McGinty Brian. Lincoln and the Court

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posed the extension of suffrage and other civil rights to former slaves, Johnson

stubbornly resisted Republican efforts to “reconstruct” the former insurrection-

ary states. He pardoned ex-Confederates and publicly expressed his deﬁance of

the radical leadership in Congress. And he dismissed federal ofﬁceholders who

opposed his policies. To prevent the president from ﬁlling ofﬁces with his

own supporters, Congress passed the Tenure of Ofﬁce Act, providing that fed-

eral ofﬁcials whose appointments required Senate conﬁrmation could be re-

moved only with the advice and consent of the Senate. The president could

suspend an ofﬁcial for cause when the Senate was not in session, but if the Sen-

ate did not concur in the suspension when it reconvened, the ofﬁcial had to be

reinstated. Johnson believed that the Tenure of Ofﬁce Act was unconstitu-

tional and vetoed it, but his veto was overridden, and it became law on March

2, 1867.

Congress was in recess in the summer of 1867 when Johnson decided to re-

move Edwin Stanton from his post as secretary of war. Stanton had allied him-

self with the radicals and become increasingly hostile to the president. When

Johnson demanded his resignation, Stanton refused to resign, forcing the presi-

dent to suspend him from ofﬁce. In January 1868, the new Senate met and re-

fused to concur in Stanton’s removal. Johnson responded by formally dismiss-

ing Stanton. But Congress was determined to assert its authority.

Article II, Section 4, of the Constitution provides: “The President, Vice

President and all civil ofﬁcers of the United States, shall be removed from of-

ﬁce on impeachment for, and conviction of, treason, bribery, or other high

crimes and misdemeanors.” And Article I, Section 2, clause 5, provides (in rel-

evant part): “The House of Representatives shall...have the sole power of im-

peachment.” By a formal vote on February 24, 1868, the House of Representa-

tives adopted eleven articles of impeachment, charging Andrew Johnson with

violation of the Tenure of Ofﬁce Act and attempting “to bring into disgrace,

ridicule, hatred, contempt and reproach the Congress of the United States.”

Chase watched the growing storm with special interest, knowing that he would

be called on to preside over the impeachment trial, for according to Article I,

Section 3, clause 7 of the Constitution: “The Senate shall have the sole power

to try all impeachments....When the President of the United States is tried,

the Chief Justice shall preside: And no person shall be convicted without the

concurrence of two thirds of the members present.”

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No president had ever before been impeached, so Chase had to make un-

precedented decisions about his role in the trial. He insisted that it should be

conducted with judicial formality. He demanded the right to rule on the com-

petency of witnesses and the admissibility of evidence, subject to appeal to a

vote of the senators. He also demanded that he have a vote in case of a tie.

Chase decided privately that if the senators did not agree with his stipulations,

he would refuse to preside, leaving the Senate in the embarrassing position of

having to proceed in a manner unauthorized by the Constitution. Recognizing

the strength of his position, the senators agreed to his stipulations.

The impeachment trial began on March 4 and continued for eleven weeks.

Chase conducted himself with dignity, making rulings that were generally ad-

mired for their fairness and judiciousness. But some of his rulings seemed to

favor Johnson and angered the radicals. They had once considered Chase as

one of their number—now they began to suspect that he had “gone over to the

enemy.” In late May, the Senate voted. With thirty-ﬁve senators voting to

convict and nineteen to acquit, Johnson escaped removal from ofﬁce by only

one vote. On May 26, Stanton advised Johnson that he was relinquishing

his ofﬁce.

The end of Johnson’s impeachment trial coincided with the beginning

of the presidential election season. On May 20 and 21, the Republican con-

vention in Chicago nominated Ulysses S. Grant for president and Schuyler

Colfax for vice president. With the Democratic convention scheduled to open

in New York City on July 4, Chase began a letter-writing campaign in which

he let it be known that, while he had no presidential “ambitions,” under appro-

priate conditions, “I would not be at liberty to refuse the use of my name.”

His strong record of support for universal male suffrage would ordinarily have

made him unacceptable to the Democrats, for they were opposed to admitting

former slaves to the polls; but he dropped hints that he would be willing to

compromise on the issue. Reversing his earlier stand that equal voting rights

should be guaranteed by the federal government, he announced that he now

believed that suffrage was a question “for the people of the States themselves,

not for outsiders.”

(He knew full well that if the decision was left to white

voters in the former Confederate states, African Americans would never be

permitted to vote.)

He disingenuously repeated his denials of presidential ambitions while

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continuing to make concessions to the Democratic leaders. He even went so

far as to say that Clement Vallandigham, now returned from his Canadian ex-

ile and participating vigorously in the Democratic convention, was a man “of

whose friendship one may well be proud.”

In a letter to August Belmont, the

New York ﬁnancier who was chairman of the Democratic National Commit-

tee, he bragged of his Democratic credentials. “For more than a quarter of a

century,” Chase told Belmont, “I have been, in my political views and senti-

ments, a Democrat.”

As John Niven has written: “The bright side of his char-

acter, the oft-spoken belief in common humanity, was swinging slowly to the

dark side of political expediency and even cynicism.”

Chase’s daughter, Kate Sprague, moved to the Fifth Avenue Hotel in New

York to take personal charge of her father’s campaign. But things went badly for

Chase at the convention. With 263 votes required for the nomination, Chase

received only 4. Chagrined, he toyed with the possibility of mounting an inde-

pendent candidacy, but quickly found there was no support for the idea.

When the votes were counted in the general election on November 3, the

Republicans Grant and Colfax won, with 214 electoral votes to only 80 for the

Democratic candidates Horatio P. Seymour of New York and Francis P. Blair,

Jr., of Missouri. Noting how desperately Chase had made concessions in his ef-

forts to win political support, editors of the Nation derisively commented that

“no weight whatever will hereafter attach to any judgment of his on any one of

the great constitutional questions arising out of the rebellion and reconstruc-

tion which will doubtless come before his Court.”

Chase, of course, did not agree. He went back to his work on the Supreme

Court, still dreaming of another presidential bid in 1874.

one of the “great constitutional questions” referred to by The Nation found

its way to the Supreme Court in 1869. It was the constitutionality of the legal

tender notes that Chase himself had issued in great quantities during the war—

the so-called greenbacks that bore his portrait and his imprimatur as chief

steward of the nation’s ﬁnances.

Chase’s roots in the Democratic Party had

inclined him strongly in favor of “hard money” before the war broke out, and

he stated that his approval of the legal tender notes in 1862 was a strategic de-

cision, designed to meet the exigencies of the war and not a general endorse-

ment of paper money. But the greenbacks had served their purpose well, raising

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hundreds of millions of dollars for the U.S. Treasury that would have been un-

obtainable through conventional borrowing or taxation. With vast numbers of

greenbacks in circulation all over the country, the war had been won and the

economy had survived.

But the power of the federal government (or, more particularly, of Con-

gress as the legislative branch of the government) to issue the greenbacks had

never been clear. It was universally agreed that the United States was a govern-

ment of limited powers, and that a power could not be exercised unless it was

granted (or “enumerated”) in the Constitution itself. Article I, Section 8, con-

tains a list (or enumeration) of eighteen powers that the Constitution has

granted to Congress. The list includes (among other things) the powers:

To borrow money on the credit of the United States...;

To regulate commerce with foreign nations, and among the several states

...;

To coin money, regulate the value thereof...;

To raise and support armies...;

To provide and maintain a navy...;

To provide for calling forth the militia to execute the laws of the union,

suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining the militia, and for

governing such part of them as may be employed in the service of the

United States...;and

To make all laws which shall be necessary and proper for carrying into ex-

ecution the foregoing powers, and all other powers vested by this Con-

stitution in the government of the United States, or in any depart-

ment or ofﬁcer thereof.

None of these enumerations expressly authorizes the issuance of paper

money, much less laws making paper money legal tender, though they might be

extended to cover the situation under the “necessary and proper” clause as ex-

pounded by John Marshall in McCulloch v. Maryland (1819). In his decision in

that case, one of the great landmarks of constitutional interpretation, Marshall

upheld Congress’s charter of the Second Bank of the United States over the

claims of Jeffersonians that the Constitution gives Congress no power to char-

ter corporations or banks. Speaking for a unanimous Court, Marshall ruled that

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the bank was justiﬁed under the “necessary and proper” clause because it fur-

thered the exercise of Congress’s enumerated powers to lay and collect taxes,

borrow money, regulate commerce, declare and conduct war, and raise and sup-

port armies and navies. A constitution that contained a detailed statement of

all of the government’s powers would, in Marshall’s words, “partake of the pro-

lixity of a legal code, and could scarcely be embraced by the human mind....

Its nature, therefore, requires, that only its great outlines should be marked, its

important objects designated, and the minor ingredients which compose those

objects, be deduced from the nature of the objects themselves,” for as Marshall

proclaimed in one of his immortal phrases, “we must never forget that it is a

constitution we are expounding.” Whether the exercise of a particular power

was “necessary and proper” was to be determined in the ﬁrst instance by Con-

gress, and the Court was to reject Congress’s judgment only in the case of a

clear abuse. Marshall wrote: “Let the end be legitimate, let it be within the

scope of the constitution, and all means which are appropriate, which are

plainly adapted to that end, which are not prohibited, but consist with the let-

ter and spirit of the constitution, are constitutional.”

Support for greenbacks had generally been high during the war, though

there were dissenting voices, and those voices were often heard in the courts.

One of the ﬁrst serious challenges to the Legal Tender Act was raised in New

York by James Roosevelt (father of future president Franklin D. Roosevelt) in

1863. A man named Meyer was indebted to Roosevelt on a mortgage that had

been executed before February 25, 1862, the effective date of the Legal Tender

Act. Meyer tendered $8,171 in greenbacks in payment of the mortgage, but

Roosevelt insisted that he had a right to be paid in gold and that, by requiring

him to accept greenbacks, the Legal Tender Act deprived him of valuable con-

stitutional rights. His attorney pointed out that the market value of the green-

backs at the time they were tendered was only $7,844.22, or $326.78 less than

the amount of the debt. After Roosevelt’s claim was denied in the New York

Court of Appeals, his attorney brought a writ of error to the U.S. Supreme

Court. Under the Judiciary Act of 1789, the Supreme Court could hear an ap-

peal from a state supreme court when the state court denied the validity of a

federal statute.

Here, however, the state court had upheld the federal statute.

On December 21, 1863, the Supreme Court dismissed the appeal in Roosevelt v.

Meyer for lack of jurisdiction. Justice Wayne announced the decision for the

Court, and Justice Nelson dissented without opinion.

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Another important legal tender case that came before the Supreme Court

under Chief Justice Chase was Bronson v. Rodes, which reached the Court in

1865. This case involved the enforceability of a contract made in 1851 to pay

$1,400 “in gold or silver coin, lawful money of the United States.” The pay-

ment was to be made in 1857. Writing for the majority, Chase declined to de-

cide whether the Legal Tender Act was or was not constitutional, ruling in-

stead that payment in this case had to be “in coined lawful money” because

that was “the lawful intent and understanding of the parties.” Chase said that

the contract was “in legal import, nothing else than an agreement to deliver a

certain weight of standard gold, to be ascertained by a count of coins.”

Justice

Miller dissented, pointing out that, in 1851, gold and silver was the only legal

tender in the United States and that everybody who accepted a note payable in

dollars contemplated that it would be paid in coin. He had no doubt, he said,

that the Legal Tender Act was intended to make notes “a legal tender for all

private debts then due, or which might become due on contracts then in exis-

tence, without regard to the intent of the parties on that point.”

Veazie Bank v. Fenno was another legal tender dispute that reached the

Court in 1869. This case turned not on the validity of the legal tender notes

themselves but on Congress’s decision to impose a 10 percent tax on state bank

notes.

The tax was clearly designed to drive the state notes out of circulation

and leave the ﬁeld clear for greenbacks. Again without expressing an opinion

on the constitutionality of the legal tender notes, Chase upheld the 10 percent

tax against the charge that Congress had no power to impose it. He admitted

that the Constitution contained no “enumerated power” to impose such a tax,

but pointed out that Congress was empowered to provide for the circulation of

coin and to emit bills of credit. Thus it was empowered to make its bills “a cur-

rency, uniform in value and description, and convenient and useful for circula-

tion.” If Congress could do all of these things, it followed under the “necessary

and proper” clause that Congress could also “restrain, by suitable enactments,

the circulation as money of any notes not issued under its authority. Without

this power, indeed, its attempts to secure a sound and uniform currency for the

country must be futile.”

Justices Nelson and Davis dissented.

The Court had, up to this point, avoided the central issue of the constitu-

tionality of the Legal Tender Act, presuming it to be constitutional (every act

of Congress is presumed to be constitutional until the contrary is shown) but

ﬁnding it to be inapplicable to a whole host of cases by carefully construing

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contractual language. The case of Hepburn v. Griswold, which had been on the

Court’s docket for several years, ﬁnally forced the judges to address the consti-

tutionality issue head on.

On June 20, 1860, Susan Hepburn signed a note promising to pay Henry

Griswold $11,250 on February 20, 1862. The note did not specify the form of

the payment, stating merely that it was to be in “dollars.” In 1860, however,

the only lawful money of the United States in which the debt could be paid

was gold and silver coin. Five days after the note came due, Congress passed

the Legal Tender Act, providing that legal tender notes would be “lawful

money and a legal tender in payment of all debts, public and private, within

the United States, except duties on imports and interest.” Hepburn did not pay

her note until 1864, after Griswold had brought suit in the Chancery Court in

Louisville, Kentucky, to enforce it. The amount due was paid, in legal tender,

into the court, which upheld the constitutionality of the Legal Tender Act. But

on appeal to the Court of Errors of Kentucky, the judgment was reversed. Hep-

burn then appealed to the U.S. Supreme Court, where the case was argued two

times and, in November 1869, considered at length in the judges’ regular con-

ference.

There were eight justices on the Court when it took up the Hepburn case,

but one was substantially disabled. Pennsylvania’s seventy-ﬁve-year-old Justice

Robert Grier had suffered a stroke in the summer of 1867, and it had left him

partially paralyzed. Grier could walk only with extreme difﬁculty and even had

trouble wielding a pen or a pencil. Taking heavy law books down from high

shelves was a near impossibility.

He had hung on to his Court seat, hoping

that living space could be found for him in the Capitol. This proved impossi-

ble, so the judge struggled on, painfully climbing stairs, laboring to write simple

letters, and trying to keep his mind focused on lawyers’ arguments.

Andrew Johnson had left the White House in March 1869, surrendering

his ofﬁce to Ulysses S. Grant, who enjoyed good relations with the Republican

Congress. Mindful of Justice Grier’s disability and Justice Samuel Nelson’s ad-

vanced years (the New Yorker would turn seventy-seven on November 11,

1869), Congress had in April provided for the ﬁrst retirement pensions in the

Court’s history. The new law allowed Supreme Court judges who had served at

least ten years and were at least seventy years of age to retire at full salary. And

in the same act that provided for the pensions, Congress had once again reor-

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ganized the judicial system, increasing the size of the Supreme Court from

eight to nine justices and providing for the appointment of a new class of cir-

cuit judges, who were required to reside in each of the nine circuits and who

had the same powers within the circuits as the Supreme Court justices. The

law was designed to encourage Grier and Nelson to retire, but even if they did

not, Grant would be entitled to appoint one Supreme Court justice, to bring

the Court up to its full complement of nine. By its terms, however, the law was

not to become effective until December 6, 1869, the date set for the opening of

the Court’s next term.

Hepburn was discussed for three or four hours in the Court’s conference

room on November 27. It was a vigorous discussion, for Chase had ﬁnally made

it clear that he considered the Legal Tender Act unconstitutional, at least inso-

far as it applied to debts incurred before its effective date, and Miller was

equally convinced that the act was constitutional. All of the justices had the

opportunity to express their opinions. When the vote was taken, the count was

four to four, with Justice Grier voting to reverse the judgment of the Kentucky

Court of Errors and sustain the constitutionality of the act. One of the judges

(unnamed) who voted to sustain the Kentucky court suggested that Grier had

not understood the question on which he had just voted. But Grier said that he

understood that the Kentucky court had declared the Legal Tender Act uncon-

stitutional and that he voted to reverse that judgment. So the vote still stood

at four to four. In the discussion of the next case on the conference list, how-

ever, Grier made a statement that seemed to be inconsistent with his vote in

Hepburn, and one of the justices (again unnamed) called the inconsistency to

his attention. At this, Grier changed his vote on Hepburn, so that there were

now ﬁve votes to sustain the Kentucky court and three to overrule it. Grier was

obviously confused.

Justice Miller later prepared a conﬁdential “Statement of Facts” in which

he recorded his recollections of what happened during the Hepburn delibera-

tions. The statement was signed by Miller, Swayne, and Davis to afﬁrm its ac-

curacy.

These three justices felt unable to do anything about Grier’s vote (he

was, after all, one of their brethren, and they respected his long record of Court

service), but they were aware of the great consequences that attended the out-

come of the case and concerned about Grier’s muddled mind. Hundreds of mil-

lions of dollars in legal tender notes were still circulating all over the United

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States. Americans had expressed their conﬁdence in the currency, using the

greenbacks to ﬁnance businesses, purchase property, meet payrolls, and fund in-

vestments. If the notes were suddenly declared unconstitutional, the reaction

of the markets could only be guessed at. And all of this was because Justice

Grier was allowed to change his vote in conference. “We do not say he did not

agree to the opinion,” Miller, Swayne, and Davis said. “We only ask, of what

value was his concurrence, and of what value is the judgment under such cir-

cumstances?”

All of the justices agreed, however, that Grier was no longer

able to perform the duties of his ofﬁce. A week after their Hepburn conference,

they chose three of their number to call on him and persuade him to submit his

resignation.

The new retirement pension provided by Congress was an addi-

tional inducement. Bowing to the inevitable, Grier submitted his resignation

to President Grant, effective February 1, 1870.

The president had already taken steps to bring the Court up to its full

membership. On December 15, he nominated his attorney general, Ebenezer

R. Hoar of Massachusetts, to the new ninth seat. Hoar was eminently qualiﬁed

for the position, but he had antagonized many senators by opposing their

efforts to win judicial nominations for various political favorites, and they

dragged their heels on his nomination. After Grier announced his retirement,

Grant moved on December 20 to nominate Edwin Stanton to succeed the re-

tiring justice.

The former secretary of war was an accomplished lawyer (Lin-

coln had had great conﬁdence in his legal abilities) and popular with the radi-

cals in Congress. Grant hoped that Stanton’s popularity might persuade some

senators also to support Hoar. Stanton was immediately conﬁrmed by a Senate

vote of forty-six to eleven, but Hoar’s nomination was not considered until

February 3, when it was rejected by a vote of twenty-four to thirty-three.

Tragically, Stanton suffered a coronary thrombosis and died on December 24,

only four days after his conﬁrmation. He was only ﬁfty-four years old and had

not yet taken up his duties on the Court.

Chase’s majority opinion in Hepburn v. Griswold was read in the Court’s

conference on January 29. The chief justice was anxious to announce it, but

the dissenters asked for time to prepare their opinion. Accordingly, the an-

nouncement was postponed until February 7. By that time, Justice Grier was no

longer a member of the Court. Of the seven justices still serving on that date,

only four supported the decision and three opposed it. Everybody knew that

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Grant would soon appoint two new judges, one to succeed Grier and the other

to ﬁll the new ninth seat, and that the Court would then be up to its full

strength. “Under these circumstances,” Miller later wrote in his “Statement of

Facts, “the minority begged hard for delay until the bench was full. But it was

denied.”

Chase’s opinion concluded that the Legal Tender Act was unconstitu-

tional as applied to preexisting debts. He admitted that John Marshall’s opin-

ion in McCulloch v. Maryland provided guidance on the key question of

whether legal tender was “necessary and proper” for the execution of any of

Congress’s enumerated powers. Was the “end...legitimate” and “within the

scope of the constitution”? Were the means adopted by Congress “appropriate”

and “plainly adapted” to the end? Were the means “not prohibited, but consis-

tent with the letter and spirit of the constitution”?

Examining Marshall’s

words, Chase bore down heavily on the great chief justice’s reference to the

“spirit of the constitution.” He referred to the so-called contracts clause in Ar-

ticle I, Section 10, which provides (in relevant part): “No state shall...pass

any . . . law impairing the obligation of contracts.” This clause applies to the

states and not to Congress (there is no comparable limitation on the power of

Congress), but Chase reasoned that “the spirit of the Constitution” made it ap-

plicable to Congress as well. To apply the Legal Tender Act to preexisting

debts would, he said, impair the “obligation of contracts” and thus violate the

Constitution.

He also referred to the “due process” and “takings” clauses of the Fifth

Amendment, which state: “No person shall be...deprived of life, liberty, or

property, without due process of law; nor shall private property be taken for

public use, without just compensation.” He found the Legal Tender Act simi-

larly inconsistent with these provisions for, in his judgment, they deprived cer-

tain persons (creditors) of property without “due process of law,” and took their

property for public use without “just compensation.” In Chase’s view, an act

that made irredeemable paper money legal tender for the payment of previ-

ously contracted debts was not “a means appropriate, plainly adapted, really

calculated to carry into effect any express power vested in Congress.” It was

“inconsistent with the spirit of the Constitution” and thus prohibited by it.

Chase was conscious (as was everybody who heard him deliver his opin-

ion) that the conclusion he had now reached was diametrically opposed to the

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