A view of the major legal challenges of post–Civil War America as seen from the highest court in the land.
In The Supreme Court under Morrison R. Waite, 1874–1888, Paul Kens provides a history of the Court during a time that began in the shadow of the Civil War and ended with America on the verge of establishing itself as an industrial world power. Morrison R. Waite (1816–1888) led the Court through a period that experienced great racial violence and sectional strife. At the same time, a commercial revolution produced powerful new corporate businesses and, in turn, dissatisfaction among agrarian and labor interests. The nation was also consolidating the territory west of the Mississippi River, an expansion often marred with bloodshed and turmoil. It was an era that strained America's thinking about the purpose, nature, and structure of government and ultimately about the meaning of the constitution.
Some of the landmark events faced by this Court centered on issues of civil rights. These ranged from the Colfax massacre and treatment of blacks in the South to the rights of women, conflicts with Mormons over polygamy and religious freedom, and the mistreatment of Chinese immigrants in the West. Economic concerns also dominated the decisions of the Court. Westward expansion brought conflicts over the distribution of public domain lands. The building and financing of the transcontinental railroad and the web of railroads throughout the nation brought great wealth to some, but that success was accompanied by the Panic of 1873, the first nationwide labor strike, and the Granger movement. Changes in business practices and concerns over concentrated wealth fueled debates over the limits of government regulation of business enterprise and the constitutional status of corporations. In addition to the more dramatic topics of civil rights and economic regulation, this study also covers such important issues of the day as bankruptcy, criminal law, interstate commerce, labor strife, bonds and railroad financing, and land disputes.
Challenging the conventional portrayal of the Waite Court as being merely transitional, Kens observes that the majority of these justices viewed themselves as guardians of tradition. Even while facing legal disputes that grew from the drastic changes in post-Civil War America's social, political, and economic order, the Waite Court tended to look backward for its cues. Its rulings on issues of liberty and equality, federalism and the powers of government, and popular sovereignty and the rights of the community were driven by constitutional traditions established prior to the Civil War. This is an important distinction because the conventional portrayal of this Court as transitional leaves the impression that later changes in legal doctrine were virtually inevitable, especially with respect to the subjects of civil rights and economic regulation. By demonstrating that there was nothing inevitable about the way constitutional doctrine has evolved, Kens provides an original and insightful interpretation that enhances our understanding of American constitutional traditions as well as the development of constitutional doctrine in the late nineteenth century.
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Morrison R. Waite was not President Grant’s first choice to fill the seat that had become vacant when Chief Justice Salmon P. Chase died in May 1873. Quite to the contrary, the president’s efforts to replace the deceased chief justice lasted eight months and was at times such a fiasco that one member of Congress sarcastically suggested a bill to abolish the chief justiceship “so as to spare the president the mortification of further appointments.”1 It did not help matters that three sitting justices, Samuel F. Miller, Noah H. Swayne, and Joseph Bradley, coveted the position. Each had supporters among powerful Republicans, and Miller and Swayne in particular lobbied hard for the appointment.2 Grant, however, decided against appointing from inside the Court, and on November 8, 1873, he offered the job to Senator Roscoe Conkling of New York. Conkling, a powerful figure who was renowned for his arrogance, rejected the seat.
Surprised, and probably embarrassed, Grant reportedly offered the seat to two other senators, Timothy O. Howe and Oliver P. Morton, both of whom turned him down. Next, he offered it to Secretary of State Hamilton Fish, who also declined. Grant’s next choice, Attorney General George H. Williams, accepted the nomination. However, charges of corruption derailed Williams’s nomination. Among other things, he was said to have mingled Justice Department money with his personal accounts to purchase extravagances for his own use. On January 7, 1874, bowing to pressure from Senate Republicans, Williams withdrew his name.
Within a few days Grant selected Caleb Cushing for the post. Although the seventy-four-year-old Cushing was a respected lawyer, he was burdened by a proslavery past. In the 1850s, while serving as President Franklin Pierce’s attorney general, Cushing had defended the Dred Scott decision. Although he belatedly converted to Republicanism, party purists still detected taint, and he was attacked vehemently in the press. The New York Times, for example, charged that “Jeff Davis himself could not have picked a man more pleasing to the Democrats.”3 And the Nation observed that in nominating Cushing, “the President has at last entered the small circle of eminent lawyers and then with great care chosen the worst man in it.”4 In the face of intense opposition from within the president’s own party, on January 14 Cushing asked Grant to withdraw his name.
Perhaps the party faithful were relieved when, on January 19, Grant turned to the relatively unknown Morrison R. Waite to fill the post. The nomination did not receive universal acclaim. Critics maintained that Waite was not qualified for the job of chief justice. The Chicago Times conjured the ghosts of former chief justices to express its dissatisfaction: “Verily, the shades of Jay and Marshall, and Taney, and Chase may arise to protest against a profanation of this venerated seat by a man so utterly incapable of filling it acceptably.”5 Most of the objections took a milder tone, however. Describing Waite as a gentleman of only limited or local legal practice who had never argued a case before the nation’s highest tribunal, the New York Times reported that “the judges of the Supreme Court regret that the selection has not been made from lawyers known and admitted by the entire country as in the first ranks of their profession.”6
Indeed, Justices Field and Miller both expressed reservations about Waite, referring to him as “mediocre,” “a man of fair but not great abilities,” and of “limited legal acumen.”7 The Nation agreed that the president had, with remarkable skill, avoided choosing a first-rate man. Waite, it said, “stands at the front rank of second-rate lawyers.”8
Even critics agreed, however, that Waite was “a man of the highest character and best possible standing at the bar of his own state.”9 Although he was relatively unknown in the national political scene, Waite was not necessarily unsuited for the job of chief justice. He was born on November 27, 1816, in Lyme, Connecticut, to a family that traced its roots to the American Revolution. Although he described his father as a country lawyer, the elder Waite served as chief justice of the Connecticut Supreme Court for about twenty years.
Morrison Waite received the best education available in his time. From a modest beginning in the Lyme schoolhouse, he attended a prestigious private school, Bacon Academy, and then went on to Yale College. While at Yale he became a close friend of William Evarts, who would go on to be one of the leading lawyers and political figures of his time. In those days the typical legal education consisted of “reading law” in the office of an established lawyer. In 1837, after graduating near the top of his Yale class, Waite returned to Lyme to read law with his father.10
Like many young New Englanders of his generation, Waite soon left his hometown in search of success in the western frontier. In 1838 he settled in Maumee City, a growing town in northwestern Ohio, where his uncle worked as a merchant. There he took a job with Samuel M. Young, a lawyer who had arrived in Maumee a few years earlier. Together, Young and Waite built a successful legal practice specializing in business and property issues. When Toledo became the county seat in 1850, Waite moved there to set up a branch office. Young left the firm in 1856 and went on to become a successful businessman.
The Toledo area was frontier at the time Waite arrived. Ohio was so sparsely populated that lawyers and judges “rode circuit,” with a group of perhaps two or three lawyers and a judge riding horseback from town to town to hear cases. They sometimes shared rooms in pioneers’ log cabins and held court wherever they could. Because there were no libraries and few books available, Waite honed his memory for the law. In these early years he polished his legal skills and developed a reputation for fairness and honesty. As the state grew Waite’s legal practice in Toledo became more conventional and prospered. By the time Grant tapped him for the high court in 1874, he was considered to be one of the best lawyers in northeastern Ohio.
Although Waite was active in politics, he did not harbor any particular ambitions for high public office. He landed in Ohio as a “Henry Clay Whig”—attuned to the interests of business and government involvement in promoting economic prosperity.11 According to his biographer C. Peter Magrath, however, life on the frontier also molded Waite’s political ideals by adding a strong faith in self-government.12
In 1849 Ohio Whigs took a position against slavery. Waite ran on that platform to win a seat in the state’s House of Representatives, where he served one term in 1850. In 1854 Waite left the Whig Party. Along with other Whigs, antislavery Democrats, and Free-Soilers, he helped develop the Ohio Republican Party. Throughout the Civil War and afterward he became a mainstay in state Republican politics and even ran a losing campaign for Congress in 1862 as a conservative Republican. But Waite never again held significant elected office and was not particularly active in the national party.
The event that thrust Waite into the national scene, garnered Grant’s attention, and eventually resulted in his nomination to the Supreme Court involved a legal dispute with Great Britain. The United States claimed that Great Britain had violated the rules of neutrality during the Civil War by supplying and outfitting Confederate ships in British ports. The countries agreed that the claim should be submitted to an international board of arbitration, with each side being represented by an agent and three legal counsels.
President Grant chose Assistant Secretary of State J. C. Bancroft Davis to be the U.S. agent to the Geneva Tribunal. His first two selections for legal counsel, Caleb Cushing and Waite’s college friend William Evarts, came from the highest ranks of the nation’s legal profession. His third pick, at the suggestion of Secretary of Interior Columbus Delano, was Morrison R. Waite.
When the Geneva Tribunal convened in June 1872, Waite comported himself well. While the more famous and flamboyant Cushing and Evarts handled most of the oral argument, Waite did much of the painstaking work that was essential for America’s case. Marshaling evidence from Great Britain’s own naval records, he proved that the British had allowed Confederate vessels to use British ports as a base of operations. The result was a satisfying
15.5 million judgment and even more satisfaction in terms of national pride.
Waite’s performance at the Geneva Tribunal hearings and support of friends like Evarts brought him to the president’s attention. On January 18, 1874, Republican Party insiders reported, “It seems highly probable that he [the president] will name Mr. Waite of Ohio. We are convinced Mr. Waite has every requisite except repute.”13 The following morning President Grant sent Waite’s nomination to the Senate where, considering the pandemonium resulting from his earlier nominations, lack of repute may have been a positive factor. It took the Senate only two days to confirm the nomination by a vote of sixty-three to zero.
The Civil War was less than a decade in the past when Waite took the office of chief justice in March 1874. The Court’s docket still contained some cases that involved disputes growing directly out of the war. In one the Court upheld a ruling that a loan of Confederate currency, made in May 1862, could not be repaid in Confederate currency that had become worthless after the war.14 Scattered cases of this sort, some involving confiscation of property by Union or Confederate troops, remained on the docket for another decade.15 Although they are not important in terms of constitutional development, they serve as a reminder that the Civil War was not history to Americans of Waite’s time. It was recent memory.
By far the most lasting legacy of the Civil War in terms of constitutional law was the ratification of the three postwar amendments to the Constitution. Two of these Reconstruction Amendments had relatively straightforward expressed purposes. The Thirteenth Amendment, ratified in 1865, prohibited slavery and involuntary servitude. The Fifteenth Amendment, ratified in 1870, guaranteed that the right to vote shall not be denied because of a citizen’s race, color, or previous condition of servitude. The Fourteenth Amendment, ratified in 1868, is less explicit. Section 1 reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Although the meaning of this language has remained controversial to this day, it is fair to say that, like the other two Reconstruction Amendments, its most immediate purpose was to guarantee political and civil rights for the former slaves. But the language of the Fourteenth Amendment is both vague and sweeping. Ultimately its reach would be as well.
Many of the ideas contained in these amendments—abolition of slavery, the right to vote, U.S. citizenship, privileges and immunities of citizens, due process, and equal protection—would be first defined and explained during the Waite Court era. The first case to address them, however, was decided on April 14, 1873, about nine months before Waite took office. To understand these issues and the legacy of the Waite Court it is necessary to go back to that time.
The case, known as the Slaughterhouse Cases, involved a Louisiana statute designed to centralize and regulate the slaughtering industry in the city of New Orleans.16 There was little question of the need to regulate the industry. New Orleans butchers traditionally dumped waste, called offal, into the Mississippi River. And because most slaughterhouses were located upstream of the city, their means of discarding garbage contaminated the city’s water supply. A city health official graphically described the problem: “Barrels filled with entrails, liver, blood, urine, dung, and other refuse, portions in an advanced stage of decomposition, are constantly being thrown into the rivers but a short distance from the banks, poisoning the air with offensive smells and necessarily contaminating the water near the bank for miles.”17 As a result of these practices, New Orleans suffered repeated cholera epidemics and gained a reputation as one of the unhealthiest cities in the United States.18
To address the problem, the Louisiana legislature passed a law authorizing one centralized slaughterhouse downstream from the city. It granted to the Crescent City Live-Stock Landing and Slaughterhouse Company an exclusive twenty-five-year franchise to build and operate the facility. The statute also prohibited slaughtering for profit in any other location. One company would control the central slaughtering facility under this plan, but the statute did not create a monopoly on the business of slaughtering. To the contrary, it expressly prohibited the company from refusing to allow any butcher to slaughter animals in its facilities, and it strictly regulated the fees the company could receive for the use of the facilities.19
The Louisiana legislature’s approach to reducing the health problems associated with slaughtering animals in urban environments was not the least bit unusual at that time. European nations had much earlier used a system of centralized slaughterhouses, and by 1869 many American cities had adopted the practice as well.20 The idea was not unique to the slaughtering industry. Using a centralized public market as a means of regulating trade and assuring safe products was a common practice in nineteenth-century America, fully supported by legal precedent.21 Even the technique of giving an exclusive franchise to a private company was entirely common and sanctioned in constitutional law. In short, the legislature’s plan to control the industry fit neatly into the mid-nineteenth-century ideal of the well-ordered market as well as the current trends for regulating businesses that posed a danger to the public health. Yet the plan met vehement resistance. Opponents charged that the statute was a product of corruption. The result, they claimed, was the grant of exclusive privileg...
