The Most Underrated Chief Justice: Salmon Chase (Part II)

Although he would only serve 9 years as Chief Justice before his death, nearly every one of his decisions was the proper one. In United States v. Dewitt decided in 1869, Chase delivered the unanimous decision restricting the usage of the Commerce clause and the Necessary and Proper clause by denying restrictions on buying certain oil products because it would be beneficial for the government to collect and lay taxes. The Legal Tender cases were a huge part of the Chase legacy. In 1869, the case Hepburn v. Griswold, Chase delivered the majority opinion with a very narrow reading of the Necessary and Proper clause. Chase ruled that although the Federal Government has the enumerated power to “coin money”, that power did not imply that the Federal Government has the power to make “paper money”. Chase argued that in following Marshall’s opinion in McCulloch v. Maryland that using the Necessary and Proper clause would not be “consistent with the letter and spirit of the Constitution.” Since “the States are expressly prohibited by the Constitution from making anything but gold and silver coin a legal tender” Chase argues “This seems decisive on the point that the power to issue notes and the power to make them a legal tender are not the same power, and that they have no necessary connection with each other.” Also, Chase understood as being Secretary of the Treasury, that legal tenders (paper money) were not always redeemed at face value making Chase to proclaim “It is difficult to conceive what act would take private property without process of the law if such and act would not.” Just two years later, for the first time in history, the Court over turned Hepburn in Knox v. Lee. Chase would write in his diary “The consequences of the sanction this day given to irredeemable paper currency may not soon manifest themselves but are sure to come.” In Knox, Justice Strong wrote the majority opinion saying “It is incumbent, therefore, upon those affirm the unconstitutionality of an act of Congress to show clearly that it is a violation of the provisions of the Constitution.” In other words, Congress is Judge and Executioner of ALL laws with no oversight. Legislators need not have to find the words in the Constitution for them to have power of things outside its writings. Strong further argues the Amendments to the Constitution are “powers not enumerated, and not included incidentally in any one of those enumerated”, the amendments “are denials of power which had not been expressly granted, and which cannot be said to have been necessary and proper for carrying into execution any other powers.” In other words, something may not have to be an incidental power of an enumerated power for it to be “necessary and proper”. Strong cites the National Bank as being convenient to lay and collect taxes, but the Court still found it “necessary and proper.” In Strong’s view for the legal tender act to be unconstitutional it would have to be both inappropriate and prohibited. Strong cites the Civil War as an emergency requiring Congress do what is “necessary and proper” to keep the war effort funded. Finally, Strong says “The degree of the necessity for any congressional enactment, or the relative degree of its appropriateness, if it have any appropriateness, is for consideration of Congress, not here.” In his dissent Chase rightly points out that if “the legislature is the sole judge of the necessity for the exercise of such powers, the government becomes practically absolute and unlimited.” Chase was right, by 1884 in Juilliard v. Greenman (after Chase’s death) the Court ruled that Congress can issue paper money for any reason, not just an emergency such as war stating any sovereign power has the power issue paper money. Note how Chase’s decisions do not allow for expansion of government whereas his comrades allow the government unlimited power to expand.

Chase’s two most important decisions were decided shortly before his death in 1873. Although he was too sick to write a dissenting viewpoint in the Slaughter House Cases or in Bradwell v. Illinois once again Chase sided against discrimination. In Bradwell, Chase was the only dissenter in the 8-1 decision that held a woman, Myra Bradwell, was not entitled work as a lawyer simply because she was a women and was therefore, inferior. In the Slaughter House cases, similarly a discriminatory statute placed all butchers in the City of New Orleans under a monopoly of one owner. In both cases, it was held that the privileges and immunities clause of the Fourteenth Amendment did not apply to the practice of a profession. In fact, these decisions practically wrote the clause out of the Amendment making it moot. These were the first Fourteenth Amendment cases. The privileges and immunities clause was there to not only protect blacks against racism but to apply all the Bill of Rights to the states to protect the liberties of all citizens. Chase would die a few weeks later. Chase stood up for blacks, women, and minorities at a time when it was not popular. Chase stood up against discriminatory laws and statutes. Chase stood up for the Constitution at a time when federal government was starting to grow in size and scope and the Court was allowing it. Four years following the death of Chase, the Chase Bank was named in his honor.