Blog Credo

The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary.

H.L. Mencken

Thursday, July 5, 2012

John Marshall Harlan the First

As part of my teacher's workshop on research based writing, I have my students/co-teachers do a research project to re-discover the pains and joys and pitfalls of research.  I join in in the spirit of camaraderie and also to refresh my own memory.

I've been researching John Marshall Harlan, the great dissenter of the Gilded Age, most famous for his dissents in Plessy and the Civil Rights cases.

Harlan was born into a slave holding family, but fought with the Union against secession.  Still, he opposed the Emancipation Proclamation.  The travesties of Klan rule after the war, however, turned him into perhaps the 19th century's pre-eminent defender of the rights of African Americans.

How did a former slave-holder and a man so steeped in the racism of his day that he had no trouble excluding the Chinese from any possibility of citizenship become a champion of the "color blind Constitution"?

It seems to me that his experiences in the Civil War and in politics made him more attuned to the actualities of real life than did the arid reaches of legal theory.  The other "great dissenters" during this time period of the pre-modern Court were a Jew and another Civil War veteran.

It occurs to me that we have too many judges and legal scholars on the bench.  Earl Warren had been governor, Thurgood Marshall a plaintiff's lawyer, John Marshall, a officer in the Continental Army, a Secretary of State and a legislator.

If Antonin Scalia ever gets around to that massive rage fueled stroke that he's been working towards, maybe Obama could find someone with some real life political experience.

The Supremes could use some of that.

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