Was the First Justice Harlan Anti-Chinese?

85 Pages Posted: 7 Aug 2014

See all articles by James Wice Gordon

James Wice Gordon

Western New England University School of Law

Date Written: 2014


The first Justice John Marshall Harlan has long been recognized as a defender of Black civil rights. Yet some scholars challenge Harlan’s egalitarian reputation by arguing that he was anti-Chinese. In this Article, the Author discusses the evidence which has been offered to support the claim that Harlan was anti-Chinese and offers additional evidence never before presented to argue against this hypothesis. Harlan’s critics have assembled some evidence in a way that suggests Harlan had an anti-Chinese bias. The Author suggests that the evidence is ambiguous and that it can be assembled to produce a different picture from the one Harlan’s critics create. The Author also argues that Harlan’s critics give insufficient weight to the fact that, sitting as a judge, Harlan was often constrained in his decision-making by stare decisis and his conception of the judicial role. The issues presented by the Chinese cases should be viewed in the context of their time and understood not as abstract statements of the Justices’ personal beliefs but as a series of discrete judicial problems presented to the Court for decision. When one examines both the context and the details of the cases, the picture of Harlan that emerges is more nuanced than his critics have suggested.

Keywords: race, policy, politics, law, civil rights, separate but equal, anti-Chinese, due process, equal protection

Suggested Citation

Gordon, James Wice, Was the First Justice Harlan Anti-Chinese? (2014). Western New England University School of Law Legal Studies Research Paper No. 14-11; Western New England Law Review, Vol. 36, p. 287, 2014. Available at SSRN: https://ssrn.com/abstract=2477128

James Wice Gordon (Contact Author)

Western New England University School of Law ( email )

1215 Wilbraham Road
Springfield, MA 01119
United States

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