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Supreme Court Justice John Marshall Harlan (1833-1911) is best known for condemning racial segregation in his dissent from Plessy v. Ferguson in 1896, when he declared, "Our Constitution is color-blind." But in other judicial decisions--as well as in some areas of his life--Harlan's actions directly contradicted the essence of his famous statement. Similarly, Harlan was called the people's judge for favoring income tax and antitrust laws, yet he also upheld doctrines that benefited large corporations. Examining these and other puzzles in Harlan's judicial career, Linda Przybyszewski draws on a rich array of previously neglected sources--including the verbatim transcripts of his 1897-98 lectures on constitutional law, his wife's 1915 memoirs, and a compilation of opinions, drawn up by Harlan himself, that he wanted republished. Her thoughtful examination demonstrates how Harlan inherited the traditions of paternalism, nationalism, and religious faith; how he reshaped these traditions in light of his experiences as a lawyer, political candidate, and judge; and how he justified the vision of the law he wrote. An innovative combination of personal and judicial biography, this book makes an insightful contribution to American constitutional and intellectual history.
The story of an American hero who stood against all the forces of Gilded Age America to help enshrine our civil rights and economic freedoms. Dissent. No one wielded this power more aggressively than John Marshall Harlan, a young union veteran from Kentucky who served on the US Supreme Court from the end of the Civil War through the Gilded Age. In the long test of time, this lone dissenter was proven right in case after case. They say history is written by the victors, but that is not Harlan's legacy: his views--not those of his fellow justices--ulitmately ended segregation and helped give us our civil rights and our economic freedoms. Derided by many as a loner and loser, he ended up being acclaimed as the nation's most courageous jurist, a man who saw the truth and justice that eluded his contemporaries. "Our Constitution is color blind and neither knows nor tolerates classes among citizens," he wrote in his famous dissent in Plessy v. Ferguson, one of many cases in which he lambasted his colleagues for denying the rights of African Americans. When the court struck down antitrust laws, Harlan called out the majority for favoring its own economic class. He did the same when the justices robbed states of their power to regulate the hours of workers and shielded the rich from the income tax. When other justices said the court was powerless to prevent racial violence, he took matters into his own hands: he made sure the Chattanooga officials who enabled a shocking lynching on a bridge over the Tennessee River were brought to justice. In this monumental biography, prize-winning journalist and bestselling author Peter S. Canellos chronicles the often tortuous and inspiring process through which Supreme Courts can make and remake the law across generations. But he also shows how the courage and outlook of one man can make all the difference. Why did Harlan see things differently? Because his life was different, He grew up alongside Robert Harlan, whom many believed to be his half brother. Born enslaved, Robert Harlan bought his freedom and became a horseracing pioneer and a force in the Republican Party. It was Robert who helped put John on the Supreme Court. At a time when many justices journey from the classroom to the bench with few stops in real life, the career of John Marshall Harlan is an illustration of the importance of personal experience in the law. And Harlan's story is also a testament to the vital necessity of dissent--and of how a flame lit in one era can light the world in another. --
Harlan. Known today to every student of constitutional law, principally for his dissenting opinions in early racial discrimination cases, Harlan was an important actor in every major public issue that came before the Supreme Court during his thirty-three-year tenure. Named by a hopeful father for Chief Justice John Marshall, Harlan began his career as a member of the Kentucky Whig slavocracy. Loren Beth traces the young lawyer's development from these early years through the secession crisis and Civil War, when Harlan remained loyal to the Union, both as a politician and as a soldier. As Beth demonstrates, Harlan gradually shifted during these years to an antislavery Republicanism that still emphasized his adherence to the Whig principles of Unionism and national power as against states' rights. Harlan's Supreme Court career (1877-1911) was characterized by his fundamental disagreement with nearly every judicial colleague of his day. His ultimate stance -- as the Great Dissenter, the champion of civil rights, the upholder of the powers of Congress -- emerges as the logical outgrowth of his pre-Court life. Harlan's significance for today's reader is underlined by the Supreme Court's adoption, beginning in the 1930s, of most of his positions on the Fourteenth Amendment and the Commerce Clause of the Constitution. This fine biography is also an important contribution to constitutional history. Historians, political scientists, and legal scholars will come from its pages with renewed appreciation for one of our judicial giants.
Chief Justice John Marshall argued that a constitution "requires that only its great outlines should be marked [and] its important objects designated." Ours is "intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." In recent years, Marshall's great truths have been challenged by proponents of originalism and strict construction. Such legal thinkers as Supreme Court Justice Antonin Scalia argue that the Constitution must be construed and applied as it was when the Framers wrote it. In Keeping Faith with the Constitution, three legal authorities make the case for Marshall's vision. They describe their approach as "constitutional fidelity"--not to how the Framers would have applied the Constitution, but to the text and principles of the Constitution itself. The original understanding of the text is one source of interpretation, but not the only one; to preserve the meaning and authority of the document, to keep it vital, applications of the Constitution must be shaped by precedent, historical experience, practical consequence, and societal change. The authors range across the history of constitutional interpretation to show how this approach has been the source of our greatest advances, from Brown v. Board of Education to the New Deal, from the Miranda decision to the expansion of women's rights. They delve into the complexities of voting rights, the malapportionment of legislative districts, speech freedoms, civil liberties and the War on Terror, and the evolution of checks and balances. The Constitution's framers could never have imagined DNA, global warming, or even women's equality. Yet these and many more realities shape our lives and outlook. Our Constitution will remain vital into our changing future, the authors write, if judges remain true to this rich tradition of adaptation and fidelity.
Excerpt from The Constitutional Doctrines, of Justice Harlan Two temptations assail writers of biographies, or of studies of a similar kind, - to overestimate or to underestimate. It is hard for the student of a man's career to see both sides, and after giving due consideration to each, to form a fair judgment. Throughout this study I have been aware of these two dangers, but I am not sure that in all respects they have been avoided. It needs to be emphasized that in studying the constitutional doctrines of a single great judge as found in his dissenting opinions, the prevailing opinions of the court must of necessity appear at their worst, for the criticisms of the minority are of course directed at the weak points in the reasoning of the majority. In so far, then, as I have accepted Justice Harlan's arguments and found unconvincing the rulings of the Supreme Court, it must be remembered that I am criticising only the weaker points of a few decisions of that great tribunal. This study was prepared partly at the Summer School of Columbia University, but principally in the Department of Political Science of the Johns Hopkins University. I wish to express my gratitude for suggestions made by Mr. A. M. Groves, a graduate student of this University, who read the manuscript before it went to press; I owe to Professor T. R. Powell, of New York, my knowledge of many of the basic principles of constitutional law; but the study was prepared under the direction of Dr. W. W. Willoughby, of the Johns Hopkins University, without whose aid its production would not have been possible. About the Publisher Forgotten Books publishes hundreds of thousands of rare and classic books. Find more at www.forgottenbooks.com This book is a reproduction of an important historical work. Forgotten Books uses state-of-the-art technology to digitally reconstruct the work, preserving the original format whilst repairing imperfections present in the aged copy. In rare cases, an imperfection in the original, such as a blemish or missing page, may be replicated in our edition. We do, however, repair the vast majority of imperfections successfully; any imperfections that remain are intentionally left to preserve the state of such historical works.
2004 marks the fiftieth anniversary of the Supreme Court's unanimous decision to end segregation in public schools. Many people were elated when Supreme Court Chief Justice Earl Warren delivered Brown v. Board of Education of Topeka in May 1954, the ruling that struck down state-sponsored racial segregation in America's public schools. Thurgood Marshall, chief attorney for the black families that launched the litigation, exclaimed later, "I was so happy, I was numb." The novelist Ralph Ellison wrote, "another battle of the Civil War has been won. The rest is up to us and I'm very glad. What a wonderful world of possibilities are unfolded for the children!" Here, in a concise, moving narrative, Bancroft Prize-winning historian James T. Patterson takes readers through the dramatic case and its fifty-year aftermath. A wide range of characters animates the story, from the little-known African Americans who dared to challenge Jim Crow with lawsuits (at great personal cost); to Thurgood Marshall, who later became a Justice himself; to Earl Warren, who shepherded a fractured Court to a unanimous decision. Others include segregationist politicians like Governor Orval Faubus of Arkansas; Presidents Eisenhower, Johnson, and Nixon; and controversial Supreme Court justices such as William Rehnquist and Clarence Thomas. Most Americans still see Brown as a triumph--but was it? Patterson shrewdly explores the provocative questions that still swirl around the case. Could the Court--or President Eisenhower--have done more to ensure compliance with Brown? Did the decision touch off the modern civil rights movement? How useful are court-ordered busing and affirmative action against racial segregation? To what extent has racial mixing affected the academic achievement of black children? Where indeed do we go from here to realize the expectations of Marshall, Ellison, and others in 1954?
This book analyzes the theoretical nuances and practical implications of how judges use precedent.
“Highly illuminating ... for anyone interested in the Constitution, the Supreme Court, and the American democracy, lawyer and layperson alike." —The Los Angeles Review of Books In his major work, acclaimed historian and judicial authority Melvin Urofsky examines the great dissents throughout the Court’s long history. Constitutional dialogue is one of the ways in which we as a people reinvent and reinvigorate our democratic society. The Supreme Court has interpreted the meaning of the Constitution, acknowledged that the Court’s majority opinions have not always been right, and initiated a critical discourse about what a particular decision should mean before fashioning subsequent decisions—largely through the power of dissent. Urofsky shows how the practice grew slowly but steadily, beginning with the infamous and now overturned case of Dred Scott v. Sandford (1857) during which Chief Justice Roger Taney’s opinion upheld slavery and ending with the present age of incivility, in which reasoned dialogue seems less and less possible. Dissent on the court and off, Urofsky argues in this major work, has been a crucial ingredient in keeping the Constitution alive and must continue to be so.