The Supreme Court Historical Society

Justice Harlan and the Equal Protection Clause

Sally Jo Vasicko

Introduction

Under the United States Constitution, states are prohibited by the Fourteenth Amendment from denying any citizen equal protection of the laws. A troublesome aspect of this clause has been its definition and implementation in specific circumstances. While the Supreme Court has ruled that states may devise legislative schemes for purposes of classifying citizens as to eligibility for certain government services and/or benefits, e.g., drivers license, welfare payments, unemployment compensation, etc., it initially decreed that these classification schemes must have a "rational relationship" to the objective sought. Under the "rational" relationship or "reasonableness" doctrine, the Court assumed a limited role in evaluating state legislative schemes, e.g., Railway Express Agency v. New York.[1]

Later, during the Warren Court era, 1953-1969, the "compelling" state interest test was added as a means of judging state action. This test included concern about the effects of the classification as well as its purpose. Legislative activity must be sanctioned by a "compelling" state interest in that field. This approach, dubbed the "newer" equal protection by one court watcher[2]assured greater involvement by the Court in areas of substantive policy e.g., welfare benefits. In Shapiro v. Thompson,[3] the Court determined that specified residency stipulations regarding the receipt of welfare benefits were unconstitutional. A stricter test than the rational test had to be applied, "Since the classification here touches on the fundamental right of interstate movement, its constitutionality must be judged by the stricter standard of whether it promotes a compelling state interest. Under this standard, the waiting period requirement clearly violates the Equal Protection Clause."

The justices who were part of the Warren Court continually faced and resolved issues surrounding constitutionally-allowable state legislative classification schemes. It was during this period that states were told by the High Court that certain classification schemes were "suspect" and deserved "a close judicial scrutiny" This standard of measurement determined whether an evil or invidious purpose motivated the state's action. State legislative classifications based upon race and wealth affecting a fundamental right were deemed "suspect." As a result, citizen rights were redefined and extended through an expanded interpretation of the meaning of equal protection of the laws.

But what constituted a fundamental right? Was such a right spelled out explicitly in the Constitution? Or, was such a right one which could be inferred within the parameters of Constitutional wording? The Court solved this dilemma by "describing" not "discovering" certain rights as fundamental. The right to vote was determined to be a fundamental right: therefore, a poll tax could not be assessed in state elections. The right to marry was deemed a fundamental right: therefore, interracial unions could not be prohibited.[4] This expansion of rights took place through the application of the equal protection clause to specific circumstances before the Court.

But during the period, the Court did not speak with a single voice regarding these crucial issues. Strong voices of dissent rang out protesting the action taken by the Court. One of the most articulate dissenters was John Marshall Harlan, an Associate Justice from 1955-1971. His opinions expressed concern over judicial abuse of the equal protection clause. According to Harlan, expansion of civil rights by the judiciary through the equal protection clause violated constitutional guidelines in two respects: first, the Court was exceeding its authority under the Constitution; second, the delicate balance between state and federal jurisdiction would be upset by such judicial maneuvers.

It must be made clear at the outset that Harlan was not against minority groups achieving full legal or political parity Nor was Harlan willing to give states a complete free hand in areas involving fundamental rights.[5]But Harlan espoused a consistent belief in defining substantive rights within constitutional guidelines. These guidelines were found within the due process of law clause, separation of powers doctrine, or judicial restraint, not in applying a broad sweep of the equal protection of the laws clause. But if this catch-all clause was to be invoked, then the reasonableness or rational test should be employed.

Throughout Harlan's tenure on the high bench, the reasonableness or rational test was his reference point when evaluating state legislative classification schemes. Harlan always asked if the statute had a reasonable purpose behind it. In other words, what were the motivating factors behind the legislative classification scheme? Did the state possess a legitimate interest in the subject matter? Inherent in this approach was a concern about the power relationship between the national and state governments. That is, how were these power relationships to be defined and what was the proper judicial role within that definition. Harlan was concerned that the equal protection clause would be abused and that the Court would become, in the words of Learned Hand, "platonic guardians," supplanting its will for that of the state legislatures. He consistently warned the Court to be prudent in its interpretations of state action and continuously admonished his judicial brethren to remember the Court's proper role within a constitutional framework.[6]

Because Harlan's opinions bring to bear an invaluable analysis of the meaning of equal protection of the laws, they are an important legacy to the evolution of American Constitutional federalism. This article discusses Harlan's equal protection opinions in the following areas: reapportionment, voting rights, race relations, criminal defendant rights, and welfare rights. Harlan's opinions offer a rational alternative to the Court's approach to the definition and application of this ambiguous constitutional phrase by emphasizing judicial restraint, precedent and constitutional guidelines as a source for judicial decision-making.

Reapportionment

The Fourteenth Amendment does not specifically mention the franchise, but it performs a more powerful function in securing the vote than the other four amendments (15, 19, 24, and 26) combined. Whereas all five Amendments grant enforcement power to the national government, not the states, it was the U. S. Supreme Court which selected Fourteenth Amendment's clause of "equal protection of the laws," as the means for securing the vote as a fundamental right for each citizen. Whereas the other four amendments merely prohibited states from denying the franchise to a particular group of citizens, it was the Court's interpretation of the Fourteenth Amendment that committed the national government to the active pursuit of securing the franchise for all citizens. Our Constitution, as amended, failed to mention the "fundamental right to vote." Yet, the U.S. Supreme Court has declared it is ours.

Interpretation of the equal protection of the laws regarding legislative apportionment was a hotly debated issue before the Warren Court and Baker v. Carr,[7] was one of the most celebrated decisions regarding the right to vote. After all, in this decision the Court broke precedent and ruled that it had jurisdiction over legislative apportionment under the equal protection clause. In the Baker case, Harlan wrote a separate dissenting opinion but also joined in Frankfurter's dissent.

In his dissent, Harlan developed themes that will be used in subsequent dissenting opinions. First of all, no federal question was shown:

Hence, we must accept the present form of the Tennessee Legislature as the embodiment of the State's choice, or, more realistically its compromise between competing political philosophies. The federal courts have not been empowered by the Equal Protection of the Laws Clause to judge whether this resolution of the State's internal political conflict is undesirable, wise or unwise. . . . Furthermore, a States' choice to distribute electoral strength among geographical units, rather than according to a census of population, is certainly no less a rational decision of policy than would be its choice to levy a tax on property rather than a tax on income. Both are legislative judgments entitled to equal respect from this Court.[8]

Second, while it was easy to comprehend the Court's anxiety over lack of redress in the political arena, it was not necessary that the Court fill the vacuum. In doing so, the Court went beyond its boundaries. Harlan stated:

The majority seems to have accepted the argument, pressed at the bar, that if this Court merely asserts authority in this field, Tennessee and other 'malapportioning' states will quickly respond with appropriate political action, so that this Court need not be greatly concerned about federal courts becoming further involved in these matters. At the same time the majority has wholly failed to reckon with what the future may hold in store if this optimistic prediction is not fulfilled. Thus, what the court is doing reflects more an adventure in judicial experimentation thou a solid piece of constitutional adjudication.[9]

Third, Harlan warned the Court in an appendix what this "adventure in judicial experimentation" could produce: "The fault with a purely statistical approach to the case at hand lies not with the particular mathematical formula used, but in the failure to take account of the fact that a multitude of legitimate policies; along with circumstances of geography and demography, could account for the seeming electoral disparities among counties."[10] Thus, Harlan reprimanded and forewarned his judicial brethren of what lay ahead if the Court continued to inflate the meaning of the equal protection clause.

Harlan joined Frankfurter's dissenting opinion. Frankfurter, too' was concerned with the Court overstepping its jurisdictional boundaries. Harlan's subsequent opinions developed and refined Frankfurter's, as well as his sense of solid constitutional adjudication. The proper role of the Court was repeatedly emphasized. Harlan cried out against continued "judicial experimentation" in policy and procedure areas which clearly belonged to the states. In each dissenting opinion, he expressed alarm with the Court's expanded definition of the equal protection clause regarding legislative reapportionment. Let's now turn to this series of opinions in which HarIan spelled out his fears over the Court's expansiveness and its eventual impact upon federal-state relationships.[11]

Baker v. Carr dealt with the failure of the Tennessee State Legislature to reapportion. During the same term, the Court went one step further. In Gray v. Sanders,[12]the Court ruled on the constitutionality of Georgia's county-unit system as a basis for counting votes in Democratic primary elections for the nomination of United States Senator and statewide offices. The majority held that the system violated the equal protection clause of the Fourteenth Amendment.

Harlan's dissent pointed out that there was not enough evidence to support the Court's findings. He emphasized themes present in his dissent in Baker v. Carr:

On the existing record, this leaves the question of 'irrationality' in this case to be judged on the basis of pure arithmetic. The Court by its 'One person, one vote' theory in effect avoids facing up to that problem, but the District Court did face it, holding that the disparities in voting strength between the largest county (Fulton) and the four smallest counties (Webster, Glascock, Quitman and Echols) running respectively 8 to 1, 10 to 1, 11 to 1, and 14 to I in favor of the latter, were invidiously discriminatory But it did not tell us why I do not understand haw, on the basis of these mere numbers, unilluminated as they are by any of the complex and subtle political factors involved, a court of law can say except by judicial fiat, that these disparities are in themselves constitutionally invidious.[13]

Through "judicial fiat," the Court had cut for itself a wide swath of constitutional power using improper logic and unsubstantiated evidence. In order to register his protest with this approach, Harlan would often vote to vacate and remand a decision for further consideration.

Harlan's adherence to the doctrine of separation of powers and the proper role of the judiciary was spelled out succinctly in his dissent in Wesberry v. Sanders.[14] In this decision, the majority set forth the theory of "one man, one vote." The case dealt with apportionment of Congressional legislative districts. According to the majority, under Article I, Section 2, Representatives chosen 'by the People of the several States' meant that as nearly as was practicable one person's vote in a congressional election was to be worth as much as another's.[15]

Harlan attacked the Court's logic, reasoning, and data. He maintained that no support for the Court's decision could be found in the historical records of United States, Federalist Papers or case law. Furthermore, the complaint failed to reveal a valid constitutional claim. Harlan charged that the phrase "as nearly as practicable" did not define the issue at hand.[16]In a footnote (no. 4) he asked, "How great a difference between the population of various districts within a State is tolerable? Does the number of districts within a State have any relevance?[17]

There is an obvious lack of criteria for answering questions as these, which points up the impropriety of the Court's whole-hearted but heavy-footed entrance into the political arena. . . . The claim for judicial relief in this case strikes at one of the fundamental doctrines of our system of government, the separation of powers. In upholding that claim, the Court attempts to effect reforms in a field which the Constitution, as plainly as can be, has committed exclusively to the political process.

What is done today saps the political process. The promise of judicial intervention in matters of this sort cannot but encourage popular inertia in efforts for political reform through the political process, with the inevitable result that the process is itself weakened. By yielding to the demand for a judicial remedy in this instance, the Court in my view does a disservice both to itself and to the broader values of our system of government.[18]

Again Harlan forcefully expressed his distress over the Court's choice of criteria and the impact of these decisions upon the political system. Harlan did not want the American government to become a government by the judiciary. Questions of a political nature must be settled by the electorate, not the judiciary.

A subsequent ruling, Reynolds v. Sims,[19] was one of the most significant of the reapportionment decisions. The Court ruled that the seats in both houses of a bicameral legislature must be apportioned substantially on a population basis to be in compliance with the equal protection of the laws clause.

Harlan's dissent[20] charged that the language of the Fourteenth Amendment did not empower the Court to hand down any of the reapportionment decisions. He discussed the history of the amendment, emphasizing its proposal and ratification. Harlan accused the Court of "Amending" the Constitution with these decisions:

The Court's elaboration of its new 'Constitutional' doctrine indicates how far and how unwisely it has strayed from the appropriate bounds of its authority The consequences of today's decision is that in all but the handful of states which may already satisfy the new requirements the local District Court or, it may be, the State Courts, are given blanket authority and the constitutional duty to supervise apportionment of the State Legislatures. It is difficult to imagine a more intolerable and inappropriate interference by the judiciary with the independent legislatures of the State.[21]

Harlan then discussed the impact of the decision upon federal-state relationships: "It is well to remember that the product of today's decisions will not be readjustment of a few districts in a few States which most glaringly depart from the principle of equally populated districts. It will be a redetermination, extensive in many cases, of legislative districts in all but a few States."[22]

For Harlan, the Court was not specific enough in its criteria for determining a properly proportioned legislative assembly As a result, the Court's opinions excluded a list of ten crucial factors. These factors encompassed 1) history; 2) economic or other sorts of group interests; 3) area; 4) geographical considerations; 5) a desire to insure effective representation for sparsely settled areas; 6) availability of access of citizens to the representatives; 7) theories of bicameralism (except those approved by the Court); 8) occupation; 9) an attempt to balance urban and rural power; 10) the preference of a majority of voters in the state.[23]Harlan complained that under the Court's opinions the only two factors a state could properly use were numbers and political subdivisions.

He agreed with the majority that "legislators represent people, not trees or acres;" that "citizens, not history or economic interests, cast votes;" that "people, not land or trees or pastures, vote."[24] Harlan's concluding remarks set forth a refinement of his basic concerns regarding the definition of equal protection of the laws:

The Constitution is not a panacea for every blot upon the public welfare, nor should this Court, ordained as a judicial body be thought of as a general haven for reform movements. The Constitution is an instrument of government, fundamental to which is the premise that in a diffusion of governmental authority lies the greatest promise that this Nation will realize liberty for all its citizens. This Court, limited in function in accordance with that premise, does not serve its high purpose when it exceeds its authority, even to satisfy justified impatience with the slow workings of the political process. For when, in the name of constitutional interpretation, the Court adds something to the Constitution that was deliberately excluded from it, the Court in reality substitutes its view of what should be so in the amending process.[25]

Such was the essence of the Harlan approach to the adjudication of constitutional concepts. The Court was always limited in its interpretative actions of Constitutional principles. That document, as the instrument of our government, could not be amended or its meaning expanded by the Court. The principle laid out in the Reynolds dissent will be raised again in subsequent dissents covering a variety of subject matters. Harlan's adherence to the sound adjudication of constitutional concepts was rooted in a deep concern for the preservation of the Constitution as an instrument of government and a deep conviction regarding the proper role of the Court.

In subsequent reapportionment decisions, Harlan, whether in a majority, concurring, or dissenting opinion, reminded the Court of its previously announced principles. In Fortson v. Dorsey,[26] the Court ruled that the equal protection clause did not necessarily require formation of all single-member districts in a state's legislative apportionment scheme. Harlan joined the majority but professed a reservation, "There is a language in today's opinion, unnecessary to the Court's resolution of this case, that might be taken to mean that the constitutionality of state legislative reapportionments must, in the last analysis, always be judged in terms of simple arithmetic."[27]

A later decision, Swann v. Adams,[28]did not squarely present such a case for Harlan. The Court reversed a district court plan under which the Florida reapportionment proposal was allowed deviations from equality of population between legislative districts. The Court held that such deviations were only allowed which "are based on legitimate considerations incident to the effectuation of a rational state policy."[29] Harlan's dissent firmly clung to previously discussed constitutional concepts.

In 1968, the Court extended the concept of one man, one vote to local government units.[30] Harlan dissented on the basis of jurisdiction and merits. The Court lacked jurisdiction because the finality question was not met. The case could be resolved by adhering to the Texas Constitution and its statutes.

He then analyzed the merits of the case, primarily because of the Court's opinion. Harlan was worried about the Court's lack of attention to the impact of the decision upon local government. Restructuring local governmental units should be left up to the political process, not the judiciary" In addition, Harlan expressed alarm over the potential number of cases which could find their way to the doorstep of the Court.[32]

A dissenting opinion handed down in 1969, Wells v. Rockfeller,[33] captured the essence of Harlan's objections to the Court's application of the equal protection of the laws clause to legislative reapportionment. The majority held that the State of New York's reapportionment plan did not meet the constitutional standard of equal representation. Harlan's dissenting voice cried out in disgust:

Whatever room remained under this Court's prior decisions for the free play of the political process in matters of reapportionment is now all but eliminated by today's Draconian judgments. Marching to the nonexistent command of Art. I, 2 of the constitution, the Court now transforms a political slogan into a constitutional absolute. Straight indeed is the path of the righteous legislator. Slide rule in hand, he must avoid all thought of county lines, local traditions, politics, history and economics, so as to achieve the magic formula, one man, one vote.[34]

In Harlan's view, "mathematical niceties" did not always square with political realities or constitutional concepts and he repeatedly warned the Court of the dangerous path it was taking.

Voting Rights Cases.

During Harlan's tenure on the Court, the equal protection clause was applied to other kinds of voting cases. In Carrington v. Rash,[35] the Court ruled that while a state may impose reasonable residence requirements for voting, it could not, under the equal protection of the laws clause, deny the ballot to a bonafide resident merely because he was a member of the armed forces. Harlan dissented and viewed the Texas classification schemes as rational. Coming to Texas as part of the military can be distinguished from a change in job by a civilian. Harlan concluded, "Such a Policy on Texas' part may seem to many unduly provincial in light of modern conditions, but it cannot, in my view, be said to be unconstitutional.[36]

Two years later, the Warren Court handed down a decision critical to the ideals of representative democracy, Harper v. Virginia State Board of Elections.[37]The majority ruled that Virginia's conditioning the right to vote with a poll tax violated the equal protection of the laws. Harlan again dissented.

Harlan quoted from the majority opinion in Harper which described the franchise as "precious" and fundamental. While these words had a "captivating" ring to them, they did not satisfy the standards needed to measure the equal protection issue. One could ask, "Is there a rational basis for Virginia's poll tax as a voting qualifications?"[38]Harlan said "yes." Look to our history, property qualifications and poll taxes were part of our early experience. But today:

Property and poll-tax qualifications, very simply, are not in accord with current egalitarian notions of how modern democracy should be organized. It is of course entirely fitting that legislatures should modify the law to reflect such changes in popular attitudes. However, it is all wrong, in my view, for the Court to adopt the political doctrines popularly accepted at a particular moment of our history and to declare all others to be irrational and invidious, barring them from the range of choice by reasonably minded people acting through the political process.[39]

Harlan, once again, protested the interpretative license used by the Court regarding the application of the equal protection clause. Such interpretations were blots upon sound principles of constitutional adjudication.

In 1965 Congress passed the Voting Rights outlawing literacy tests. Two decisions, Katzenbach v. Morgan[40] and Cardona v. Power,[41] ruled on the validity of Congressional action. In both cases, the Court struck down a New York literacy test as violative of the Civil Rights Act of 1965.

In the Cardona decision, Harlan dissented on the grounds that the case presented a straight forward equal protection problem. Again Harlan took issue with federal intervention into state matters, such as the franchise.

Harlan asserted that there was a rational purpose behind the classification scheme. The appellant claimed fluency in Spanish, that she listened to Spanish-speaking radio broadcasts which provided much political views:

New York may justifiably want its readers to be able to understand candidates directly rather than through possibly imprecise translations or summaries reported in a limited number of Spanish news media. It is noteworthy that the Federal Government requires literacy in English as a prerequisite to naturalization, attesting to the national view of its importance into the American political community Relevant too is the fact that the New York English test is not complex, that it is fairly administered, and that New York maintains free adult education classes which appellant and members of her class are encouraged to attend. [42]

Thus Harlan pointed out a legitimate interest by New York in the "promotion and safeguarding the intelligent use of the ballot."

Harlan then turned to the Katzenbach decision and the application of the federal statute to determine the constitutionality of literacy tests. Harlan maintained that the Court had gone too far in its support of Congressional enforcement power and complained that not enough factual data supported the legislative action taken. The Court assumed the validity of Congressional action until proven otherwise. But Harlan maintained caution in the exercise of judicial power when such judgment can adversely affect the delicate balance between state and federal power. Mere Congressional pronouncement must not be allowed to supercede state authority.

In a subsequent ruling, Gaston County v. U.S.[43] Harlan wrote the majority opinion. The Court refused to allow the county to reinstate a literacy test. Harlan's approach was consistent in that he looked to the established record, "the sad truth is that throughout the years, Gaston County systematically deprived its black citizens of the educational opportunities it granted to its white citizens. Impartial administration of the literacy test today would serve only to perpetuate these inequities of the literacy form.[44] Thus, reestablishment of the literacy test in North Carolina had a different purpose and effect than the legitimate reason and administration to the New York literacy test. Harlan's opinions, whether majority or dissenting, looked to the rationality and purpose of a statute in light of constitutional considerations. When these dual requisites were met, the statute should be allowed to stand.

Race Relations

The Court's business, according to Harlan, was to use prudent standards when interpreting state action in light of constitutional guidelines. A case in point, Burton v. Wilmington Park Authority.[45]Burton involved the leasing of space in a government parking garage by a privately owned restaurant. The restaurant refused to serve blacks. The Court was asked to determine how much state action was involved and whether equal protection of the laws had been violated. The Court ruled there was a relationship between the State and the operator of the restaurant by considering such factors as location, use by state employees and rental monies; thus, a combination of factors established a working relationship and as a result, such state involvement could not be allowed to sanction racial discrimination. Harlan's dissent pointed out the Court's illogical approach:

The Court's opinion, by a process of first indiscriminatingly throwing together various factual bits and pieces and then undermining the resulting structure by an equally vague disclaimer, seems to me to leave completely at sea just what it is in this record that satisfies the requirement of state action.[46]

In a 1965 decision Evans v. Newton[47] the Court again confronted the issue of what constitutes state action under the equal protection of the law clause. At issue was the role played by State officials as a trustee of private property, municipal in nature, which did not allow access to blacks. The Court ruled such a practice was a denial of equal protection of the laws.

Harlan's dissent stated that the writ of certiorari had been "improvidently granted" and should be dismissed.[48]The record revealed no substantial federal question and no state action. Harlan chided the majority, "This decision, in my opinion, is more the product of human impulses, which I fully share, than of solid constitutional thinking. It is made at the sacrifice of long-established and still wise procedural and substantive constitutional principle.[49] Human impulses were worthy but not at the expense of sound legal reasoning. This opinion carried with it "seeds of transferring to federal authority vast areas of concern whose regulation has been wisely left by the Constitution to the States."[50] For Harlan, these areas of concern encompassed privately-owned orphanages, libraries, garbage collection companies but especially schools. Did Harlan anticipate the subsequent developments of the 1970's when he wrote:

For all the resemblance, the majority assumes that its decision leaves unaffected the traditional view that the Fourteenth Amendment does not compel private schools to adopt their admission policies to its requirements, but that such matters are left to the States acting within Constitutional bounds. I find it difficult, however, to avoid the conclusion that this decision opens the door to reversal of these basic constitutional concepts, and, at least in logic, jeopardizes the existence of denominationally restricted schools while making of every college entrance rejection letter a potential Fourteenth Amendment question.[51]

Harlan was concerned about the Court's assuming too active a role in state matters. A humane person, Harlan was likewise trying to maintain that delicate balance between "human impulses" and constitutional concepts. He advised the Court to root their decisions in the latter, not the former. Only then would the Court be able to maintain its position of credibility among the three branches of government and the populace.

In a 1967 decision, Reitman v. Mulkey,[52] the Court declared null and void an amendment to the California State Constitution which repealed open housing legislation and forbade future passage of similar legislation. Harlan dissented and scolded the Court for advancing "ill-founded" arguments as the basis of their contentions.

Harlan was convinced that the proposition adopted by the California voters was neutral on its face and not a call to arms to discriminate.[53] Harlan did not dispute the fact that (section) "26 was meant to nullify California's fair-housing legislation and thus to remove from private residential property transactions the state-created impediment upon freedom of choice."[54] Harlan looked to the California Court record regarding rental of property to blacks in 1963. No indication was present as to the general effect of Section 26.

Harlan said, "A State enactment, particularly one that is simply permissive of private decision-making rather than coercive and one that has been adopted in this most democratic of processes, should not be struck down by the judiciary without persuasive evidence of an invidious purpose or effect."[55] He did acknowledge the circumstances leading up to the adoption of the referendum, i.e., the passage of several strong antidiscrimination acts and the opposition to those acts by those who led the referendum movement. The California Supreme Court used these circumstances to declare Section 26 unlawful. Harlan stated, "This, of course, is nothing but a legal conclusion as to federal constitutional law, the California Supreme Court not having relied in any way upon the State Constitution.[56]Again, Harlan cried, look to the State Constitution, "It seems to me manifest that the State Courts decision rested entirely on what that court conceived to be the compulsion of the Fourteenth Amendment, not on any fact finding by the state Courts.."[57] Again, human impulses were the basis of a decision, not constitutional concepts. To Harlan, State action must be rooted in something more than "encouragement:" "I believe the State action required to bring the Fourteenth Amendment into operation must be affirmative and purposeful, actively fostering discrimination.[58]Harlan advised the Court to think about what it had done. Harlan's dissent warned the Court not to stray from its constitutional duty of interpreting State laws in light of constitutional concepts. The Court should not become a "super-legislature." In matters where State classification schemes were reasonable, judicial restraint should be exercised: "By refusing to accept the decision of the people of California, and by contriving a new ill-defined constitutional concept to allow federal judicial interference, I think the Court has taken to itself powers and responsibilities left elsewhere by the Constitution."[59]

Criminal Defendant Rights

An early illustration of Harlan's concern about the use of the equal protection of the laws clause came in 1965. In the celebrated case of Griffin v. Illinois,[60] the Court held that an appeal from a conviction could not be conditioned by economic status. An indigent defendant claimed his right of appeal was adversely affected because he could not financially provide the necessary transcript. The Court held that Illinois must provide the transcript for an indigent defendant on the first appeal. Harlan dissented. In this dissent, he accused the Court of painting an overly broad stroke of constitutional rights with the brush of the equal protection of the laws clause.

In Harlan's view, Illinois procedural requirements were not shocking to a sense of fundamental fairness or justice; he accused the Court of using the equal protection of the laws clause in order to accomplish its predetermined goal of expanding the meaning of the equal protection clause. The Court did not think through the impact of its decision. Such a decision was determinal to a healthy federal system. After all:

As I view this case, it contains none of the elements hitherto regarded as essential to justify action by this Court under the Fourteenth Amendment. In truth what we have here is but the failure of Illinois to adopt as promptly as other States a desirable reform in its criminal procedure. Whatever might be said for our system of federalism requires that matters such as this be left to the States. However strong may be one's inclination to hasten the day when in forma pauperis criminal procedures will be universal among the states. I think it is beyond the province of this Court to tell Illinois that it must provide such procedures.[61]

In a 1962 decision, Douglas v. California[62] Harlan's dissent reemphasized his concerns for reasonableness in the establishment of classification schemes and the constitutional boundaries of Supreme Court rulings. The case again involved the right of appeal as defined by a state statute. Under the state procedure, criminal appeals were screened to determine whether or not counsel should be appointed for indigent defendants. The Court struck down the provision on the basis that the procedure established a classification based upon wealth which adversely affected the right to appeal. Harlan asserted that, "This case should be judged solely under the Due Process Clause, and I do not believe that the California procedure violates that provision.[63] Harlan cited his dissent in Griffin (he would follow this practice in subsequent dissents, always pointing out to the Court the error of its way and the consistency of his own arguments) and elaborated further on his earlier objections:

The Equal Protection Clause does not impose upon the States 'an affirmative duty to lift the handicaps flowing from differences in economic circumstances' . . . The State may have a moral obligation to eliminate the evil of poverty but it is not required by the Equal Protection Clause to give to some whatever others can afford.[64]

The state appellate courts have the power to appoint counsel on appeal for indigent defendants. If counsel was not appointed, the record is present and could be evaluated as to any injustice.[65]According to Harlan, appellate review was not automatically required by the Fourteenth Amendment. The Court was charged with examining the procedures of particular states as to their reasonableness. The California procedure gave the indigent defendant's trial record a full appraisal based on the merits of the case. As a result, California had taken reasonable steps to ensure the defendant's rights and guarantee needless expense. Harlan emphasized that the California appellate procedure was more fair than that used by the United States Supreme Court.[66] So, in the Douglass dissent, Harlan reminded his judicial brethren to tread carefully in the two separate areas of equal protection of the laws and due process of law. The Court was again admonished for its lack of adherence to constitutional principles and sensitivity to the federal structure. The states had the authority to determine the ground rules of the appellate process. As long as those rules were reasonable and just, they should stand.

During Harlan's final term on the bench, the Court used the equal protection clause to apply to time served in jail as a means of working off fines.[67] By this time, the Warren Court had become the Burger Court but Harlan remained true to his belief in adjudication within constitutional guidelines. Harlan concurred in the Court's judgment but disassociated himself from its rationale. In a tersely-worded opinion, Harlan pointed out:

The ‘equal protection' analysis of the Court is, I submit, a 'wolf in sheep's clothing,' for that rationale is no more than a masquerade of a supposedly objective standard for subjective judicial judgment as to what State legislation offends notions of 'fundamental fairness.' Under the rubric of 'equal protection' this Court has in recent times effectively substituted its own 'enlightened' social philosophy for that of the legislature no less than did in the older days the judicial adherents of the now discredited doctrine of substantive due process.[68]

In Harlan's view, this case should be decided upon due process grounds. He cited previous decisions in which the equal protection clause was wrongly applied. He had tried to warn the Court then but it did not heed his advice. Harlan maintained that the Court was preoccupied with "equalizing rather than analyzing the rationality of the legislative purpose."[69] Harlan emphasized that the question before the Court should be decided on the basis of the due process clause. The results sought in the Williams' case were just but the means chosen were wrong. Invoking the equal protection clause raised more issues than it resolved.

Welfare Rights

In Harlan's dissent in the case involving Aid to Families with Dependent Children (AFDC), Shapiro v. Thompson[70] his concern for the proper use of the equal protection clause was once again underscored. The question before the Court was whether or not the state of Connecticut and the District of Columbia could attach a residency requirement to receipt of AFDC benefits. The majority ruled that such a requirement affected adversely the "fundamental" right to travel and struck down the requirement.

Harlan's dissent emphasized the compelling state interest doctrine and viewed the Court's declaration of a right to interstate travel as fundamentally unwise. His conclusion was rooted in the proper application of the equal protection clause. Shapiro was a case for the due process clause. Harlan again expressed doubt regarding the Court's wisdom in deeming certain rights as fundamental:

But when a statute affects only matters not mentioned in the Federal Constitution and is not arbitrary or irrational, I must reiterate that I know of nothing which entitles this Court to pick out particular human activities, characterize them as fundamental and give them added protection under an unusually stringent equal protection test. [71]

Harlan then examined whether or not this one-year residency requirement amounted to an undue burden upon the right of interstate travel. He analyzed Congressional action, the extent of the interference, State government interests served by welfare residence requirement and concluded, "This resurgence of the expansive view of 'equal protection' carries the seeds of more judicial interference with the State and federal legislative process. . . ."[72] According to Harlan, the Court once again went beyond its constitutional province.

Conclusion

John Marshall Harlan served on the Supreme Court during a period of its history when extraordinary interpretations of the equal protection clause were handed down, e.g., review of state legislative reapportionment plans were declared to be within the jurisdiction of federal courts, the franchise was declared a fundamental right, and interstate travel was deemed to be an inherent right due all citizens. Throughout Harlan's tenure on the Court, he cautioned his judicial brethren against too expansive an interpretation and application of the equal protection clause. His warnings were rooted in a deep commitment to maintaining the delicate balance between states and the national government within a federal system and sustaining a proper role for the judiciary

Harlan's majority, concurring and dissenting opinions reflected an awareness of the striving of groups for political and economic parity Although his opinions evinced a sympathy with humanistic values brought before the Court, he was deeply concerned over the route taken by the Court to describe fundamental rights existing in the Constitution. Harlan was fearful that the path chosen by the Court would lead to a government by the judiciary. The Court should use prudence not emotion when evaluating state legislative schemes. Such an approach would keep federalism intact and the role of the judiciary secure. Harlan's crisp, thoughtful analysis of constitutional questions brought a sense of balance to the Court's deliberations and opinions. His smooth, clear, logical stance is as needed today as it was during his tenure on the bench.

Endnotes

336 U.S. 106, 110 (1949). Emphasis added.
See Gerald Gunther, "Foreword: In Search of Evolving Doctrine on a Changing Court: a Model for a Newer Equal Protection," 86 Harvard 1 (1972).
394 U.S. 618, 638 (1969).
Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966); Loving v. Virginia, 388 U.S. 1 (1967).
Witness his dissent in Poe v. Ulman, 367 U.S. 497 (1961). Although this decision centered around a due process question, Harlan's concern over state interference in basic human rights is forcefully expressed.
See the following: Avery v. Midland County, 390 U.S. 474 (1968); Levy v. Louisiana, 391 U.S. 68 (1968); Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966); Reynolds, v. Sims, 377 U.S. 533 (1964).
369 U.S. 186 (1962).
Ibid., p. 333-334. See C. H. Pritchett, "Equal Protection and the Urban Majority," American Political Science Review, LVII (Dec. 1964) p. 869-875 for a critical assessment of Harlan's stand on equal protection and apportionment.
Ibid., p. 339, Emphasis added.
Ibid., p. 345.
Two decisions Scholle v. Hare (369 U.S. 429, 1962), W.M.C.A. Inc. v. Simon (370 U.S. 190, 1962), which followed baker were remanded to the lower courts for further hearings. Harlan dissented, "It is unfortunate that the Court, now for the second time (Scholle, the first, W.M.C.A. Inc., the second), has remanded a case of this kind without first coming to grips itself with this basic constitutional issue; or even indicating any guidelines for decision in the lower courts, Baker v. Carr, supra, of course did neither. (W.M.C.A., Inc., p. 194) If the Supreme Court was not clear in its decision, how could lower courts be expected to rule with credibility and accuracy?"
372 U.S. 368 (1962).
Ibid., p. 387, Emphasis added.
376 U.S. 120 (1964).
Ibid., p. 120.
Ibid., p. 1231.
Ibid.
Ibid., p. 48.
377 U.S. 533 (1964).
His dissent in Reynolds also applied to the following decisions regarding legislative reapportionment: Maryland Comm. for Fair Trade v. Fawes, 377 U.S. 659 (1964); Davis v. Mann, 377 U.S. 633 (1964); Lucas v. 44^th General Assembly of Colorado, 377 U.S. 713 (1964); Roman v. Sinock, 377 U. S. 695 (1964).
Ibid., p. 615.
Ibid., p. 622.
Ibid., p. 622-623.
Ibid., p. 623.
Ibid., p. 625-26. Emphasis added.
379 U.S. 439 (1964).
Ibid., p. 439-40.
385 U.S. 440 (1965).
Ibid., p. 440.
Avery v. Midland County, 390 U.S. 474 (1966).
Ibid., p. 494.
Such an example came to the Court in 1970. Hadley v. Junior College District of Metropolitan Kansas City, 397 U.S. 50 (1970). Citing Avery v. Midland County, supra, the Court ruled that whenever a state or local government selects anyone to perform public functions, the equal protection of the laws clause required that each qualified voter have an equal opportunity to participate in the election. The Court also held that when members of an elected body are chosen from separate districts, each district must be established on a basis that as far as practicable will insure that equal numbers of voters can vote for proportionally equal numbers of officials. Harlan dissented.
399 U.S. 542 also applied to Kirkpatrick v. Priesler, 394 U.S. 526 (1969).
Ibid., p. 550.
380 U.S. 89 (1964).
Ibid., p. 101.
383 U.S. 663 (1966).
Ibid., p. 683.
Ibid., p. 686. Emphasis added.
384 U.S. 641 (1966).
384 U.S. 672 (1966).
Ibid., p. 663-664.
395 U.S. 285 (1969).
Ibid., p. 521.
365 U.S. 715 (1961).
Ibid., p. 728.
382 U.S. 296 (1965).
Ibid., p. 316.
Ibid., p. 315.
Ibid., p. 322.
Ibid., p. 322.
387 U.S. 369.
Ibid., p. 389.
Ibid., p. 390.
Ibid. Emphasis added, pp. 390-391. In Harlan's view, no such "persuasive evidence" of an evil intent was present.
Ibid.
Ibid.
Ibid., p. 395. Emphasis added.
Ibid., p. 396.
351 U.S. 12 (1956).
Ibid., p. 361.
372 U.S. 353.
Ibid., p. 361.
Ibid., p. 362.
Ibid., p. 363.
Ibid., p. 367.
Williams v. Illinois, 399 U.S. 235 (1970).
Ibid., p. 259. Harlan's emphasis.
Ibid., p. 260.
394 U.S. 618 (1969).
Ibid., p. 622.
Ibid., p. 677.