While legal papers and case decisions have been the traditional focus of judicial biography, the family papers of Justice John Marshall Harlan the Elder demonstrate the importance for understanding a judge's conception of the polity of shifting our sights to the household. Historians of the 19th century have overestimated the distance between the private and the public spheres. The memoirs of Harlan's wife Malvina offer us unparalleled, and hitherto neglected, testimony. Her depiction of the antebellum Harlan household shows its two hierarchies based on assumptions of fundamental differences—those of gender and of race—and both positing a benevolent white male paternalist at their apex. Malvina Harlan's memoirs indicate the lifelong persistence of this paternalism in her own relationship with Justice Harlan and in his relationship with a black servant. These patterns of hierachy, separation, and mutual devotion were essential to Harlan's understanding of his family identity and personal duty. His famous dissents in favor of black civil rights protections and his lapses from his color-blind rule have their roots in this paternalism even as Harlan came to embrace the racial egalitarianism of the Civil War amendments.
1 See Philip S. Paludan, A Covenant with Death: The Constitution, Law and Equality in the Civil War Era (Urbana: University of Illinois Press, 1975); Harry N. Schieber, “Federalism and the Legal Process: Historical and Contemporary Analysis of the American System,” 14 Law B Soc'y Rev. 663, 689–92 (1980); Michael Les Benedict, “Preserving Federalism: Reconstruction and the Waite Court,” 1978 Supreme Court Rev. 39 (1978); C. Peter Magrath, Morrison R. Waite: The Triumph of Character 153–54 (New York: Macmillan Co., 1963). However, Robert J. Kaczorowski has shown that the lower federal courts gave a broad reading to the changes worked upon federalism by the Civil War amendments until the Supreme Court stopped them; see his Politics of Judicial Interpretation: The Federal Courts, Department of Justice and Civil Rights, 1866–1876 (New York: Oceana Publications, 1985).
2 Ferguson, Plessy V., 163 US. 537, 559, 560 (1896).
3 Civil Rights Cases, 109 U.S. 3 (1883); Plessy V. Ferguson, 163 U.S. 537 (1896); Louisville, New Orleans, & Texas R.R. Co. v. Mississippi, 133 U.S. 587 (1890); Chiles V. Chesapeake & Ohio Ry. Co., 218 U.S. 71 (1910).
4 Berea College v. Kentucky, 211 U.S. 45 (1908).
5 Pace v. Alabama, 106 U.S. 583 (1883).
6 Cumming v. Richmond County Bd. of Educ., 175 U.S. 542 (1899). Justice William Howard Taft cited Cumming to allow stare segregation in the schools in Gong Lum v. Rice, 275 US. 78 (1927).
7 Neal v. Delaware, 103 U.S. 370 (1880), and Bush v. Kentucky, 107 U.S. 110 (1882). See Benno C. Schmidt, Jr., “Juries, Jurisdiction, and Race Discrimination: The Lost Promise of Strauder v. West Virginia,” 61 Tex. L. Rev. 1401 (1983).
8 Watt, Richard F. & Orkiloff, Richard M., “The Coming Vindication of Mr. Justice Harlan,” 44 III. L Rev. [Northwestern University] 13, 15 (1949).
9 The best of the articles is Alan Westin, “John Marshall Harlan and the Constitutional Rights of Negroes: The Transformation of a Southerner,” 66 Yale L.J. 637 (1957). The Spring 1958 Kentucky Law Journal was devoted to Harlan. See also Loren P. Beth, John Marshall Harlan: the Last Whig Justice (Lexington: University Press of Kentucky, 1992.
10 Landynski, Jacob W., “John Marshall Harlan and the Bill of Rights: A Centennial View,” 49 Soc. Research 899, 899 (1982).
11 Beth, Harlan 231, writes: “It was possibly Harlan‘s intimate knowledge of the slave owners’ mentality that enabled him to be more realistic”.
12 The largest collection of Harlan papers is held by the Library of Congress (“JMH Papers, LC”). The Law School of the University of Louisville also holds a substantial collection. See Linda C. A. Przybyszewski, “The Republic according to Harlan: Race, Republicanism and Citizenship” 326–27 (Ph.D. diss., Stanford University, 1989), for Harlan material in other collections.
13 Malvina Shanklin Harlan, “Some Memories of a Long Life, 1854–1911,” JMH Papers, LC (“Memories”).
14 Kerber, Linda, “Separate Spheres, Female Worlds, Woman‘s Place: The Rhetoric of Women's History,” 75 J. Am. Hist. 9 (1988).
15 While Barbara Welter, “The Cult of True Womanhood: 1820–1860,” 18 Am. Q. 151, (1966), called women “hostages of the home” after analyzing the prescriptive literature, Nancy Cott, The Bonds of Womanhood: “Woman's Sphere” in New England, 1780–1835 at 197 (New Haven, Conn.: Yale University Press, 1977), observed that “the more historians have relied on women‘s personal documents the more positively they have evaluated woman's sphere.”.
16 Kerber, , 75 J. Am. Hist. at 39.
17 Stephanie McCurry, “The Two Faces of Republicanism: Gender and Pro-Slavery Politics in Antebellum South Carolina,” 78 J. Am. Hist. 1245 (1992); Elizabeth Fox-Geno-vese, Within the Plantation Household: Black and White Women of the Old South (Chapel Hill: University of North Carolina Press, 1988). Victoria Bynum argues that the identification of man with the family lessened after the war; see her “Reshaping the Bonds of Womanhood: Divorce in Reconstruction North Carolina,” in Catherine Clinton & Nina Silber, eds., Divided Houses: Gender and the Civil War 320–33 (New York: Oxford University Press, 1992).
18 On the reticence of women to speak of their lives, see Carolyn G. Heilburn, “Non-Autobiographies of ‘Privileged’ Women: England and America,” in Bella Brodski & Celeste Schenck, eds., Life/Lines: Theorizing Women's Autobiography 62–76 (Ithaca, N.Y.: Cornell University Press, 1988).
19 MSH to JMH, August 1877 [no day], Boyle County, JMH Papers, LC.
20 MSH to her children, 27 Oct. 1911, JMH Papers, LC.
21 MSH to her children, Oct. 1911 [no day], JMH Papers, LC.
22 See Thelan's, David introduction to an issue on historical memory in “Memory and American History,” 75 J. Am. Hist. 1117, 1120–21 (1989).
23 Id. at 1125.
24 “Memories,”# 150. Compare this scene the narrative of sacrifice sold to southern white women; Drew Gilpin Faust, “Altars of Sacrifice: Confederate Women and the Narratives of War,” 76 J. Am. Hist. 1200 (1990); George C. Rable, Civil Wars: Women and the Crisis of South Nationalism 136–53 (Urbana: University of Illinois Press, 1989).
25 Westin, 66 Yale L.J. at 642 (cited in note 9).
26 Id. at 652.
27 Beth, , Harlan 73 (cited in note 9). Also see Farrelly, David G., “Harlan's Formative Period: The Years before the War,” 46 Ky. L.J. 367, 369 (1958).
28 Beth, , Harlan 11.
29 Id. at 27.
30 White, G. Edward, who defines the term “paternalist” differently, applied it to Harlan's decisions affecting both race and economics; see his “John Marshall Harlan 1: The Precursor,” 19 Am. J. Legal Hist. 1 (1975).
31 Her father bought the couple a house in 1865 (“Memories,”#158). For more on the Shanklin family, see History of Vanderburgh County, Indiana (Madison, Wis.: Brant 61 Fuller, 1889), and Joseph P. Elliot, A History of Evansvlle and Vanderburgh County, Indiana (Evansville, Ind., 1897).
33 Malvina attended the Glendale Female Seminary, near Cincinnati, and the Presbyterian seminary Misses Gill's School in 1853.
35 See Welter, , 18 Am. Q. at 151 (cited in note 16).
36 Glenna Matthews, “Just a Housewife”: The Rise and Fall of Domesticity in America 34 (New York: Oxford University Press, 1987).
38 See Carl N. Degler, At Odds: Woman and the Family in America from the Revolution to the Present 8–9 (New York: Oxford University Press, 1980) (“Degler, At Odds”); Suzanne Lebsock, The Free Women of Petersburg: Status and Culture in a South Town, 1784–1860 at 22–32 (New York: W. W. Norton, 1984) (“Lebsock, Free Women”).
39 “Memories,”#112. Malvina acquiesced to their later move to Louisville as being in his best interest despite her desire to return to Evansville; MSH to JMH, 26 May 1867, Evansville, Ind., JMH Papers, LC.
41 “Memories,”#112. John Shanklin was well enough disposed to the black community of Evansville to sell them property for a church for a nominal sum. Darrel E. Bigham, We Ask Only a Fair Trial: A History of the Black Community In Evansville, Indiana 10 (Bloomington: Indiana University Press, 1987).
42 The culture of middle-class white women during the mid-19th century also aimed at helping its members in the transition from daughter to wife. See Anne Firor Scott, The South Lady: From Pedestal to Politics 1830–1930 at 27 (Chicago: University of Chicago Press, 1970) (“Scott, Southern Lady”); Carroll Smith-Rosenberg, “The Female World of Love and Ritual: Relations between Women in the Nineteenth Century America,” in Michael Gordon, ed., The American Family in Socio-historical Perspective 423–24 (3d ed. New York: St. Martin‘s Press, 1983). Malvina tells us that “during the first week of our honeymoon (which was spent, as was the usual custom in my time, under my Father's roof) three or four parties were given to us at the house of friends.”“Memories,”#111.
44 “Memories,”#112. Carl Degler, At Odds, notes that although historical studies have shown that “the extended family … has not been usual at all” (at 5) in Western societies, “it is probable, although the evidence is skimpy, that in the southern English colonies and Southern states, kinship ties beyond the immediate family were more important than in the northern areas” (at 105).
46 Anne Firor Scott, Making the Invisible Woman Visible 180 (Urbana: University of Illinois Press, 1984) (“Soctt, Invisible Woman”). See Waldo Warder Braden, “Repining over an Irrevocable Past: The Ceremonial Orator in the New South,”in Braden, ed., Oratory in the New South 8–37 (Baton Rouge: Louisiana University Press, 1979); John Winston Coleman, Jr. Slavery Times in Kentucky 34 (Chapel Hill: University of North Carolina Press, 1940).
47 “Memories,”#119. As was true for many slaveholders, “intimate” relations sometimes developed between master and famale slaves. Scott, Invisible Woman 180, calls miscegenation “the fatal flaw” in the southern paternalist order. At least one newspaper article intimated that a quadroon slave named Robert James Harlan who was reared in the Harlan home was in fact James‘s illegitimate son. Robert and John remained friends long after Robert had bought his freedom. From the way Malvina refers to Robert, I would say if he was a Harlan by blood she was unaware of his parentage. See also Catherine Clinton, “’Southern Dishonor': Flesh, Blood, Race and Bondage,” in Carol Bleser, ed., In Joy and Sorrow: Women, Family, and Marriage in the Victorian South, 1830–1900 at 52–68 (New York: Oxford University Press, 1991) (“Bleser, Joy and Sorrow”); Joel Williamson, New People: Miscegenation and Mulattoes in the United States esp. ch. 1 (New York: Free Press, 1980).
49 “Memories,”#117, #124. For the destructiveness of this kind of racialism, see George Fredrickson, The Black Image in the White Minds: The Debate on Afro-American Character and Destiny 97–98 (Middletown, Conn.: Wesleyan University Press, 1971).
54 Malvina to JMH, May 1867, Evansville, Ind., JMH Papers, LC, #10; Scott, Southern Lady 33 (cited in note 43).
59 James Morrow retold John's version of the story (with minor differences) in “Talks with Notable Men: John M. Harlan Associate Justice United States Supreme Court,” Washington Post, 25 Feb. 1906, p. 6.
60 James Harlan & D. Howard Smith, 5 Aug. 1851, Frankfort, Ky., JMH Papers, LC.
65 JMH, Constitutional Law Lectures, 7 May 1898, JMH Papers, LC (“Lectures”).
66 “Memories,”#118. Malvina uses the term “slave driver,” but as they were usually black, she must have meant a slave trader, both of whom “ranked … as the fiends of the regime,” according to Eugene D. Genovese, ROY Jordan, Roll: The World the Slaves Made 372 (New York: Vintage Books: 1976).
68 See Asa Earl Martin, “The Anti-Slavery Movement in Kentucky Prior to 1850” (Ph.D. diss., Cornell University, 1917), and Carl Degler, The Other South: Southern Dissenters in the Nineteenth Century 13–96 (1974; reprint Boston: Northeastern University Press, 1982). On 4 June 1845, a hostile crowd shipped Clay's abolitionist printing materials for his True American newspaper out of state forcibly. Lewis & Richard H. Collins, 1 Collins' Historical Sketches of Kentucky, History of Kentucky 51 (2 vols. rev. & enl. Covington, KY: Collins & Co., 1882); Clay was swamped in the 1851 election (id at 62).
69 Slave Trading in the Old South (Baltimore: J. H. Furst Co., 1931). See also T. D. Clark, “The Slave Trade between Kentucky and the Cotton Kingdom,” 21 Miss. Valley Hist. Rev. 331 (1934).
70 “Memories,”#118 +.
71 Not all Harlans did. In 1909 John and others wrote President Taft for a pardon for W. S. Harlan of Lockhart, Alabama, after his conviction on charges of peonage. William Howard Taft Papers, Library of Congress, Series 5, case file #1275, Reel 33.
73 Malvina mentions the purchase of a slave only once: when John bought a cook to save her from being sold away from her husband. “Memories,”#156.
76 Estate of James Harlan, JMH Papers, LC.
77 Thomas Jefferson, Notes on the State of Virginia 162 (Chapel Hill: University of North Carolina, 1954).
78 Eugene Genovese, “‘Our Family, White and Black’: Family and Household in the Southern Slaveholders' World View,” in Bleser, , Joy and Sonow 87 (cited in note 48).
79 Scott, Anne Firor, “Women, Religion, and Social Change in the South, 1830–1930,” in Soctt, Invisible Woman 191 (cited in note 47).
80 Lebsock, , Free Women 32 (cited in note 39); nonetheless, she notices some improvement or variation in women's status over time and depending on class.
81 Basch, Norma, “‘Invisible Women’: The Legal Fiction of Marital Unity in Nineteenth-Century America,” 5 Feminist Stud. 346, 348 (1979); Michael Grossberg, Governing the Hearth: Lau, and the Family in Nineteenth-Century America 27 (Chapel Hill: University of North Carolina Press, 1985). Changes in judicial divorce were as prevalent in the South as in the North, according to Jane Turner Censer, “‘Smiling through Her Tears’: Ante-Bellum Southern Women and Divorce,” 25 Am. J. Legal Hist. 24 (1981).
82 This treatise is a listing of statutes and decisions without any editorial comment. John Marshall Harlan & Charles Henry Butler, “Treatise on the Law of Marriage,” 26 Cyclopedia of Law and Procedure 830 (New York: American Law Book Co., 1907).
83 Norma Basch discovered that changes in married women's property rights in New York were not revolutionary in intent; see her In the Eyes of the Law: Women, Marriage and Property in Nineteenth-Century New York (Ithaca, N.Y.: Cornell University Press, 1982).
84 Hartog, Hendrik, “Mrs. Packard on Dependency,” 1 Yale J.L. & Humanities 79 (1988); Nina Baym, Woman's Fiction: A Guide to Novels by and about Women in America, 1820–1870 (Ithaca, N.Y.: Cornell University Press, 1978); Mary Kelley, “The Sentimentalists: Promise and Betrayal in the Home,” 4 Signs 434 (1979). On the interaction between legal doctrine and culture, see Martha Minow, “‘Forming under Everything that Grows:’ Toward a History of Family Law,” 1985 Wis. L. Rev. 819 (1985).
86 Harlan left his widow in bad financial straits; see John B. Lamer to William Howard Taft, 2 Dec. 1911, Washington D.C., Taft Papers, LC.
89 Malvina believed that she influenced John for the good in religious matters, which were considered to fall within the female sphere. See Barbara Welter, “The Feminization of American Religion: 1800–1860,” in Dimity Convictions: The American Woman in the Nineteenth Century 83–102 (Athens: Ohio University Press, 1976).
91 James M. Barrie, Representative Plays 288 (New York: Charles Scribner's & Sons, 1914); Barrie is best known for writing Peter Pan.
92 Id. at 287.
93 Isabel McKenna Duffield (daughter of Justice McKenna), Washington in the 90′s at 61 (San Francisco: Press of the Overland Monthly, 1929); Washington Wife: Journal of Ellen Maury Slayden from 1897–1919 at 65 (New York: Harper & Row, 1962).
96 “Memories,”#181. John Harlan explained that she should have known that the federal government does not have an answer for every complaint; Lectures, 12 March 1898, LC.
97 “Memories,”#250. The First International Congress in America for the Welfare of the Child Held Under the Auspices of the National Congress of Mothers at Washington D.C., March 10th to 17th, 1908 (Washington: National Congress of Parents & Teachers, 1908). The Congress of Mothers evolved into the Parents and Teachers Association.
98 See Nancy Cott, The Bonds of Womanhood: Woman's Sphere in New England, 1780–1835 at 149–54 (New Haven, Conn.: Yale University Press, 1977); Mary Ryan, Cradle of the Middle-Ch: The Family in Oneida County, New York, 1790–1865 at 210–29 (Cambridge: Cambridge University Press, 1981); Lebsock, Free Women 198–208 (cited in note 39). Anne Firor Scott, “The ‘New Woman’ in the New South,” in Scott, Invisible Woman 219 (cited in note 47). Kathryn Kish Sklar said that Catherine Beecher “turned self-sacrifice and submission-traditional values associated with women—into signs of moral superiority and leadership.” See her Catherine Beecher: A Study in American Domesticity 83 (New York: Norton, 1976). Malvina knew of the exploits of the Beecher clan; see “Memories,”#162. In 1870 women made up only 20% of college students, but by 1920 they represented almost 50%. Barbara M. Solomon, In the Company of Educated Women: A History of Women and High Education in America 63 (New Haven, Conn.: Yale University Press, 1985).
99 Aileen Kradiror has derided the leaders of the suffrage movement for abandoning their radical argument for natural rights in favor of the call for municipal housekeeping that relied on the conservative view of woman's sphere; see her Ideas of the Woman Suffrage Movement 1890–1920 (New York: Columbia University Press, 1965).
100 Consider the story of Mrs. Sallie Southall Cotten, a wife and mother who was propelled into the world of activism after representing her home state at the Chicago World's Fair in 1893 and became an effective local reformer, Scott, “The ‘New Woman’ in the New South,” in Scott, Invisible Woman 217.
101 Bradwell v. State, 83 U.S. 130, 141 (1872). Harlan was part of a unanimous majority in In re Lockwood, 154 U.S. 116 (1893), which allowed the state courts to decide whether “person” equals “man” in their statutes, and so the states could refuse women the opportunity to join the state bar.
102 Thompson v. Thompson, 218 U.S. 611, 622 (1910).
103 Id. at 620.
104 MH to John Harland, 27 Feb. 1911, Washington, D.C., JMH Papers, LC.
105 I have not been able to confirm the family stories about Ruth's work as a social secretary in Washington, D.C.
106 For general chronology, see E. Merton Coulter, The Civil War and Readjustment in Kentucky (Chapel Hill: University of North Carolina Press, 1926 (“Coulter, The Civil War”.
107 JMH to Joseph Holt, 11 March 1861, Frankfort, Ky., Holt Papers, LC.
108 JMH to Richard Harlan, autobiographical letter, 4 July 1911, JMH Papers, LC.
109 Westin, 66 Yale L.J. at 659 (cited in note 9), writes that more than anything else, the violence “made Harlan reexamine his ideas and convinced him that the only way to bring peace was accept the results of the War, recognize the legal rights of the new freedmen, and end the reign of violence,” but he has no analysis of paternalism.
110 Coulter, , The Civil War 359.
111 W. A. Low, “The Freedmen's Bureau in the Border States,” in Richard O. Curry, ed., Radicalism, Racism, & Party Realignment: The Border States during Reconstruction 254–55 (Baltimore: John Hopkins Press, 1969) (“Low ‘Freedmen's Bureau”).
112 House Executive Documents, 39th Cong., 1st sess., No. 70, p. 202, quoted in Allen W. Trelease, White Terror: The Ku Klux Klan Conspiracy and South Reconstruction xlv (New York: Harper & Row, 1971) George R. Bentley, A History of the Freedmen's Bureau 182 (Philadelphia: University of Pennsylvania Press, 1955).
113 Low, “Freedmen's Bureau” at 255.
114 John had been asked to leave university before, though he did succeed in graduating; his brother Richard made a better record as valedictorian.
115 JMH to James Harlan, 8 Oct. 1881, Washington, D.C., JMH Papers, LC.
116 Aunt Charloott [sic] to JMH, 5 Nov. 1877, Frankfort, Ky., JMH Papers, LC.
121 Emphasis hers, “Memories,”#229–30.
An earlier draft was presented at the Law and Society Association Annual Meeting, 1989.
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