’s secretary of state and attorney general.

John Marshall Harlan was named in honor of the great Chief Justice John Marshall, sparking John’s destiny at birth with an education geared for a career in law. He attended B. B. Sayre’s academy in Frankfort, then Centre College at Danville, and finally Transylvania University in Lexington.

Harlan was very busy as a young man in the 1850s. He graduated from Centre College by age 17. On April 16, 1851, Governor John L. Helm appointed Harlan the fifth Adjutant General of Kentucky, making him the youngest Kentucky Adjutant General at the age of 17 years and 10 months. Harlan then entered Transylvania University’s law school, graduating in 1852, and immediately joined his father’s law office in Frankfort.

Despite his new career, Harlan decided to pursue politics that same year.

While serving as Adjutant General, not much occurred around the state to require Harlan’s attention or time as militia musters were discontinued in 1850.

The new Kentucky Constitution provided that, “The militia of the Commonwealth shall consist of all free, able-bodied male persons (Negroes, Mulattoes and Indians excepted) resident in the same, between the ages of eighteen and forty-five years.” However, there was no mention on how to arm or organize the states militia force.

In 1851, the legislature reestablished a de facto military organization. The acts of this session directed the mustering of such residents—as were contemplated by the constitution—as the state’s enrolled military force. Under the same law, company musters were held in April, battalion musters in May, brigade musters in September, and regimental musters were held in October.

An amendment of March 7,1854, provided for a state-wide regimental muster on the first Saturday in June, 1859, and thereafter repeating every sixth year on June’s first Saturday.

On December 23, 1856, Harlan married Malvina “Mallie” French Shanklin of Evansville, Indiana, and to this union six children would be born.

Harlan and wife, Mallie. Harlan served as Kentucky’s fifth Adjutant General.

In 2001, a memoir written in 1915 of her life with Justice Harlan was uncovered and published by Justice Ruth Bader Ginsburg in the Journal of the Supreme Court History and as a book in 2002.

In her memoirs, Mrs. Harlan reveled that during the annual review of the Cadets at Kentucky Military Institute (KMI) her husband was amused by the fact that he, as the Adjutant General, was receiving all the attention (as a teenager) from older and more accomplished soldiers who had been on campaign and faced combat.

While serving as Adjutant General in 1858, Harlan was elected County Judge of Franklin County. In 1859, he ran for the United States House of Representatives and was narrowly defeated.

During his tenure as Adjutant General, Harlan had served under the administrations of Governors John L. Helm, Lazarus W. Powell and Charles S. Morehead.

Scott Brown replaced Harlan as Adjutant General in September of 1859.

As John Harlan embarked on his career in politics, he, like his father, was a member of the Whig party which soon disintegrated over the issue of slavery. Over the years prior to becoming a Republican in 1868, Harlan would join numerous other political parties. During campaigns, he was described as being six feet two inches tall, red-haired and handsome with a powerful voice and speaking style. His charismatic style won him renown, and his skill on the campaign trail won him elections.

In his early political career, Harlan was consistent on one controversial issue: slavery. He defended it vigorously and often, arguing against abolition as a violation of private property rights. At the same time, he was convinced that the Union must be preserved, leading him to enlist in the North, on the side of the Union, during the American Civil War in 1861.

On August 13, 1861, John Harlan was elected Captain of the newly organized, Crittenden Union Zouaves, and on October 4, 1861, he and those in his command were enrolled into the Union Army. One month later, Harlan is mustered in as Colonel of the Tenth Kentucky Volunteer Infantry Regiment, in Lebanon, Ky., for what was to be a three-year term.

(See history of the 10th Kentucky Volunteer Infantry Regiment below this article.)

Throughout his military service, Harlan continued to argue that the federal government should not meddle in the slavery question. The Union’s goal in taking up arms, as he said in a wartime speech, “Was not for the purpose of giving freedom to the Negro.” He swore he would quit the army if President Lincoln signed the Emancipation Proclamation. When the Proclamation took effect on January 1, 1863, Harlan denounced it as “unconstitutional and null and void.”

The Emancipation Proclamation did not apply to Kentucky, since the state was not part of the Confederacy. John Harlan owned a few household slaves, and he did not free them until the ratification of the Thirteenth Amendment to the U. S. Constitution forced him in December 1865.

“The amendment,” he said, “was a flagrant invasion of the right of self-government which deprived the states of the right to make their own policies.”

He vowed he would oppose it if there were not a dozen slaves in Kentucky. Eventually, he would change his stand on the matter.

Contrary to the public perception, he did not resign from the Army over the proclamation. His resignation came forth after the death of his father on March 6, 1863. He chose to leave the army at this time to care for his family and resume his career in law and politics.

The following is an extract from his letter of resignation, which reveals his passion as a patriot:

Colonel John Marshall Harlan, 10th Kentucky Volunteer Infantry Regiment

“I deeply regret that I am compelled, at this time, to return to civil life. It was my fixed purpose to remain in the Federal army until it had effectually suppressed the existing armed rebellion, and restored the authority of the national government over every part of the nation. No ordinary considerations would have induced me to depart from this purpose. Even the private interests, to which I have alluded, would be regarded as nothing, in my estimation, if I felt that my continuance in, or retirement from, the service would, to any material extent, affect the great struggle through which the country is now passing.

“If, therefore, I am permitted to retire from the army, I beg the commanding general to feel assured that it is from no want of confidence either in the justice of ultimate triumph of the Union cause. That cause will always have the warmest sympathies of my heart, for there are no conditions upon which I will consent to a dissolution of the Union. Nor are there any conditions, consistent with a republican form of government, which I am not prepared to make in order to maintain and perpetuate that Union.”

An amusing anecdote from Harlan’s Civil War service appeared in the February 28, 1904, issue of the Lexington Leader:

Basil Duke
Saved from Capture by John M. Harlan

An Incident of the Civil War in Which the Confederate Raider Came Near Being Captured by Federal Soldiers Enroute to Lexington

Gen. Basil Duke, who recently returned from Washington where he received the appointment as commissioner of the Shiloh Battlefield Park, tells an interesting story of his adventurous career, which has never before appeared in print. It was recalled by Justice John M. Harlan, of the United States Supreme Court, who figured in the story. The incident took place in the fall of 1861. Former Speaker David B. Henderson also figured in the incident, and it was never told during the years closely following the war, on account of the part which Justice Harlan played.
Gen. Duke was in Bowling Green, and his wife was in Lexington. He resolved to run the gauntlet of Union troops then in Kentucky and make his way to Lexington. He set out in citizen’s clothes with a friend, and had reached the railroad tunnel south of Elizabethtown, when he saw a hand car approaching loaded with Union soldiers. His friend wished to stop the car, and although Gen. Duke protested, the other soldier shouted as the hand car passed:
“Hello, can’t you give us a lift?”
Gen. Duke, who had been wearing his hat over his eyes, involuntarily looked up, and recognized on the car John M. Harlan, who was fighting with the Union troops, George Monroe and George Jouett, all of whom were from the Blue Grass and were acquaintances and friends of Gen. Duke. The three friends of Gen. Duke were at that time, or subsequently became officers in the Federal army. They also recognized him and someone shouted:
“There’s Basil Duke! Stop the car! What’s he doing here?”
Gen. Duke noticed that the car did not slow down appreciably and in a few moments it disappeared in the tunnel. He made a wide skirt of Elizabethtown, visited his wife and subsequently returned to the army. He carried with him through the war the mystery of why the hand car did not stop and effect his arrest. He knew that if it had done so, he would have probably been hanged, or at least imprisoned through the war.
After the war he learned through Mr. Henderson that Justice Harlan had pressed his foot against the brake lever of the hand car and in that way frustrated the efforts of the Union soldiers who were with him and desired to capture Gen. Duke. Mr. Harlan tells the story himself with enthusiasm, and in explaining his action, says:
“I had known Gen. Duke for years, and it was my firm belief that he was simply on the way to see his wife at Lexington. It was not my intention to see him captured, and I accordingly kept the comrades of mine from stopping the car. Subsequent events proved that I was right, as Gen. Duke was not there in the capacity of a spy.”

Nearly two years following his statements concerning the slavery issue, Harlan amazingly became a Republican, joining the party of Lincoln, whose policies he had so vehemently opposed. It was the party of freedom for black Americans, the party of the Thirteenth Amendment, which ended slavery, and the Fourteenth and Fifteenth Amendments, which extended the rights and privileges of citizenship to the freed slaves.

Once a bitter critic of these Reconstruction Amendments, Harlan was suddenly, and willingly, their proponent. In 1871, he said: “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. . . . With slavery it was death or tribute. . . . It knew no compromise; it tolerated no middle course. I rejoice that it is gone.”

“With slavery it was death or tribute. . . . It knew no compromise; it tolerated no middle course. I rejoice that it is gone.”

-john marshall harlan, U.S. Supreme court justice

As to his spectacular flip-flop on the issue, Harlan said: “Let it be said that I am right rather than consistent.”

In 1868, he was elected attorney general of Kentucky on the Union ticket. His growing popularity gave him confidence as a strong Republican candidate for governor of Kentucky, and in 1871 and 1875, he fought, but lost in both campaigns.

In 1872, despite his recent loss at the governor’s campaign, his name was also presented by the Republican convention of Kentucky for vice president of the United States.

In 1876, Harlan’s political efforts aided Rutherford B. Hayes to win the Republican presidential nomination. Harlan was then nominated to the Supreme Court by President Hayes on October 17, 1877, and the Senate confirmed this appointment November 29, 1877. At the time, Harlan was the only law school graduate among the nine seated Justices.

President Benjamin Harrison appointed Harlan to represent the United States in Paris during the 1892 arbitration with Great Britain over fishing rights in the Bering Sea.

Decisions made by Justice Harlan over 100 years ago still have relevance and continue to impact our lives, today and in the future.

Perhaps Harlan’s most famous dissenting opinion was in the case of Plessy v. Ferguson (1896).  At issue was a Louisiana law compelling segregation in rail coaches. To test the law, Homer Plessy, a Louisianan of mixed race, was arrested for sitting in the “whites-only” section of a rail car. In this 7 – 1 landmark case the Supreme Court established one of its most notorious decisions, the “separate but equal” principle of racial segregation. The lone dissenter was Justice Harlan.

In his dissent, he asserted, “Our Constitution is colorblind, and neither knows nor tolerates classes among citizens.”

The court majority disagreed, declaring the law constitutional and further adding, while it stamped blacks with “a badge of inferiority” only if “the colored race chooses to put that construction upon it.”

Justice Harlan had come a long way from his Kentucky roots as a former slave owner and defender of slavery.

It would not be until the 1954 case, Brown v. Board of Education, did the Court finally repudiate the “separate but equal” principle established in Plessy.

In a second case, Jacobson v. Massachusetts (1905) a small pox epidemic in Cambridge, Massachusetts, required all its citizens to take the small pox vaccination. Henning Jacobson bulked at the city’s requirement and was fined $5.00.

Jacobson stated that his refusal was that his, “liberty is invaded when the State subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination.” He went on to say, “A compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best.” Jacobson contested his fine and took his case all the way to the Supreme Court.

Fast-forward to today and you see the COVID-19 pandemic has led to extraordinary constraints on our liberty. From bans on international travel, state and local orders that businesses close their doors, bans on large gatherings, social distancing, infected individuals being required to self-quarantine and the vast majority of our people being told to remain at home.

What would happen if a vaccine for COVID-19 became available? It’s assumed most Americans would take the shot, but there would be those who would refuse. Does state government have the authority to compel the refusers to be vaccinated under penalty of the law?

In the 1905 case of Henning Jacobson, the Supreme Court rejected Jacobson’s argument, in a 7–2 majority opinion. As argued by Justice Harlan, they agreed, “The power of a local community to protect itself against an epidemic threatening the safety of all might be exercised.” For the safety of the public, the community should be allowed to place measures on its people.

Additionally, he stated the enforcement of such a restraint on an individual is, in fact, lawfully justified. He argues the Constitution does not wholly release all such restraints in all circumstances if the greater goal lies in protection of the larger community.

In this case, Harlan concluded the law was ruled to be a reasonable regulation.

Justice Harlan died on October 14, 1911. By that time, Harlan had served on the Supreme Court for thirty-four years, a tenure exceeded by only four other Justices. His remains were buried in Rock Creek Cemetery, near where he died in Washington, D. C.

John Marshall Harlan was a unique individual and a true Kentucky gentleman. Fellow Justice, Oliver Wendell Homes, remarked that Justice Harlan was the last “tobacco chomping Justice.” He was also known to drink bourbon, play golf, watch baseball and wear colorful clothing not often associated with Supreme Court Justices. At times he was a terror to lawyers when he sat on the bench.

He was an approachable man of middle-class values, and unlike his fellow Justices, was known to associate and socialize with people of all races. For over two decades, Harlan kept a close relationship with Frederick Douglass, a national leader of the abolitionist movement in the mid-19th century.

Harlan held strong personal convictions and was a religious fundamentalist. He believed that the judiciary should serve as the defender of private property and the rights of individuals. He was rarely swayed by the arguments of his colleagues, even if their views had more substance than his. And during his time on the bench, he wrote 1,161 opinions, including 316 dissents. For this, Harlan was given the nickname, “The Great Dissenter.”

In her book, Judicial Enigma, a new biography of Harlan, Justice Constance Baker Motley, states while writing his dissent in Plessy v. Ferguson, Justice John Marshall Harlan “was a solitary and lonely figure writing for posterity.”

Regimental History of the 10th Kentucky Volunteer Infantry Regiment

John Harlan organized this regiment and served as its commander until resigning his commission at the time of his father’s death on March 6, 1863.  What is listed below is the official history of the regiment up to the time Harlan resigned:Organized at Lebanon, Ky., November 21, 1861. Attached to 2nd Brigade, Army of Ohio, to December, 1861. 2nd Brigade, 1st Division, Army of Ohio, to September, 1862. 2nd Brigade, 1st Division, 3rd Corps, Army of Ohio, to November, 1862. 2nd Brigade, 3rd Division (Center), 14th Army Corps, Army of the Cumberland, to January, 1863.

SERVICE — 1862:

  • Advance on Camp Hamilton, Ky., January 1-15, 1862,
  • Action at Logan’s Cross Roads on Fishing Creek January 19.
  • Battle of Mill Springs January 19-20.
  • Duty at Mill Springs until February 11.
  • Moved to Louisville, thence to Nashville, Tenn., February 11-March 2.
  • March to Savannah, Tenn., March 20-April 7.
  • Expedition to Bear Creek, Ala., April 12-13.
  • Advance on and siege of Corinth, Miss., April 29-May 30.
  • Buell’s Campaign in Northern Alabama and Middle Tennessee June to August.
  • Courtland Bridge July 25 (Cos. “A” and “H”).
  • Decatur August 7. March to Nashville, Tenn., thence to Louisville, Ky.,
  • In pursuit of Bragg August 20-September 26.
  • Pursuit of Bragg into Kentucky October 1-16.
  • Battle of Perryville, Ky., October 8.

SERVICE — 1863:

  • March to Gallatin, Tenn., and duty there until January 13, 1863.
  • Operations against Morgan December 22, 1862, to January 2, 1863.
  • Moved to Nashville, Tenn., January 13, 1863; thence to Murfreesboro and duty there until June. Expedition toward Columbia March 4-14.
  • Regiment lost during service 2 Officers and 70 Enlisted men killed and mortally wounded and 5 Officers and 144 Enlisted men by disease. Total 221.

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