Waite Court (1874–1888)

• Author: Charles W. Mccurdy
• Pages: 2824-2830

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A new age of American constitutional law was at hand when MORRISON R. WAITE became CHIEF JUSTICE of the United States in 1874. Not only had the CIVIL WAR discredited many antebellum glosses on the "old" Constitution, consisting of the venerable document framed in 1787 and the twelve amendments adopted during the early republic, but it had also generated a "new" Constitution consisting of the THIRTEENTH AMENDMENT, the FOURTEENTH AMENDMENT, and the FIFTEENTH AMENDMENT. The range of choices at the Court's disposal was virtually unlimited as it reconstituted the old organic law and integrated the new. CHARLES SUMNER said it best just four years before Waite took the Court's helm. The tumultuous events of 1861?1869, he exclaimed, had transformed the Constitution into "molten wax" ready for new impression. An extraordinarily homogeneous group of men made this impression. Of the fourteen associate Justices who sat with Waite between 1874 and his death in 1888, only NATHAN CLIFFORD had been appointed by a Democrat and all but two?SAMUEL F. MILLER and JOHN MARSHALL HARLAN, both of Kentucky?had been born in the free states. All of them were Protestants. Thus the Republican party, which had subdued the South and created the "new" Constitution, had also reconstructed the federal judiciary. As the Waite Court proceeded to refashion the structure of American constitutional law, its work ineluctably reflected the values, aspirations, and fears that had animated the Republican party's northern Protestant constituency since the 1850s.

Fierce opposition to state SOVEREIGNTY concepts was a core element of Republican belief from the party's very inception. Republicans asociated state sovereignty with proslavery constitutionalism in the 1850s, with SECESSION in 1861, and ultimately with the tragic war both engendered. Waite and his colleagues shared this aversion to state sovereignty dogma and repeatedly expressed it in controversies involving the IMPLIED POWERS of Congress under the "old" Constitution. In case after case the Court resisted limitations on federal power derived from state sovereignty premises and held, in effect, that Congress's

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authority to enact statutes deemed NECESSARY AND PROPER for the ENUMERATED POWERS had the same scope under the Constitution as it would if the states did not exist. On several occasions the Court even revived the idea that Congress might exercise any power inherent in national sovereignty as long as it was not specifically prohibited by the Constitution. This doctrine, first expounded by Federalist congressmen during debate on the Sedition Act of 1798, had been regarded as "exploded" by most antebellum statesmen. But its revival after the Civil War did have a certain logic. If there was one impulse that every member of the Waite Court had in common, it was the urge to extirpate every corollary of "southern rights" theory from American constitutional law and to confirm the national government's authority to exercise every power necessary to maintain its existence.

The revival of the implied powers doctrine began in the often overlooked case of Kohl v. United States (1876). There counsel challenged Congress's authority to take private property in Cincinnati as a site for public buildings on the ground that the Constitution sanctioned federal exercise of the EMINENT DOMAIN power only in the DISTRICT OF COLUMBIA. Article I, section 8, vested Congress with authority to acquire land elsewhere "for the erection of forts ? and other needful buildings" only "by the consent of the legislature of the State in which the same shall be." This was by no means a novel argument. JAMES MADISON and JAMES MONROE had pointed to the national government's lack of a general eminent domain power when vetoing INTERNAL IMPROVEMENT bills, and proslavery theorists had invoked the same principle as a bar to compensated emancipation and colonization schemes. In Pollard's Lessee v. Hagan (1845), moreover, the TANEY COURT had said that "the United States have no constitutional capacity to exercise municipal jurisdiction, sovereignty, or eminent domain within the limits of a State or elsewhere, except in the cases in which it is expressly granted." But WILLIAM STRONG, speaking for the Court in Kohl, refused to take this doctrine "seriously." Congress's war, commerce, and postal powers necessarily included the right to acquire property for forts, lighthouses, and the like. "If the right to acquire property for such uses be made a barren right by the unwillingness of property holders to sell, or by the action of a State prohibiting a sale to the Federal Government," Strong explained, "the constitutional grants of power may be rendered nugatory.? This cannot be. "Congress's eminent domain power must be implied, Strong concluded, for commentators on the law of nations had always regarded it as "the offspring of political necessity, and ? inseparable from sovereignty."

HORACE GRAY sounded the same theme in the Legal Tender Cases (Juilliard v. Greenman, 1884), where the Court sustained Congress's authority to emit legal tender notes even in peacetime. With only STEPHEN J. FIELD dissenting, Gray asserted that because the power to make government paper a legal tender was "one of the powers belonging to sovereignty in other civilized nations, and not expressly withheld from Congress by the Constitution," it was unquestionably "an appropriate means, conducive and plainly adapted" to the execution of Congress's power to borrow money. In EX PARTE YARBROUGH (1884), decided the same day, the Court spoke the language of national sovereignty in an especially significant case. At issue there was the criminal liability of a Georgia man who had savagely beaten a black voter en route to cast his ballot in a federal election. The Court unanimously sustained the petitioner's conviction under the 1870 CIVIL RIGHTS ACT, which made it a federal crime to "injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States." It did so on the ground that Congress's duty "to provide in an ELECTION held under its authority, for security of life and limb to the voter" arose not from its interest in the victim's rights so much as "from the necessity of the government itself." Samuel F. Miller explained that Congress's power to regulate the time, place, and manner of holding federal elections, conferred in Article I, section 4, implied a "power to pass laws for the free, pure, and safe exercise" of the suffrage. "But it is a waste of time," he added, "to seek for specific sources to pass these laws.? If this government is anything more than a mere aggregation of delegated agents of other States and governments, each of which is superior to the general government, it must have the power to protect the elections on which its existence depends from violence and corruption."

The Court's decisions in Kohl, Juilliard, and Yarbrough merely jettisoned antebellum canons of STRICT CONSTRUCTION. They did not impair the autonomy of state governments. The eminent domain power of the several states was not threatened by Kohl, the Constitution expressly prohibited the states from making anything but gold and silver a legal tender, and Yarbrough did not jeopardize Georgia's power to prosecute political assassins for assault or murder. Yet the Waite Court was as quick to defend exercises of Congress's powers in situations where counsel claimed that the states' autonomy was in jeopardy as in cases where their reserved powers remained unimpaired. Ex parte Siebold (1880) was the leading case in point. There the Court sustained a conviction for ballot stuffing under the 1871 ENFORCEMENT ACT, which made it a federal crime for any state official at a congressional election to neglect duties required of him by either state or federal law. Counsel for the petitioner argued that in PRIGG V. PENNSYLVANIA (1842) and Kentucky v. Dennison (1861) the Taney Court had held that the principle of divided sovereignty

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precluded acts of Congress compelling the cooperation of state officials in the execution of national law. "We...