The Washington times., 1911-10-14
JOHN MARSHALL HARLAN.
JURIST.


dimmed forever when ,yohn Marshall
Harlan died. The time will come when
the long series Of dissenting opinions
written by this great humanist will be
collected and studied with reverence
not unlike that accorded to inspired
prophecy.
Justice Harlan's place in American
Jurisprudence viii bc fixed when that
work is done for his memory. We are
are yet too close to the times in which
he played his part, the issues on which
he pronounced Judgment are too fresh
in memory, to make accurate estimates
possible. But his resord stands in the
writings that tell of him as the un.
varying, persistent, courageous advo-
cate Of true democracy.
/ From the very beginnings he was in
public life; . county Judge in Ken.
tucky in 1858, he was Wing candidate
for Congress in 1850. an elector on the
Bell Presidential ticket in 1850; colonel
Of Kentucky regiment in the Union
army; attorney general of Kentucky,
and candidate of the Republicans fer
governor.
In 1877 he was appointed by Presi-
dent Hayes to the Supreme Court, re-
naming in that post for almost thirty.
four years. His judicial work demon
strated that he was perhaps not one
Of the greatest lawyers that have
graced that bench, but it proved also
that he was one Of the truest humani-
tarians. He believed in the people.
He believed they could rule themselves
better than anybody else could do it
for them. He was opposed to that
aggressive attitude which has, in this
later day of plain speaking, been COM
monty characterized as judicial usurpa.
tion. !
Those who knew Justice Harlan best,
knew that on this subject his feelings
were SO deep, his instructive protest SO
vigorous, that few even of those who
are called radicals could surpass him.
1t was his belief that the people could
be trusted. He was little impressed
with those stock objections, mainly
technical in character, which are al
ways urged against progressive legis.
lation. The argument that the thing
proposed was unconstitutional, or i'm.
practicable, had small weight with him.
He wanted the Constitution to adjust
itself to the needs of the times, not to
stand in the way of all adjustment.
His disposition was always to brush
aside the merely technical and formal
objections, to reach the intent of the
Legislature, and to give it vitality and
force.
He keenly felt that modern civiliza.
tion makes inevitable a constant clash
between human rights and property in
terests; and in that struggle his in.
stincts aligned him with the human
side. This was the key to most of his
dissenting opinions, the pigment that
colored his views.
Anything like review of Justice
Harlan's long record as Judge is i'm
possible at this time. But it is worth
noting that in the Alabama Midland
and maximum rate cases, under the
original interstate commerce law, he
stood for giving the law the full force
that its authors intended. He wanted
to sustain, not emasculate,, it. The
majority was against him, and the
commission lost its power of fixing
rates, together with most of it's general
supervisory authority. If the majority
had taken the view that Harlan up
held, the law would have meant what
it's makers intended, without the long
agitation that ended in the passage
of the Hepburn amendments.
That is characteristic of the Harlan
dissenting opinions. They marked the
way decade or thereabouts ahead of
the van of judicial treatment. The
most wonderful piece of judicial
prophecy in recent time was the tense,
burning dissent which Harlan wrote
in the knight, or original Sugar trust,
case. It was the first great case under
the Sherman act, and the majority of
the court declined to dissolve that cor
poration.
Harlan warned the court that it's
opinion would open the way to the
organization of vast community of
trusts, which would monopolize great
industries. He named many of them,
years before they were formed: the
Meat trust, Lumber trust, Steel trust,
etc.-and forecast that these would
come, and would bring problem which
would require all the power and pa
thence of the country to deal with.
But Harlan's counsel was rejected !;
the court wrote an opinion which stood
for many years as the practical nullif-