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Current Research: DNA Tests Might Solve Harlan Family Mystery
From: University Currents
Date: February 4, 2000
By: Marianne Kunnen-Jones

The same sort of DNA testing that has been used to shed light on the mystery about whether Thomas Jefferson fathered a child with a slave may help UC associate professor of history Linda Przybyszewski to answer a question about slave family ties for another significant figure in U.S. history: U.S. Supreme Court Justice John Marshall Harlan.

Harlan, a white Kentuckian born into a slave-holding family, is most well known for his lone dissent in Plessy v. Ferguson in 1896, which made "separate but equal" the racial law of the land until the mid-1950s, when the Supreme Court laid the path for desegregation. Condemning racial segregation with his statement in Plessy, "Our Constitution is color-blind," Harlan is sometimes hailed as "ahead of his time."

"The course of black history in this nation may certainly have been different if his view had prevailed at that time," said Przybyszewski, author of a new biography on Harlan (1833-1911).

In order to understand the man behind this opinion more completely, his biographer is turning to DNA testing to clarify whether he was a half-brother to Robert James Harlan, a black man raised as a slave on the family farm in Kentucky and later freed. Robert Harlan (1816-1897), 17 years older than Justice Harlan, lived in the Harlan household until 1848, when he left to make his fortune in the California Gold Rush. He later bought his freedom for $500 and settled in Cincinnati, where he owned a photography firm, raised race horses, served as an Ohio congressman and helped to found East Seventh Street school, a school for African Americans.

His possible half-brother, John, on the other hand, grew up on the Harlan farm near Frankfort, Ky., attended school in Lexington at Centre College and at Transylvania University, practiced law mostly in Louisville and was appointed to the U.S. Supreme Court in 1877.

As a legal historian, Przybyszewski hopes that knowing more about the relationship between Robert and John will help her to understand some of the contradictions in Justice Harlan and his court rulings.

"He was born into a slave-holding family. He fought for the Union in the Civil War, but he opposed emancipation and opposed the 14th Amendment that said African Americans were entitled to civil rights granted by the Constitution," said Przybyszewski.

"People have tried to make him a 20th century liberal. People try to say he was color blind. But he wasn't completely color blind. He did hold notions of racial identity," she added.

Two cases that confuse his stance in particular are one in which he ruled in favor of an all-white school board sued by black parents for closing a black high school and another in which he voted with a unanimous Supreme Court that it was legal to more harshly punish an adulterous interracial couple than an adulterous couple of the same race.

While most legal historians who write about Supreme Court justices try to prove their subjects "great," in her Harlan book, The Republic According to John Marshall Harlan, Przbyszewski instead examines the record based on lectures and rulings John Harlan delivered, his wife's letters and memoirs plus other documents -- and let's people decide for themselves.

For the DNA testing, two descendants -- Robert Harlan, a retired lawyer and descendant of Robert living in Maryland, and Louis Harlan, professor emeritus of history at University of Maryland at College Park who shares an ancestor with John -- agreed to give the needed blood samples.

Przybyszewski, who spent fall quarter on sabbatical as a Fellow at the Virginia Center for the Humanities in Charlottesville, Va., watched the blood being drawn on Dec. 9, packed the samples in a cooler and delivered them to Eugene Foster of the University of Virginia, Charlottesville. Foster then shipped the samples to European members of his team for analysis.

Ideally, the testing would be more complete if more male descendants could be found who would agree to give samples, Przybyszewski said.