_The Constitutional Doctrines of Justice Harlan._ By Floyd Barzilia Clark,
Ph.D., Assistant Professor of Political Science in Pennsylvania State
College. Series XXXIII, No. 4, Johns Hopkins University Studies in
Historical and Political Science under the direction of the Department of
History, Political Economy, and Political Science. The Johns Hopkins Press,
Baltimore, 1915.
This work is a legal treatise consisting of a scholarly discussion of the
doctrines advanced by Justice Harlan during his service as a member of the
Supreme Court of the United States. The book opens with a brief biography
of the jurist, emphasizing the important events of his career to furnish a
basis for the study of his theories. The author then takes up such topics
as the "Suability of States," the "Impairment of the Obligation Contracts,"
"Due Process of Law," "Interstate and Foreign Commerce," "Equal Protection
of the Laws," the "Jurisdiction of Courts," "Miscellaneous Topics," and
"Judicial Legislation."
The author finds that in the treatment of these important legal questions
Harlan measures up to the standard of an able jurist. Replying to those who
have charged him with emphasizing too greatly the letter of the law, the
writer says that such a contention is based on ignorance or prejudice. "No
one who so interpreted the Eleventh Amendment," says the author, "as to
maintain that a suit against the officer of a State in his official
capacity was not a suit against a State could have held to the strict
letter of the law." The author further contends that this criticism of the
jurist arises from the fact that he did not believe in equivocation.
The interpretation of the laws relating to the Negro, the point on which he
dissented from the majority of the members of the court, should have been
given more prominence in this discussion. The discriminations against the
Negroes are treated in connection with the chapters on "Interstate and
Foreign Commerce" and "Equal Protection of the Laws." The Fourteenth
Amendment is treated along with such miscellaneous topics as "Direct
Taxation," "Copyrights," "Insular Cases," "Interstate Comity," and "Labor
Legislation." Stating Justice Harlan's theory as to the position the Negro
should occupy in this country, however, the author writes very frankly.
Harlan, he thought, believed that they should occupy the position that
historically they were intended to occupy by the Thirteenth and Fourteenth
Amendments. He believed that the law should be interpreted as it was meant
and not as the court thought expedient and wise. "Though it may be true
that his relation to the negro in political matters may have made him more
violent in his dissents, any one who will look fairly at the question must
conclude that his doctrine was legally correct. And as time passes, and as
both classes become better educated and broader in their views, it may be
said that the tendency of the court is likely to be to interpret the laws
largely as he thought they should have been interpreted, that is, as
historically they were meant."