The “Great Dissenter”: Justice John Marshall Harlan the First as a Role Model of Resistance in a Post-Constitutional Age

In his book Trust, Pete Buttigieg argues that many Americans now demand a more democratic polity, and that the frame of our government must change to accommodate these demands through “deep reforms,” including the elimination of the electoral college. In effect, Buttigieg argues that if many Americans’ souls aspire to greater democracy, our Constitution must change to suit them. Echoing a long line of thought in Western political philosophy, we could argue on the contrary that, instead of altering our Constitution to suit our souls, we should change our souls to suit our Constitution. In the Republic, Plato famously argues that an unrestrained drive for democracy in the souls of citizens risks calamitous moral and political decline, and that the soul of a citizen should mirror the order of the properly designed regime.

In the United States, to follow Plato’s counsel would mean that citizens work to create an inner disposition that reflects our Constitution’s skepticism of unregulated majority power—a design that seeks both to protect basic rights and to ensure that any change in the understanding of rights proceed from a morally serious and reflective process. However, as the popularity of Buttigieg’s proposals amply testifies, this wisdom of old is increasingly doubted. Indeed, America has entered a post-Constitutional age. The Constitution’s system of restraints on political power has withered under relentless calls for greater government under an increasingly unrestricted democratic will. This trend started under Woodrow Wilson and continued through the presidency of Barack Obama.

The origin of the progressive drive—to recast our Constitution as an instrument of majoritarian will—rests in the loss of a distinctive concept of the human person. Humans need first to order their souls. In turn, society must recognize that, although political power is needed to restrain human weaknesses—and the resulting threats to our basic rights and orderly processes of deliberation—this power itself requires restraint.

Wise founders, such as the framers of the American Constitution, understand constitutional order to have two levels: a written constitution that creates a government with sufficient energy to preserve liberty and other basic rights, but with restraints against majoritarian tyranny; and an unwritten constitution, inscribed in the character of the citizenry. The latter is a cultivated moral conscience and respect for restraint in each person, which reduce the need for governmental enforcement. We must order our own souls and cultivate a particular mindset, as we reinforce by written law our commitment to basic moral principles and to personal and collective restraint.

A Role Model of Resistance

We find an exemplar of this mindset in the “Great Dissenter,” Justice John Marshall Harlan the First—a powerful role model of resistance to contemporary calls to further erode the Constitution’s commitment to restraint. Harlan served on the Supreme Court from 1877 to 1911. As James Gordon argues, during his tenure Harlan held a view of human nature to the effect that humans must “subdue [their] passions” and create “self-control” through “moral progress of the heart,” requiring the hard work of forging character and inner restraint. Harlan felt that such personal constitutionalism was necessary for the rule of law to endure, because he believed in everyone’s tendency toward iniquity.

Harlan held that government must “have the power to restrain evil” when personal virtue fails. Largely for this reason, he was a defender of the state’s police powers to protect public health and safety from predations of the strong—a contrarian view at a time when many justices strongly favored liberty of contract and no effective restraint on contractees. Hence, Harlan dissented in Lochner v. New York. Moreover, Harlan famously argued in dissent on behalf of the rights of African-Americans in the now infamous Civil Rights Cases and Plessy v. Ferguson. He viewed the rulings of his judicial brethren in these cases as clear violations of either the constitutional text or its clear drafting history and intent. Moreover, he saw the underlying problem animating these two cases—invidious racial discrimination—as an example of majoritarian excess and iniquitous, arrogant cruelty, which the government properly can restrain. These lonely views earned Justice Harlan his moniker, “The Great Dissenter.”

But Harlan also knew well the tension at the heart of political power. He held “the profound idea that in order safely to empower government to restrain private evils, government must first restrain itself.” Hence Harlan argued that legislative majorities must not themselves be left unrestrained in exercising police power. Harlan knew that unregulated state majoritarian power would undermine core rights. He became therefore the first advocate of incorporating the restraints of the Bill of Rights against state legislative majorities (see his dissents in Hurtado v. California and O’Neill v. Vermont). Further, in the Insular Cases, he held the unpopular view that the colonies acquired in the Spanish-American War should not be ruled by Congress without these same constitutional restraints.

Harlan also saw the critical need to avoid investing judges with vast power: the same iniquity in human nature that requires restraining state and federal legislative majorities requires judges to restrain their decisions to what the text of the Constitution and its clear history require. Harlan emphasized that the human tendency to iniquity entails that government—including judges—“can’t remake humans.” He at once supported “the rule of law, the exercise of government power” to protect the weak from predation, “and strict constitutionalism.” For Harlan, a humane society requires at once inner moral restraint in the citizens, legal restraints on majorities and powerful individuals who can prey unjustly on the weak, personal restraint among public officials, and a constitutional system that mirrors the importance of moral restraint.

Harlan’s Lessons for Today

But how does Justice Harlan serve as a role model for resisting today’s progressive philosophy of unrestrained democracy?

Of course, the challenges every age faces are always to a substantial degree unique, so we should not expect Harlan’s jurisprudence to map perfectly onto contemporary issues. Nevertheless, the nation today does face challenges similar to those that Harlan addressed. We face an arrogant drive to marginalize fellow citizens in a way that erodes basic enumerated rights—as in the case of traditional Christians who struggle to ensure their free exercise of religion. We face private businesses increasingly limiting the freedom of their (often conservative) customers (justifying this by a plenary freedom of contract) as evidenced in the often politicized content restrictions that social media giants place on their near-monopoly platforms.

At the same time, judges are often asked to remake society and the individuals within it by affirming such sweeping laws as hate speech regulations. These risk overriding constitutional restraints on lawmaking and appear intent on remaking humans to be immune from the passions of hate or spite. Judges are also frequently asked to announce bold new rights—such as a right to euthanasia, which Laurence Tribe and Michael Dorf recently seem to have advocated. The mindset exhibited by the Great Dissenter is no vestige of an antique past, but has pressing relevance today.

We live, however, in an increasingly ahistorical age. Among many Americans, including a growing number who consider themselves moderate or conservative, the past has become that proverbial “foreign country” little remembered and scarcely searched for. Is there more that can connect us to this particular man who served on the high court over a century ago? I believe there is.

First and foremost, Harlan’s courage in defending African-American rights against unbounded majoritarianism can still inspire us. Although like many Harlan had his blind spots concerning social integration of the races (he upheld anti-miscegenation laws, for example), his powerful dissents in Plessy and in The Civil Rights Cases still resonate. Some contemporary extremists may find little to credit in him or any other figure of his era; but his defense of African-Americans gives effective example to the large number who can judge a person in the context of his times, and applaud him for characteristics exceptional for his place in history.

Second, Harlan was a strong advocate for the centrality of the Bill of Rights. As Alan Ryan has argued, Americans’ attachment to enumerated legal rights is quite distinctive. The Bill of Rights is arguably one of the few documents that all Americans revere (even as we disagree sharply on its interpretation), and our respect for it renders Harlan closer to us today. Relatedly, Harlan firmly believed in America’s destiny to be an example of justice for the world. He thought that America was an exceptional nation blessed with exceptional laws. Such a view still resonates in American politics, left and right.

Third, although some have questioned Harlan’s views on Chinese immigration, a careful reading shows that these do not invalidate his positive example. It is true that in United States v. Jung Ah Lung Harlan voted to deny entry to a Chinese individual on a very narrow reading of the applicable federal statute; that in Chae Chan Ping v. United States he voted to uphold Congress’s power to pass restrictive immigration laws; and that in United States v. Wong Kim Ark he concurred with the dissenting opinion that Chinese individuals born in the U.S. are not entitled to citizenship apart from legislation that specifically authorizes it. However, as James Gordon remarks, these opinions are “better explained by Harlan’s general approach to judicial decision-making”—which emphasizes the appropriateness of judicial restraint—“than by racial animus” to the Chinese.

Moreover, Harlan was quite protective of the legal rights of Chinese residing in the United States. He upheld treaty provisions protecting the rights of Chinese immigrants in Chew Heong v. United States. Moreover, in Baldwin v. Franks he argued, in dissent, not only that treaty obligations required that resident Chinese have the protections of federal law, but that Chinese resident aliens are “persons” under the Fourteenth Amendment, and are entitled to the federal government’s direct protection against violence. Lastly, in Yamataya v. Fisher, Harlan, writing for a majority of seven justices, expressed “misgivings about the fairness of immigration proceedings,” including proceedings involving Chinese immigrants, and “warned Congress and the executive that the Court’s patience was not inexhaustible.” In sum, these rulings are “strangely pro-Chinese . . . for a man alleged to have a particular racial animus toward them.”

Finally, Harlan gives example by his firm commitment to the rule of law and his Christian belief of “unusual intensity.” Harlan held that all that was needed “for America to prosper was for leaders to do their duty—a duty articulated in the Bible and by the Founders in our written Constitution.” His colleague Justice Brewer once said that he went to bed each night with the Bible in one hand and the Constitution in the other.

Today Christianity can be a bridge for dialogue with the progressivism of leaders like Buttigieg—which is not cloaked in the rhetoric of godless secularism, but in the high calling of social justice that emanates, it is said, from the Bible itself. Indeed, as Peter Wehner points out, “Buttigieg speaks openly and easily about his Christian faith.” But of course, Harlan’s Christianity led him not to progressives’ unrestrained majoritarianism, but to the practice of personal and legal restraint.

Harlan’s faith gave him the courage to stand against his learned opponents on the high court. By his example, we too might muster the courage to be “Great Dissenters” against the intellectual and cultural classes that progressives have come to dominate. We need such courage now especially, when defenders of traditional values and principled constitutional restraint risk becoming subject to an overweening majority in an increasingly post-Constitutional age.