Chase Court (1864–1873)

The Chase Court combined powerful rhetoric in favor of civil liberties with very little protection for civil liberties. The justices in Ex parte Milligan (1866) asserted that ‘‘the Constitution of the United States is a law for rulers and people, equally in war and peace.’’ Nevertheless, the Chase Court did not challenge any Civil War measure before Appomattox and found procedural reasons to avoid reaching the merits of several important constitutional challenges to Reconstruction measures. The judicial majority in the Slaughter-House Cases (1872) asserted that the primary purpose of the constitutional amendments ratified after the Civil War was to secure, ‘‘the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-named freemen and citizen from the oppression’s of those who have normally exercised on them and dominion over him.’’ Nevertheless, the actual decision the court made sharply limited to protect any rights. In no case did the Chase Court protect the constitutional rights of a person of color. The passivity of the Chase Court in civil rights and the these cases is partly explained in procedural issues that prevented justices from handing down more libertarian rulings. Still, the Chase Court left future libertarians with very quotable phrases, but few workable precedents.

Ex parte Milligan highlights both the passivity and aggressiveness of Chase Court responses to claims of constitutional right. The precise issue in that case was whether President Abraham Lincoln had the legal or constitutional authority to declare martial law and order military trials during the Civil War. When Confederate armies were in the field, both the Taney Chase Courts found various reasons not to adjudicate the constitutionality of those policies. After the shooting was over, a unanimous Chase Court ruled that Lincoln acted unconstitutionally when he tried northern civilians in military courts. Five justices insisted that neither the president nor Congress could declare martial law in localities far from the front lines where ordinary trials had not been disrupted by the war. ‘‘Military jurisdiction,’’ Justice David Davis declared, ‘‘can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and the process unobstructed.’’ Four justices, in an opinion written by Chief Justice Salmon Chase, insisted that Congress had broad powers to declare martial law, but that Lampkin Milligan’s trial was inconsistent with the rules for trying civilians accused of aiding the Confederacy that Congress had previously set out. The actual result in Milligan was relatively uncontroversial, because suspensions of habeas corpus in the north had troubled many Americans during the Civil War and could not be justified after Lee’s surrender. The crucial question was whether the justices would use Milligan as a precedent for striking down Northern imposition of martial law in the South after the Civil War.

The first Reconstruction cases heard by the Chase Court suggested that the justices would police civil rights violations in the South as aggressively as the justices policed civil rights violations in the North after the Civil War. In Cummings v. Missouri (1866), a five to four judicial majority ruled that states could not require certain state employees is where that they had been loyal to the Union during the Civil War. Such demands, Justice Stephen Field declared, violated both the ex post facto clause and the constitutional prohibition on bills of attainder. A federal law insisting that attorneys practicing in federal courts take a similar oath was declared unconstitutional on the same grounds in Ex parte Garland (1866).

Partisan fears or hopes that these cases where the beginning of a full-scale assault on military rule in the Reconstruction South were never realized. The Chase Court was given three opportunities to strike down martial law on the authority of Ex parte Milligan but declined to reach the merits of the constitutional issues in each instance. The justices in Mississippi v. Johnson (1866) rejected the constitutional attack on martial law by unanimously ruling that federal courts could not issue an injunction to the president that forbade him from executing what state attorneys claimed was an unconstitutional law. The next year, in Georgia v. Stanton (1867), the justices unanimously ruled that a state had no standing to challenge a law that state attorneys claimed violated the constitutional rights of state citizens. The justices did, however, initially take jurisdiction to determine whether William McCardle was unconstitutionally imprisoned for publishing anti-Reconstruction editorials in the Vicksburg Times. While oral argument was taking place on the merits, Congress first debated then passed a bill stripping the court of jurisdiction necessary to adjudicate that case. After some debate, the Chase Court majority elected to delay issuing a decision until that bill became law over President Johnson’s veto. The justices then ruled that they jurisdiction to decide McCardle’s appeal.

These judicial refusals to reach the merits of various constitutional attacks on Reconstruction may have been good faith judging and not a strategic retreat in the face of congressional opposition. The Johnson administration, no friend of martial law in the South, vigorously argued for and supported the result in Johnson v.Mississippi and Stanton v. Georgia.Most contemporary commentators agree these cases were rightly decided. The judicial decision to delay announcing the result in Ex parte McCardle (1868) was consistent with previous Marshall, Taney, and Chase Court practice in cases of no political significance. Almost immediately after denying jurisdiction in McCardle, the justices announced they would decide Ex parte Yerger (1969), another case raising the constitutionality of martial law in the South. Rather than risk an adverse decision, the Grant administration settled the case.

Chase Court decisions on the rights of former slaves also provided civil libertarians with good language but little law. Justice Miller’s majority opinion in The Slaughter-house Cases highlighted how the Thirteenth and Fourteenth Amendments were designed to protect the rights of persons of color. Several Chase Court justices while on circuit broadly interpreted this new national commitment to racial equality. Chief Justice Chase in In re Turner (1867) interpreted the Thirteenth Amendment that outlawing certain onerous apprenticeship agreements. Nevertheless, in no case did the Chase Court protect the rights of former slaves, thus failing to establish any precedent that might promote egalitarian rulings in the future.

The Slaughter-house Cases contain the Chase Court’s best-known statements on civil rights and liberties. At issue was the constitutionality of a New Orleans law granting a monopoly to certain butchers, butchers who probably bribed the local legislature. Former Justice John Campbell sought to use those cases as a vehicle for making the post–Civil War Constitution an instrument for economic rights rather than for racial equality. In a powerful argument, he asserted that the right to practice common callings was protected by the privileges and immunities clause of the newly minted Fourteenth Amendment and that the denial of such a right was a form of enslavement prohibited by the Thirteenth Amendment. The five to four judicial majority rejected that invitation to expand the post–Civil War Constitution beyond race. Justice Miller asserted that ordinary health regulations were not enslavements and that the privileges and immunities clause protected only such rights of national Citizenship as the right to travel to the national capital and the right to be protected when abroad. In his view, a broader interpretation of the Fourteenth Amendment ‘‘would constitute this court a perpetual censor upon all legislation of the states.’’ Due process, he continued, had nothing to do with this case and equal protection was largely limited to laws discriminating against persons of color. Four justices dissented. Justice Field insisted that the privileges and immunities clause ‘‘refers to the natural and inalienable rights which belong to all citizens.’’ This theme would greatly influence later Supreme Court decisions, but under due process rather than privileges and immunities.

The judicial opinions in The Slaughter-house Cases structured the judicial responses to the claimin Bradwell v. Illinois (182) that women had a constitutional right to become lawyers. Justice Miller’s majority opinion simply repeated his previous claimthat no one had a federal constitutional right to practice a common calling. Justice Bradley, who had joined Justice Field’s dissent in Slaughter-House, insisted that past practice and divine law provided better grounds for rejecting Ms. Bradwell’s appeal. ‘‘The natural and proper timidity and delicacy which belongs to the female gender,’’ he infamously declared ‘‘evidently unfit for many of the occupations of civil life.’’ In Justice Bradley’s view, the ‘‘paramount destiny and mission of women are to fill the noble and the nine offices of wife andmother. This is the law of the Creator.’’ Chief Justice Chase, who was dying at the time, dissented without opinion.

This lack of justification may be fitting. The Chase Court is best known for issuing bold statements in favor of protecting rights without actually handing down challenging live violations of rights. The vote that most challenged contemporary understanding of rights, Chief Justice Chase’s dissent in Bradwell, by comparison, was given without any justification or bold quotation at all.

MARK A. GRABER

References and Further Reading

• Hyman, Harold M. The Reconstruction Justice of Salmon P. Chase: In re Turner and Texas v. White. Lawrence, KS: University Press of Kansas, 1997
• Kutler, Stanley I. Judicial Power and Reconstruction Politics. Chicago: University of Chicago Press, 1968

Cases and Statutes Cited

• Bradwell v. Illinois, 83 U.S. 130 (1872) 
• Cummings v. Missouri, 71 U.S. 277 (1866) 
• Ex parte Garland, 71 U.S. 333 (1866) 
• Ex parte McCardle, 74 U.S. 506 (1868) 
• Ex parte Milligan, 71 U.S. 2 (1866) 
• Ex parte Yerger, 75 U.S. 85 (1868) 
• Georgia v. Stanton, 73 U.S. 50 (1867) 
• In re Turner, 24 F. Cas. 333 (C.C.D. Maryland, 1867) 
• Mississippi v. Johnson, 71 U.S. 475 (1866) 
• Slaughter-House Cases, 83 U.S. 36 (1872)