Clifford, Nathan

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CLIFFORD, NATHAN

Nathan Clifford was an associate justice of the Supreme Court from 1858 to 1881. A traditional Jacksonian Democrat strongly disposed to favor states' rights, Clifford served on a Court that in his later career was largely dominated by Republicans. As a result, one-fifth of all his writing for the Court was made up of dissents: Clifford opposed centralization of power in the federal government at a time when the Court was moving toward expansion of federal authority; he was a Northerner who often sided with Southern democrats on issues related to slavery; and he advocated a conservative interpretation of the Constitution. Clifford also served as attorney general of the United States from 1846 to 1848 and as a negotiator in the Mexican War. As the negotiator, he successfully procured a treaty with Mexico that added a huge amount of land to the southwestern part of the United States.

"Equality of political right is valueless as a theory, unless it be preserved in practice."
—Nathan Clifford

Clifford was born August 18, 1803, in Rumney, New Hampshire, the oldest child and only son in a family with seven children. His English ancestors had moved to the United States in 1644. As a child he worked on his family's small farm in New Hampshire. Although his parents did not encourage him to attend school he was

able to receive some education at Haverhill Academy, where he earned his tuition tutoring and giving singing lessons to younger children. He hoped to attend Dartmouth College but that proved impossible when his father died.

Ever ambitious, Clifford persuaded a local lawyer, Josiah Quincy, to take him on as an apprentice. He learned enough of the law to pass the bar in 1827 and moved to Newfield, Maine, where he opened a law office. Most of his legal work involved land claim disputes related to the lumber business.

In 1830, at age 27, Clifford was elected to Maine's House of Representatives on the Democratic ticket, quickly rising to Speaker of the House in 1833. Beginning in 1834 he served four years as state attorney general. During that time he made an unsuccessful bid for the U.S. Senate. He won a seat in the U.S. House of Representatives in 1838.

As a Jacksonian Democrat—that is, a Democrat in the mold of andrew jackson, who served as president of the United States from 1829–1837—Clifford was suspicious of power concentrated in urban centers of finance and politics. He was also a strong supporter of martin van buren, a fellow Democrat who succeeded Jackson as president. In Congress Clifford opposed high tariffs, the creation of a federal banking system, and attempts to abolish slavery. The latter position earned him the label of "doughface"—a northern Democrat with southern sympathies. Clifford lost his seat in the House in 1843 after serving two terms.

In October 1846, President james polk appointed Clifford to become his attorney general. Clifford accepted the post but when the Supreme Court session was to begin he panicked about his qualifications for the job and suggested to Polk that he resign. Polk persuaded him to stay on. While he served as attorney general Clifford's most notable case before the Supreme Court was Luther v. Borden, 48 U.S. (7 How.) 1, 12 L. Ed. 581 (1849), which involved Dorr's Rebellion, the attempt by a group of Rhode Island citizens to form a new, more democratic state government to replace the established one. The rebellion had been put down through martial law imposed by the existing state government. Representing the rebels in court, Clifford had as his opposition daniel webster, a leading politician and constitutional lawyer. Clifford argued that a state could not impose martial law and that the people of Rhode Island had a right to change their constitution. The Court ruled that the case was out-side of its jurisdiction.

Clifford also became involved in the Polk administration's policies regarding the Mexican War, which occurred between 1846 and 1848. He helped mediate differences between Polk and Secretary of State james buchanan, who would later, as president, nominate Clifford to the Supreme Court. As the war came to a close, Polk asked Clifford to resign as attorney general and become emergency peace negotiator. Clifford negotiated a treaty in 1848 that fulfilled the administration's expansionist goals in the Southwest. He eventually worked for progressive reform in Mexico, staying on there until September 1849.

When Whig candidate zachary taylor was elected president in 1848, Clifford was recalled from Mexico. He moved to Portland, Maine, and resumed his legal career. Not content to simply practice law, he attempted to gain the U.S. Senate in 1850 and 1853. His hopes of achieving a higher position and being rewarded for his work in Mexico materialized on December 9, 1857, when President Buchanan nominated him to the Supreme Court, filling the vacancy of benjamin r. curtis who stepped down after the controversial case dred scott v. sandford, 60 U.S. (19 How.) 393, 15 L. Ed. 691 (1857). In appointing the New Englander Clifford, Buchanan hoped to maintain the geographic balance of the Court at a time when such balance was crucial. The nation was increasingly divided over the issue of slavery when Clifford joined the Court. In particular, different factions hotly debated the admission of Kansas to the Union and the status of fugitive slaves. As a Northern Democrat who nevertheless had demonstrated his sympathy for Southern causes, Clifford was a logical choice for the Court. His nomination caused great debate in the Senate, particularly over his strong Democratic loyalties and his perceived lack of legal training and qualifications. However, Clifford was finally approved by the Senate on January 12, 1858, on a 26–23 vote.

Clifford showed his anti-abolitionist stripes early when he joined a unanimous Court in upholding the fugitive slave law in Ableman v. Booth, 62 U.S. (21 How.) 506, 16 L. Ed. 169 (1859). When the Civil War came, however, he strongly supported the Union, deeming secession to be "wicked heresy." Unlike his later years on the Court, those during the Civil War saw Clifford supporting Republican attempts to expand federal authority in order to better conduct the war. He stood behind the federal government in its first attempts to issue paper currency to finance the war effort. In texas v. white, 74 U.S. (7 Wall.) 700, 19 L. Ed. 227 (1868), he concurred with the majority in upholding the legality of congressional Reconstruction laws. However, in the Prize Cases—67 U.S. 635, 17 L. Ed. 459 (1862); 70 U.S. 451, 18 L. Ed. 197 (1865); 70 U.S. 514, 18 L. Ed. 200 (1865); and 70 U.S. 559, 18 L. Ed. 220—he dissented when the Court upheld the seizure of shipping through the Union's blockade of Confederate ports.

After the war Clifford consistently found fault with Republican attempts to increase federal powers over the states. In the 1867 Test Oath Cases—Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 18 L. Ed. 356, and Ex parte Garland, 71 U.S. (4 Wall.) 333, 18 L. Ed. 366—for example, Clifford voted with the majority in striking down laws requiring oaths of loyalty to the Union. In two decisions—Hepburn v. Griswold, 75 U.S. (8 Wall.) 603, 19 L. Ed. 513 (1870) (the first of what became known as the Legal Tender Cases) and Knox v. Lee (heard concurrently with Parker v. Davis), 79 U.S. (12 Wall.) 457, 20 L. Ed. 287 (1871)—regarding the constitutionality of the Legal Tender Acts (12 Stat. 345, 532, 709), which had allowed the government to print paper money to repay war debt, Clifford reversed his earlier stances on paper currency and considered the act to be unconstitutional. In Hepburn, he was in the majority, whereas in Knox, he dissented, writing,"[T]he members of the Convention who framed the Constitution … not only knew that the money of the commercial world was gold and silver, but they also knew, from bitter experience, that paper promises, whether issued by the States or the United States, were utterly worthless as a standard of value for any practical purpose."

In a later decision, Ford v. Surget, 97 U.S. 594, 24 L. Ed. 1018 (1878), he argued for granting clemency to the former Confederacy and honoring agreements made after the war. Only through these means could another civil war be avoided. If the sovereign, he wrote, "does not observe the terms of the capitulations and all other conventions with his enemies, they will no longer rely on his word. Should he burn and ravage, they will follow his example, and the war will become cruel, horrible, and every day more destructive to the nation."

Clifford consistently voted against federal enforcement of the Fourteenth and Fifteenth Amendments, both of which sought to protect the rights of African Americans against infringements by state legislation. In the slaughter-house

cases, 83 U.S. (16 Wall.) 36, 21 L. Ed. 394 (1873), Clifford voted with the majority in its decision to interpret the amendments narrowly. He joined the majority in two 1876 decisions—United States v. Reese, 92 U.S. 214, 23 L. Ed. 563, and United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588—that prevented federal enforcement of voting rights for African Americans as guaranteed by the fifteenth amendment. He also dissented in several decisions that struck down racially discriminatory jury selection.

Clifford expressed his judicial conservatism in his dissent to Citizens' Savings and Loan Ass'n v. Topeka, 87 U.S. (20 Wall.) 655, 22 L. Ed. 455 (1875), in which he argued that courts can declare laws unconstitutional only when state and federal constitutions expressly prohibit such legislation:

Courts cannot nullify an act of the State legislature on the vague ground that they think it opposed to a general latent spirit supposed to pervade or underlie the constitution, where neither the terms nor the implications of the instrument disclose any such restriction. Such a power is denied to the courts, because to concede it would be to make the courts sovereign over both the constitution and the people, and convert the government into a judicial despotism.

In 1877 Clifford presided over the electoral commission established to resolve the contested results of the presidential election between rutherford b. hayes and samuel j. tilden. Tilden, a Democrat, had won the popular vote, but a controversy arose over the accuracy of election returns in three states. Voting along strict party lines, the Republican majority on the commission accepted all electoral votes as originally reported. Hayes, the Republican, therefore won the election by the narrow margin of 185–184. Clifford officially signed the order certifying Hayes's victory but he never fully accepted the legitimacy of his presidency. He did not attend Hayes's inauguration nor did he visit the White House during the justices' customary visits to the White House.

Clifford's last act of party loyalty consisted of staying on the Court until a Democratic president was elected and could nominate his successor. Despite failing health and increasing absentmindedness, Clifford stubbornly refused to step down, hampering the Court's effectiveness. Even after suffering a severe stroke in 1880, he remained on the bench. He died on July 25, 1881, in Cornish, Maine, unsuccessful in his last attempt to stymie his Republican opponents. The following year Republican president chester a. arthur appointed horace gray to take Clifford's place on the bench.

Chief Justice morrison r. waite, who served on the Court from 1874 to 1888, once calculated that of the 66 significant constitutional cases that he assigned between 1874 and 1881, only one went to Clifford. This fact owed something to Clifford's minority status as a Democrat on a Court dominated by Republicans. He remained a stalwart embodiment of pre–Civil War Jacksonian Democracy even when that era had passed away.