John Marshall Harlan was the lone dissenter in one of the US
Supreme Court's most significant race decisions of the 19th
century. In lofty language much cited today, he wrote, "There is
no caste here. Our Constitution is color-blind......"
That dissent against a ruling that laid the foundation for Jim
Crow laws - viewed as merely eccentric at the time - showed a
dramatic evolution of Harlan's views on legal protections for
Harlan, a Kentucky native, went from being a critic of Lincoln's
Emancipation Proclamation to a judge who left a powerful legacy of
support for black civil rights.
What has been little discussed in tracking that evolution is the
presence in Harlan's life of a black half-brother, Robert. The
offspring of a teenage liaison between Harlan's father, James, and
a family slave, Mary, Robert was given the family name and educated
in the Harlan home. A successful man in his own right, he offered
John Harlan a unique window on black life and, some historians say,
may have profoundly influenced the views that culminated in
Harlan's impassioned dissent in what is now the famous Plessy v.
The details of John Harlan's sometimes contradictory and often
colorful career are well known to historians. The son of a Kentucky
slaveholder, he later gained a statewide reputation as a skilled
debater for the staunchly unionist and antiforeign American Party.
Early in his career, he defended the Supreme Court's Dred Scott
decision, which confirmed the right of slave owners to take their
slave "property" into new US territories. But he also raised an
infantry to fight for the Union during the Civil War.
What remains little known is his unusual relationship with
Robert Harlan. The half-brothers rose to prominence in their
respective worlds, John Harlan as one of the longest-serving judges
on the high court and Robert Harlan as a wealthy horse racer and
politician who served in the Ohio legislature and in several
Republican patronage appointments.
But while their family ties linked unfamiliar and unequal
worlds, their day-to-day lives remained separate. And John Harlan
clearly recognized that while Robert for the most part thrived, he
did so within the confines of the limited opportunities available
to even a talented - and light-skinned - black.
"John Harlan had a close connection to a man who experienced all
the negative consequences of being black," says James Gordon, a law
professor at Western New England College of Law in Springfield,
Mass., and an authority on Harlan. "Robert Harlan was constrained
in what he could do. He apparently continually bumped up against
Robert and John Harlan were not immediate contemporaries. Robert
was roughly 16 years John's senior. He was raised in the Harlan
home and given considerable freedom, but remained a slave until he
bought his freedom for $500 in 1848.
His unconventional childhood helped start Robert Harlan down the
road toward becoming Ohio's most prominent black Republican -and a
man on whom white Republicans relied to deliver the black vote. He
was relatively wealthy, although his fortunes fluctuated
considerably. He was a main benefactor of the first school for
black children in Cincinnati and a delegate-at-large to the
Republican National Convention in 1872. Three years later, he
raised a battalion of black men and was commissioned as a colonel
by President Hayes.
John Harlan witnessed this, corresponded with Robert Harlan
regularly, and even turned to him for help in getting charges
dropped against a white relative who assaulted a black man. As the
century came to a close, the relationship between the two may have
encouraged John Harlan to weigh in against a state's right to use
race as a basis for legislation.
Why he did so appears to be the result of a number of converging
forces in the justice's life. John Harlan was not always consistent
in his racial views, balking at elements of Reconstruction, for
example, and occasionally using race-baiting language. …