DAVIS, DAVID (1815–1883)

David Davis's Supreme Court appointment in 1862 stemmed from his longtime legal and political association with abraham lincoln. Throughout the civil war, Davis loyally supported the administration in the prize cases (1863) and ex parte vallandigham (1864), but he opposed the President regarding emancipation and military trials of civilians. At one point, Davis urged Lincoln to withdraw the emancipation proclamation, believing that it would only increase southern resistance and border-state hostility toward the Union. The military trial issue, however, aroused Davis's unrelenting enmity and criticism. Appropriately, Davis delivered the Court's unanimous opinion in ex parte milligan in 1866, holding that civilian trials by presidentially created military commissions were unconstitutional. Davis, joined by the four Democrats on the bench, added that Congress could not authorize such commissions, provoking sharp dissent from Chief Justice salmon p. chase and the other three Republicans.

Democrats and Southerners claimed that the subsequent Republican military reconstruction program was unconstitutional on the basis of Milligan. But Davis's opinion really offered little comfort on this point. While he found that the "laws and usages of war" could not apply where civil courts were open, he qualified this conclusion by specifying those "states which have upheld the authority of the government." In his private correspondence, Davis showed that he was disturbed by contemporary interpretations. He noted that there was "not a word said in the opinion about reconstruction, the power is conceded in insurrectionary states."

Disenchanted with the Republicans, and equally wary of the Democrats, Davis castigated the partisan wrangling that characterized the reconstruction period. He opposed suffrage for blacks, stating that "the thrusting on them [of] political rights is to their injury." He advocated the preservation of traditional state powers, and he expressed alarm "at the tendency to consolidated Govt manifested by the Republican party." Yet he believed that the military reconstruction program would have been avoided if the Democrats and the South had accepted the fourteenth amendment. Davis displayed little inclination to have the judiciary thwart the Republican program, however. He was with the majority in texas v. white (1869). He also resisted the attempts of some colleagues to force a decision in ex parte mccardle (1868) before Congress repealed the appropriate jurisdiction legislation, thinking "it was unjudicial to run a race with Congress." Finally, he opposed a motion to challenge the Reconstruction Act on property rights grounds in Mississippi v. Stanton (1868).

Davis's sense of restraint characterized his votes in most of the other issues involving the Civil War and Reconstruction. Despite the libertarian concerns he had expressed in Milligan, he joined the dissenters who favored upholding both federal and state test oaths. He also joined the dissenters who favored sustaining legal tenders in Hepburn v. Griswold (1870) and then joined the new majority a year later when the decision was reversed. His political conservatism, combined with his notions of judicial restraint, best explains his adherence to the majority view in the slaughterhouse cases (1873).

Davis's literal reading of the compact clause (Article I, section 10), however, led him to dissent in Virginia v. West Virginia (1871) when he denied the legality of West Virginia's annexation of two western Virginia counties during the Civil War. And in Miller v. United States (1871), a key case testing the confiscation act of 1862, he supported the act's constitutionality but found reversible error. In a number of circuit rulings involving confiscation, his insistence on procedural fairness largely masked his distaste for the law.

In the Court's consideration of emerging economic questions in the 1870s, Davis again adopted rather traditional views on federalism and state prerogatives. He dissented, for example, in philadelphia & reading railroad v. pennsylvania (the State Freight Tax Case, 1873), arguing that a state tax imposed on freight tonnage was simply a business tax and not an interference with interstate commerce. In a long series of municipal bond cases in the 1860s and 1870s, Davis usually supported Justice samuel f. miller's vigorous battle against the Court's attempts to provide bondholders protection from state taxation or repudiation. In his most notable statement on the issue, Davis dissented when the Court held that the interest of nonresident bondholders could not be taxed. In State Tax on Foreign-Held Bonds (1873), Davis relied on traditional state statutes requiring taxation of "all mortgages [and] money owned by solvent debtors." Such taxation, he said, did not impair any contractual obligations between creditors and those who issued bonds. A quarter-century later, Davis's views were adopted by a new majority.

Despite his prominence and reputation, Davis produced few noteworthy constitutional opinions beyond his contribution in Milligan. In truth, he was misplaced as a Supreme Court Justice. He preferred the involvement of political life or trial court work. Davis eagerly sought the presidency and he courted anti-Grant elements within the Republican party in 1872. He finally resigned in 1877 when the Illinois legislature elected him to the Senate. He eventually was elected President pro tem, prompting Chief Justice morrison r. waite, who deplored Davis's political ambitions, to remark that the position was "as near to the Presidency as he can get."

Davis himself offered the most candid and fitting estimate of his judicial career. "[A]s I never did like hard study, the work is not always agreeable," he wrote to his brother-in-law in 1870. "I believe I write the shortest opinions of any one on the bench, & if I had to elaborate opinions & write legal essays as some Judges do, I would quit the concern. I like to hold trial court, but this work on an appellate bench is too much like hard labor."

Stanley I. Kutler
(1986)

(see also: Constitutional History, 1861–1865; Constitutional History, 1865–1877.)