By
Jason WillickColumnist|AddFollowFebruary 5, 2024 at 6:45 a.m. ESTChief Justice Salmon P. Chase, in a photograph dated between 1860 and 1875. (Library of Congress, Prints and Photographs Division) Listen7 minShareComment on this storyCommentAdd to your saved storiesSave
When the Supreme Court hears arguments Thursday on Colorado’s removal of Donald Trump from the state’s primary ballot for “insurrection” under the 14th Amendment, all eyes will be on the 17th chief justice of the United States, John G. Roberts Jr. But the case, Trump v. Anderson, also puts the country’s sixth chief justice, Salmon P. Chase, in the judicial spotlight. Whatever happens, Chase’s unlikely moment of prominence contains a historical lesson about the link between law and politics.
Those following the Trump disqualification case closely know that Chase, appointed to the Supreme Court by President Abraham Lincoln in 1864, wrote the main judicial opinion on the 14th Amendment’s disqualification clause. Ratified in 1868, the amendment barred officeholders who “engaged in insurrection” from future office. Chase — as a lone justice “riding circuit” — ruled in an 1869 opinion known as “Griffin’s Case” that it would be infeasible to determine “what particular individuals are embraced” by the disqualification clause without a legal process prescribed by Congress. The next year, Congress passed legislation creating such a process.
Fast forward to 2024. There is a campaign to disqualify Trump from the presidency on the grounds that the Jan. 6, 2021, Capitol riot was an insurrection. Congress has said that those convicted of insurrection are disqualified from office under the 14th Amendment. But the Justice Department hasn’t even charged Trump with that crime. Trump’s opponents argue that states can or must remove him from ballots anyway, as Colorado has done.
Lincoln’s chief justice is standing in the way. For the disqualification campaign to succeed, Trump’s opponents must overcome Chase’s seminal 1869 Griffin opinion. If Chase was a reliable authority on the 14th Amendment, then the activist end run around convicting Trump with insurrection is dubious at best.
Advertisement
It takes some audacity to so confidently dismiss Chase’s reading of what the 14th Amendment required in 1868; after all, he was there. Yet that’s precisely what activists and academics are doing. The law review article by professors William Baude and Michael Stokes Paulsen that turbocharged the disqualification campaign against Trump calls Chase’s view “appalling” and says it should be “hooted down from the pages of history,” a reference to the infamous 1857 Supreme Court opinion in Dred Scott v. Sandford.
The Baude and Paulsen article is cited by the Colorado Supreme Court and throughout the U.S. Supreme Court briefs in Anderson v. Trump. As law professors Josh Blackman and Seth B. Tillman observe, the case for disqualifying the leading Republican candidate rests in part on impugning Chase’s motives — arguing that his seemingly authoritative, contemporaneous judgment was distorted by political ambitions and policy preferences. “Chase harbored presidential ambitions in the late 1860s,” one brief notes. A different law review article cited repeatedly in briefs suggests that Chase interpreted the disqualification clause incorrectly “as a way of convincing skeptical whites to accept the text.”
Follow this authorJason Willick's opinionsFollow
Who was this historical figure now at the center of the Trump ballot dispute? First and foremost, as historian Walter Stahr emphasizes in his 2022 biography, Chase was a giant of the antislavery movement in the pre-Civil War era. He was known as the “attorney general for fugitive slaves” for his antebellum efforts as a lawyer, and he helped lead the tiny Free Soil Party, founded in 1848. As Lincoln’s treasury secretary during the Civil War, Chase represented the “radical” wing of the Cabinet with his support for full and prompt emancipation.
And yet — as Stahr points out — Chase was a pragmatist, not a revolutionary. In contrast to abolitionists such as William Lloyd Garrison, who condemned the Constitution as a proslavery document, Chase read it as an expression of antislavery philosophy. He wanted antislavery politics channeled through existing institutions. This pragmatic approach triumphed in the democratic election of Lincoln and the north’s Civil War victory.
Chase’s postwar opinion in Griffin’s Case might seem at first glance to go against his vehement Unionism. In fact, by declining a revolutionary reading of the 14th Amendment’s disqualification clause, he was displaying the same pragmatic temperament he brought to the antislavery movement. He tried to harmonize 14th Amendment disqualification with the principle of due process the Constitution also embodies.
In 2024, the wisdom of this approach is coming into renewed focus. Allowing state officials to haphazardly disqualify opposing presidential candidates would invite a crisis of federalism and democratic legitimacy. Chase was biased toward readings of the Constitution that would preserve its overall coherence.
Critics of Chase’s jurisprudence rightly note that he was also a politician, having served as both governor and senator from Ohio — and having eyed the presidency not only in 1860 and 1864 but also after Lincoln appointed him to the Supreme Court. Chase’s Griffin decision, however, came after his last best shot at a major-party nomination, in 1868, had passed. And Chase was not afraid to champion Reconstruction while he was politicking: One pathbreaking 1867 opinion by Chase blocked a Maryland effort to smuggle a slavery-like arrangement into “apprenticeship” programs. Reconstruction did not collapse until after Chase’s death in 1873.
Stahr quotes one of Chase’s Supreme Court colleagues as writing in a letter that the chief justice “never allowed his political aspirations to warp his judicial conduct,” but allowed that “it was impossible to suppress the suspicion in some minds.”
Advertisement
Whether that suspicion was true or not, however, is next to irrelevant today. Law is a creation of human beings who operate within political systems. The Federalist Papers were partisan pamphlets written by men — James Madison, John Jay and Alexander Hamilton — with ambitions for high office in the early republic. That doesn’t make their essays any less instructive in debates about the original Constitution’s purpose and meaning. Chase similarly helped promote the ratification of the post-Civil War amendments. His Griffin opinion, whether influenced by politics or not, illustrates an entirely plausible interpretation of the 14th.
Historian C. Ellen Connally wrote in 2015 that Chase “steered the Supreme Court on a prudent and realistic course. He was well aware that the Republican-dominated Congress would take any opportunity to threaten the independence of the Court.” Historians of the current Supreme Court will observe that Roberts was acutely aware of similar concerns, and the chief justice might not take kindly to the partisan assault on his 19th-century predecessor. Newly minted critics of Chase are positing a radical separation between law and the political context in which it arose and developed. They are also indirectly attacking Roberts’s own brand of pragmatic judicial statesmanship.
Those campaigning for Trump’s removal from the ballot are at least as motivated by partisanship as Chase ever was. The country is deeply divided now, as it was in the mid-19th century. Chase — as an antislavery politician and later as chief justice — responded to this division by trying to channel partisan energies through the Constitution, rather than heightening the document’s contradictions. The country’s appetite for that kind of politics, on both sides, seems to be waning. We will see in Trump v. Anderson whether the Supreme Court wants to accelerate its decline.
Share Comments
Popular opinions articles
HAND CURATED
- Opinion|Doctors have fatphobia, too — which does serious harm to patientsJanuary 31, 2024Opinion|Doctors have fatphobia, too — which does serious harm to patientsJanuary 31, 2024
- Opinion|I stopped trying to sleep — and found a different self in the nightFebruary 1, 2024Opinion|I stopped trying to sleep — and found a different self in the nightFebruary 1, 2024
- Opinion|The GOP’s blunders take their tollFebruary 1, 2024Opinion|The GOP’s blunders take their tollFebruary 1, 2024
View 3 more stories
When the Supreme Court hears arguments Thursday on Colorado’s removal of Donald Trump from the state’s primary ballot for “insurrection” under the 14th Amendment, all eyes will be on the 17th chief justice of the United States, John G. Roberts Jr. But the case, Trump v. Anderson, also puts the country’s sixth chief justice, Salmon P. Chase, in the judicial spotlight. Whatever happens, Chase’s unlikely moment of prominence contains a historical lesson about the link between law and politics.
Those following the Trump disqualification case closely know that Chase, appointed to the Supreme Court by President Abraham Lincoln in 1864, wrote the main judicial opinion on the 14th Amendment’s disqualification clause. Ratified in 1868, the amendment barred officeholders who “engaged in insurrection” from future office. Chase — as a lone justice “riding circuit” — ruled in an 1869 opinion known as “Griffin’s Case” that it would be infeasible to determine “what particular individuals are embraced” by the disqualification clause without a legal process prescribed by Congress. The next year, Congress passed legislation creating such a process.
Fast forward to 2024. There is a campaign to disqualify Trump from the presidency on the grounds that the Jan. 6, 2021, Capitol riot was an insurrection. Congress has said that those convicted of insurrection are disqualified from office under the 14th Amendment. But the Justice Department hasn’t even charged Trump with that crime. Trump’s opponents argue that states can or must remove him from ballots anyway, as Colorado has done.
Lincoln’s chief justice is standing in the way. For the disqualification campaign to succeed, Trump’s opponents must overcome Chase’s seminal 1869 Griffin opinion. If Chase was a reliable authority on the 14th Amendment, then the activist end run around convicting Trump with insurrection is dubious at best.
It takes some audacity to so confidently dismiss Chase’s reading of what the 14th Amendment required in 1868; after all, he was there. Yet that’s precisely what activists and academics are doing. The law review article by professors William Baude and Michael Stokes Paulsen that turbocharged the disqualification campaign against Trump calls Chase’s view “appalling” and says it should be “hooted down from the pages of history,” a reference to the infamous 1857 Supreme Court opinion in Dred Scott v. Sandford.
The Baude and Paulsen article is cited by the Colorado Supreme Court and throughout the U.S. Supreme Court briefs in Anderson v. Trump. As law professors Josh Blackman and Seth B. Tillman observe, the case for disqualifying the leading Republican candidate rests in part on impugning Chase’s motives — arguing that his seemingly authoritative, contemporaneous judgment was distorted by political ambitions and policy preferences. “Chase harbored presidential ambitions in the late 1860s,” one brief notes. A different law review article cited repeatedly in briefs suggests that Chase interpreted the disqualification clause incorrectly “as a way of convincing skeptical whites to accept the text.”
Who was this historical figure now at the center of the Trump ballot dispute? First and foremost, as historian Walter Stahr emphasizes in his 2022 biography, Chase was a giant of the antislavery movement in the pre-Civil War era. He was known as the “attorney general for fugitive slaves” for his antebellum efforts as a lawyer, and he helped lead the tiny Free Soil Party, founded in 1848. As Lincoln’s treasury secretary during the Civil War, Chase represented the “radical” wing of the Cabinet with his support for full and prompt emancipation.
And yet — as Stahr points out — Chase was a pragmatist, not a revolutionary. In contrast to abolitionists such as William Lloyd Garrison, who condemned the Constitution as a proslavery document, Chase read it as an expression of antislavery philosophy. He wanted antislavery politics channeled through existing institutions. This pragmatic approach triumphed in the democratic election of Lincoln and the north’s Civil War victory.
Chase’s postwar opinion in Griffin’s Case might seem at first glance to go against his vehement Unionism. In fact, by declining a revolutionary reading of the 14th Amendment’s disqualification clause, he was displaying the same pragmatic temperament he brought to the antislavery movement. He tried to harmonize 14th Amendment disqualification with the principle of due process the Constitution also embodies.
In 2024, the wisdom of this approach is coming into renewed focus. Allowing state officials to haphazardly disqualify opposing presidential candidates would invite a crisis of federalism and democratic legitimacy. Chase was biased toward readings of the Constitution that would preserve its overall coherence.
Critics of Chase’s jurisprudence rightly note that he was also a politician, having served as both governor and senator from Ohio — and having eyed the presidency not only in 1860 and 1864 but also after Lincoln appointed him to the Supreme Court. Chase’s Griffin decision, however, came after his last best shot at a major-party nomination, in 1868, had passed. And Chase was not afraid to champion Reconstruction while he was politicking: One pathbreaking 1867 opinion by Chase blocked a Maryland effort to smuggle a slavery-like arrangement into “apprenticeship” programs. Reconstruction did not collapse until after Chase’s death in 1873.
Stahr quotes one of Chase’s Supreme Court colleagues as writing in a letter that the chief justice “never allowed his political aspirations to warp his judicial conduct,” but allowed that “it was impossible to suppress the suspicion in some minds.”
Whether that suspicion was true or not, however, is next to irrelevant today. Law is a creation of human beings who operate within political systems. The Federalist Papers were partisan pamphlets written by men — James Madison, John Jay and Alexander Hamilton — with ambitions for high office in the early republic. That doesn’t make their essays any less instructive in debates about the original Constitution’s purpose and meaning. Chase similarly helped promote the ratification of the post-Civil War amendments. His Griffin opinion, whether influenced by politics or not, illustrates an entirely plausible interpretation of the 14th.
Historian C. Ellen Connally wrote in 2015 that Chase “steered the Supreme Court on a prudent and realistic course. He was well aware that the Republican-dominated Congress would take any opportunity to threaten the independence of the Court.” Historians of the current Supreme Court will observe that Roberts was acutely aware of similar concerns, and the chief justice might not take kindly to the partisan assault on his 19th-century predecessor. Newly minted critics of Chase are positing a radical separation between law and the political context in which it arose and developed. They are also indirectly attacking Roberts’s own brand of pragmatic judicial statesmanship.
Those campaigning for Trump’s removal from the ballot are at least as motivated by partisanship as Chase ever was. The country is deeply divided now, as it was in the mid-19th century. Chase — as an antislavery politician and later as chief justice — responded to this division by trying to channel partisan energies through the Constitution, rather than heightening the document’s contradictions. The country’s appetite for that kind of politics, on both sides, seems to be waning. We will see in Trump v. Anderson whether the Supreme Court wants to accelerate its decline.
login
who are we?
contact us
qosheapp
Toi Staff
Gideon Levy
Belen Fernandez
Mort Laitner
Rami G Khouri
Ali Fathollah-Nejad
Nikkei Editorial
visit website
