History Article by John Trowbridge, Kentucky National Guard
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
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.
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.
County, Kentucky, derived its name after John’s relative, his great uncle Silas,
who died at the Battle of Blue Licks in 1782.
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.
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.
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
his new career, Harlan decided to pursue politics that same year.
serving as Adjutant General, not much occurred around the state to require Harlan’s
attention or time as militia musters were discontinued in 1850.
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
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.
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
December 23, 1856, Harlan married Malvina “Mallie” French Shanklin of
Evansville, Indiana, and to this union six children would be born.
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.
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.
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.
his tenure as Adjutant General, Harlan had served under the administrations of
Governors John L. Helm, Lazarus W. Powell and Charles S. Morehead.
Brown replaced Harlan as Adjutant General in September of 1859.
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.
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."
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:
“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.”
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
"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
"With slavery it was death or tribute. . . . It knew no compromise; it tolerated no middle course. I rejoice that it is gone."
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.
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.
Benjamin Harrison appointed Harlan to represent the United States in Paris
during the 1892 arbitration with Great Britain over fishing rights in the
made by Justice Harlan over 100 years ago still have relevance and continue to impact
our lives, today and in the future.
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.
dissent, he asserted, “Our Constitution is colorblind, and neither knows nor
tolerates classes among citizens.”
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.”
Harlan had come a long way from his Kentucky roots as a former slave owner and
defender of slavery.
not be until the 1954 case, Brown v.
Board of Education, did the Court finally repudiate the “separate but
equal” principle established in Plessy.
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.
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
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.
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.
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
case, Harlan concluded the law was ruled to be a reasonable regulation.
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,
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.
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:
SERVICE — 1863: