Chase, Samuel (b. Somerset County, Md., 17 Apr. 1741; d. Baltimore, Md., 19 June 1811; interred St. Paul's Cemetery, Baltimore), associate justice, 1796–1811. Samuel Chase was the most brilliant of the Supreme Court justices to sit before Chief Justice John
Marshall, and was, in some ways, a more impressive figure than the great chief justice himself. Chase signed the
Declaration of Independence, served in the Revolutionary War Congress, and was a noted judge on the Maryland bench as well as the federal judiciary, but he is today remembered chiefly as having been the only Supreme Court justice ever to have been impeached. He is usually dismissed by most American historians as nothing but a rabid partisan. He was, study of Chase's opinions reveals, one of the most important political and legal theorists at work in the early republic, and there is still much that can be learned from his work.
In his most widely quoted Supreme Court opinion,
Calder v. Bull (1798), Chase explored what might be regarded as the
natural law basis for the federal Constitution of 1789. In that case he explained that there were some supra‐constitutional principles that circumscribed any legislature, whether or not such principles had been explicitly spelled out in the written fundamental law. Chase gave only two examples in his opinion: making a person judge and party in his or her own case, and taking A's property and giving it to B without any compensation to A. But his work has been taken to have established the doctrine now referred to as “substantive
due process,” the reading into the
Fifth or Fourteenth Amendment's Due Process Clause guarantees of particular rights or liberties not expressly found elsewhere in the Constitution, rights or liberties generally drawn from some sort of conception of natural law theory.
This sort of approach to constitutional law, recently favored by many advocates of “liberal” constitutional theory, has always been opposed in our history by judicial conservatives, who have maintained that “strict construction” or
“original intent” is a more certain guide to appropriate constitutional interpretation. Curiously, however, Chase is also one of the founders of the “strict constructionist” approach. In one of his most notable opinions while riding circuit,
United States v. Worrall (1798), Chase became the only late eighteenth‐century Federal judge to reject the theory of the “federal common law of crimes,” the doctrine that the federal government, as a matter of self‐defense, could punish crimes such as bribery or
seditious libel even before Congress prohibited such particular conduct by means of a specific statute (see
Federal Common Law). Chase's view on this point was eventually upheld by the Supreme Court in the early nineteenth century.
Riding on circuit, Chase also established in his opinions the principle of
judicial review to declare unconstitutional acts of Congress void, the principle later famously brought to national attention in Marshall's opinion in
Marbury v. Madison (1803). Marshall was reported to be in the audience during one occasion when Chase discussed judicial review on circuit in Virginia and to have adopted some of Chase's language (which was itself probably borrowed from Alexander
Hamilton's Federalist, no. 78) for use in
Marbury.
Chase was a political as well as a judicial conservative and found himself impeached by the Jeffersonians as a result of having presided over several criminal trials and proceedings in which he sought to implement the Adams administration's attempts to silence what it believed to be destructive and dangerous attacks on the government by rebels and mendacious critics. Chase also unsuccessfully sought to convince John Marshall that some of the Jeffersonian usurpations should be ruled unconstitutional and reversed. The event that triggered his impeachment occurred during the early years of Jefferson's administration, however, when Chase delivered to a Baltimore grand jury a charge critical of the Jeffersonians' abolition of several federal judgeships and their conduct in the Maryland legislature. Chase warned that such conduct violated constitutional guarantees of an independent judiciary as well as political principles that insisted that law be undergirded with morality, and morality with religion. Chase's grand jury charge borrowed heavily from the philosophy of Edmund Burke, with whom Chase had spent a fortnight on a trip to England, and warned that unthinking Democratic Jeffersonian advocates of the “rights of man” were plunging the country in the direction of mobocracy.
Jefferson and his followers sought to silence Chase by the
impeachment proceedings. The best lawyers among the Adams Federalists immediately enlisted in Chase's defense, agreeing to work for no fees. At Chase's trial before the Senate in 1805, the impeachment charges were effectively shown to be little more than politically motivated calumny. With the votes of some Jeffersonians in his favor, Chase's opponents failed to muster the needed two‐thirds majority of the Senate to convict him, and Chase was acquitted. John Marshall played a rather disappointing role at the trial, refusing to do much in Chase's defense, and even suggesting, contrary to his reputation as a great defender of
judicial review, that perhaps Congress ought to be the only arbiter of the constitutionality of its own acts.
Historians usually point to the failure of the Senate to remove Chase as a victory for judicial independence and as having established the precedent that a judge could not be removed merely as a result of the stating of political views from the bench. More correctly, however, the proceeding ought to be seen as establishing the principle that it was dangerous for a judge such as Chase to articulate political philosophy, particularly one at odds with the prevailing Democratic ethos of the Jeffersonians. The trouble Chase was confronted with must have had much to do in convincing John Marshall that he should seek to have the judiciary portrayed as somehow different from and above “politics” and led to the convenient constitutional‐law fiction that there are “objective” answers to constitutional questions. In our own time, when this view is no longer tenable, and, in particular, as conservatives search for a reasoned constitutional philosophy emphasizing responsibilities over rights, the Burkean beliefs of Chase might be due for an impressive resurgence. There is even a chance that future scholars will begin to accord Chase the recognition he deserves and raise the man most now only perceive as a rabid partisan to his proper place in the judicial pantheon, one very possibly at the level of Marshall himself.
Bibliography
Robert Bork , The Tempting of America: The Political Seduction of the Law (1990).
Stephen Presser , The Original Misunderstanding: The English, the Americans, and the Dialectic of Federalist Constitutional Jurisprudence, Northwestern University Law Review 84 (1989): 106–185.
Stephen B. Presser
