“A Difficult, Delicate Duty”: John Marshall Harlan, Race, and the Constitution
Updated: Jul 28
This essay was submitted on 2 April 2017 as part of coursework for HIST 490 at the University of British Columbia with Professor Paul L. Krause.
“The marvel is that, born in a slave State, as he was, and accustomed to see the coloured man degraded, and the white man exalted; surrounded by the peculiar moral vapour inseparable from the slave system, he should so clearly comprehend the lessons of the late war and the principles of Reconstruction, and, above all, that in these easy-going days he should find himself possessed of the courage to resist the temptation to go with the multitude. He has chosen to discharge a difficult and delicate duty and he has done it with great fidelity, skill, and effect.”
– Frederick Douglass on Justice John Marshall Harlan in 1883
In legal circles, there is no better-known individual in Reconstruction-era America than United States Supreme Court Associate Justice John Marshall Harlan. Furthermore, as Douglass’ words indicate, Harlan’s notoriety is not merely the twentieth century product of “embarrassed whites” looking for “at least one authority figure [who] rejected… Jim Crow.” Although Harlan is best known for his dissenting opinion in the 1896 case of Plessy v. Ferguson, he also registered a notable dissent in the 1883 decision regarding the Civil Rights Cases, to which Frederick Douglass was responding. In these two famous dissents, Harlan declared that the Constitution of the United States was “color-blind” and that discrimination on the basis of race was explicitly prohibited. He stood alone in this opinion, as the Supreme Court was otherwise unanimous in allowing ‘Jim Crow’ laws to remain in effect throughout much of the twentieth century. Although Harlan’s words are “coveted” by modern legal scholars who continue to argue issues of racial discrimination, his views on race were anything but uncomplicated.
This paper will examine the man behind these famous dissents, which earned him the title as “the most vigorous judicial champion of black rights” in post-Civil War America. An examination of Harlan’s life raises questions of how a former slaveholder from Kentucky, who publicly criticized Abraham Lincoln and the Emancipation Proclamation and displayed apparent bias against Chinese immigrants, so passionately defended the rights of African-Americans from the bench of the nation’s highest court. Previous scholarly treatments of his life have done a disservice to their subject and their reader by attempting to fit Harlan’s views into a particular narrative. This paper will not render a broad character judgment of Harlan. It will instead focus on understanding how Harlan came to hold the views that he espoused from the bench. Ultimately, John Marshall Harlan’s judicial philosophy on issues of race and national identity were fluid, complex, and sometimes contradictory.
The full paper is available as a PDF by clicking the link below.