The Great Dissenter: How one future Supreme Court justice's Kentucky roots shaped the law
The story of the evolution of the U.S. Constitution isn’t set in a courtroom. It’s an American saga, but also a family saga — many family sagas. That of the Harlans of Danville is one of them.
For legal scholars, there has always been a mystery at the core of John Marshall Harlan, the Kentuckian who became the Supreme Court’s “Great Dissenter” and lone advocate for the rights of African Americans in the years from 1877 to 1911: How did a man who refused to embrace abolition before the Civil War emerge as the court’s foremost advocate for civil rights afterward?
The answer to both sides of that imbalance lies in the Bluegrass State and its unique traumas before and after the Civil War.
John Marshall Harlan was born in Harlan’s Station, along the banks of the Salt River near Danville, in 1833, the fifth son of James and Eliza Harlan. Even within that famous family, John stood out for his charisma, from Centre College to Transylvania law school to barnstorming the state as a speaker for the Whig Party.
Through all of John’s early life, however, a cloud hung over Kentucky. Leading Whigs like Henry Clay, John J. Crittenden, and John’s father watched in fear as Northern abolitionists and Southern states-rights extremists pushed the nation toward civil war. Simple geography, the Kentuckians believed, would render their state a battleground, while its civic fabric would be torn between Northern and Southern sympathies. These Kentucky nationalists spent decades crafting compromises to avoid war.
But the compromises wouldn’t hold. As hard as John Harlan endeavored to prevent war, it came. And he personally stood in the middle of the North-South divide, taking to the streets of Louisville with a bullhorn, begging his fellow Kentuckians not to allow the great American experiment in democratic government to fall prey to sectional differences.
After succeeding in maintaining Kentucky’s political neutrality, he fought for the Union on the battlefield, watching friends die on both sides. He emerged determined to fulfill the promises he made to his fellow Kentuckians — that the federal government would allow them to set their own course on slavery and other matters.
But the government reneged.
After a period of dismay, Harlan came to blame not the government nor the people of the United States but the institution of slavery. He followed a path blazed by Kentucky-born Abraham Lincoln from supporting compromises to recognizing the limits of compromise. Slavery, this new Harlan believed, was a moral and political sin that had insidiously undermined the great principles upon which the United States was founded.
When he joined the Supreme Court in 1877 as its only Southerner, Northern politicians fretted that he would be insufficiently supportive of the Reconstruction-era amendments granting equal rights to Black people. Instead, in one of the great ironies in American history, it was the Northern justices who abandoned those amendments, believing that submission on segregation was the price of unity with the South. Harlan, having watched in horror as the Ku Klux Klan took hold in Kentucky, saw in segregation — or any form of inequality under the law — a recurrence of the old cancer, the disease that almost killed the American experiment in its cradle.
There was another factor in Harlan’s thinking — and it, too, traced back to Danville. There was another Harlan in the home he grew up in, Robert Harlan. This one was enslaved, a man of mixed race who was not only reputed to be a family member but was treated as one. John watched the handsome, talented Robert become a horseracing pioneer, earn a fortune in the Gold Rush and emerge after the Civil War as the leading African American powerbroker in Ohio. The imbalances in their childhoods didn’t stop John and Robert from sharing a sense of family loyalty and becoming political allies.
So when Northern-bred justices, with little experience of African Americans, fell prey to notions of Black inferiority, John could only look at Robert’s golden success to see how formerly enslaved people could thrive when their rights were protected.
Sadly, the fortunes of Robert Harlan and his descendants waned in the hard years of segregation — burdened by the very laws that John Marshall Harlan fought against in his famous dissent in Plessy v. Ferguson.
“The Constitution is colorblind and neither knows nor tolerates classes among citizens,” he wrote.
That goal wouldn’t begin to be attained for another 60 years, though Justice Harlan’s words provided impetus and inspiration. The path from legal darkness to light led back to the Salt River, and a family tale that, silent in its time, now resounds in the laws of the land.
Peter S. Canellos is the author of “The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero.” He will speak at the Frazier History Museum, 829 W. Main St., on Aug. 24, at 11:30 a.m.