JUSTICE JOHN MARSHALL HARLAN DEFENDER OF INDIVIDUAL RIGHTS DISSERTATION Presented in Partial Fulfillment of the Requirements for the Degree Doctor of Philosophy in the Graduate School of The Ohio State University By LEWIS ISAAC MADDOCKS, B.A., M.A The Ohio State University 1959 Approved By Department of Political Science PREFACE Since the demise of the "separate but equal" doctrine on May 17* 1954* one justice, John Marshall Harlan, the only member of the Supreme Court who opposed it at its birth, has become the center of much attention by students of constitu­ tional law. Now that his classic remark, "the Constitution is color-blind," has replaced the "separate but equal" doc­ trine, it is timely to learn more about this vigorously in­ dependent jurist, who, until in recent years had been largely neglected. It is the purpose of this paper to analyze this man who has suddenly reappeared as the precursor of so much that has emerged from Supreme Court decisions in the last half decade. More specifically, my goal is to describe, first, in general terms* his Kentucky heritage and the legal, military, and political background from which he grew before coming to the highest bench in the land, and second, and in more particu­ lar terms, the judicial role he played during his more than three decades on the Court, The period of his service on the bench, 1077 bo 1911, was one of tremendous chango--soclal, economic, and politi­ cal, To facilitate the analysis of Mr, Justice Harlan's work on the court, this study has been organized under five headings conforming to five of the more significant problems these changes in American society have presented for the Ill Court's consideration: first, the constitutional questions resulting from the rights guaranteed to the negro by the Civil War Amendments; second, the issues raised by the at­ tempts of the federal government to cope with the power of big business, as reflected in the Interstate Commerce Act of 1887 and the Sherman Anti-Trust Act of I89O; third, the interesting constitutional questions concerning the rights of individuals accused of crime— including the inhabitants of the colonial areas acquired by the United States after the Spanish-Arnerloai War; fourth, the issues arising from the social legislation in behalf of the industrial worker, and finally, the constitutional problems through such poli­ cies as the Inoome Tax law of 1895* At this point two matters should be emphasized: first, that the biographical section on Harlan is not meant to be definitive, and second, that there has been no attempt to discuss Harlan's views on the full range of constitutional provisions, even such a major one as the commerce power. This study is an analysis of what this writer believes to be the most striking principles of Justice Harlan's con­ stitutional philosophy; namely, a profound respect for the dignity of the Individual and a forthright defense of the government's right to protect that dignity. Displaying an intense Independence of mind, Justice Harlan, through numer­ ous dissenting opinions, became a vigorous defender of the iT individual--the Negro seeking the rights which the United States Constitution guarantees, the farmer and small busi­ nessman fighting the predatory activities of the big rail­ roads and Industrial monopolies, the laborer seeking pro­ tection against his exploitation by management, the person accused of crime struggling to assert his full legal rights, both procedural and substantive, and finally, the taxpayer trying to establish a tax system more equitable in its rela­ tion to the distribution of income. In all these areas Jus­ tice Harlan supported the individual's attempts to achieve his full potential when threatened by some power greater than that of the Individual concerned. He believed that it is through the maintenance of full intellectual, social, and political growth that the dignity of the individual can be preserved. But the object of this study is not only to demonstrate the depth of Justice Harlan's faith in these principles but also to make clear his confidence in the role of government as an instrument through which they can be maintained. Therefore, what this paper hopes to show Is that Justice Har­ lan's constitutional philosophy, as revealed In his many opinions, conceived of the United States Constitution as being based upon the fundamental tenets of the dignity and integrity of the individual and that the government must be empowered to promote and defend that principle. V This philosophy of Justice Harlan's was a defenao of individualism aid positive government, which at first glance may appear paradoxical because of the frequent association of individualism with the laissez-faire philosophy. What needs to be emphasized at the outset, therefore, is that in­ dividualism is used here to refer to the doctrine which as­ sumes a supreme worth in every human being. The state serves the individual in providing and maintaining an environment for self-expression of the Individual's potentialities. When it does not ignore the duties of the individual toward the rights of the minority, the philosophy of individualism is an essential element in the democratic process. It is in this context that Justice Harlan can be de­ scribed as both an individualist and a positivist, aid it is this combination which makes him the personification of his time— a mixture of the nineteenth century emphasis on individualism and the twentieth century trend toward positive government. This paper will attempt to demonstrate that Jus­ tice Harlan maintained this position throughout his Judicial career. Vi TABLE OF CONTENTS Chapter Page 1* THE MAKING OF A JUDGE..................... 1 Forbears and Legacies ................. 1 Education ............................. 6 Lawyer and Ante-Bellum Politics . • . • 12 Soldier ............................... 20 Post-War Politics ..................... Appointment to the Supreme Court. • 3 II. MR. JUSTICE HARLAN AND THE NEGRO ........ Aftermath of Reconstruction .......... § Civil Rights Acts: Congress v. the Su­ preme Court......................... 54 The Separate but Equal Doctrine: Jus­ tice Harlan v. the Supreme Court • • 80 Conclusion. ..••• ................. 107 III. MR. JUSTICE HARLAN AND THE INDIVIDUAL IN THE ECONOMIC FIELD..................... 113 Introduction........................... 113 Railroad Expansion: The Interstate Com­ merce Commission and the Supreme Court............................... 119 Industrial Concentration: The Sherman Anti-Trust Act and the supreme Court 135 IV. MR. JUSTICE HARLAN AND THE INDIVIDUAL IN THE FIELD OF CIVIL LIBERTIES.......... 153 Should the Bill of Rights be National­ ised? ............................... 153 The Bill of Rights and Procedural Due Process. ........ .. ............. 155 Does the Constitution Follow the Flag?. The Insular Cases................... 178 Due Process and the First Amendment • • 194 V. MR. JUSTICE HARLAN AND THE INDIVIDUAL IN THE FIEID OF LABOR RELATIONS.......... 200 Introduction........................... 200 Employers' Liability Cases............ 201 Regulation of Hours ................... 216 Miscellaneous Labor Cases • • ......... 22 6 VI. MR. JUSTICE HARLAN AND THE INDIVIDUAL IN THE FIELD OF TAXATION ................ 247 Income Distribution: The Income Tax Controversy......................... Inheritance and Assessment Taxes. • • • as vil Chapter Page VII. CONCLUSION................ 281 TABLE OP CASES ....................................... 297 BIBLIOGRAPHY....................................... 303 AUTOBIOGRAPHY......................................... 308 CHAPTER I THE MAKING OP A JUDGE Forbears and Legacies John Marshall Harlan's earliest American ancestor was George Harlan, a Quaker from Durham, Englaid. When still a young man, he moved to County Down, Ireland, where he lived until coming to New Castle, Delaware, In 1 6 8 7 . In 1695 he was Governor of Delaware and later settled In Chester County, Pennsylvania. His grandson, George, settled in Frederick County, Virginia, where he became a member of the Presbyter­ ian church which has since been the church of the Harlans. George's son James, at the age of 19* went to Kentucky in 1774* 81X1(3 his son, also named James and the father of the subject of this study, was born in 1800 at Harlan Station in what is now Boyle County. 1 Young James Harlan obtained an elementary education and then worked for five years in a mercantile house. At the end of that time he took up the study of law and In 1 8 2 3 , upon admission to the bar, began the practice of law in Harrodsburg, Kentucky* For six years he worked in the of­ fice cf Commonwealth Attorney and in 1835 *** elected Repre­ sentative to Congress on the Whig ticket, serving two terms. When he had completed his second term in Congress, James 1. Robert Spencer Cotterill, "James Harlan," Dictionary of American Biography. VIII, 2o7. The material on James Har- Tancomes from phis source. 1 2 Harlan was one of the loaders of the Whig Party in Kentucky, which at that time was the dominant party in the state. 2 In 18JjX> he was elected Secretary of State cf Kentucky and was a delegate to the national convention tiiich nominated William Henry Harrison for President. Eight years later, he was elected to the lower house of the Kentucky legisla­ ture and in 1851* after refusing the Whig nomination for Congress from the Ashland district, was elected Attorney- General of Kentucky. Throughout his political career, James Harlan, like most of the Whig leaders in his state, was a