The constitutional doctrines of Justice Harlan

Front matter

i.m; CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN

BY FLOYD BARZILIA CLARK

A DISSERTATION

Preface

Two temptations assail writers of biographies, or of studies of a similar kind, — to overestimate or to underestimate. It is hard for the student of a man's career to see both sides, and after giving due consideration to each, to form a fair judgment. Throughout this study I have been aware of these two dangers, but I am not sure that in all respects they have been avoided.

It needs to be emphasized that in studying the constitutional doctrines of a single great judge as found in his dissenting opinions, the prevailing opinions of the court must of necessity appear at their worst, for the criticisms of the minority are of course directed at the weak points in the reasoning of the majority. In so far, then, as I have accepted Justice Harlan's arguments and found unconvincing the rulings of the Supreme Court, it must be remembered that I am criticising only the weaker points of a few decisions of that great tribunal.

This study was prepared partly at the Summer School of Columbia University, but principally in the Department of Political Science of the Johns Hopkins University. I wish to express my gratitude for suggestions made by Mr. A. M. Groves, a graduate student of this University, who read the manuscript before it went to press; I owe to Professor T. R. Powell, of New York, my knowledge of many of the basic principles of constitutional law ; but the study was prepared under the direction of Dr. W. W. Willoughby, of the Johns Hopkins University, without whose aid its production would not have been possible.

F. B. C

TABLE OF CASES

Addyston Pipe and Steel Co. v. United States 97 (note)

Anderson v. United States 97 (note)

Antoni v. Greenhow 32, 46-47

Atchison, Topeka, and Santa Fe R. Co. v. Matthews I43-I45

Baldwin v. Franks I37-I39

Baltimore and Ohio R. Co. v. United States 160

Baltimore and Ohio Southwestern R. Co. v. Voigt 191

Berea College v. Kentucky 126, 136-137

Board of Liquidation v. McComb 24

Bowman v. Chicago and Northwestern R. Co 83-86

Boyd V. Nebraska, ex rel. Thayer 77

Briggs V. Light-Boat 39

Canada Southern R. Co. v. Gebhard 55-57

Central Pacific R. Co. v. California 106-107

Chambers v. Baltimore and Ohio R. Co 188-190

Civil Rights Cases 126-131, 196

Congress and Empire Spring Co. v. Knowlton I53-I54

Cornell v. Coyne i lo-i 12

Cunningham v. Macon and Brunswick R. Co 33-34

Davis V. Gray 22

Downes v. Bidwell 185

Dorr V. United States 188

Elk V. Wilkins 141-143

Fairbank v. United States 108-110

Ficklin v. Shelby County Taxing District 103-105

Fidelity Mutual Life Insurance v. Mettler 150-151

Fire Association of Philadelphia v. New York 145-148

Fisk V. Henarie 155-156

Fitts V. McGhee 29, 31, 32, 35

Foster v. Kansas, ex rel. Morgan 77

Freeland v. Williams 71

French v. Barber Asphalt Paving Co 80-81

Galveston, Harrisburg, and San Antonio R. Co. v. Texas .. 112-114

Geer v. Connecticut 1 1^120

Gulf, Colorado, and Santa Fe R. Co. v. Ellis 144-145

Hapgood V. Southern 22, 34

Hall V. Decuir 90

Hawker v. New York 180-182

Hodges V. United States 126, 135-136

Hooper v. California 114-117

Houghton V. Payne 198-199

TABLE OF CASES

Howard v. Illinois Central R. Co 121-122, 192

Hurtado v. California 59, 61-65

International Postal Supply Co. v. Bruce 32, 36, 53, 55

Interstate Commerce Commission v. Alabama Mid. R. Co. 52, 124-125

Joint Traffic Association v. United States 97 (note)

Kawananakoa v. Polyblank 40

Keith V. Clark 43

Kennard v, Louisiana, ex rel. Morgan 76

Leisy v. Hardin ^6 (note)

Leloup V. Port of Mobile 105

Linf ord v. Ellison 78-79, 168-170

Lockner v. New York 191-192

Louisiana v. Jumel 17-25, 32, 34, 46

Louisiana v. Mayor, etc., of New Orleans 49, 50, 68-71, 206

Louisville, New Orleans and Texas R. Co. v. Miss. ..90-92, 126, 132

Macon Grocery Co. v. Atlantic Coast Line R. Co 159-161

Maxwell v. Dow 174-176

Montague and Co. v. Lowry 97 (note)

Murray v. Land and Improvement Co 61

New England R. Co. v. Conroy 190-191

Northern Securities Co. v. United States 97-99

Norwood V. Baker 79-8o

O'Neil V. Vermont 87 (note) , 173-174

Osborn v. United States 21, 23, 34

Parke, Davis and Co. v. Roberts 148-150

Parkersburg and Ohio River Transportation Co. v. Park-

ersburg 100-103

Patriot, the 89 (note)

Patterson v. Colorado, ex rel. Att'y Gen 176

Paul V. Virginia 143

Pirie v. Tvedt 157-158

Plessy v. Ferguson 126, 132-134

Pollock v. Farmers' Loan and Trust Co i77-i8o, 196-197

Rahrer, in re 86-87

Railroad Co. v. Ide 156

Regina v. Lords Com. of the Treas 19

Rhodes v. Iowa 83, 87-89

Robbin v. Shelby County Taxing District 105

Robertson v. Baldwin 114, 117-119, 197

Schick V. United States 65-68

Schillinger v. United States 53-54

Slaughter House Cases 174

Smith v. St. Louis and Southwestern R. Co 120-121

St. Louis and San Francisco R. Co. v. James 15S-159

Stone V. Farmers' Loan and Trust Co 50-52

Stoutenburgh v. Hennick 105

Taylor v. Beckham 11, 61, 74-78

Texas and Pacific R. Co. v. Interstate Commerce Com 122-123

Thompson v. Allen County 166-168

Thompson v. Utah 65 (note)

Tindal v. Wesley 32, 36

Tonawanda v. Lyon 82 (note)

Tullock V, Mulvane 161-164

Trono v. United States 188

TABLE OF CASES

Twining v. New Jersey 176, 184-185

United States v. American Tobacco Co 99, 193, 199

United States v. Clark 193-196, 205

United States v. E. C. Knight Co 92-97, i99

United States v. Great Falls M'f'g. Co 54

United States v. Jung Ah Ling 137, 139-141

United States v. Lee 24, 36, 38, 41

United States v, Trans-Missouri Freight Assoc 97 (note)

Walsh V. Preston 52 (note)

Western Union Telegraph Co. v. Kansas 151-152

Wight V. Davidson 82 (note)

Wilson V. Blackbird Creek Marsh Co 86

Wilson V. North Carolina 'jy

Youn?, ex parte 17, 25-31, z^i

THE CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN

Introduction

John Marshall Harlan was born on June i, 1833, in Boyle County, Kentucky. His father, the Honorable James Harlan, was an active lawyer of that State, and christened his son for the judgeship, giving him the name John Marshall in honor of that highly respected formulator of the principles of our constitutional law. The subject of our study grew up at a time when the air was hot with abolition sentiment, and in a State where opinion was sharply divided. Though his father was not an abolitionist, he was an emancipator, and some time before the war he set his slaves free. The young Harlan imbibed this spirit of emancipation, and when the test came he espoused the cause of freedom. He and his father fought valiantly to turn the tide of opinion in Kentucky against secession, and were influential in preventing that State from joining the Confederacy. When Kentucky refused to furnish its quota of soldiers to the Union, Harlan was one of those who volunteered to fight on the northern side. He organized a regiment of militia, and led them in battle against the South. He was thus, to start with, colonel of the Tenth Kentucky Infantry, but he rose rapidly in rank, and in 1863 was acting-commander of a brigade. At this time, however, the death of his father made it necessary, for family reasons, that he return to civil life. At the time of his resignation from the army his name had just been sent by Mr. Lincoln to the Senate as a full brigadier-general, but his services in the army were ended. He remained loyal to the northern cause throughout his career, and many times asserted his disapproval of the deprivation of the rights which the lO CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN

negroes were supposed to have obtained by the new amendments to the Constitution of the United States.

Mr. Harlan received his education at Centre College, Kentucky, where he received the degree of A.B. in 1850, and at Transylvania University, where he studied law. The degree of LL.D. was conferred on him by the following institutions : Bowdoin in 1883, Centre College and Princeton in 1884, and the University of Pennsylvania in 1900. From 1889 to his death in 191 1 he was professor of constitutional law at the George Washington University, in Washington, D. C.

He married Miss Malvina F. Shanklin, of Evansville, Indiana, December 23, 1856, and had a long and happy married life. His three sons, Dr. Richard Davenport Harlan, the Honorable James S. Harlan, and Mr. John Maynard Harlan, occupy prominent positions in the service of the nation. The oldest, Dr. Richard Davenport Harlan, holds a high position as an educator, the second is a member ol the Interstate Commerce Commission, and the youngest is an attorney-at-law in Chicago.

Before and during his service as associate justice of the Supreme Court, Mr. Harlan held responsible appointments outside of his regular service as judge. He was twice candidate for the governorship of Kentucky, and was attorney-general of that State from 1863 to 1867. His entrance into national affairs was marked by the part which he took in the Cincinnati Republican Convention of 1876, which nominated Mr; Hayes as Republican candidate for the presidency. In this convention he was leader of the forces for the nomination of General B. H. Bristow, a member of Grant's Cabinet ; but when Bristow's nomination became impossible, his supporters united with others for the nomination of Mr. Hayes. When Hayes was elected to the presidency, he wished to appoint a representative lawyer from Kentucky as one of his Cabinet and offered the attorneygeneralship to Mr. Harlan, who, however, did not see his way clear to accept.

Mr. Harlan's appointment by President Hayes upon the

INTRODUCTION I I

so-called Louisiana Commission was a notable incident in his career. The purpose of the commission was to aid in the settlement of an election dispute in Louisiana. This commission must of course be distinguished from the state Returning Board which had been appointed at an earlier date to examine election returns in that State. The Returning Board had given the state vote to Hayes in the national election, and had likewise turned the governorship of the State over to the Republican candidate. The Republicans wished to get the support of the national army to secure them in power, and appealed to Hayes to this end. To clear up the situation the Louisiana Commission was appointed. The members of the commission, being appointed by the President and reporting only to him, had no powers, but were to hear the complaints of both sides and to serve as a safety valve to the pent-up grievances. They soon found that the return of the federal army to the State was unwise. Owing to the fact that the property owners voluntarily sent in their taxes to the Democratic organization, its opponents soon disbanded for lack of funds, and the situation settled itself. The commission was doubtless influential in helping to undo some of the crooked work of the Returning Board. It was an honor to have been upon a board, the majority of whose members were RepubHcans, which was honest enough to recommend that the Democratic government be upheld at a time when one would not have expected such a recommendation. Mr. Harlan's sense of honor must have helped greatly in maintaining the integrity of the commission.

Mr. Harlan also served as one of the American arbitrators on the Behring Sea Tribunal, which met in Paris in 1893 to settle the dispute between the United States and England over the Alaskan seal fisheries. An eyewitness said of his appearance on this occasion : " I can never forget a scene I once witnessed in Paris, when the Behring Sea Arbitration Tribunal was sitting there, with John Marshall Harlan of Kentucky, at one end of the court and John

I

Tyler Morgan of Alabama at the other. Both were then in the Indian Summer of their manhood — Harlan with his noble and matchless form, the God-gifted Morgan, with his beautiful face and head that sculptors and painters might have loved to copy. My heart swelled with pride as T looked upon those two great American citizens, who had been opposing generals in the Civil War, and fancied that I saw in them reproductions of Brutus and Cicero."^

Mr. Harlan was simple and childlike in his daily conduct, fond of home, and of his home people and relatives. He was deeply religious in his nature. He honored the Constitution of the United States, and the Bible seemed to be the only thing that he placed above it. " The Constitution and the Bible were the objects of his constant thought and consideration, and if the latter was to him always vox Dei, the former, vox populi, was no less so."^

He deeply loved his State as well as his nation. " I remember when the case of Taylor v. Beckham was argued in this court. At that time intense feeling existed in Kentucky. It was indeed a period that tried men's souls as well as appealed to the sound judgment of the people of our State. During the argument the sympathies of Justice Harlan were so awakened that he shed tears."^

Mr. Harlan was associate justice of the Supreme Court of the United States for nearly thirty-four years, from December lo, 1877, ^i^til his death on October 14, 191 1. Though he was appointed by President Hayes immediately after his return from service on the Louisiana Commission, there was nothing in that experience that would speak for political reward. Furthermore, his whole career shows that he would not have accepted an appointment merely for political reasons.

His term of service was exceeded in length by only two

^ Remarks of Mr. Hannis Taylor in Proceedings of the Bar and Officers of the Supreme Court of the United States in Memory of John Marshall Harlan, Dec, 16, 191 1. P. 30.

2 Remarks of Attorney-General Wickersham, in ibid., p. 45.

3 Remarks of WilHam Bradley, in ibid., p. 27.

INTRODUCTION 1 3

justices, — Marshall and Field, in each case by less than a year. His labors were not surpassed, however, by these men of longer service. Something more than seven hundred decisions wherein he spoke for the majority bear his name, and his dissenting and concurring opinions pass the hundred mark.

While a justice he was more than a judge. His interest went further than a contemplation of the arguments bearing on the cases, and he thought deeply outside of questions of constitutional importance, although he was reluctant to express his opinion upon great issues likely to be brought before the court. In a letter to a young friend, written August 12, 191 1, only two months before he died, he made the following comments in reference to the conditions under which new States should be admitted into the Union : " I hope that the President will put his feet down firmly upon the recall of judges in Arizona and New Mexico, while in territorial condition. It is one thing for these people, after becoming States, to amend their constitutions, and provide for the recall of judges. It is quite a different thing for Congress to give its sanction to the principle of the * recall ' by admitting these Territories into the Union with constitutions providing for the recall of judges. No people, it seems to me, are fit to come into the Union as States who are wilhng to put the * recall ' of judges into their fundamental law. Whether a particular Territory shall be admitted into the Union as a State is a matter of discretion with Congress. That discretion should be exercised so as to maintain sound principles that are recognized as such by Anglo-Saxon people. Upon the question whether the ' recall ' of judges is republican in the constitutional sense, I express no opinion; for that question may come up for judicial determination. I only speak for the ' recall ' as a matter of public policy."*

This is in itself an interesting doctrine. All recognize certain things that a State may do which are not unconstitutional but which may not meet the approval of the other States. Though a State may do these things after it is ad-

* "Remarks of Blackburn Esterling, in ibid., p. 36. 2 mitted into the Union, it would not be wise for Congress to put itself on record as approving them by admitting new States with such provisions in their constitutions. It would be far better for the State to break its promise, so far as the nation is concerned, after it had been admitted into the Union, than it would be for Congress to sanction the obnoxious provisions.

As a hearer of arguments Justice Harlan was more than a scrutinizer of points made by lawyers; he sometimes sought to train the lawyer who argued before the court. The following story with regard to this trait is told by a lawyer : " Something like two years ago I was called here to argue a case in which a sovereign State was the complainant, and my associate was a talented young lawyer who was letter perfect in that case, but who had never before appeared in this court. The matter was to be presented on a motion for which under the rules as they stood, an hour was allowed on each side, and I suggested that my associate should open case, intending that if he presented it satisfactorily I would leave him to occupy the entire time alloted to us ; but he was so full of his case that he began the presentation of it in a way that would have required hours. I was growing a little nervous over the situation myself, but I hesitated to interrupt him, because I thought it might confuse him, and just as I was debating with myself what it was best to do. Judge Harlan called on him in a stern voice to ' come to your point.' My young friend, confused beyond description, managed to say that he was coming to it; but Judge Harlan replied that his time would be consumed before he reached it, and that in the meantime the court would have no idea of the question he was presenting to it. It was a trying experience for a new member of the bar, and I felt it so keenly that I shared the young man's resentment. A few days afterwards I happened to meet Judge Harlan as he was coming to the Capitol, and told him bluntly that I regarded his rebuke of that young man as a Httle less than cruel. Instead of exhibiting an irritation, which would have been entirely permissible against a member of his bar who

INTRODUCTION I 5

had presumed to criticise his conduct, he turned to me, and, smiling said : * My dear Senator, you do not understand my purpose. I saw that the young man was embarrassed by his surroundings, and I desired to relieve him from embarrassment.' I told him that I thought he had chosen a curious way of producing such a result, and he advised me to watch that young man when he next appeared in this court. It so happened that a reargument of that very case was ordered, and when my associate and myself appeared here to argue it at the next term, I found Judge Harlan's remedy for a lawyer's embarrassment completely justified."^

Few adverse criticisms have been made of Air. Harlan as a judge. He was a miHtant justice, but his militancy was on the side of law. Even with the many dissents rendered by him there is no evidence of hard feeling on the part of his associates. He did not bear malice with his disagreement, but he was often very vehement in his dissents.

His opinions and dissents often contained extraneous matter, that is, reference to circumstances which had no direct bearing upon the case. But these are easily passed over w^hen one is looking for his argument. The presence of these digressions is more an evidence of his general interest in the public than it is of his lack of knowledge of the principles of legal argumentation.

Some have claimed that Justice Harlan emphasized too greatly the letter of the law. Such a contention is based either on ignorance or on prejudice. One illustration will show this point. No one who so interpreted the eleventh amendment as to maintain that a suit against the officer of a State in his official capacity was not a suit against a State could have held to the strict letter of the law. When, by a logical and grammatical construction a law could be made to correct the evils intended to be remedied by it, he argued that this should be done. But if such an apphcation meant an absolute change in the law, he held that this change should be left to the legislative power. The criticism that he stressed too emphatically the letter of the law arises from the fact that he did not believe in equivocation.

5 Remarks of Joseph W. Bailey, in ibid., pp. 21-22.

Chapter I

The suability or non-suability of a State has been before the Supreme Court of the United States in numerous instances. It has arisen under various circumstances, and the court has given on this question many opinions which it is difficult to reconcile. It is a complicated question, and no attempt will be made to give an exposition of the whole matter. Interest centers around Justice Harlan and the views which he has held on the subject. He had a very decided opinion on this point, and he almost never failed to assert himself whenever the matter was before the court.

Article i, section lo of the constitution of the United States places the following prohibition upon the States: " No State shall . . . pass any . . . law impairing the obligation of contracts " ; and the fourteenth amendment provides that " no State shall . . . deprive any person of Hfe, liberty or property, without due process of law." But the eleventh amendment expressly stipulates that the courts of the United States may not entertain a suit against a State. Suppose, therefore, a State takes property without due process of law for its own use or passes a law impairing the obligation of its own contracts, what action can the individual take in order to receive the benefit of these stipulations? Such a question, of course, opens up the whole problem as to what is to be termed a suit against a State, for if the law takes property without due process of law or impairs the obligation of contracts, the law is unconstitutional even though the State itself be a party to the proceedings. At the same time, if the action to prevent the enforcement of the law amounts to a suit against the State, it cannot be maintained. Therefore, the problem is almost that of an

i6 irresistible force meeting an immovable body. Shall the immunity from compulsory judicial process be upheld, or shall the prohibitions relative to contracts and due process of law be enforced? In many cases one or the other but not both of these ends can be realized. It is clear that here there is abundant opportunity for difference of opinion according to which one of these constitutional mandates is maximized and which one minimized. As w411 be found, the court has sought to maintain a middle course, and in so doing has not always been consistent in the doctrines which it has declared.

Discussion of Cases. — Justice Harlan's views with reference to this subject appear especially in the dissents which he rendered in Louisiana v. Jumel, 107 U. S. 711, and Ex parte Young, 209 U. S. 123. The first, Louisiana v. Jumel, decided that a certain action against the treasurer of the State of Louisiana was a suit against the State and hence could not be entertained ; while the other. Ex parte Young, decided that a certain action against the attorney-general of Minnesota did not constitute a suit against a State and hence could be entertained by the court. In neither of these cases was the action on account of any private act of the person concerned, but because of the official acts of each. The fact that the latter decision allowed the suit and the former did not makes the cases typical; and the fact that Justice Harlan dissented from each affords an opportunity to deduce from them his exact opinion on this subject.

The case of Louisiana v. Jumel was decided in 1882. The facts in the case were briefly these: The legislature of Louisiana provided in 1874 for an issue of bonds, for the purpose of consolidating and reducing the floating and bonded debt. The bonds were to be payable to the bearer forty years from January i, 1874, and to bear interest at the rate of seven per cent, payable the first of January of each year. The bonds were to be signed by the governor, the auditor, and the secretary of state, and the coupons by the auditor and the treasurer. The State levied a tax for the purpose of meeting the above obHgations, and immediately thereafter passed an amendment to the constitution making the bonds create a vaHd contract between the State and every holder of such bonds, which the State could in no wise impair. Certain persons held bonds to the amount of $20,000 and unpaid coupons, due January i, 1880, to the amount of $79,900.

On the first day of January, 1880, a new constitution of Louisiana went into effect. A portion of that constitution aimed to alter the former provisions of 1874. It reduced the interest to be paid on the consolidated bonds from seven per cent to two, and further stipulated that coupons of said consolidated bonds falling due on the first day of January, 1880, should be remitted, and that the proceeds of the taxes which had been collected for the purpose of meeting these obligations, of which there were $300,000 in the treasury, should go to defray other expenses of the State.

Holders who presented their bonds for payment were refused because of this action of the State, whereupon they contended that this action of the State impaired the obligation of contracts. They therefore brought suit against the treasurer of the State to compel him to make payment according to the previous legislation of the State. The state treasurer entered the plea that such a suit was a suit against the State and as such was forbidden by the eleventh amendment to the Constitution of the United States. The circuit court of the United States pronounced this a valid plea, and upon appeal to the Supreme Court this decision was sustained.

The grounds for this decision were these: It was evident that the State designed to make promises and pledges in such a manner that they would be protected by the Constitution of the United States; and that the State, in adopting the debt ordinance of 1879, designed to stop further levy of the promised tax and to prevent the disbursing officer from using the revenue from previous levies to pay the interest falling due January i, 1880, as well as the principal and interest maturing thereafter. If the State could be sued, there was Httle doubt that this later state action would be pronounced an impairment of the obligation of the State's contract. The question was whether the contract could be enforced, notwithstanding the provision in the new state constitution, by coercing the agents and officers of the State, whose authority to act had been withdrawn, without the State itself being made a party to the proceedings. By the original statute these officers were directed to use the money in the treasury in one way; by the new constitution they were directed to use it in another way; by the statute they had to raise more money by taxation, but by the constitution it was ordered that this should not be done. The officers owed their duty to the State, and had no contract relations with the bondholders. They could be moved through the State, but not the State through them. In short, then, the officers had always to obey the will of the State, and if this will changed the action of the officers had to change accordingly.

The first precedent cited by the Supreme Court was Reg. V. Lords Com. of the Treas., Law Rep. 7 Q. B. 387, in which the court of Queen's Bench of England refused to take cognizance of a case when an amount of money had been raised for a specific purpose and appropriated by Parliament for another purpose. In this case it was held that a suit entered against the Lords Commissioners of the Treasury was a suit against the sovereign and not valid. The Supreme Court of the United States claimed a similarity between the two cases in that the former was a suit against the commissioners of the treasury of England, and the latter was against the state treasurer of Louisiana.

As to this point, Justice Harlan in his dissent said : " It seems to me that case furnishes no support for the suggestion that these are suits against the State, simply because they are brought against its officers. It does not conflict with the proposition that the state Treasurer can be compelled to apply the proceeds of these taxes as stipulated in the Statute and Constitution of 1874, which were his sole authority to receive them. Here is a statutable obHgation upon him to pay the coupons as they matured. And to that is added the obHgation imposed by that Constitution, which, in terms, declares that the proceeds of taxes collected under the Act of that year ' Shall be paid by the Treasurer of the State to the holders of said bonds, as the principal and interest of the same shall fall due,' without further legislative authority. These obligations remain upon that officer, unless it be that the Debt Ordinance, although unconstitutional and void, has discharged them. Had Parliament, instead of the Act involved in the case cited, passed one directly imposing upon the defendants the duty of paying out of moneys appropriated for that purpose a certain class of claims, it is manifest that the court of Queen's Bench would have compelled them, by mandamus or other process, to perform that duty. In the case supposed, there would have been a statutable obHgation which the court would not have permitted the defendants to evade on the pretext that they were officers of the Crown." Hereupon Justice Harlan cites a case in which this very condition arose and in which the court issued such a mandamus, and shows further that the fact that the Constitution of the United States forbids that any State impair the obligation of contracts makes more powerful the statutory force ; and further that the difference in the nature of the sovereign in England from that of the sovereign here shows that little weight should be given to the English decision.