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Justice John Marshall Harlan: Professor of Law University of Kentucky UKnowledge Law Faculty Scholarly Articles Law Faculty Publications 7-2013 Justice John Marshall Harlan: Professor of Law Brian L. Frye University of Kentucky College of Law, [email protected] Josh Blackman South Texas College of Law Michael McCloskey Follow this and additional works at: https://uknowledge.uky.edu/law_facpub Part of the Legal Education Commons, and the Legal History Commons Right click to open a feedback form in a new tab to let us know how this document benefits ou.y Recommended Citation Brian L. Frye, Josh Blackman & Michael McCloskey, Justice John Marshall Harlan: Professor of Law, 81 Geo. Wash. L. Rev. 1063 (2013). This Article is brought to you for free and open access by the Law Faculty Publications at UKnowledge. It has been accepted for inclusion in Law Faculty Scholarly Articles by an authorized administrator of UKnowledge. For more information, please contact [email protected]. Justice John Marshall Harlan: Professor of Law Notes/Citation Information The George Washington Law Review, Vol. 81, No. 4 (July 2013), 1063-1134 This article is available at UKnowledge: https://uknowledge.uky.edu/law_facpub/302 Justice John Marshall Harlan: Professor of Law Josh Blackman,* Brian L. Frye,** & Michael McCloskey*** ABSTRACT From 1889 to 1910, while serving on the United States Supreme Court, the first Justice John Marshall Harlan taught at the Columbian College of Law, which became the George Washington University School of Law. For two decades, he primarily taught working-class evening students in classes as diverse as property, torts, conflicts of law, jurisprudence,domestic relations, commercial law, evidence-and most significantly-constitutionallaw. Harlan's lectures on constitutional law would have been lost to history, but for the enterprising initiative-and remarkable note-taking-of one of Harlan's students, George Johannes. During the 1897-98 academic year, George Johannes and a classmate transcribedverbatim the twenty-seven lec- tures Justice Harlan delivered on constitutional law. In 1955, Johannes sent the transcripts to the second Justice Harlan. The papers were ultimately de- posited in the Library of Congress. Though much attention has been given to the life and jurisprudence of Justice Harlan, his lectures have been largely ignored. Harlan's lectures are a treasure trove of insights into his jurisprudence,as well as the state of constitutional law at the turn of the 20th century. They provide the unique opportunity to listen in as one of our greatest Justices lec- tures on the precipice of a constitutionalrevolution that he helped create. In this article, we use the lectures to paint a picture of who Justice Harlan was, what he believed, how he sought to impart that knowledge to the future law- yers of America, and how he predicted many of the changes in constitutional law that occurred during the 20th century. This article, published along with the annotated transcript of all twenty- seven lectures and written on the centennial of Justice Harlan's death, is a tribute to one of the giants of the law, and his contribution to legal education. * Assistant Professor, South Texas College of Law; President, The Harlan Institute. ** Assistant Professor of Law, University of Kentucky College of Law; J.D., New York University School of Law, 2005; M.F.A., San Francisco Art Institute, 1997; B.A., University of California, Berkeley, 1995. Professor Frye's research on this project was funded in part by the Institute for Humane Studies. *** J.D., Catholic University of America Columbus School of Law, 2012. The authors thank Scott Campbell, Jack Chin, Ross Davies, Davison Douglas, and Richard Pascal, as well as research assistants Zach Cato, C.J. Ryan, Cyavash Ahmadi, William Reinken, and Erin Ross. The authors dedicate this article to Justice John Marshall Harlan I. July 2013 Vol. 81 No. 4 1063 1064 THE GEORGE WASHINGTON LAW REVIEW [Vol. 81:1063 TABLE OF CONTENTS INTRODUCTION ................................................. 1065 I. THE FIRST JOHN MARSHALL HARLAN.................. 1068 II. HARLAN THE PROFESSOR ............................... 1073 A. Columbian College of Law at the Turn of the Century ............................................. 1073 B. A Justice and a Teacher............................. 1075 1. Harlan's Classes and Schedule ... .......... 1076 2. Relationship with Students ..... ........... 1078 C. PedagogicalApproach ........................ 1080 1. Harlan's Casebook ..................... 1080 2. Harlan Did Not Use the Socratic Method ...... 1083 3. Harlan's Constitutional Law Exam .......... 1085 D. The Supreme Court in the Classroom............ 1087 E. Harlan's Untimely Departurefrom Columbian College of Law .............................. 1090 F. Origin of the Lecture Notes .................... 1095 III. HARLAN'S JURISPRUDENCE .............................. 1096 A. Proto-Originalist ............................ 1097 B. American Exceptionalism and Providence........... 1100 C. American Citizenship and Equal Protection ......... 1103 1. A Preview of Wong Kim Ark in Class.......... 1103 2. A Recap of Wong Kim Ark in Class ........... 1106 3. Harlan's Enigmatic Approach to Equality ...... 1109 D. Individual Liberty ........................... 1111 1. Freedom of Speech ..................... 1111 2. Religious Liberty ....................... 1113 3. Economic Liberty. ...................... 1116 4. Suffrage and Gender Equality ... .......... 1117 IV. HARLAN THE SEER ..................................... 1119 A. Incorporation ............................... 1119 1. Harlan's Prescient Opinions .......... ..... 1120 2. Grand Jury Clause...................... 1121 3. Right to Jury Trial ...................... 1122 4. Eighth Amendment Prohibition Against Cruel and Unusual Punishment ........... ...... 1123 5. Incorporation in the Twentieth Century ........ 1124 B. The Commerce Clause ............... ......... 1125 C. The Erie Doctrine and Vertical Comity ........... 1129 D. Separation of Powers ......................... 1131 1. Qualifications of Representatives ........... 1131 2013] JUSTICE JOHN MARSHALL HARLAN 1065 2. Congress Choosing Its Own Rules.............. 1133 3. Bicameralism and Presentment ............. 1133 4. Appointment of Officers.................. 1133 CONCLUSION ................................................. 1134 INTRODUCTION I have often been astounded to meet with lawyers who have actually never read the Constitution of the United States, although it can be read within the time that is wasted at a street corner some afternoon discussing the last game of baseball or the last prize fight. They may have examined particular clauses, but have never read the entire instrument so as to comprehend in a general way the system of govern- ment ordained by it .... Now, I beg you that this may not be said of any member of this law class that he allow this week to pass without read- ing the Constitution. Some knowledge of the principles un- derlying the government under which we live ought to be possessed by every person who owes duties to that govern- ment, or upon whom its laws operate, or who depends upon it for protection of his life, liberty, and property. Freedom and free institutions cannot long be entertained by a people who do not understand the nature of the government under which they live.' -Justice John Marshall Harlan 1, October 14, 1897. From 1889 to 1910, while serving on the United States Supreme Court, the first Justice John Marshall Harlan taught at the Columbian College of Law, which later became The George Washington Univer- sity School of Law. For two decades, he primarily taught working- class evening students in classes as diverse as property, torts, conflicts of law, jurisprudence, domestic relations, commercial law, evidence- and most significantly-constitutional law. Harlan's lectures on constitutional law would have been lost to history but for the enterprising initiative-and remarkable note tak- ing-of one of Harlan's students, George Johannes. During the 1897-1898 academic year, Johannes and a classmate transcribed ver- batim the twenty-seven lectures Justice Harlan delivered on constitu- tional law. In 1955, Johannes sent his copy of the transcripts to the second Justice Harlan, who eventually deposited them in the Library I Brian L. Frye, Josh Blackman & Michael McCloskey, eds., John Marshall Harlan: Lec- tures on Constitutional Law, 1897-98, 81 GEO. WASH. L. REV. ARGUENDO 12, 14-15 (2013) [hereinafter Justice Harlan's Lectures]. 1066 THE GEORGE WASHINGTON LAW REVIEW [Vol. 81:1063 of Congress.2 Harlan's life and jurisprudence have received a great deal of scholarly attention. Yet, tragically, his lectures have been un- available to the public, and as a result largely ignored.3 This Article, along with the first edited and annotated transcription of Harlan's lec- tures, 4 will bring those priceless lessons to life. Harlan's lectures provide a trove of insights into his jurispru- dence, as well as the state of constitutional law at the turn of the twen- tieth century. They offer the unique opportunity to listen in as one of our greatest Justices lectures on the precipice of a constitutional revolution that he helped create. This Article, written on the centen- nial of Justice Harlan's death, is a tribute to one of the giants of the law, and his contribution to legal education. In Part I, we survey Justice Harlan's accomplished career. He rose from humble origins in rural Kentucky, served as a Colonel in the Civil War, and was
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