From antislavery lawyer to chief justice: the remarkable but forgotten career of Salmon P. Chase.

• Author: Barnett, Randy E.
• Position: Introduction: Constitutional Abolitionism through I. Chase's Rise to the Chief Justiceship, p. 653-676

The name Salmon P. Chase is barely known and his career is largely forgotten. In this Article, I seek to revive his memory by tracing the arc of his career from antislavery lawyer, to antislavery politician, to Chief Justice of the United States. In addition to explaining why his is a career worth both remembering and honoring, I offer some possible reasons why his remarkable achievements have largely been forgotten.

Contents Introduction: Constitutional Abolitionism I. Chase's Rise To The Chief Justiceship A. Chase's Early Years B. Chase as an Antislavery Lawyer C. Chase as an Antislavery Political Leader II. The Chief Justiceship Of Salmon P. Chase A. Chase's Duties as Chief Justice B. Chase's Opinions on Reconstruction 1. In re Turner 2. Texas v. White C. Chase on the Enumerated Powers of Congress 1. United States v. Dewitt 2. The Legal Tender Cases D. Chase on the Privileges and Immunities of Citizens of the United States III. Why Has Chase's Career Been Forgotten? Conclusion Introduction: Constitutional Abolitionism

For several years, I have been studying a long-forgotten band of constitutionalists who, in the 1830s, '40s, and '50s, denied that the U.S. Constitution was proslavery. (1) They advocated enforcing the text of the Constitution without any gloss put upon it by intentions, understandings, or deals that were not expressly included therein. They contended that Congress not only had the power to ban the international slave trade, it also had the power to ban the interstate slave trade and to abolish slavery in the District of Columbia, in the territories under its jurisdiction, and in any states formed from these territories. They also contended that the Fugitive Slave Acts of 1793 and 1850 were unconstitutional. These positions put them at odds with the Garrisonian abolitionists who claimed that the Constitution was "a covenant with death, and an agreement with hell" (2) because it sanctioned slavery.

When I finally began writing this Article, I wanted to include biographical information about each member of this forgotten group. Gradually, I came to realize that most of them had something in common. Unlike the Garrisonians, many of whom became anarchists, these antislavery constitutionalists favored political action. Most were involved in organizing the expressly antislavery Liberty Party as an alternative to the proslavery Democrats and the compromising, equivocating Whigs.

To learn more about the Liberty Party, I turned to historian Richard Sewell's Ballots for" Freedom: Antislavery Politics in the United States 1837-1860. (3) In his book, Sewell describes what he calls "political abolitionism" that, unlike the Garrisonians, favored political action to attack what was then called the Slave Power. (4) Sewell relates a very clear chronology: the Liberty Party, founded in the 1840s by these political abolitionists, soon led to the Free Soil Party, which led briefly to the Free Democrat Party, and finally in the mid-1850s to the founding of the Republican Party.

Like many other historians of the period, Sewell gave very short shrift to the constitutional theorizing of these political abolitionists. What my study showed, however, is that this very same group of political activists advanced a powerful constitutional case against slavery a case that was based on the protection of natural rights, the original meaning of the text of the Constitution, the limits on the enumerated powers of Congress, and the Due Process Clause of the Fifth Amendment. What is more, their constitutional arguments are remarkably persuasive compared to those advanced by the Supreme Court in cases such as Dred Scott v. Sandford. (5)

The constitutional approach of this group deserves its own label: constitutional abolitionist, a term actually used by some at the time or shortly thereafter to describe this movement. (6) Like the radical abolitionists, constitutional abolitionists desired the complete abolition of slavery. But unlike some radical abolitionists, like Garrison and his legal compatriot Wendell Philips, who believed that the Constitution was a covenant with death and an agreement with hell and who favored disunion, (7) the constitutional abolitionists believed that the Constitution was fundamentally antislavery.

Yet, the constitutional abolitionists were divided among themselves on one key issue. Some like Lysander Spooner, William Goodell, Joel Tiffany, and Gerrit Smith contended that slavery was unconstitutional anywhere in the United States. Others believed that, while slavery should be abolished everywhere, as a matter of positive law, slavery was constitutional within those of the original thirteen states that retained the practice.

The leading figure in this second camp was Salmon P. Chase. Of all the figures I surveyed, none was more important than he. Indeed, in a previous article I considerably underestimated his influence. (8) In this Article, I seek to rectify that error. My goal is to help revive the memory of Salmon P. Chase to its rightful place in our constitutional history.

Whether they know it or not, all those reading this Article have heard Chase's name, many have used it, and most see it every day. Yes, that's right. Chase Bank, originally founded in 1877, some four years after his death, was named in his honor. (9) As one drives down the street in most cities, one sees Chase's name prominently displayed, even illuminated in the darkness. But, though some readers have also heard the name Salmon P. Chase, if these readers are like me, they may not remember exactly who he was and what he did to earn this posthumous honor.

Perhaps they know that he was Chief Justice of the United States. Perhaps they even know he was a politically ambitious rival of Lincoln who also wanted to be president. But what he stood for throughout his accomplished career has largely been forgotten. Long before he was Chief Justice of the United States, Sahnon P. Chase was among the most prominent, brilliant, and ultimately politically effective members of this group of constitutional abolitionists. By forgetting them, we have also forgotten him.

1. Chase's Rise To The Chief Justiceship

1. Chase 's Early Years

   Salmon Portland Chase was born in New Hampshire in 1808, the year Congress abolished the slave trade. (10) He was nine when his father died, and, by the time he was twelve, his mother found herself unable to support him and his siblings. She prevailed upon her brother-in-law and Chase's uncle, Philander Chase, to take him into his care. Philander had just become the Protestant Episcopal bishop of Ohio and was running a boy's school in Worthington, Ohio, just north of Columbus.

   The trip to the Western Reserve was an adventure for the young boy. His twenty-three-year-old brother and a neighbor, who were both joining an expedition to Michigan and Wisconsin, would take him by steamship as far as Cleveland. In 1820, Cleveland "was not much to see: a hamlet with a population of about 500 people, dwellings straggled across the heavily wooded bluffs that rose abruptly from the lake." (11) As there was no harbor, small boats conveyed the party to the mouth of the Cuyahoga River.

   In Cleveland, Chase boarded with a local judge named Barber until someone could be found to take the boy to Worthington. Eventually, an Episcopal minister took him as far as Medina, where two other clergymen got him to his uncle's place. Chase lived with his uncle there for two years until, no longer able to sustain the school, Philander accepted the presidency of Cincinnati College, which brought Salmon to the city where his legal and political career would begin.

   But first Chase went back east for college at Dartmouth very near his boyhood home. After graduating in 1826, he moved to Washington, D.C. He first tried his hand as a school teacher, before deciding to study law with Attorney General William Wirt. Studying in Washington gave Chase the opportunity to watch cases argued before the Supreme Court. His association with Wirt and Wirt's family enabled him to meet many of the most prominent political and legal figures of his day.

   When, after two years of study, Chase applied for the bar, his examination by the judges went well until he was asked about the length of his legal training. When he admitted it was not the required three years, the presiding judge instructed him he would need to study another year. Chase pleaded with the court. "Please your honors, ... I have made arrangements to go to the Western country and practice law" there. (12) After a brief conference, the judges decided to swear him in as a member of the bar.

   By a strange coincidence, Lysander Spooner, perhaps the leading figure of abolitionist constitutionalism, also achieved bar membership prematurely after two years of study. At the time, Massachusetts required three years of apprenticeship for college graduates, while those who, like Spooner, had not gone to college had to study for five. Spooner defied the rule by opening his own practice in Worchester after apprenticing for just two years with two prominent Massachusetts political and legal figures: John Davis and Charles Allen. A few months later, he published a lengthy petition to the Massachusetts legislature in the Worchester Republican, in which he urged it to end the restriction on bar admission. Among his many arguments, Spooner maintained that

   the Courts were made for and by the people, and not the people for or by the...