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).Google Scholar

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4 Berea College v. Kentucky, 211 U.S. 45 (1908).CrossRefGoogle Scholar

5 Pace v. Alabama, 106 U.S. 583 (1883).Google Scholar

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).Google Scholar

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).Google Scholar

8 Watt, Richard F. & Orkiloff, Richard M., “The Coming Vindication of Mr. Justice Harlan,” 44 III. L Rev. [Northwestern University] 13, 15 (1949).Google Scholar

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.Google Scholar

10 Landynski, Jacob W., “John Marshall Harlan and the Bill of Rights: A Centennial View,” 49 Soc. Research 899, 899 (1982).Google Scholar

11 Beth, Harlan 231, writes: “It was possibly Harlan‘s intimate knowledge of the slave owners’ mentality that enabled him to be more realistic”.Google Scholar

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.Google Scholar

13 Malvina Shanklin Harlan, “Some Memories of a Long Life, 1854–1911,” JMH Papers, LC (“Memories”).Google Scholar

14 Kerber, Linda, “Separate Spheres, Female Worlds, Woman‘s Place: The Rhetoric of Women's History,” 75 J. Am. Hist. 9 (1988).CrossRefGoogle Scholar

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.”.Google Scholar

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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).Google Scholar

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).Google Scholar

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21 MSH to her children, Oct. 1911 [no day], JMH Papers, LC.Google Scholar

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23 Id. at 1125.Google Scholar

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).Google Scholar

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26 Id. at 652.Google Scholar

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).Google Scholar

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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).Google Scholar

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).Google Scholar

32 “Memories,”#109.Google Scholar

33 Malvina attended the Glendale Female Seminary, near Cincinnati, and the Presbyterian seminary Misses Gill's School in 1853.Google Scholar

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35 See Welter, , 18 Am. Q. at 151 (cited in note 16).CrossRefGoogle Scholar

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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”).Google Scholar

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.Google Scholar

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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).Google Scholar

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.Google Scholar

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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).Google Scholar

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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.Google Scholar

60 James Harlan & D. Howard Smith, 5 Aug. 1851, Frankfort, Ky., JMH Papers, LC.Google Scholar

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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).Google Scholar

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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.Google Scholar

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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.Google Scholar

102 Thompson v. Thompson, 218 U.S. 611, 622 (1910).Google Scholar

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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.Google Scholar

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