Last week, while listening to the oral argument in Trump v. Barbara, I was pleasantly surprised to hear Justice Gorsuch ask the Solicitor General and Cecilia Wang, counsel for the ACLU, about Justice Harlan's constitutional law lectures concerning Wong Kim Ark. Back in 2013, Brian Frye, Michael McCloskey, and I transcribed and published all of Harlan's lecture. This was done the old-fashioned way, without the benefit of AI. We went to the Rare Books room at the Library of Congress, and photographed more than 500 pages of archived materials. We also published an article in the George Washington Law Review analyzing the lecture notes.
Given the recent attention to Justice Harlan, I thought it would be helpful to reproduce both our discussion of Harlan's lecture on Wong Kim Ark, as well as the full transcript from the classes from before and after Wong Kim Ark was decided. (Yes, Harlan talked about the case while it was pending, and previewed his vote). Those excerpts appear in this post.
The ACLU and Justice Gorsuch accurately quoted the lecture notes, but I think you need to read the full context to understand Harlan's position. I will have more to say about Harlan's view in separate writing. Here, I just want to lay out the background.
