The Surprising Role of Racial Hierarchy in the Civil Rights Jurisprudence of the First Justice John Marshall Harlan

The first Justice John Marshall Harlan’s status as one of the greatest Supreme Court Justices in American history rests largely upon his civil rights jurisprudence. The literature exploring the nuances of Harlan’s civil rights jurisprudence is vast. Far less attention has been paid to the reasons for Harlan’s strong civil rights views. Developing a rich sense of Harlan’s thinking has been difficult because Harlan did not leave behind a large trove of non-judicial writings. There is, however, a remarkable source of Harlan’s thought that has been largely overlooked by scholars: Harlan’s constitutional law lectures at George Washington Law School of 1897–1898. These lectures are currently housed in the Harlan papers in the Library of Congress, but they have never been published, have rarely been cited, and are largely unknown. These lectures provide extraordinary insight into Harlan’s civil rights jurisprudence. In these lectures, Harlan lays out a remarkable and surprising theory of racial hierarchy—with Anglo- Saxons as the superior group—that seems to be at complete odds with his egalitarian civil rights jurisprudence. He also was a staunch opponent of the immigration of inferior racial groups to the United States—particularly the Chinese. But Harlan’s theory of racial superiority did not, for the most part, lead him to disregard the rights of those citizens whom he considered to be racially inferior. On the contrary, although Harlan argued that Anglo-Saxons were the superior racial group and that all other racial groups in the nation would eventually die out, he also contended that Anglo-Saxons would preserve their superior status only if they fulfilled their sacred duty to protect the liberty interests of those citizens who had traditionally been subjugated in America—particularly African Americans. Accordingly, despite Harlan’s embrace of a robust theory of racial supremacy, Harlan emerged as the greatest civil rights jurist of the late nineteenth and early twentieth centuries