Reading Notes

Reading Notes/Questions for Linda Przybyszewski's The Republic According to John Marshall Harlan

* Q: Why is it the author's position that writing a biography, in this case of a judge, simply based on his legal opinions, not good enough if we are to understand the inner feelings of the person? ... As students of history, why is this something we need keep in mind? ... In Przybiszewski's experience writing this book, what validates her viewpoint?

* Q: How does her concept challenge the numerous biographies published that only extol the virtues of jurists who are viewed/characterized by their biographers as "great men"?

* When writing about how some historians use primary sources that are neglected by others, she cites what one person, J. Woodward Howard, Jr., who, at a 1990s symposium on judicial biography, said that a writer/biographer did not have to destroy or mischaracterize the subject of the biography. Instead, "rather than contend over the superiority of competing styles of research, the wise course is to strengthen each mode, giving due regard for what others provide, and thereby enhance the whole." (p. 9). Q: Why might this be the proper thing to do when writing a biography?

* The author writes that John Marshall Harlan went further further than any other Supreme Court justice in extending civil rights to blacks, yet he, at one point, refused to support "inter-racial social intimacy that might result in the blurring of racial reality." (p. 14). He believed that states had the authority to punish those people who had intermarried - - - he had supported anti-miscegenation laws. Q: How might this make people seriously doubt his sincerity, especially since he wrote the dissenting opinion in Plessy v. Ferguson, saying that "our Constitution is color blind"?

* Q: How might Lincoln's Emancipation Proclamation have influenced Harlan's feelings towards blacks especially after this declaration was announced?... Remember that he insisted that the only reason he had resigned his commission as a Union army officer at that time was to tend to his deceased father's law practice. Also, his family did not own very many slaves, which was the norm in his native Kentucky.

* Q: What political conversion did Harlan undergo during the Reconstruction period and what had been happening in the American South that may have brought about that conversion?

* The author is critical of those historians and biographers who ignored or who have said very little of Harlan's law school lectures that were given during a period in which the American legal education and the profession itself were undergoing change. Q: Why does she feel that these lectures should have been examined, analyzed and explained by those who wrote about the life of Justice Harlan? Q: What did his lectures take into account and why do they do much to help us understand this "great" man? Q: Does Przybyszewski's use of his lectures help her prove her point that by carefully examining his words we are able to gain greater insight into who he was and why stood for egalitarianism?

* Q: Can we assume that Harlan's religious beliefs helped influence how he ruled in certain important cases that made their way to the Supreme Court? Remember that his lectures were filled with references to Christianity and the impact it was having on America's future and the direction it was taking as a world leader, and how it served as a light that helped the country "guide the oppressed of all the lands in the struggle for freedom." (p. 71). Q: What was happening in the U.S. domestically during the period that he was saying these things? Again, the author is critical of those historians who have said very little in their writings about his religious beliefs and how they played a role in his legal opinions. Q: Why?

* Q: Did the author, through the use of Harlan's wife's memoirs and his 1897 - 1898 lectures, succeed in helping us gain greater insight to the man? She admits that there was very little available in terms of the family's own ante-bellum papers and records that shed light about the young Harlan and the things he may have experienced that may have shaped his life.

* Q: What social, political, economic and legal problems arose, both domestically and internationally, as a result of America's acquisition of Cuba, Puerto Rico and the Philippines after its victory against Spain in the Spanish-American War, and how were these issues handled by the Congress and the federal judiciary?

* Q: What positions did Harlan take in the Insular Cases, as these federal court proceedings that went before the Supreme Court were called, and what role did Harlan's Christian faith have on these decisions? Q: What did he say regarding the granting of some form of civil rights to the peoples of these unincorporated territories, and how did the Supreme Court's ultimately rule on these matters?

* Explain Harlan's position regarding anti-trust matters and the issues of the individual state's possession of power ("police powers", the author called them) to regulate health, safety and morals. Q: What role did he play in the period known as the Lochner Era in which a state law establishing labor codes, such as working hours and the work week, was struck down by the Supreme Court? Q: How did he feel about matters regarding interstate commerce?

* Explain the concept or term the author refers to as "the triumph of nationalism over the forces of localism" and Harlan's position on it.

* Q: Why was Harlan so adamant when it came to the right of the American citizenry to a jury trial? and
Q: How did he feel about "plain people" "having their day in court"?

* Despite his apparent support of civil liberty issues brought before the Court, Harlan, a "legal formalist", believed that there were certain rules for interpretation of laws and the Constitution enshrined certain individual liberties and rights that "no government may violate." (p. 167 - 169). Q: How did that influence his attitude toward private corporations and companies and their contractual relationships with labor... un-organized and organized?

* During the Gilded Age, lawyers, writes Przbyszewski, were viewed by some segments of American society as "tools of the financial and industrial tycoons who amassed absurd amounts of wealth while many people suffered poverty." (p. 173). Q: What was Harlan's view in many of his public discourses regarding the role of lawyers in American society?

* Q: And finally, how was Justice Harlan's dissenting opinion in Plessy v. Ferguson "an appeal to the conscience of the future"? Throughout the book, the author cites some of the inconsistencies in his public expressions and written opinions. Q: Why might some characterize him as a "middle-of-the-road" judge? Q: Is there any validity to that suggestion, or did he help pave the way for greater freedoms and liberties for the Nation's future?

Do you agree with the author's assumption that Harlan legal views were based on paternalism? The author presupposes that Harlan had to decide "which tradition of the peculiar institution [slavery] deserved his loyalty: the unlimited legal control of the master that gave rise to white supremacy or the ideal of private restraint that required white men with power not to abuse it" (page 40)Agree, disagree. Why? Did the power structure of the young Harlan home mold his views or was he just a man of his times? Were they one and the same? Przybyszewski argues that Harlan paternalism runs through all the actions of his life, his youth, his marriage, his time as Supreme Court judge. It seems her whole book is based on this assumption. Is she accurate? If yes, why write a book about it? I get the sense that she is trying to convey some message here but I am not getting it.

Przybyszewski says we need to "understand Harlan's vision of his country's history in order to explain the reasoning of his judicial decisions." How important was his vision in making his dissenting decisions? Doesn't everyone when making decisions use their past, present and future as a basis? Why should Harlan be any different?

Was the Revolutionary War a "type" for the Civil War? This question is similar to last weeks discussion on whether reconstruction was a continuation of the Rev. War or a new Revolution in itself.

When the author says that Harlan worked to build a Presbyterian Cathedral in DC to show how the Church and the Republic are intertwined, is she reaching? Yes, she makes a point, and Harlan is a deeply religious man, but is his motivation based on politics (government) or just because he is religious?