Closing Argument

GIVING A DAMN

By Donald F. Smith, Jr., Esquire

Is John Marshall Harlan the greatest Supreme Court Justice since his namesake, the fourth Chief Justice?

Why should we care? Because we should give a damn about the Supreme Court, its history, its role under the Constitution, and the traits of those justices who make the greatest impact.

In his recently published book, The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero, Peter S. Canellos makes a compelling case that the answer to my opening question is a resounding YES! Harlan, who served from 1877 to 1911, is the one who “stood so consistently against his brethren, only to be vindicated in later years.”

As early as college, I was introduced to Harlan’s solitary dissent in Plessy v. Ferguson upholding segregation, and his famous line: “There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Fifty-eight years later, he was vindicated in Brown v. Board of Education.

But I have come to appreciate a greater impact. Before Plessy there was the 1883 decision involving consolidated cases, collectively known as the Civil Rights Cases. Five African-American plaintiffs sued under the Civil Rights Act of 1875 after being denied access to various public accommodations. State laws did not require the discrimination, but rather the defendant railroads, inns and theaters decided to do so on their own.

By an 8-1 decision the Court held the Act was unconstitutional because, under the majority’s narrow interpretation, the Fourteenth Amendment only banned statesponsored discrimination, not private. The 1 was Harlan.

He wrote that the majority was treating the Thirteenth and Fourteenth Amendments as “splendid baubles.” He proclaimed: “Citizenship in this country necessarily imports equality of civil rights among citizens of every race in the same state.” Under the Fourteenth, “railroad corporations, keepers of inns and managers of places of public amusement are agents of the state, being licensed and subject to public regulation.”

Furthermore, he posited the Act was authorized by “the power given to Congress to regulate commerce.” Such was the basis used by the Court, eighty-one years later, upholding the Civil Rights Act of 1964. A justice ahead of his time.

Harlan’s analysis also influenced future decisions on interstate commerce and labor law. In Lochner v. New York (1905) the Court struck down a New York law prohibiting bakers from working more than sixty hours a week or ten hours a day. The majority found it violated the freedom of contract protected by the Fourteenth Amendment. Justices Harlan and Holmes both wrote dissenting opinions. While the Holmes opinion is more famous, Harlan’s is considered more legally convincing.

Harlan advocated judicial restraint. “It is plain that this statute was enacted in order to protect the well-being of those who work in bakery and confectionary establishments…Whether or not this be wise legislation it is not the province of the Court to inquire.”

During the New Deal era, Canellos notes that, while “his dissenting opinions helped build the case against Lochner and other precedents that deprived people of economic protections, his views were only occasionally credited.”

Such was the case with the Court interpreting the scope of the interstate commerce clause. In 1895, the Court refused to apply the Sherman Antitrust Act to the manufacturing of refining sugar on the grounds that interstate commerce did not include manufacturing.

The only dissent was by Harlan. Under the Constitution, he wrote, Congress has the power to regulate “interstate trade in any of its stages.” In 1937, the Court agreed without giving Justice Harlan credit for being the first to espouse the interpretation.

He had a broad view of the impact of the Fourteenth Amendment’s Due Process Clause, too. In 1884, the Court held the Fifth Amendment did not apply to the states. Justice Harlan dissented; in his mind, the Bill of Rights were incorporated lock, stock, and barrel into the Due Process Clause. He asked: “Are not these principles fundamental in every free government established to maintain liberty and justice?”

Writing in 1947, Justice Frankfurter noted, since the Fourteenth’s ratification in 1868, “the scope of that Amendment was passed upon by forty-three judges. Of these judges, only one, who may be respectfully called an eccentric exception, ever indicated the belief that the Fourteenth Amendment was a shortened summary of the Bill of Rights and that the Due Process Clause “incorporated those eight Amendments as restrictions upon the powers of the States.”

Well, it took over 125 years and twentyfive Court decisions, but incorporation is exactly what has happened with all but three minor exceptions of the Bill of Rights. Canellos observes, “The one justice proved to be more prescient than the other fortytwo.”

What traits inspired the former slave owner, colonel in the Union Army, Kentucky politician, private practicing attorney, church leader and father of three to become the greatest?

Canellos answers: “Unlike many later-generation justices whose careers vaulted them from law school, to clerkship, to faculty position, to judgeship with no intervening stops in the neighborhood of real life, Harlan’s legal views were shaped by what he saw with his own eyes and felt in his own heart.”

Damn straight. The “eccentric exception” should be the rule.

Mr. Smith is Executive Director Emeritus of the Berks County Bar Association.

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