Clifford, Nathan (1803–1881)

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CLIFFORD, NATHAN (1803–1881)

Nathan Clifford came to the Supreme Court in 1858 after an active political career. He served in the Maine legislature in the 1830s and in the House of Representatives in the early 1840s. He was james k. polk's attorney general, and during his term he represented (in a private capacity) the rebellious Dorr faction before the Supreme Court in luther v. borden (1849). Clifford's most significant political achievement came in 1848 when Polk dispatched him to persuade Mexico to accept the treaty of guadalupe hidalgo as amended by Congress. A decade later, President james buchanan selected him to succeed Justice benjamin r. curtis. At a time when the Court was perceived in many quarters as an instrument of southern and Democratic party interests, the choice of a Northerner with southern principles was viewed as blatant partisanship. After a lengthy confirmation battle, the senate narrowly approved him.

Clifford, a "doughface" in politics, regarded himself as a Jeffersonian "strict constructionist" in constitutional matters. He resolutely opposed the centralization of governmental power during the 1860s and early 1870s. But in ableman v. booth (1859) he voted to affirm federal judicial supremacy. During the war, Clifford generally supported the government. He wrote opinions upholding the seizure of slave-trading ships; he joined his colleagues in declining to decide any constitutional questions involving the legal tender laws; and he supported the Court's refusal to consider the martial law issues in ex parte vallandigham (1864). In the prize cases (1863), however, Clifford joined the dissenters who questioned the legality of President abraham lincoln's blockade of southern ports.

Following the war, Clifford consistently opposed Republican reconstruction policy. He joined the majority opinion in ex parte milligan (1866), which struck down trials by military commissions where the civil courts were functioning; he supported the majority in the test oath cases (1867); he agreed with the majority's narrow construction of the fourteenth amendment in the slaughterhouse cases (1873); and in separate opinions in several voting rights cases, including united states v. reese (1876) and united states v. cruikshank (1876), he went beyond the majority opinions to condemn federal interference with state elections. Finally, he joined the Court's majority that overturned the legal tender laws in Hepburn v. Griswold (1870), but when that decision was reversed a year later in Knox v. Lee (1871), he dissented in a strict construction of Congress's power to regulate currency. (See legal tender cases.)

In hall v. decuir (1878) Clifford wrote for the Court, nullifying a Louisiana law prohibiting segregation of steamboat passengers. "Governed by the laws of Congress," he wrote, "it is clear that a steamer carrying passengers may have separate cabins and dining saloons for white persons and persons of color, for the plain reason that the laws of Congress contain nothing to prohibit such an arrangement." In short, the absence of federal policy negated state policy—a strange position for an old states ' rights Democrat.

Clifford generally supported state regulatory policies. His concurrence in Slaughterhouse signified his unwillingness to embrace a nationalizing interpretation of the Fourteenth Amendment; likewise, it reflected Clifford's traditionalist views of the state police power. In Munn v. Illinois (1877), for example, he joined the majority to sustain Illinois's regulation of grain elevators. (See granger cases.) Clifford's most articulate statements on state powers came in his dissent in loan association v. topeka (1875). Rejecting the majority's invalidation of a state bonding authorization, Clifford struck at the Court's invocation of natural law doctrine and notions of judicial superintendence. Contending that state legislative power was "practically absolute," subject only to specific state and federal constitutional prohibitions, Clifford protested against judicial review that went beyond such limitations in tones reminiscent of older Jeffersonian doctrine: such power, he said, "would be to make the courts sovereign over both the constitution and the people, and convert the government into a judicial despotism."

Clifford dissented ninety-one times during his tenure, an extraordinarily high figure for the time. To some extent, it reflected his isolation and his archaic views. Throughout his judicial career, he consistently was perceived as a partisan Democrat. He served as president of the Electoral Commission to resolve the disputed election of 1876, and most accounts generally credit him with fairness in his conduct of the meetings. Nevertheless, the political purpose of his appointment in 1858 shadowed his work. He did not disappoint his benefactors; yet it was a career best characterized as dull and mediocre.

Stanley I. Kutler
(1986)