WAITE, MORRISON R. (1816–1888)

Morrison Remick Waite, sixth chief justice of the United States, successfully led the Supreme Court in dealing with major constitutional problems concerning reconstruction and business-government relations between 1874 and 1888.

Son of Henry Matson Waite, Chief Justice of the Connecticut Supreme Court of Errors, Morrison Waite read law after graduating from Yale College in 1837. In 1838 he removed to Ohio, where he built a flourishing legal practice specializing in commercial law, acquired substantial property interests, and joined the Whig party. Although prominent in the legal profession, Waite was virtually unknown in national affairs prior to his appointment as Chief Justice. He served one term in the Ohio legislature and a term on the Toledo city council, was appointed counsel to the Geneva Tribunal to negotiate the Alabama claims in 1872, and was elected president of the Ohio constitutional convention of 1873.

The circumstances of Waite's appointment to the Court were remarkable, not so much because he lacked national political recognition as because he was the fifth person whom President ulysses s. grant nominated or asked to serve as Chief Justice. Yet Waite had early been touted for the position by leading Ohio politicians, and Grant had considered him a possibility from the beginning. His effective service at the Geneva Arbitration, professional reputation, and unwavering Republican party loyalty recommended him, and in January 1874 the Senate confirmed him by a 63–0 vote.

Waite's significance in American constitutional history is threefold. He wrote the first Supreme Court opinions interpreting the fourteenth and fifteenth amendments in cases involving Negroes' civil rights. Second, his 1877 opinions in Munn v. Illinois and the other granger cases established the basic principles of constitutional law governing state governments as they attempted to deal with economic changes caused by the industrial revolution. Third, Waite expressed a conception of judicial review that summarized dominant nineteenth-century ideas about constitutional adjudication and provided a model for twentieth-century theorists of judicial restraint.

The northern retreat from reconstruction was well underway when Waite became Chief Justice, and the waite court did not attempt to reverse this political development. Under the circumstances, and given the circumscribed role of the judiciary in nineteenth-century constitutional politics, it had little choice but to acquiesce. In determining the meaning of the Fourteenth and Fifteenth Amendments and in applying federal civil rights laws, however, the Court could choose among several possible conceptions of national legislative power and federal-state relations. Waite guided the Court toward a moderate position of states ' rights nationalism which upheld national power to protect civil rights within the framework of traditional federalism.

To understand this development it is necessary to advert to the slaughterhouse cases (1873) and to Justice joseph p. bradley's circuit court opinion in united states v. cruikshank (1874). In the former, the Supreme Court confirmed the theory of dual American citizenship, stated that the Fourteenth Amendment did not add to the rights of national citizenship, and concluded that ordinary civil rights were attributes of state citizenship, regulation of which was beyond the authority of the United States. In the Cruikshank case, involving prosecution of whites in Colfax, Louisiana, for violating the civil rights of Negro citizens, Justice Bradley held that although the Fourteenth Amendment prohibited state rather than private denial of civil rights, under certain conditions the federal government was authorized to guarantee civil rights against interference by private individuals. The relevant circumstance, according to Bradley, was state failure to fulfill its affirmative duty to protect citizens' rights.

Chief Justice Waite wrote the majority opinion when United States v. Cruikshank (1876) was decided in the Supreme Court. Defendants were indicted under a section of the Force Act of 1870 that declared it a federal crime for two or more persons to deprive any citizen of rights secured by the Constitution or laws of the United States. Like Bradley in the circuit court, Waite found numerous flaws in the indictments and on that ground ordered the defendants to be discharged, thus frustrating the federal civil rights enforcement effort. Nevertheless, Waite asserted national authority to enforce civil rights.

The Chief Justice followed the Slaughterhouse opinion in positing separate federal and state citizenships and in stating that the federal government could protect only those rights placed within its jurisdiction. He held further that the freedom of assembly, which the defendants were charged with violating, was a right of state rather than federal citizenship. The indictment, however, had incorrectly stated that denial of freedom of assembly by private persons was a federal crime within the meaning of the Force Act; therefore the indictment was invalid. Yet federal authority was not nugatory in civil rights matters. Waite pointed out that if the indictment had charged a violation of the right to assemble in order to petition the national government, it would have been proper under the act. Thus in protecting a federal right national authority was putatively effective against private individuals as well as states. Waite furthermore asserted an indirect federal power to protect rights of state citizenship against both state and private interference. The ordinary right of assembly was a state right, said Waite, over which "no direct power" was granted to Congress. This appeared to mean that if states failed to uphold civil rights within their jurisdiction, the federal government could provide the needed protection. Finally Waite noted that the indictments did not allege that the full and equal benefit of laws for the protection of whites was denied to blacks on account of race; accordingly the civil rights act of 1866 was not in point. The implication was that if a racially discriminatory purpose had been alleged, federal authority under the 1866 law could have been employed against private as well as against state denial of rights.

Waite also gave the opinion in united states v. reese (1876), the first Supreme Court case involving Fifteenth Amendment voting rights. State officials in Kentucky were indicted for refusing to accept the vote of a Negro citizen. Again the Court ruled against the federal government. Waite declared two provisions of the Force Act of 1870 unconstitutional because they did not in express terms limit the offense of state officials to denial of the right to vote on account of color. Insisting on the need for strict construction of criminal statutes, he interpreted the act in a strained and technical manner as preventing any wrongful interference with voting rights, rather than simply interferences that were racially motivated. The Fifteenth Amendment authorized the federal government to deal only with the latter. It did not, said Waite, secure the right to vote, but only the right not to be discriminated against in voting on racial grounds. Observing that "Congress has not as yet provided by "appropriate legislation' for the punishment of the offense charged in the indictment," Waite in effect invited Republican lawmakers to enact a more tightly drawn enforcement act.

Waite's personal sympathies were enlisted in efforts to assist Negroes. As a trustee of the Peabody Fund in 1874 he signed a report endorsing a constitutional argument for federal aid to education, thus breaking the rule against extra-Court political involvement to which he scrupulously adhered throughout his judicial career. Although Waite accepted the abandonment of Reconstruction and held that Congress had no power "to do mere police duty in the States," his opinions nevertheless authorized federal interference against state and in some circumstances private denial of rights when racially motivated. In subsequent cases, most notably united states v. harris (1883), the civil rights cases (1883), and ex parte yarbrough (1884), the Waite Court amplified the principles set forth in the Cruikshank and Reese cases.

In the sphere of government-business relations, Waite was sympathetic to regulatory legislation within a political and legal framework that encouraged industrial expansion and a national free trade area. In the early 1870s, in response to farmers' and merchants' demands for relief from high shipping costs, several midwestern states adopted legislation setting maximum railroad rates. These laws appeared to discourage further railroad construction, and within a few years most of them were repealed or modified. Nevertheless, in the landmark Granger Cases the Supreme Court ruled on the constitutionality of these regulatory measures.

Munn v. Illinois (1877), Waite's most famous opinion, sustained an 1871 Illinois law that established maximum rates for grain elevators. Waite based his approval of the legislation on a broad conception of the state police power, which he said authorized states to regulate the use of private property "when such regulation becomes necessary for the public good." He rejected the contention that state regulation of the rates charged by ferries, common carriers, or bakers was a deprivation of property without due process of law in violation of the Fourteenth Amendment. Support for Waite's conclusion lay in numerous state common law precedents asserting a public interest in certain kinds of property, such as lands bordering on watercourses, which were subject to government regulation. Like other judges in similar cases, and influenced by a memorandum prepared by Justice Bradley dealing with the instant case, Waite relied on a treatise of the seventeenth-century English judge Lord Chief Justice Sir Matthew Hale in asserting: "When property is " affected with a public interest, it ceases to be juris privati only." The grain elevator companies, Waite explained, exercised a virtual monopoly in the regional market structure; thus, they were affected with a public interest and subject to regulation by the state legislature. In the other Granger Cases Waite employed this principle to uphold state regulation of railroad rates.

Waite also approved state regulation of corporations in a series of decisions that carried to a logical conclusion the principle by which the contract clause of the Constitution did not prevent state legislatures from reserving the power to alter charter grants. These cases included stone v. mississippi (1880), Ruggles v. Illinois (1883), and Spring Valley Water Works v. Schotteler (1883). This trend culminated in stone v. farmers loan and trust co. (1886), known as the Railroad Commission Cases, in which Waite held that a state charter authorizing railroads to set reasonable rates did not divest a state of the power ultimately to determine what was a reasonable rate.

While generally approving regulatory legislation, Waite placed limitations on the police power with a view toward protecting private property. In the Railroad Commission Cases he admonished: "This power to regulate is not a power to destroy; and limitation is not the equivalent of confiscation. Under pretence of regulating fares and freights the state cannot require a railroad corporation to carry persons or property without reward; neither can it do that which in law amounts to a taking of private property without due process of law." Rather than suggesting an irresistible tendency to accept the argument for substantive due process that was later adopted by the Supreme Court, these and similar dicta indicate that Waite, like Justice stephen j. field who dissented in Munn and the other Granger cases, believed the essential constitutional problem in cases involving government-business relations was to determine the extent of the police power. Shortly after the Munn decision Waite wrote: "The great difficulty in the future will be to establish the boundary between that which is private, and that in which the public has an interest."

Waite epitomized nineteenth-century thinking about the nature of the judicial function and the power of judicial review. He believed the judiciary should play a subordinate role in public-policy making, and should especially defer to the political branches in questions concerning the reasonableness of legislation. His clearest and most forceful expression of this view appeared in Munn v. Illinois when he stated: "For us the question is one of power, not of expediency. If no state of circumstances could justify such a statute, then we may declare this one void, because in excess of the legislative power of the States. But if it could we must presume it did. Of the propriety of legislative interference within the scope of legislative power, the legislature is the exclusive judge." Waite acknowledged that legislative power might be abused. But "[f]or protection against abuses by legislatures," he observed, "the people must resort to the polls, not to the courts."

Waite effectively balanced the competing demands of state and federal authority as constitutional equilibrium was restored after the end of Reconstruction. In addition to the decisions already noted, he wrote the opinions in Louisiana v. Jumel (1882) and New Hampshire v. Louisiana (1882), both of which held that the eleventh amendment prevented suits by bondholders attempting to force a state government to redeem its bonds. These decisions expressed the political logic of the compromise of 1877 and marked a significant broadening of states' sovereign immunity under the Eleventh Amendment. In another notable case involving state power and women's rights, minor v. happersett (1875), Waite adhered to a narrow interpretation of the Fourteenth Amendment in deciding that the right to vote was not an attribute of federal citizenship and that states could regulate the suffrage as they saw fit.

On the other hand, Waite upheld federal authority in the controversial sinking fund cases (1879) and in pensacola telegraph co. v. western union telegraph co. (1878). In the former, the Court confirmed the constitutionality of an act of Congress requiring the Union Pacific and Central Pacific railroads to set aside money from current income for the subsequent payment of its mortgage debts. In the latter case the Court upheld the rights of an interstate telegraph company operating under authority of an act of Congress against the rights of a company acting under a state charter. Waite also voted to strike down state tax legislation when it interfered with interstate commerce, although he was less inclined than his colleagues to regard state taxation of commerce in this light.

Overcoming the resentment of several Justices who had aspired to the Chief Justiceship, Waite performed the administrative and other tasks of his position with great skill. In a larger political sense he was also a successful judicial statesman. During his tenure, as at few times in American constitutional history, the Supreme Court was remarkably free of congressional criticism. Waite achieved this success by confining judicial policymaking within limits approved by the nation's representative political institutions and public opinion.

Herman Belz
(1986)

Bibliography

Benedict, Michael Les 1979 Preserving Federalism: Reconstruction and the Waite Court. Supreme Court Review 1978: 39–79.

Frantz, Lauren B. 1964 Congressional Power to Enforce the Fourteenth Amendment Against Private Acts. Yale Law Journal 73:1352–1384.

Magrath, Peter C. 1963 Morrison R. Waite: The Triumph of Character. New York: Macmillan.

Scheiber, Harry N. 1971 The Road to Munn: Eminent Domain and the Concept of Public Purpose in the State Courts. Perspectives in American History 5:329–402.

Trimble, Bruce R. 1938 Chief Justice Waite: Defender of the Public Interest. Princeton, N.J.: Princeton University Press.