Jul 21, 2013

Posted in Harlan

The Constitutional Law Lectures of Justice John Marshall Harlan I, 1897-98

From 1889 to 1910, while serving on the United States Supreme Court, the first Justice John Marshall Harlan taught at the Columbian College of Law, which became the George Washington University School of Law. For two decades, he primarily taught working-class evening students, in classes as diverse as property, torts, conflicts of law, jurisprudence, domestic relations, commercial law, evidence — and most significantly — constitutional law.

Harlan’s lectures on constitutional law would have been lost to history, but for the enterprising initiative — and remarkable note-taking — of one of Harlan’s students, George Johannes. During the 1897-98 academic year, George Johannes and a classmate transcribed verbatim the twenty-seven lectures Justice Harlan delivered on constitutional law. In 1955, Johannes sent the transcripts to the second Justice Harlan. The papers were ultimately deposited in the Library of Congress. Though much attention has been given to the life and jurisprudence of Justice Harlan, his lectures have been largely ignored.

Harlan’s lectures are a treasure trove of insights into his jurisprudence, as well as the state of constitutional law at the turn of the 20th century. They provide the unique opportunity to listen in as one of our greatest Justices lectures on the precipice of a constitutional revolution that he helped create.

Brian Frye, Michael McCloskey, and I have published in the George Washington Law Review the complete annotated transcripts of Harlan 27 lectures from 1897-98 (338 pages!). In addition, we published  an article placing the lectures in the context of constitutional law in 1897, and how it evolved. We use these lectures to paint a picture of who Justice Harlan was, what he believed, how he sought to impart that knowledge to the future lawyers of America, and how he predicted many of the changes in constitutional law that occurred during the 20th century.

This article, along with the annotated transcript of all twenty-seven lectures written on the centennial of Justice Harlan’s death, is a tribute to one of the giants of the law, and his contribution to legal education.

You can download Justice John Marshall Harlan, Professor of Law here.

You can download Justice John Marshall Harlan: Lectures on Constitutional Law, 1897-98 here.

Both Brian and I came to this project separately, which has been a long time in the making. In 2009, when I was a 3L in Ross Davies’s legal history class, I spent several  days at the Library of Congress photographing every single page of the lecture notes from Harlan’s papers, and subsequently transcribing them. Unbeknownst to me, Brian obtained a copy of the microfiche of the lecture. and did the same Brian got much, much further than I did). In February 2012, when I realized that Brian was working on the same project, we decided to join forces along with Mike, who had worked on the lecture notes with me at the Harlan Institute (named after Justice Harlan I).

We owe many thanks to the George Washington Law Review for undertaking such a significant project. Kudos to the dedicated editors for citechecking over 1,200 footnotes on a lot of historical sources, in addition to proofreading thousands of type-written scanned pages from the Library of Congress. We are very glad to have Harlan’s lectures preserved  in perpetuity in the University where he taught.

I offer two snippets here. First, Justice Harlan’s constitutional law exam from 1899, and second the table of contents from the lectures.

Hint. You do not need to cite any cases. 60 minutes. Closed book. You may begin.

  1. Besides the particular restraints upon the States, and certain powers vested in the Judiciary, enumerated the remaining powers comprehended under this head.
  2. How far does the power to regulate commerce among the states, extend? [J.B. Ha!]
  3. What particular objects does it comprehend? [J.B. Ha! Ha!]
  4. What interpretation has been given to the power with respect to commerce with the Indian tribes?
  5. In what character and relation are they regarded by the Constitution and laws of the United States?
  6. With what is the power to establish Post-Offices and Post-roads necessarily connected?
  7. Mention some of the benefits derived from it?
  8. How far is it exclusive?
  9. What implied powers have been exercised as incidental to it?
  10. What rule has been laid down in relation to the exercise of incidental and implied powers?
  11. What is the extent or limitations of the powers to coin money, to regulate its value, and that of foreign coins?
  12. What is the extent or limitation of the power to fix the standard of weights and measures?
  13. To what other powers is that of providing for the punishment of counterfeiting the public securities, and current coin of the United States, incidental?
  14. How far is it exclusive?
  15. What is the nature and advantage of the power to prescribe by general laws the manner in which the public acts, records, and judicial proceedings of each state, shall be proved, and the effect they have in other States?
  16. What faith and credit are those of each State entitled to in the Courts of the United States?
  17. What effect have they as evidence in different cases?
  18. Under what circumstances are they admitted as prima facie evidence?Under what circumstances asconclusive evidence?
  19. What is meant by prima facie evidence?
  20. What is the nature and extent of the power to establish a uniform system of naturalization?
  21. To what rights are the citizens of each State entitled in all the others?
  22. Upon what ground is the power of naturalization held to be exclusive in the Federal Government?
  23. Who were entitled to the privileges of citizens of the United States, at the time of the Declaration of Independence? [J.B. I wish I had Justice Harlan's answer key for Question #23. Would definitely help with Original Citizenship.]
  24. What difference is there in the rules upon this subject in the United States and Great Britain?
  25. What is the difference between the two Governments as to the doctrine of allegiance?
  26. What is the term applied to persons born out of the United States?
  27. What exceptions are there in the application of the term?
  28. What is the existing law of the United States relative to naturalization?
  29. What inducements have aliens coming to reside in this country to become citizens?
  30. What reasons were there for investing Congress with the power to establish uniform laws on the subject of bankruptcies?
  31. Define the term bankruptcy.
  32. How far is this power exclusive.

 

LECTURE 1: OCTOBER 14, 1897 (The English System of Government) …… 14
LECTURE 2: OCTOBER 21, 1897 (English Constitutional History) …………… 22
LECTURE 3: OCTOBER 23, 1897 (The Preamble) ………………………………….. 31
LECTURE 4: OCTOBER 30, 1897 (The Vesting Clauses and Constitutional Supremacy)
……………………………………………………… 43

LECTURE 5: NOVEMBER 6, 1897 (Article I, §§ 1 & 2) …………………………… 54
LECTURE 6: NOVEMBER 13, 1897 (Article I, §§ 3 & 4) ………………………….. 67
LECTURE 7: NOVEMBER 20, 1897 (Article I, §§ 4, 5, & 6) ……………………… 78
LECTURE 8: DECEMBER 4, 1897 (Article I, §§ 5, 7, & 8) ……………………….. 89
LECTURE 9: DECEMBER 11, 1897 (Article I, § 8) ………………………………… 102
LECTURE 10: DECEMBER 18, 1897 (THE Commerce CLAUSE) ……………… 115
LECTURE 11: JANUARY 8, 1898 (The Commerce Clause continued; Naturalization) …………………………………………………………………….. 126
LECTURE 12: JANUARY 15, 1898 (Article I, § 8, cls. 4–14) …………………… 135
LECTURE 13: JANUARY 22, 1898 (Article I, § 8, cls. 15–18) ………………… 148
LECTURE 14: JANUARY 29, 1898 (Article I, § 9, cls. 1 & 2) …………………. 163
LECTURE 15: FEBRUARY 5, 1898 (Article I, § 9, cls. 3–8; Article I, § 10) …………………………………………………………………………………… 175
LECTURE 16: FEBRUARY 12, 1898 (Separation of Powers, Checks & Balances, and Article II) ……………………………………………………….. 187
LECTURE 17: FEBRUARY 19, 1898 (Article II, §§ 1 & 2; 12th Amendment) ……………………………………………………………………….. 201
LECTURE 18: FEBRUARY 26, 1898 (Article II, § 2) ……………………………… 215
LECTURE 19: MARCH 5, 1898 (Article II, §§ 3 & 4; Article III, § 1) ……… 229

LECTURE 20: MARCH 12, 1898 (Article III, §§ 2 & 3; 6th Amendment Right to a Jury Trial) …………………………………………………………….. 244
LECTURE 21: MARCH 19, 1898 (Article III, § 3; Magna Charta; Article IV, § 1) ……………………………………………………………………………….. 257
LECTURE 22: MARCH 26, 1898 (Article IV, § 2) ………………………………… 271
LECTURE 23: APRIL 2, 1898 (Article IV, §§ 3 & 4; Article V; Article VI) ……………………………………………………………………………………… 285
LECTURE 24: APRIL 16, 1898 (Amendments 1–5) ………………………………. 300
LECTURE 25: APRIL 23, 1898 (The Establishment Clause, Double Jeopardy, Self-Incrimination, Speedy and Public Trial) …………….. 314
LECTURE 26: APRIL 30, 1898 (Amendments 6–11) …………………………….. 327
LECTURE 27: MAY 7, 1898 (Amendments 13 & 14) ……………………………. 341

 

 

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  • Devin_Watkins

    I think your wrong, that wasn’t Justice Harlan’s exam from 1899 or if it was it was totally out of context and plagiarized (which I don’t think Justice Harlan would do). Those questions are right out of the book “A Course of Lectures on the Constitutional Jurisprudence of the United States” by William Alexander Duer published in 1856 (that’s 43 years before you say this exam was given). Furthermore the questions are totally out of context and as such do not make any sense without the context included in the original book. This set of questions was under the sub-heading “3d. Powers for maintaining harmony among the states” under the main heading of “Powers vested in the federal government, and restraints imposed upon the states”. Viewed in that context the first question makes a lot more sense. When it says “this head” it is then clearly referring to the federal government while in the way you presented it, it wouldn’t be clear what it was referring to.

    You can read the book that these questions come from yourself on page 433 here: http://books.google.com/books?id=o0ks1WnfogcC&pg=PA433

    • http://joshblackman.com/ Josh Blackman

      Hi Devin,

      This is remarkable. Harlan certainly used that exam, and it was in his papers at the Library of Congress: http://www.gwlr.org/wp-content/uploads/2013/06/DSC00277.jpg

      It looks like he borrowed it from Duer.

      • Devin_Watkins

        The questions in the image don’t match the text above (and those questions don’t seem to be from the book as far as I can tell).

        • http://joshblackman.com/ Josh Blackman

          Sorry, in my early morning haze I pasted the links of the wrong exam file.

          You can see some of the questions here and here:

          http://www.gwlr.org/wp-content/uploads/2013/06/DSC00368.jpghttp://www.gwlr.org/wp-content/uploads/2013/06/DSC00375.jpg

          • Devin_Watkins

            Interesting those questions are clearly from the book. You can even see the subheader in the book at the top of the page of one of them “3d. The Judicial Power.” While the other one seems to start at question 6 of the section on “1st. Security from foreign danger”. I wonder if this was actual an exam or not, maybe it was like a homework assignment? That would explain it if they were required to read that book as a part of class (as the answers to all of those questions that I have looked for can be found in that book).

          • http://joshblackman.com/ Josh Blackman

            Perhaps. I don’t recall ever seeing the Duer book referenced in Harlan’s papers. Harlan used Story’ Commentaries, and later Emilin McClain’s Selections of Cases and Constitutional Law and Thomas Cooley’s General Principles of Constitutional Law in the
            United States of America.

  • Steve Rappoport

    Questions 15-19 are relevant today. They will come up when a challenge is made to the provision of DOMA that entitles a state not to recognize a same-sex marriage entered into in another state.

    These are the questions:

    “What is the nature and advantage of the power to prescribe by
    general laws the manner in which the public acts, records, and judicial
    proceedings of each state, shall be proved, and the effect they have in
    other States?

    “What faith and credit are those of each State entitled to in the Courts of the United States?

    “What effect have they as evidence in different cases?

    “Under what circumstances are they admitted as prima facie evidence? Under what circumstances as conclusive evidence?

    “What is meant by prima facie evidence?”

    Since you like to stay ahead of the curve in terms of legal scholarship, do you want to take a crack at answering them?