Waite Court (1874–1888)

From the time of his appointment by President Ulysses S. Grant to the position of chief justice of the U.S. Supreme Court in 1874, to his death in 1888, Morrison R. Waite presided over several critical areas of controversy in American civil liberties jurisprudence. Principal constitutional battlegrounds included the free exercise clause of the First Amendment, and the newly ratified Fourteenth Amendment (1868).

Interpreting the free exercise of religion guarantee fell to the Court for the first time in Reynolds v. United States in 1878. George Reynolds, a prominent member of the Church of Jesus Christ of Latter-Day Saints, the Mormon Church, was convicted for practicing polygamy in the Territories, contrary to federal law. In appealing to the Supreme Court, Reynolds argued that as an accepted doctrine of his church, ‘‘it was the duty of male members ... to practice polygamy,’’ and that this duty was called for by various sources that the members thought to be of divine origin.

In upholding the Morrill Act of 1862, which forbade and punished polygamy practiced in the Territories, a unanimous Court, speaking through Chief Justice Waite, read the First Amendment as saying that ‘‘Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.’’ Waite reviewed the traditional condemnation of multiple marriages in modern Western society, and cited studies suggesting that ‘‘polygamy leads to the patriarchal principle, which, when applied to large communities, fetters the people in stationary despotism....’’ He concluded: ‘‘Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.’’

Thus, it was early established by the Court that the free exercise of religion guarantee, while absolutely protecting religious thought, would generate a Balancing Test regarding activities carried out in the name of religion. Although the early test of polygamy was an easy one, given the hostile climate of public opinion toward the practice at the time, others less compelling would later challenge and divide the Court.

Such an issue was presented in Employment Division, Department of Human Resources v. Smith in 1990. There, the free exercise clause was tested against a state law that included the use of peyote as a prohibited mind-altering drug, resulting in Oregon’s denial of unemployment benefits to persons who had been dismissed from their jobs because of their religiously inspired consumption of the drug as a sacrament.

Justice Antonin Scalia, for a sharply divided fiveto- four majority, noted: We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.... We first had occasion to assert that principle in Reynolds v. United States.

Although most of the leading constitutional issues of the late nineteenth century arose from changing economic realities, the problem of race relations stemmed from other sources. During Reconstruction, freedmen in the South had great difficulty integrating with the larger white community and the process generated both resentment of legal backlash. The Supreme Court was able to offer little help. An early post–Civil War challenge came to the Court in the guise of the new Civil Rights Act of 1875. It prohibited racial discrimination in the selection of juries and forbade segregation in inns, taverns, transportation facilities, and other public accommodations. Five separate suits challenged the public accommodations portions of the Act, and the Court reviewed them together as the Civil Rights Cases (1883). The decision, consistent with those in the Slaughterhouse Cases (1873) and United States v. Cruickshank (1876), was that, although the Fourteenth Amendment forbade discriminatory acts by states, it made no mention of discriminatory acts by private individuals or individually owned businesses. As the act did prohibit such discrimination, it was found to exceed the authority granted to Congress by the enforcement clause of the amendment and was therefore unconstitutional.

While the Fourteenth Amendment was passing into disuse in regard to the civil rights of freedmen, it was evolving into a potent check upon the economic regulatory activities of the states. The state governments’ powers to promote, regulate, prohibit, or otherwise control economic activity were of three broad descriptions: taxation, eminent domain, and the police power. Prior to the Civil War, the only constitutional restraints on the exercise of those powers were contained in Article 1, Section 10, most notably the contract clause and the restrictions on the kinds of taxes that could be levied. As the Court’s interpretation of the Fourteenth Amendment developed, however, the due process clause became another, and sometimes more significant restraint.

It was over the issue of property rights, and of controlling state regulatory excesses, that the Waite Court worked out its most important doctrine, that of substantive due process. The first step in the development of the doctrine took place in the Granger cases of 1877. The Grange and other farmers’ organizations were formed in the 1860s as social, educational, and marketing groups, and as they gained legislative control in some states, they enacted laws that imposed regulations on private businesses. In Munn v. Illinois (1877), the Court reviewed such legislation, particularly acts fixing the maximum prices charged by grain elevators in Chicago.

The Supreme Court, speaking through Chief Justice Waite, held that grain elevators, being ‘‘affected with a public interest,’’ were subject to regulation under the state’s police powers. The due process clause guaranteed procedural rights, and was therefore irrelevant to the case. Nevertheless, he cautioned that ‘‘under some circumstances’’ a regulatory statute might be so arbitrary as to be unconstitutional. With those seemingly mild words, Waite gave formal recognition to the concept of substantive due process, and with it he effectively gave to the Court a new weapon. Thus armed, the Court was able to referee the contest between big business and government regulation for the next sixty years, favoring one side or the other as times and circumstances seemed to warrant. A classic example of that economic tug-of-war can be seen in the 1905 case, Lochner v. New York.

KENNETH F. MOTT

References and Further Reading

• Magrath, C. Peter. Morrison R. Waite: The Triumph of Character. New York: Macmillan, 1963.
• McCloskey, Robert G. The American Supreme Court. 2nd ed. Chicago: University of Chicago Press, 1994.
• Trimble, Bruce R. Chief Justice Waite: Defender of the Public Interest. New York: Russell & Russell, 1970.

Cases and Statutes Cited

• Civil Rights Cases, 109 U.S. 3 (1883)
• Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990)
• Lochner v. New York, 198 U.S. 45 (1905)
• Munn v. Illinois, 94 U.S. 113 (1877)
• Reynolds v. United States, 98 U.S. 145 (1878)
• Slaughterhouse Cases, 16 Wall. 36 (1873)
• United States v. Cruikshank, 92 U.S. 542 (1876)

See also Civil Rights Act of 1875; Civil Rights Cases, 109 U.S. 3 (1883); Employment Division, Department of Human Resources v. Smith, 494 U.S. 872 (1990); Mormons and Religious Liberty; Reynolds v. United States, 98 U.S. 145 (1878); Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873); United States v. Cruikshank, 92 U.S. 542 (1876)