Chase Court (1864–1873)
CHASE COURT (1864–1873)
The decade of salmon p. chase's tenure as chief justice of the United States was one of the more turbulent in the history of the Supreme Court. Laboring under the cloud of hostility engendered by dred scott v. sandford (1857), hurt by partisan attacks from without and divisions within, staggering under loads of new business, the Chase Court nevertheless managed to absorb and consolidate sweeping new jurisdictional grants to the federal courts and to render some momentous decisions.
The Chase Court displayed an unusual continuity of personnel, which was offset by political and ideological heterogeneity. Of the nine men Chase joined on his accession (the Court in 1864 was composed of ten members), seven served throughout all or nearly all his brief tenure. But this largely continuous body was divided within itself by party and ideological differences. john catron, who died in 1865, james m. wayne, who died in 1867, and robert c. grier, who suffered a deterioration in his faculties that caused his brethren to force him to resign in 1870, were Democrats. nathan clifford, an appointee of President james buchanan, and stephen j. field were also Democrats, the latter a War Democrat. samuel f. miller, david davis, and joseph p. bradley were Republicans. Chase himself was an ex-Democrat who had helped form the Republican party in 1854, but he drifted back to the Democratic party after the war and coveted its presidential nomination. william strong, Grier's replacement, and noah swayne were also Democrats who turned Republican before the war. Like the Chief Justice, Davis never successfully shook off political ambitions; he accepted and then rejected the Labor Reform party's nomination for the presidency in 1872. From 1870, Republicans dominated the Court, which had long been controlled by Democrats.
The work of the Supreme Court changed greatly during Chase's tenure. In 1862 and 1866, Congress realigned the federal circuits, so as to reduce the influence of the southern states, which under the Judiciary Act of 1837 had five of the nine circuits. Under the Judiciary Act of 1866, the southern circuits were reduced to two. By the same statute, Congress reduced the size of the Court from ten to seven members, mainly to enhance the efficiency of its work, not to punish the Court or deprive President andrew johnson of appointments to it. In 1869, Congress again raised the size of the Court to nine, where it has remained ever since. More significantly, the business of the Court expanded. By 1871, the number of cases docketed had doubled in comparison to the war years. This increase resulted in some measure from an extraordinary string of statutes enacted between 1863 and 1867 expanding the jurisdiction of the federal courts in such matters as removalofcases from state to federal courts, habeas corpus, claims against the United States, and bankruptcy.
The Chase Court was not a mere passive, inert repository of augmented jurisdiction: it expanded its powers of judicial review to an extent unknown to earlier Courts. During Chase's brief tenure, the Court held eight federal statutes unconstitutional (as compared with only two in its entire prior history), and struck down state statutes in thirty-six cases (as compared with thirty-eight in its prior history). The attitude that produced this judicial activism was expressed in private correspondence by Justice Davis, when he noted with satisfaction that the Court in ex parte milligan (1866) had not "toadied to the prevalent idea, that the legislative department of the government can override everything." This judicial activism not only presaged the Court's involvement in policy during the coming heyday of substantive due process; it also plunged the Chase Court into some of the most hotly contested matters of its own time, especially those connected with reconstruction. The Court also attracted the public eye because of the activities of two of its members: Chase's and Davis's availability as presidential candidates, and Chase's firm, impartial service in presiding over the United States senate as a court of impeachment in the trial of Andrew Johnson.
The Chase Court is memorable for its decisions in four areas: Reconstruction, federal power (in matters not directly related to Reconstruction), state regulatory and tax power, and the impact of the fourteenth amendment.
Nearly all the cases in which the Supreme Court disposed of Reconstruction issues were decided during Chase's tenure. The first issue to come up was the role of military commissions. In ex parte vallandigham, decided in February 1864 (ten months before Chase's nomination), the Court refused to review the proceedings of a military commission, because the commission is not a court. But that did not settle the issue of the constitutional authority of military commissions. The matter came up again, at an inopportune time, in Ex parte Milligan, decided in December 1866. Milligan had been arrested, tried, convicted, and sentenced to be hanged by a military commission in Indiana in 1864 for paramilitary activities on behalf of the Confederacy. The Court unanimously ruled that his conviction was illegal because Indiana was not in a theater of war, because the civil courts were functioning and competent to try Milligan for treason, and because he was held in violation of the provisions of the habeas corpus act of 1863. But the Court split, 5–4, over an obiter dictum in Justice Davis's majority opinion stating that the Congress could never authorize military commissions in areas outside the theater of operations where the civil courts were functioning. The Chief Justice, writing for the minority, declared that Congress did have the power to authorize commissions, based on the several war powers clauses of Article I, section 8, but that it had not done so; hence Milligan's trial was unauthorized.
Milligan created a furor in Congress and deeply implicated the Court in the politics of Reconstruction. Assuming that military commissions were essential to the conduct of Reconstruction, Democrats taunted Republicans that Milligan implied that they were unconstitutional, and hence that proposed Republican measures providing for military trials in the civil rights act of 1866 and freedmen ' sbureau Act violated the Constitution. Taken together with subsequent decisions, Milligan caused Republicans some anxiety. But, as Justice Davis noted in private correspondence and as Illinois Republican lyman trumbull stated on the floor of the Senate, the decision in reality had no application to the constitutional anomaly of Reconstruction in the South.
The Court next seemed to challenge congressional Reconstruction in the test oath cases, Ex parte Garland and Cummings v. Missouri, both 1867. The court, by 5–4 decisions, voided federal and state statutes requiring a candidate for public office or one of the professions to swear that he had never participated or assisted in the rebellion. The Court's holding, that they constituted bills of attainder and ex post facto laws, seemingly threatened programs of disfranchisement and oath qualification, another part of proposed Reconstruction measures. Then, in February 1868, the Court announced that it would hear arguments in ex parte mccardle, another challenge to military commissions. William McCardle had been convicted by a military commission for publishing inflammatory articles. A federal circuit court denied his petition for a writ of habeas corpus under the habeas corpus act of 1867, a measure that had broadened the scope of the writ, and he appealed the denial to the Supreme Court. Alarmed, congressional Republicans enacted a narrowly drawn statute known as the McCardle repealer, denying the Supreme Court appellate jurisdiction in habeas petitions brought under the 1867 act. In 1869, the Court accepted the constitutionality of the repealer, because Article III, section 2, made the Court's appellate jurisdiction subject to "such Exceptions … as the Congress shall make." But Chief Justice Chase pointedly reminded the bar that all the rest of the Court's habeas appellate authority was left intact. This broad hint bore fruit in Ex parte Yerger (1869), where the Court accepted jurisdiction of a habeas appeal under the judiciary act of 1789. Chief Justice Chase chastised Congress for the McCardle repealer and reaffirmed the scope of the Great Writ.
In the meantime, the Court had turned to other Reconstruction issues. As soon as Congress enacted the military reconstruction acts of 1867, southern attorneys sought to enjoin federal officials, including the President and the secretary of war, from enforcing them. In mississippi v. johnson (1867), the Court unanimously rejected this petition. Chief Justice Chase drew on a distinction, originally suggested by his predecessor Chief Justice john marshall in marbury v. madison (1803), between ministerial and discretionary responsibilities of the President, stating that the latter were not subject to the Court's injunctive powers. In Georgia v. Stanton (1867), the Court similarly dismissed a petition directed at the secretary of war and General ulysses s. grant, holding that the petition presented political questions resolvable only by the political branches of the government. But the words of Justice Nelson's opinion seemed to suggest that if the petition had alleged a threat to private property (rather than the state's property), there might be a basis for providing relief. In May 1867, Mississippi's attorneys moved to amend their petition to specify such a threat. The Court, in a 4–4 order (Justice Grier being absent), rejected the motion. This minor, unnoticed proceeding was probably the truest index to the attitudes of individual Justices on the substantive policy questions of Reconstruction.
The Court's final involvement with Reconstruction came with texas v. white (1869) and White v. Hart (1872). In the former case, decided on the same day that the Supreme Court acknowledged the validity of the McCardle repealer, the postwar government of Texas sought to recover some bonds that the Confederate state government had sold to defray military costs. Because a state was a party, this was an action within the original jurisdiction of the Supreme Court. But one of the defendants challenged the jurisdictional basis of the action, claiming that Texas was not a state in the constitutional sense at the time the action was brought (February 1867). This challenge directly raised important questions about the validity of secession and Reconstruction. Chief Justice Chase, writing for the six-man majority (Grier, Swayne, Miller, dissenting) met the issue head on. He first held that secession had been a nullity. The Union was "indissoluble," "an indestructible Union, composed of indestructible States" in Chase's resonant, memorable phrasing. But, he went on, though the relations of individual Texans to the United States could not be severed, secession had deranged the status of the state within the Union. In language suggestive of the "forfeited-rights" theory of Reconstruction propounded by Ohio congressman Samuel Shellabarger which had provided a conceptual basis for Republican Reconstruction, Chase stated that the rights of the state had been "suspended" by secession and war. Congress was responsible for restoring the proper relationship, in wartime because of its authority under the military and militia clauses of Article I, section 8, and in peacetime under the guarantee of a republican form of government in Article IV, section 4. This was preponderantly a question to be resolved by Congress rather than the President, and hence the Lincoln and Johnson governments in power before enactment of the Military Reconstruction Acts were "provisional." Congress enjoyed wide latitude in working out details of Reconstruction policy. The sweeping language of Chase's opinion strongly implied the constitutionality of military Reconstruction. The majority opinion also offered a useful distinction between legitimate acts of the Confederate government of Texas, such as those designed to preserve the peace, and invalid ones in support of the rebellion.
In White v. Hart (1872) the Court reaffirmed its general position in Texas v. White and emphasized that the relationship of states in the union was a political question for the political branches to resolve. At the same time, the Court disposed of two lingering issues from the war in ways that reaffirmed the doctrine of Texas v. White. In Virginia v. West Virginia (1870) it accepted the creation of the daughter state, shutting its eyes to the obvious irregularities surrounding the Pierpont government's consent to the separation, and insisting that there had been a "valid agreement between the two States." And in Miller v. United States (1871), echoing the prize cases (1863), a six-man majority upheld the constitutionality of the confiscation provisions of the Second Confiscation Act of 1862 on the basis of the Union's status as a belligerent.
The Chase Court decisions dealing with secession, war, and Reconstruction have stood well the test of time. Milligan and the Test Oath Cases remain valuable defenses of individual liberty against arbitrary government. The McCardle decision was a realistic and valid recognition of an explicit congressional power, while its sequel, Yerger, reaffirmed the libertarian implications of Milligan. The Court's position in the cases seeking to enjoin executive officials from enforcing Reconstruction was inevitable: it would have been hopeless for the Court to attempt to thwart congressional Reconstruction, or to accede to the Johnson/Democratic demand for immediate readmission of the seceded states. Texas v. White and White v. Hart drew on a sound prewar precedent, luther v. borden (1849), to validate actions by the dominant political branch in what was clearly a pure political question. Taken together, the Reconstruction cases evince a high order of judicial statesmanship.
The Chase Court made only tentative beginnings in issues of federal and state regulatory power, but those beginnings were significant. The first federal regulatory question to come up involved the currency. In veazie bank v. fenno (1869) the Court sustained the constitutionality of sections of the Internal Revenue Acts of 1865 and 1866 that imposed a ten percent tax on state bank notes for the purpose of driving them out of circulation. Chase first held that the tax was not a direct tax (which would have had to be apportioned among the states) and then upheld Congress's power to issue paper money and create a uniform national currency by eliminating state paper.
The legal tender cases were more controversial. As secretary of the treasury, Chase had reluctantly acquiesced in the issuance of federal paper money. But when the issue came before the Court in the First Legal Tender Case (Hepburn v. Griswold, 1870), Chase, speaking for a 4–3 majority, held the Legal Tender Act of 1862 unconstitutional because it made greenbacks legal tender for preexisting debts. The division on the court was partisan: all the majority Justices were Democrats (Chase by this time had reverted to his Democratic antecedents), all the dissenters Republicans. Chase's reasoning was precipitate and unsatisfactory. He asserted that the act violated the obligation of contracts, but the contract clause limited only the states. To this Chase responded that the act was contrary to the "spirit of the Constitution." He also broadly implied that the statute violated the Fifth Amendment's guarantee of due process.
An enlarged Court in 1871 reversed Hepburn, upholding the constitutionality of the 1862 statute in the Second Legal Tender Cases, with the two new appointees, Bradley and Strong, joining the three dissenters of the first case. Justice Strong for the majority averred that "every contract for the payment of money, simply, is necessarily subject to the constitutional power of the government over the currency." The Court's turnabout suggested to contemporaries that President Grant had packed the Court to obtain a reversal of the first decision. Grant was opposed to the decision, and he knew that Bradley and Strong were also opposed; but he did not secure from them any commitments on the subject, and he did not base his appointments solely on the single issue of legal tender.
Other Chase Court decisions involving federal power were not so controversial. In United States v. Dewitt (1870) Chase for the Court invalidated an exercise of what would come to be called the national police power, in this case a provision in a revenue statute prohibiting the mixing of illuminating oil with naphtha (a highly flammable mixture). Chase held that the commerce clause conferred no federal power over the internal affairs of the states, and that the subject matter was remote from the topic of raising revenue. He simply assumed that there was no inherent national police power. In collector v. day (1871) Justice Nelson for a divided Court held that federal revenue acts taxing income could not reach the salary of a state judge. Justice Bradley's dissent, maintaining the necessity of federal power to reach sources of income that included some functions of state government, was vindicated in graves v. new york ex rel. O' keefe (1939), which overruled Day. In contrast to the foregoing cases, The Daniel Ball (1871) upheld the power of Congress to regulate commerce on navigable waterways, even where these were wholly intrastate.
The Chase Court decisions passing on the regulatory and taxing authority of the states caused less controversy. These cases are significant principally as evidence that the Court continued unabated its prewar responsibility of monitoring the functioning of the federal system, inhibiting incursions by the states on national authority and the national market, while at the same time preserving their scope of regulation and their sources of revenue intact. The first case of this sort, gelpcke v. dubuque (1864), involved a suit on bonds, issued by a city to encourage railroad building, which the city was trying to repudiate. The state courts had reversed their prior decisions and held that citizens could not be taxed to assist a private enterprise such as a railroad. The Supreme Court, in an opinion by Justice Swayne, reversed the result below, thus upholding the validity of the bonds. Swayne intemperately declared that "We shall never immolate truth, justice, and the law, because a state tribunal has erected the altar and decreed the sacrifice." The decision was welcomed in financial circles, particularly European ones, and presaged a Court attitude sympathetic to investors and hostile to repudiation, especially by a public agency.
The Court displayed less passion in other cases. In Crandall v. Nevada (1868), it struck down a state capitation tax on passengers of public conveyances leaving the state as an unconstitutional interference with the right of persons to move about the country. The commerce clause aspects of the case were left to be decided later. Another case involving personal liberty, Tarble's Case (1872), vindicated the Court's earlier position in ableman v. booth (1859) by holding that a state court in a habeas corpus proceeding could not release an individual held in federal custody (here, an allegedly deserting army volunteer).
But most cases testing the scope of state regulatory power dealt with commerce. In paul v. virginia (1869) the Court, through Chase, held that the negotiation of insurance contracts did not constitute commerce within the meaning of the commerce clause, and hence that a state was free to regulate the conduct of insurance companies as it pleased. This doctrine lasted until 1944. But one aspect of Justice Field's concurring opinion in Paul had momentous consequences. He asserted that, for purposes of the privileges and immunities clause of Article iv, corporations could not be considered "citizens," and were thus not entitled to the privileges and immunities of natural persons. This caused attorneys to look to other sources, such as the due process clause (with its term "person") as a source of protection for corporations. During the same term, in woodruff v. parham (1868), the Chase Court upheld a municipal sales tax applied to goods brought into the state in interstate commerce even though they were still in their original package, thus limiting Marshall's original package doctrine announced in brown v. maryland (1827) to imports from other nations.
Three 1873 cases demonstrated the Court carefully adjusting the federal balance. In the State Freight Tax Case the Court struck down a state tax on freight carried out of the state. But in the Case of the State Tax on Railway Gross Receipts the Court upheld a state tax on a corporation's gross receipts, even when the taxpayer was a carrier and the tax fell on interstate business. And in the Case of the State Tax on Foreign-Held Bonds the Court struck down a tax on interest on bonds as applied to the securities of out-of-state bondholders.
The last category of major Chase Court cases dealt with the scope of the Reconstruction Amendments, and the extent to which they would alter the prewar balances of the federal system. One of Chase's circuit court decisions, In re Turner (1867), suggested that this potential might be broad. Chase there held a Maryland black code's apprenticeship provision unconstitutional on the ground that it imposed a condition of involuntary servitude in violation of the thirteenth amendment. This decision might have been the prelude to extensive federal involvement in matters that before the war would have been considered exclusively within the state police power. But this possibility was drastically narrowed in the slaughterhouse cases (1873), the last major decision of the Chase Court and one of the enduring monuments of American constitutional law. Justice Miller for the majority held that "the one pervading purpose" of the Reconstruction Amendments was the liberation of black people, not an extension of the privileges and rights of whites. Miller construed the privileges and immunities, due process, and equal proctection clauses of the Fourteenth Amendment in light of this assumption, holding that none of them had deranged the traditional balance of the federal system. The states still remained the source of most substantive privileges and immunities, and the states remained primarily responsible for securing them to individuals. This ruling effectively relegated the definition and protection of freedmen's rights to precisely those governments—Redeemer-dominated southern states—least likely to provide that protection. Because "we do not see in those [Reconstruction] amendments any purpose to destroy the main features of the general system," Miller rejected a substantive interpretation of the new due process clause and restricted the equal protection clause to cases of "discrimination against the negroes as a class."
The future belonged to the Slaughterhouse dissenters, Justices Bradley and Field. Bradley articulated the doctrine of substantive due process, arguing that the right to pursue a lawful occupation is a property right which the state may not interfere with arbitrarily or selectively. Field, in a dissent in which Chase joined (Swayne dissented in a separate opinion) relied on the privileges and immunities clause of the Fourteenth Amendment, seeing in it a guarantee of "the fundamental rights" of free men, which cannot be destroyed by state legislation. His insistence on an "equality of right, with exemption from all disparaging and partial enactments, in the lawful pursuits of life" foreshadowed the doctrine of freedom of contract.
Yet Field's and Bradley's insistence on the right to follow a chosen occupation, free of arbitrary discrimination, did not avail Myra Bradwell in her effort to secure admission to the Illinois bar (bradwell v. illinois, 1873). Justice Miller for the majority (Chase being the lone dissenter) refused to overturn a decision of the Illinois Supreme Court denying her admission to the bar solely on the ground of her gender. "The paramount mission and destiny of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator," Bradley wrote in a concurrence. "And the rules of civil society … cannot be based upon exceptional cases." The emergent scope of the due process, equal protection, and privileges and immunities clauses were to have a differential application as a result of the Slaughterhouse dissents and Bradwell ruling, securing the rights of corporations and men in their economic roles, while proving ineffectual to protect others from discrimination based on race and gender. (See racial discrimination; sex equality.)
During its brief span, the Chase Court made enduring contributions to American constitutional development. It handled the unprecedented issues of Reconstruction with balance and a due recognition of the anomalous nature of issues coming before it. Yet in those decisions, Chase and his colleagues managed to preserve protection for individual rights while at the same time permitting the victorious section, majority, and party to assure a constitutional resolution of the war consonant with its military results. In non-Reconstruction cases, the Chase court continued the traditional function of the Supreme Court in monitoring and adjusting the allocation of powers between nation and states. It was more activist than its predecessors in striking down federal legislation, while it displayed the same nicely balanced concern for state regulatory power and protection of the national market that was a characteristic of the taney court.
William M. Wiecek
Fairman, Charles 1939 Mr. Justice Miller and the Supreme Court, 1862–1890. Cambridge, Mass.: Harvard University Press.
Hyman, Harold M. and Wiecek, William M. 1982 Equal Justice Under Law: Constitutional Development 1835–1875. New York: Harper & Row.
Kutler, Stanley I. 1968 Judicial Power and Reconstruction Politics. Chicago: University of Chicago Press.
Silver, David M. 1957 Lincoln's Supreme Court. Urbana: University of Illinois Press.
Swisher, Carl B. 1930 Stephen J. Field: Craftsman of the Law. Washington, D.C.: Brookings Institution.
Warren, Charles 1937 The Supreme Court in United States History, rev. ed. Boston: Little, Brown.
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