Success Can Change Everything

robert-harlan

It’s been said that one of Justice Thurgood Marshall’s favorite justices was Justice John Marshall Harlan (1833 – 1911), who was known as the “Great Dissenter”.

Harlan’s dissent in the landmark case of Plessy v. Ferguson (1896), set him apart from the prevailing opinion of the time about the abilities of African Americans and their intelligence. John Harlan served on the U.S. Supreme Court from 1877 until 1911. He was born into a slave holding family, and the son of James Harlan a U.S. Congressman and Secretary of  The Commonwealth of Kentucky. James fathered several slave children. One of which, it’s is believed but not confirmed was Robert James Harlan (1816-1897).

 

 

 

 

John Harlan had his distractions. He was labeled a chameleon. In the beginning of his term on the bench, he was a reliable pro-Southern Justice. He denied the claims of blacks, sided with the Ku Klux Klan as a lawyer, and was a vocal opponent to the Reconstruction Amendments (13, 14 and 15th). However as Harlan aged he began to soften his views regarding the former slaves. Maybe that had something to do with, who was believed to have been, his half-brother, Robert.

Before emancipation Robert, who was taught by his two older brothers, seemed to excel in business.  He opened a barbershop and then a grocery store. The record shows that his father needed a bond of $500 in 1848 and Robert showed up to the Franklin County Courthouse with the money. Before the Civil War ended Robert left for California.  He made a fortune in the Gold Rush before returning east.  He later settled in the Cincinnati, Ohio area remaining in contact with the white side of the Harlan family.  Robert enjoyed trips to Europe and eventually helped Justice Harlan financially.  The two remained close during the Justices’ term on the Court.

Justice Harlan’s opinion on race is one of the most quoted and eloquent defenses of the equality of people given from the Court. In the case of Plessy v. Ferguson the majority set in motion a “separate but equal” doctrine.  That failed experiment was ended with the Brown v. Board of Education decision in in 1954. Harlan “evolved” in his thinking on race and the abilities of African-Americans.  Harlan’s half-brother was an example to the world of the capabilities of blacks, even former slaves. In Harlan’s dissent, he mentioned the Constitution being colorblind and how it does not mention the superiority of anyone by race, nor is there a mention of any dominant class of people. He went so far as to say that all people are equal before the law.

 

 

 

 

Justice Thurgood Marshall called Justice Harlan’s dissent “the Bible”, and kept a copy nearby to refer to it at certain times. The 60 years between Plessy v. Ferguson and the Brown v. Board of Education ruling, ushered in the horrible “Jim Crow” era. Segregation dominated life, especially in the Southern States. Justice John Marshall Harlan saw the effects of education and the potential of people. During his life and tenure on the Supreme Court his opinions softened and challenged the rest of the Court to stay true to the Constitution. However, for many it was Robert Harlan that had proved to be the example of success.

Some still question whether or not the two Harlans were indeed half-brothers. Correspondences between to the Justice and the businessman, mentioning Robert’s financial gifts to the Justice and family debt, is proof to many they were related.  Did Robert’s relationship and financial gifts persuade the Justice and help in his evolution of thought in regard to race and equality? Robert Harlan developed his own political connections, notably his speech in favor of the ratification of the 15th Amendment (the right to vote regardless of race, color or previous condition of servitude) and as a delegate to the 1872 Republican National convention.

 

 

 

Read more on the life of Robert Harlan: 
"Did the First Justice Harlan Have a Black Brother"?, 
Western New England University Law Review, 
"The Great Dissenter and his half brother", Smithsonian.com

Excerpt of John Marshall Harlan’s dissent in Plessy v. Ferguson (1896)

“….But in the 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 in color-blind and neither knows nor tolerates classes among citizens.  In respect of civil rights, all citizens are equal before the law.   The humblest is the peer of the most powerful.  The law regards man as man and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved….

The arbitrary separation of citizens, on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution.  It cannot be justified upon any legal grounds…”


 

Brown v. Board of Ed

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