Vol. 10 No. 1 (January 2000) pp. 51-55.

THE REPUBLIC ACCORDING TO JOHN MARSHALL HARLAN by Linda Przybyszewski. Chapel Hill: The University of North Carolina Press, 1999. 286 pp.

Reviewed by, Paul Kens, Professor of Political Science and History, Southwest Texas State University.

Mid-twentieth century liberals looking for a bright spot among turn-of-the-century Supreme Court justices were sure to spot the first John Harlan. Harlan sat on the court from 1877 to 1911, some of the high court's most conservative years. When in THE CIVIL RIGHTS CASES (1883) the Court developed the state action doctrine to conclude that the Fourteenth Amendment did not prohibit discrimination by private owners of public accommodations, Harlan dissented. When it created the separate but equal doctrine in PLESSEY v. FERGUSON (1896), Harlan argued in dissent that, "the constitution is color blind." When in HURTADO v. CALIFORNIA (1884) the Court held that the Fifth Amendment right to indictment by grand jury did not apply to the states, Harlan's dissent laid seeds for the idea that the Fourteenth Amendment applied the Bill of Rights to the states. When in LOCHNER v. NEW YORK (1905) the majority held that liberty of contract prohibited a state from passing economic regulations, once again Harlan dissented.

When liberals looked beyond these high profile opinions, however, what they found could be disturbing. In PACE v. ALABAMA (1882) the man who had so valiantly opposed the separate but equal doctrine joined a unanimous Court in upholding a law that punished interracial adultery more severely than same race adultery. And, in CUMMING v. RICHMOND COUNTY BOARD OF EDUCATION (1899) he wrote an opinion allowing a county to close a high school for black students while keeping a white high school open. Turning to economic due process cases they found that the man who had dissented in LOCHNER also invented the fair value formula in SMYTH v. AMES (1898), thus allowing the Court to determine whether rate regulations deprived businesses of their property without due process of law. Later, in ADAIR v. UNITED STATES (1908), he applied the liberty of contract doctrine to overrule a federal statute prohibiting companies from requiring their employees to agree not to join a union. What are we to make of this record? In a recent biography Tinsley Yarbrough (1994) calls Harlan a "judicial enigma." Other writers have charged that Harlan was result-oriented or, at best, inconsistent. In her new book, however, Linda Przybyszewski maintains that, if one understands Harlan's worldview, many of these inconsistencies are more apparent than real. Using previously overlooked sources, she portrays Harlan as a man whose sense of justice and interpretation of the Constitution was shaped by: his family background, his view of race, his religious belief, and his belief in the purpose and historical mission of the United States.

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Chapter 1 uses memoirs written in 1915 by Harlan's wife, Malvina to explore a family myth of white male paternalism. Harlan was from a Kentucky slaveholding family, and was a slaveholder himself. The household that Malvina describes was one that practiced a benevolent rather than despotic form of slavery. It looked after its slaves' welfare and recognized that exceptional slaves, like Harlan's half-brother, Robert, deserved an opportunity to earn their freedom. A patriarch possessed legal power over his slaves but tempered it by self-restraint. "In this remembered household, Przybyszewski observes, whites neither denied the humanity of blacks nor indulged in brutality"(p. 27). Although in the Civil War years Harlan opposed emancipation, by 1871 he had change his view, declaring that slavery was "the most perfect despotism that ever existed on this earth" (p. 41). However, in Przybyszewski's words, "Even the shock of emancipation could not erase the habits of his upbringing." The myth of paternalism included an idealized standard of good will and care but it also included assumptions of racial hierarchy and separation.

In the next chapter Przybyszewski makes use of lecture notes taken by two students who attended Harlan's class at Columbian University in 1897-98 to illustrate that Harlan was a legal formalist who believed that rules of legal interpretation were clear and fixed. The notes also indicate to her that Harlan offered a clear and consistent picture that the purpose of the country and the Constitution was to foster the progress of equality. This "myth of an egalitarian national mission" viewed the American Revolution as a victory over the hierarchy of nobility and the Civil War as a victory over the hierarchy of race. For Harlan this was more than a myth, however, reinforced by his Protestantism it became a divinely ordained purpose of the Constitution. Although the myth of paternalism and the myth of equality seem at odds, Przybyszewski next explains how the two combine to form a coherent philosophy. The key to understanding Harlan's race opinions, she says, is to realize that his belief in equality did not mean he thought the races were equal. To the contrary, Harlan clearly believed in the superiority of the white race: more specifically, the white race guided by protestant virtue. This image held that, although whites may have possessed the political power to hold blacks down, they reduced their own dignity and thus their own superiority by doing so. "Like the prewar paternalist who was required to forbear from exercising his full legal power in order to be worthy of his position, Przybyszewski explains the postwar generation of whites had to control their exercise of raw political power in order to fulfill their destiny" (p. 98). Harlan also followed a commonly held belief of the era was that equality took the form of three sets of rights, political, civil, and social. The Fourteenth Amendment and forbearance may have required that blacks be given political and civil equality but not necessarily social equality.

Przybyszewski uses three stories, two relating to Harlan's involvement with the Presbyterian Church and the other told by Reverend Francis T. Grimke, to explain how Harlan's belief in equality and his belief in the separation of the races played out in his opinions. The stories demonstrate that Harlan differed from some of his contemporaries only in how he defined the three-tiered system of rights. His vote in PACE v. ALABAMA is easily explained. Sexual relations between the races were clearly the type of intimate activity that

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would fall under the definition of social rights. Harlan's opinions in THE CIVIL RIGHT CASES and PLESSY v. FERGUSON are a little more difficult. Although many of his contemporaries would have placed the use of public accommodations and transportation in the category of social rights, Przybyszewski explains, Harlan was willing to stretch the definition of civil rights to include those activities. That being said, public schooling might also seem to fall into that category of civil rights. But that was not necessarily so for Harlan. It is possible, Przybyszewski surmises, that he did not come out clearly against single-race schooling in CUMMINGS because it was a way to preserve racial identity, not for the racist reason that a separate and unequal system of education would keep blacks down but for the racialist reason that schooling was a far more intimate activity than riding a streetcar and could lead to friendship and marriage (pp. 100-1).

In these early chapters Przybyszewski is at her best. She explains Harlan without attempting to either glamorize him or apologize for him. She also takes a new look at the meaning of his dissent in PLESSY, as a reflection not only of Harlan's belief in equality but also a less admirable belief in the superiority of the white race and the proper way of expressing that belief. Political scientists disagree about whether judges are simple political actors who apply legal standards in ways that promote their own self-interest or political preferences, or whether they are more constrained by precedent. Przybyszewski notes that, "Harlan has been described as a results-oriented judge with a loose grip on the technicalities of legal doctrine" (p. 72). However, her work illustrates that judges are also guided by sentiment -- the deep beliefs and standards that they bring with them to the bench.

Przybyszewski carries the themes of myth of paternalism and myth of national mission into her discussion of Harlan's belief that the Fourteenth Amendment applied the Bill of Rights to the States and, more importantly, her discussion of LOCHNER v. NEW YORK and his other economic due process opinions. The traditional view of the LOCHNER era attributes liberty of contract to an effort by judges to attach principles of laissez-faire economics to the constitution. However, for the last several decades "revisionists" have maintained that the principles of limited government and opposition to class legislation reflected in LOCHNER and its progeny actually trace their roots to the antebellum free labor movement and Jacksonian Democracy. I put the term revisionist in quotations because rather than actually being revisionist their position seem to be conventional in today's legal history and tend to treat those who do not agree as unenlightened relics of the Progressive Era. I, perhaps justifiably, seem to have been placed in the category of the unenlightened. In my latest work, however, I have argued that, although the LOCHNER era proponents of liberty of contract may have been able to claim some connection free labor ideology and Jacksonian Democracy, proponents of economic regulation could claim a free labor and Jacksonian inheritance as well (Kens 1997). In fact, late ineteenth-century reformers understood that liberty of contract doctrine had the practical effect of turning free labor and Jacksonian ideals on their heads by allowing special privileges for economic

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elite at the expense of self-sufficiency, economic independence, and individual liberty. They realized that concentration of economic power changed the free labor and Jacksonian equation and thus, appealing to those ideals, sometime saw government regulation as a means of preserving their liberty rather than as a threat to their liberty.

Enthusiastically citing the revisionist scholars, Przybyszewski seems eager to jump on their bandwagon. But, her discussion of Harlan's economic due process cases makes my point as well as anything I could have done. When revisionists argue that the LOCHNER opinion was rooted in free labor theory and Jacksonianism they mean, of course, the majority opinion. Harlan wrote in dissent. SMYTH V. AMES shows unequivocally that Harlan believed in substantive due process and his LOCHNER dissent does not reject liberty of contract. Unlike Peckham and the majority, however, he obviously believed that the liberty of contract doctrine had significant limits. What kind of limits? Traditionally, Harlan's dissent is thought to be primarily about the limits of judicial power. But, looking at several significant antitrust cases and the income tax case POLLOCK v. FARMERS LOAN AND TRUST CO. (1895), Przybyszewski shows that Harlan's dissent may be just as much a reflection of changing ideas about free labor. Harlan, she concludes, recognized that freedom of contract did not exist where monopoly and concentration of economic power dominated the economy. For Harlan, she argues, concentrated wealth was akin to the slave power. It was a hierarchy to be overthrown in the country's mission to achieve equality. Harlan, it seems, was tinkering with the same notions as late nineteenth century reformers. And, like them he was claiming roots in the free labor ideology.

Przybyszewski does a very nice job of using known but previously unmined sources to explore Harlan's views. She takes a chance. These materials probably were ignored for a reason. The memoirs of Harlan's wife, notes taken by his students, stories told years after the event are for the most part hearsay. They are not the kind of sources to which one would first turn to prove the truth of their contents. Przybyszewski's accomplishment is that she does not offer them as indicators of truth but rather to explore myths, and what better places to find myths? Still, she seems self-conscious about the sources. This leads her to try to explain her decision to rely on them by saying that other Harlan biographers were "distracted from these treasures by their efforts to prove that Harlan was a great judge" (p. 3). She expands on this theme by claiming that all conventional judicial biography is flawed by the authors' obsession with proving that their subjects were great judges. Since she uses my work on Stephen Field as an example, I know her sweeping condemnation is inaccurate. Przybyszewski does not need to go so far as to claim she has reinvented the judicial biography. Overstating her case only distracts from an otherwise successful book. Despite her desire to avoid demonstrating that Harlan was a great judge, Linda Przybyszewski has written a fine intellectual biography of an important figure in American law. Recent biographies by Tinsley Yarbrough (1997) and Loren Beth (1992) seem to signal a renewed interest in the first Justice John Harlan. THE REPUBLIC ACCORDING TO JOHN MARSHALL HARLAN is a valuable addition.

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REFERENCES:

Beth, Loren P. 1992. JOHN MARSHALL HARLAN: THE LAST WHIG JUSTICE. Lexington: University Press of Kentucky.

Kens, Paul. 1997. JUSTICE STEPHEN FIELD: SHAPING LIBERTY FROM THE GOLD RUSH TO THE GILDED AGE. Lawrence: University Press of Kansas.

Yarbrough, Tinsley E. 1994. JUDICIAL ENIGMA: THE FIRST JOHN HARLAN. New York: Oxford University Press.

CASE REFERENCES:

ADAIR v. UNITED STATES, 208 U.S. 161 (1908).

CIVIL RIGHTS CASES, 100 U.S. 3 (1883).

CUMMING v. RICHMOND COUNTY BOARD OF EDUCATION, 175 U.S. 528 (1899).

HURTADO v. CALIFORNIA, 110 U.S. 516 (1884).

PACE v. ALABAMA, 106 U.S. 583 (1883).

PLESSY v. FERGUSON, 163 U.S. 537 (1896).

POLLOCK v. FARMERS' LOAN AND TRUST CO., 158 U.S. 601 (1895).

SMYTH v. AMES, 169 U.S. 466 (1898).