Chapter Six: Secession, Civil War, and Reconstruction

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GGW 8/10/09 1 Chapter Six: Secession, Civil War, and Reconstruction The Civil War was the greatest constitutional crisis in the history of the United States. The crisis was constitutional in the obvious sense that the survival of the constitutional order of 1789 was at stake. The crisis was also constitutional in the sense that each section of the country advanced very different interpretations of the Constitution.

Some of those differences were discussed in the previous section on Jacksonian constitutional politics. Northern Republicans insisted that the Constitution was committed to the eventual abolition of slavery and that the federal government had the power to pass any antislavery policy that did not abolish slavery in existing states. Southern disunionists insisted that the Constitution provided special protections for slavery and that the federal government lacked constitutional power to pass any law whose purpose was to place slavery on the road to ultimate extinction.

The debate over secession presented in this chapter highlights a second major difference between northern and southern constitutional understandings. Abraham Lincoln and his political allies insisted that secession was unconstitutional because cwe, the people d formed the United States in 1776 and no state was constitutionally authorized to destroy the resulting nation. ... more. less.

Jefferson Davis and his political allies insisted that the Constitution was an agreement between the people of the states, all of which retained the sovereign power to determine whether that agreement had been violated and whether continued union was still in their interest. Lincoln 9s decision to resupply Fort Sumter in the Charleston harbor and the subsequent beginning of the Civil War ended one set of constitutional debates over secession and slavery while beginning a new one over war powers and individual liberties. Many of the Republicans, including Lincoln, had previously been members of the Whig Party, and they had absorbed many of the constitutional philosophies and policy views of Daniel Webster and Henry Clay. Although Lincoln had condemned Jacksonian constitutionalism as a Whig in the antebellum period, he was a proponent of strong presidential power when in office. By the time the Civil War had ended, martial law had been declared in many northern districts, habeas corpus had frequently been suspended, southern ports had been blockaded, southern property had been confiscated, the government had printed paper money, a draft had been instituted, and most slaves had been declared free. All of these matters were hotly contested. In some instances, as was the case with legal tender and the draft, the debate resembled previous debates over national power between Whigs and Democrats, with Republicans championing the broader Whiggish notion of national powers and Democrats insisting on a more limited national government. Other matters, most notably habeas corpus and martial law, internally divided the dominant Republican coalition. Most supported Lincoln 9s belief that the Constitution provided the president with whatever power the president thought necessary to wage war successfully. Others, following earlier Whig logic, insisted that the legislature should play a primary role in setting war-time policy. The Supreme Court for the most part stayed on the sidelines, intervening only to sanction the blockade. The constitutional politics of Civil War became, in 1865, the constitutional politics of Reconstruction. Many Northern Democrats and President Andrew Johnson wished to quickly put the war behind them, insisting only that slavery be abolished and that a few Confederate leaders be punished. More radical Republicans insisted that Congress had far greater power to remake the former Confederate states as Congress saw fit. The result was intense struggles over the constitutional meaning of the Civil War, the over meaning of the post-Civil War constitutional amendments, and over who should decide those contested issues. [Insert Table 6-1 about here] GGW 8/10/09 2 During the first years of Reconstruction, congressional understandings of the constitutional order prevailed. Congress proposed and states quickly ratified the 13th and 14th Amendments. The former abolished slavery; the latter asserted that states could not deny persons of color (and others) certain fundamental rights. Each amendment declared, cCongress shall have power to enforce, by appropriate legislation, the provisions of this article. d Congressional majorities construed those powers broadly when passing such measures as the Civil Rights Act of 1866, which protected the right of all citizens regardless of race to make and enforce contracts, to make use of the legal process, and be subjected to an equal system of criminal punishments, and the Civil Rights Act of 1875, which guaranteed equal access regardless of race to all inns, theaters, and public transportation. When other branches threatened to get in the way of Reconstruction, Congress took action to clear out those obstructions. When doubts were raised about the constitutionality of martial law in the South, Congress voted to strip the Supreme Court 9s jurisdiction to hear a case involving the issue. When President Andrew Johnson repeatedly vetoed Reconstruction measures and hampered enforcement efforts, the House of Representatives impeached him in 1868. Even so, the effort to remake the South did not last. The Republicans suffered severe political losses in the 1867 and 1874 elections, reversing the gains they had made in 1866. The more radical Republicans lacked the votes to convict President Johnson and had greater difficulty passing and implementing their program. As time want on, more and more Republicans began asserting that their party would be better off returning to its roots in the Whig Party, emphasizing economic policy rather than the rights of the former slaves. After barely hanging on to power in the disputed elections of 1876, the Republicans brought an end to Reconstruction. Although significant voices were still heard for federal efforts on behalf of blacks after 1876, federal power would not be exercised on their behalf again for almost a century. [Insert Box 6-1 about here] The combination of Republican success at the polls in the North and the secession of the South gave the Republicans command over the national government during the period of the Civil War and Reconstruction. Republican dominance was no sure thing in 1860. Abraham Lincoln won the presidency that year with just under 40 percent of the popular vote, though with 60 percent of the electoral vote (all of it from the North). The Republicans retained control of the House and, thanks to secession, gained a majority in the Senate, leaving only the Supreme Court with a Democratic majority. Although the Republicans maintained control of the federal government throughout this period, they could not take their political success for granted. Even with the South sitting out of national politics, the Democrats were a significant electoral threat, especially when events in the South seemed to be going badly. Lincoln tried to build a broader political base, bringing many cWar Democrats d into his administration. In 1864, Lincoln ran under the cUnion Party d banner, including former Tennessee Democrat Andrew Johnson as the vice presidential nominee. When the war took a positive turn, Lincoln was able to win a popular majority for reelection. With the help of a few resignations, deaths, and the creation of two new northern seats, the Republicans were able to gain control of the Supreme Court. Republicans in Congress were internally divided between cRadicals d and moderates, with the Radicals often willing to push more aggressively to expand national and congressional power to fight slavery and reconstruct the South. These divisions created opportunities for Democrats, including President Andrew Johnson, to slow the pace of reform or win compromises. But the Republicans also looked for opportunities to improve their political position. Republican-leaning territories in the West were granted statehood, solidifying Republican majorities in the Senate and adding votes to the Electoral College. Once secession failed, everyone understood that the South, and its Democratic voters, would eventually reenter national politics. Northern Republicans looked to delay that moment as long as possible, while building Republican support in the Southern states. The disputed presidential election of 1876 brought an end to GGW 8/10/09 3 Reconstruction and brought Democrats fully back into national politics. After 1876, the fate of the South, and Southern blacks, would largely be in the hands of local government officials. National politics would turn to other issues. As you read the materials below, you might think of the following questions. First, to what extent, if any, are the debates between Republicans and Democrats similar to the debates between Whigs and Jacksonians? In particular, did the Republican Party become more attracted to federal power when a former Whig, Abraham Lincoln, was president. Were the Democrats consistent in their criticism of the Lincoln presidency given their own history of arguments about presidential power since the time of Andrew Jackson? Second, to what extent did the debates during the Civil War reflect sincere constitutional beliefs or attitudes towards the sectional conflicts? Did Democrats oppose the draft, for example, because of traditional Jacksonian hostility to national power or because they had less of a commitment to defeating southern secession? Third, to what extent did the structure of government practically doom radical Reconstruction? Was it the case that for radical Reconstruction to succeed, Republicans needed to control all branches of the national government, while such an effort was likely to fail if opponents could exercise control over only one governing institution? The best measure of the dramatic changes that took place in American politics between the onset of the Civil War and the end of Reconstruction may be the differences in the constitutional amendments proposed in 1861 to forestall secession and the constitutional amendments actually ratified after the Confederacy surrendered. In a bid to bring an end to the crisis, a number of constitutional amendments were proposed after the Deep South states voted to leave the Union. The proposals would have made several important changes to American constitutionalism. First, those amendments would have provided new securities for slavery and the political interests of the slave states beyond what was in the original Constitution. Second, unlike the original Constitution, those amendments explicitly mentioned cslavery d or cinvoluntary servitude, d thus making plain constitutional complicity with human bondage. Third, the constitutional amendments would have been especially entrenched. They could have been changed in the future only with the consent of all states. These proposed constitutional amendments came from several sources. First, Unionist John Crittenden offered them in the Senate, only to see them blocked by the Republicans. Then a cPeace Conference d presided over by former President John Tyler and composed of over a hundred senior politicians from the upper South and free states met in February 1861 and generated a set of proposed constitutional amendments to resolve the crisis. The amendments proposed by the Peace Conference failed to pass the Senate and did not even receive a vote in the House. But both the Senate and House of Representatives did approve the following proposed Thirteenth Amendment to the Constitution during the week before President Lincoln 9s inauguration. No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State. Lincoln endorsed that amendment in his inaugural address, since it was seen as merely reemphasizing the status quo. The Maryland and Ohio legislatures voted to ratify the amendment, but consideration elsewhere stalled and the so-called cCorwin amendment d (named after its primary congressional sponsor, Ohio Republican Thomas Corwin) was eventually abandoned during the Civil War. 1 1 See generally, Daniel W. Crofts, Reluctant Confederates (Chapel Hill: University of North Carolina Press, 1993). GGW 8/10/09 4 I. P OWERS OF THE N ATIONAL G OVERNMENT The national government exercised unprecedented powers during the Civil War and Reconstruction, testing the limits of congressional power to make laws that were cnecessary and proper d to fulfilling national responsibilities. The federal government from 1861 to 1865 passed laws making paper money legal tender for existing debts, confiscating confederate property, and conscripting northerners for the Union army. All three measures were vigorously opposed on constitutional and policy grounds. Indeed, opposition to conscription was responsible for what may be the most destructive riots in American history, the New York draft riots of 1863. 1 Republicans were also aggressive in asserting national authority after the Civil War. They interpreted federal power under the 13th and 14th Amendments quite broadly in efforts to create a more egalitarian and Republican South. When reading the materials below consider the extent to which constitutional arguments about national power reflect preexisting constitutional beliefs, new ideas connected to a more fundamental goal of winning the Civil War, or partisan maneuvering to gain an upper hand in electoral and institutional politics. To what extent do the debates between Republicans and Democrats over national power from 1860 to 1876 resemble previous debates between Whigs and Democrats? How did the Civil War influence attitudes towards national power? Was the use of national power during Reconstruction a good faith effort to implement new constitutional values or a partisan effort to increase Republican Party strength in the South, or both? A. N ECESSARY AND P ROPER C LAUSE M ILITARY D RAFT As the Civil War dragged on, it became clear that neither the Union nor the Confederate armies could be adequate as all-volunteer forces. The Confederate Congress moved first, adopting a draft in 1862. The measure was met with complaints that it violated states 9 rights. 2 A year later, the U.S. Congress adopted a military draft of its own. Ever since the Militia Act of 1795, the president had worked through the state governments to call forth troops to fight for the nation. The Conscription Act of 1863 empowered the president to draft able-bodied men twenty to forty-five years of age directly into the U.S. army. Critics of the draft in Congress, who also tended to be critics of the war generally, argued that the draft was unconstitutional and that the federal government could only craise and support d a national army by calling out the state militias 3 not by drafting its own independent army. Supporters argued that the constitutional provision raising and supporting an army was independent of the provision for calling forth the state militias. The draft bill passed into law by a large majority. The issue was never directly heard by the U.S. Supreme Court during this period, but was heard by several state courts. Only a narrowly divided Pennsylvania Supreme Court ruled against constitutionality of the draft, but it quickly reversed itself when a Democratic member of the majority was defeated for reelection and replaced by a Republican. Chief Justice Roger Taney prepared a draft opinion declaring the draft to be unconstitutional, but he was never presented with a case to decide involving the issue. In the twentieth century, the military draft was criticized as a violation of individual rights, but during the Civil War the constitutional argument revolved around federal power. The Civil War draft was the first time that the federal government directly imposed compulsory military service in the army of the United States, though the issue had been briefly debated during the 1 See Iver Bernstein, The New York City Draft Riots (New York: Oxford University Press, 1990). 2 These attacks will be discussed in the federalism section. GGW 8/10/09 5 War of 1812. This would have been controversial enough (even though the Confederacy had taken the same step a year earlier), but the law also contained a controversial provision that allowed the wealthy to escape service either by providing a substitute or by paying $300 to the government. In the months to come, demonstrations against this unprecedented draft broke out in a number of Northern cities. Most dramatically, after the names of draftees were published in the heavily-Democratic New York City immediately after the news broke of the carnage on the Gettysburg battlefield, Irish immigrants launched a violent riot that initially focused on draft offices but eventually targeted the local black community. It took several days before federal troops restored order in the city. The estimated death toll from the New York City Draft Riots ranges from 100 to 1000. Congressional Debate on the Conscription Bill (1863) 1 M R . J AMES BAYARD [Democrat, Delaware] &. Sir, our Government is one of specially delegated powers, and those powers are necessarily delegated in general terms, and the only power under which this bill can be sustained is the power cto raise and support armies. d The declaration that it has no relation to the militia is true in so far that it is not intended to call forth the militia, nor is its object to provide for arming, organizing, or disciplining them; but it has, in fact, the relation I have stated to the militia. It obliterates them and destroys that check which the Constitution meant to place upon centralized power in the Executive of the Union. It utterly abandons and subverts the militia system of the United States as an active power for any purpose of the Government, and substitutes in place of that system standing armies in which the whole male population of the United States can be enrolled in invidum in the service of the United States as soldiers at the mere will of the Executive. Such is the bill, and the question is whether it is within the constitutional powers of Congress. . . . . . . . I have at least this authority, that from the foundation of the Government to this day no attempt has ever been made in this country to pass a bill of this character by any Congress of the United States; no such bill has been introduced; no such doctrine as is involved in this bill has been contended for 4that under the power to raise armies you can raise them in any other mode than by enlistment or recruiting or by the acceptance of volunteers. Heretofore it has been always held that the reserved force of the nation is the militia of the several States, which can be called into its service by the President of the United States under the provisions that Congress may adopt for that purpose; but when you call that militia into service, you call then in, not as individuals, but as organized bodies of men, to be commanded, under the express provision of the Constitution, by officers appointed by the States, and to be disciplined under the discipline that Congress prescribes, by the State authorities alone. The difference is very wide between a force of that kind in a Confederacy consisting of one General and many State governments, and the assumption of the right to control the entire able-bodied men of the country and force them into the regular standing army of the United States. Sir, the power granted is to raise and support armies; and I admit if you choose to disregard the character and genius of the Government, and the objects for which it was framed, to disregard other provisions of the same Constitution, and the whole scope and object and intent of that Constitution, you may decide that the words convey power to raise an army in any mode Congress may prescribe. I cannot adopt such a construction. I read the words with the meaning in which they must be understood, having 1 Congressional Globe , 37 th Cong., 3 rd Sess. (March 2, 1863), 1363-1390. GGW 8/10/09 6 relation to the form of Government and the other provisions of the Constitution, in order to give a rational construction to the power intended to be conveyed. & What, then, is the construction which should be given to the power cto raise and support armies d in a free confederate Government as distinguished from a centralized despotism? & [A] free Government must always be founded on the decentralization and subdivision of power&. [A] fair construction is that the power cto raise and support armies d is to raise and support them in the modes only which were known and practiced in the country from which we have derived our institutions. That is by voluntary enlistment, recruiting, or volunteering, but not by conscription. Sir, we have had wars ourselves. In the war of 1812 we were miserably deficient in soldiers; our capital was invaded, our public buildings were burned by a small British army; we were unable to keep our regular Army up to anything like a proper standard; but did Congress ever think or dream of a conscription for the purpose of increasing the regular Army? Did they suppose it was in their power to force men into the service of the nation, not as militia, not under the controlling influence and check which arises from the provision of the Constitution in reference to the organization of the militia, but into the regular Army, to be under the entire control of the military power, at the will of the President? & &[I]t is provided that Congress shall have the power cto provide and maintain a navy; to make rules for the government and regulation of the land and naval forces d 4you must take [all the provisions] together 4 cto 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, reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress. d Such are the provisions in the first article. In the second article, second section of the Constitution, it is provided that cthe President shall be Commander-in-Chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States . d Taking all these clauses together, what is the unavoidable conclusion? If the power of Congress exists to call the entire able-bodied population of the United States into the standing regular Army of the United States by conscription, what is there left, and where was the necessity for these provisions as to the organization of the militia? & Was not the object, and can any other be assigned, to check that tendency to abuse which is inherent in centralized power, and to avert the inevitable danger arising from the entire military force of the United States being vested in a central Government of which the President was the head, and to command which he might select his own officers and agents? & Sir, I have heard it said in this Chamber, and repeated constantly in the public press, that the life of the nation is staked on success in putting down this rebellion. Mr. President, I differ from the honorable Senators as to what constitutes the life of the nation. In my judgment, the life of a free people consists in the preservation of their liberties, not in the extent of their dominion. If I must make the choice between the destruction of our form of government and the establishment of an imperial despotism in this country, a single Government over the whole country, including, if you please Canada and Mexico, or the severance of this Union into two, three, or four different republican Governments, I should not hesitate to accept the latter as preferable for the happiness of the people and their future prosperity. & M R . J AMES A LEXANDER MCDOUGALL [Democrat, California] &. I am not about to engage in the elaborate argument which the Senator from Delaware has thought proper to present. I am rather about to state some few things that I think belong to the question GGW 8/10/09 7 pending, and I think I can correct & some of the notions which I hold to be erroneous that have been expressed by the Senator. I had thought that this whole controversy was well settled & in 1832, on Mr. Calhoun 9s resolutions. I treated that discussion as a conclusion. I say that organizing or disorganizing government & involves power. & If there was not a power to govern, there would be no government. & [The framers] did intend to establish a Government, both foundation and superstructure, and that involves necessarily the power to command all the forces that are necessary for its own maintenance; and that is all there is in this measure&. & L EGAL T ENDER The Civil War proved both longer and more expensive than anyone anticipated. As early as 1861, President Lincoln was forced to call up additional troops and Treasury Secretary Salmon Chase was struggling to find new ways to pay for the war. By the end of the year, the government faced a financial crisis. Major northern banks that already committed $150 million in gold were having trouble making final payments and were in danger of collapsing. Elbridge Spaulding, of the House Ways and Means Committee which handles tax and finance legislation, was tired of having to work through Wall Street to finance the war. He proposed cfor temporary purposes d to authorize the Lincoln administration to issue up to $50 million in Treasury notes con the faith of the United States, d and that csuch Treasury notes shall also be a legal tender in payment of all debts, public or private, within the United States. d 1 The notes did not collect interest, and they could not be turned in for gold or silver. No one doubted that the government could issue notes that were good payment of debts to the government itself, including taxes. What was controversial was whether the government could constitutionally require that others 3 laborers, shopkeepers, bankers, state governments 3 also accept the notes instead of other forms of payment. Before presenting the bill to the House of Representatives, Spaulding and other members of the Ways and Means committee asked Attorney General Edward Bates for his opinion on the constitutional issues. Bates refused to offer an official opinion. He did write that as a private citizen he thought the measure constitutional: cCertainly the Constitution contains no direct verbal prohibition, and I think it contains no inferential or argumentative prohibition that can be fairly drawn from its expressed terms. d 2 Secretary of Treasury Salmon Chase was initially less forthcoming. He informed the Ways and Means Committee that he cregrett[ed] exceedingly that it is found necessary to resort to the measure of making fundable notes of the United States a legal tender, but heartily desir[ed] to co-operate with the Committee in all measures to meet existing necessities. d 3 The Democrats were united in their opposition to the legal tender bill in both the House and the Senate, and the Republicans suffered enough defections to make the vote fairly close in the Senate, but the measure passed and Lincoln signed the first legal tender bill into law in February 1862. Ultimately, the government issued far more cgreenbacks d than the originally anticipated, nearly half a billion dollars by the war 9s end, with significant inflationary consequences. In the final stages of the war, the government was printing money to pay for nearly a fifth of its expenses. But these were still understood to be temporary measures. After the war, Secretary of Treasury Hugh McCulloch, who thought the Legal Tender Act had been unconstitutional in the first place, began the process of putting the government back on a chard money d or gold-based standard by taking the greenbacks out of circulation in 1865. The result was a long, hard-fought battle between conservatives and agrarians over whether and how fast to shrink the money supply and return to a hard currency. That battle divided both the 1 Elbridge G. Spaulding, History of the Legal Tender Paper Money (Buffalo: Express Printing Company, 1869), 14. 2 Ibid., 15. 3 Ibid., 27. GGW 8/10/09 8 Republican and Democratic parties and fed such splinter parties as the Greenbacks and the Populists, and helped define American politics over the latter half of the nineteenth century. [INSERT FIGURE 6-1 ABOUT HERE] Congressional Debate on the Legal Tender Bill 1 Mr. E LBRIDGE SPAULDING [Republican, New York] . . . . The bill before us is a war measure, a measure of necessity , and not of choice, presented by the Committee of Ways and Means to meet the most pressing demands upon the Treasury to sustain the army and navy, until they can make a vigorous advance upon the traitors, and crush out the rebellion. These are extraordinary times, and extraordinary measures must be resorted to in order to save our Government, and preserve our nationality. . . . . If you cannot borrow the money on the credit of the United States, except at ruinous rates of discount, and cannot make the new banking system available in time, and cannot realize the amount required from your tariff and tax bills, in what mode can the means be obtained, and the Government be carried on? It is believed that the only way in which it can be done is by issuing Treasury notes payable on demand, and making them a legal tender in payment of all debts, public and private, and by adequate taxation, to be imposed by new bills. This will bring into full exercise all the higher powers of Government under the Constitution. The Constitution confers on Congress the power (art. 1, sec. 8:) . . . . If a certain means to the exercise of any of the powers expressly given by the Constitution to the Government of the Union be an appropriate measure, not prohibited by the Constitution, the degree of its necessity is a question of legislative discretion ; not of judicial cognizance. . . . . It is plainly within the scope of the Constitution that the Government should maintain itself; that the army should be supported; that the navy should be maintained. The ways and means of doing this are left to Congress to provide. Congress may do this entirely by taxation. It may provide by law to levy and collect taxes enough every year to pay the whole expenses of the war during each current year, and so cpay as we go. d It may issue six percent bonds and sell them on the market for what they will bring . . . to raise money to carry on the war. It may issue Treasury notes payable on demand, and make them a legal tender in payment of debts. Either one or all of these modes of paying the expenses of the Government is left to the discretion of Congress. Either mode is constitutional; and it is left to the sound discretion of Congress to decide which mode it will adopt, or whether it will adopt a part of each, as being the best in the present crisis. Mr. G EORGE PENDLETON [Democrat, Ohio] . . . . . . . . I believe this Government has reached a crisis in its history. I believe that it is approaching a period in the history of its legislation which may determine the question of its continuance. By wisdom it may overcome the evils of secession; by its great powers and resources it may be able to defend itself 1 Congressional Globe , 37 th Cong., 2 nd Sess., pp. 523-26, 549-51 GGW 8/10/09 9 against those in arms against it; but I firmly believe that it cannot maintain itself against the shock of the accumulated and manifold dangers which follow inevitably, closely in the wake of an illegal, unsound, and depreciated Government paper currency. . . . . Every contract for the payment of money is in legal contemplation a contract for the payment of gold and silver coin. . . . The provisions of this bill contemplate impairing the obligation of every contract of that kind. . . . I am sure I need only state the proposition to shock the mind of the legal profession of the country, so thoroughly has it been imbued with the idea of the sanctity of the obligation of contracts by those who have thought it the beneficent maxims of constitutional law. . . . . The gentleman spoke quite at large in reference to the sovereign power of the Government. He told us that this power was not prohibited in the Constitution. He told us that in times of great emergency everything may be done except that which is prohibited. . . . Sir, I repudiate this whole idea. I think it has no solid foundation in the Constitution. In all its external relations, standing among the nations of the earth, the Government of the United States is sovereign, and is invested with all the attributes of sovereignty; but in its relations to its own citizens, in its relations to the States, in its relations to its own constituents, it has no power except that which is granted. . . . . . . . Hepburn v. Griswold, 75 U.S. 603 (1870) The Legal Tender Act required that creditors for all debts, public and private, accept the notes of the United States in payment of those debts instead of the gold or silver coins that had typically been assumed in or required by such contracts. That measure gave an immediate boost to government finances in the early stages of the war 3 allowing it not least to pay the Union soldiers with a paper currency that they were guaranteed to be able to spend 3 but the rapid issuance of the unsecured notes quickly deflated their value. Creditors 3 whether they were owed money for cash lent out, services rendered, or goods purchased 3 had been expecting to receive a dollar in gold coin. The law now stated that they were going to get back something far less valuable than that. Despite these problems, state courts during the Civil War ruled that the Legal Tender Acts were constitutional. The Supreme Court ducked appeals from those decisions, making dubious arguments that those cases did not meet the jurisdictional requirements of the Supreme Court. 1 Once the immediate crisis of the war was over, the courthouse doors swung open. In 1860, Mrs. Hepburn had made a promissory note to Henry Griswold to pay over eleven thousand cdollars d in 1862, which was understood at the time to be in gold and silver coin. Days after the note came due, Congress passed the Legal Tender Act. Even so, Hepburn was delinquent in paying the note and interest on the debt accumulated until Griswold filed suit to collect the debt in 1864 in Louisville, Kentucky. At that point, Hepburn tendered the U.S. notes in payment of the debt, but Griswold refused to receive them. The Louisville court accepted the notes as satisfying the debt and closed the case, which was appealed to the Kentucky Court of Errors. Two months after Lee 9s surrender, the Kentucky Court the Legal Tender Act could not be constitutionally enforced against a contract made before that measure became law and that Griswold was not obliged to accept the greenbacks in payment for the debt. Hepburn appealed to the U.S. Supreme Court, where Salmon Chase now sat as chief justice. A 5-3 majority agreed with the Kentucky Court and declared that measure unconstitutional. The pending resignation of one of the justices in the majority, Robert Grier, was already public, however, and because of senility he may not 1 Roosevelt v. Meyer, 68 U.S. 512 (1863). GGW 8/10/09 10 have understood the significance of his vote. Chase was the only Republican in the majority in the Hepburn decision. He was joined by all four of the Democrats on the Court, including the only cWar Democrat d that Lincoln appointed to the Court, Stephen Field. Lincoln 9s other three appointees were all in dissent. The Hepburn case also marked the return of McCulloch to the U.S. Supreme Court. The Taney Court had studiously ignored John Marshall 9s opinion in the Bank Case, and many thought it and Marshall 9s broad interpretation of the necessary and proper clause was a dead letter. But with Republicans now occupying the bench, McCulloch made a come back. Both Chief Justice Chase and Justice Miller relied on it to build their argument, but they drew very different lessons from Marshall 9s language about what the scope of congressional power and role for the courts in checking that power might be. Do they both capture aspects of John Marshall 9s legacy? MR. CHIEF JUSTICE CHASE delivered the opinion of the Court. . . . . We must inquire then whether [requiring that government notes be accepted as legal tender in payment of debts] can be done in the exercise of an implied power. The rule for determining whether a legislative enactment can be supported as an exercise of an implied power was stated by Chief Justice Marshall, speaking for the whole court, in the case of McCullough v. The State of Maryland ; and the statement then made has ever since been accepted as a correct exposition of the Constitution. His words were these: "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 consistent with the letter and spirit of the Constitution, are constitutional." . . . . . . . It is said that this is not a question for the court deciding a cause, but for Congress exercising the power. But the decisive answer to this is that the admission of a legislative power to determine finally what powers have the described relation as means to the execution of other powers plainly granted, and, then, to exercise absolutely and without liability to question, in cases involving private rights, the powers thus determined to have that relation, would completely change the nature of American government. . . . Undoubtedly among means appropriate, plainly adapted, really calculated, the legislature has unrestricted choice. But there can be no implied power to use means not within the description. . . . . We are unable to persuade ourselves that an expedient of this sort is an appropriate and plainly adapted means for the execution of the power to declare and carry on war. . . . But there is another view, which seems to us decisive, to whatever express power the supposed implied power in question may be referred. In the rule stated by Chief Justice Marshall, the words appropriate, plainly adapted, really calculated, are qualified by the limitation that the means must be not prohibited, but consistent with the letter and spirit of the Constitution. Nothing so prohibited or inconsistent can be regarded as appropriate, or plainly adapted, or really calculated means to any end. Let us inquire, then, first whether making bills of credit a legal tender, to the extent indicated, is consistent with the spirit of the Constitution. Among the great cardinal principles of that instrument, no one is more conspicuous or more venerable than the establishment of justice. And what was intended by the establishment of justice in the minds of the people who ordained it is, happily, not a matter of disputation. . . . . . . . But we think it clear that those who framed and those who adopted the Constitution, intended that the spirit of this prohibition should pervade the entire body of legislation, and that the justice which the GGW 8/10/09 11 Constitution was ordained to establish was not thought by them to be compatible with legislation of an opposite tendency. In other words, we cannot doubt that a law not made in pursuance of an express power, which necessarily and in its direct operation impairs the obligation of contracts, is inconsistent with the spirit of the Constitution. . . . . But there is another provision in the same amendment, which, in our judgment, cannot have its full and intended effect unless construed as a direct prohibition of the legislation which we have been considering. It is that which declares that "no person shall be deprived of life, liberty, or property, without due process of law." . . . . We confess ourselves unable to perceive any solid distinction between such an act and an act compelling all citizens to accept, in satisfaction of all contracts for money, half or three-quarters or any other proportion less than the whole of the value actually due, according to their terms. It is difficult to conceive what act would take private property without process of law if such an act would not. We are obliged to conclude that an act making mere promises to pay dollars a legal tender in payment of debts previously contracted, is not a means appropriate, plainly adapted, really calculated to carry into effect any express power vested in Congress; that such an act is inconsistent with the spirit of the Constitution; and that it is prohibited by the Constitution. It is not surprising that amid the tumult of the late civil war, and under the influence of apprehensions for the safety of the Republic almost universal, different views, never before entertained by American statesmen or jurists, were adopted by many. The time was not favorable to considerate reflection upon the constitutional limits of legislative or executive authority. If power was assumed from patriotic motives, the assumption found ready justification in patriotic hearts. Many who doubted yielded their doubts; many who did not doubt were silent. Some who were strongly averse to making government notes a legal tender felt themselves constrained to acquiesce in the views of the advocates of the measure. Not a few who then insisted upon its necessity, or acquiesced in that view, have, since the return of peace, and under the influence of the calmer time, reconsidered their conclusions, and now concur in those which we have just announced. These conclusions seem to us to be fully sanctioned by the letter and spirit of the Constitution. We are obliged, therefore, to hold that the defendant in error was not bound to receive from the plaintiffs the currency tendered to him in payment of their note, made before the passage of the act of February 25th, 1862. MR. JUSTICE MILLER (with SWAYNE and DAVIS), dissenting. . . . . We were in the midst of a war which called all these powers into exercised and taxed them severely. . . . . . . . Congress was called on to devise some new means of borrowing money on the credit of the nation; for the result of the war was conceded by all thoughtful men to depend on the capacity of the government to raise money in amounts previously unknown. The banks had already loaned their means to the treasury. . . . The coin in the country, if it could all have been placed within the control of the Secretary of the Treasury, would not have made a circulation sufficient to answer army purchases and army payments, to say nothing of the ordinary business of the country. A general collapse of credit, of payment, and of business seemed inevitable, in which faith in the ability of the government would have been destroyed, the rebellion would have triumphed, the States would have been left divided, and the people impoverished. The National government would have perished, and, with it, the Constitution which we are now called upon to construe with such nice and critical accuracy. GGW 8/10/09 12 That the legal tender act prevented these disastrous results, and that the tender clause was necessary to prevent them, I entertain no doubt. . . . . Certainly it seems to the best judgment that I can bring upon the subject that this law was a necessity in the most stringent sense in which that word can be used. But if we adopt the construction of Chief Justice Marshall [in McCulloch ] . . . how can we avoid this conclusion? . . . Can it be said that this was not among the choice of means, if not the only means, which were left to Congress to carry on this war for national existence? . . . . But it is said that the law is in conflict with the spirit, if not the letter, of several provisions of the Constitution. . . . . . . . This whole argument of the injustice of the law, an injustice which if it ever existed will be repeated by now holding it wholly void; and of its opposition to the spirit of the Constitution, is too abstract and intangible for application to courts of justice, and is, above all, dangerous as a ground on which to declare the legislation of Congress void by the decision of a court. It would authorize this court to enforce theoretical views of the genius of the government, or vague notions of the spirit of the Constitution and of abstract justice, by declaring void laws which did not square with those views. It substitutes our ideas of policy for judicial construction, an undefined code of ethics for the Constitution, and a court of justice for the National legislature. . . . . . . . . Where there is a choice of means the selection is with Congress, not the court. If the act to be considered is in any sense essential to the execution of an acknowledged power, the degree of that necessity is for the legislature and not for the court to determine. . . . If I had entertained doubts of the constitutionality of the law, I must have held the law valid until those doubts became convictions. But as I have a very decided opinion that Congress acted within the scope of its authority, I must hold the law to be constitutional, and dissent from the opinion of the court. Legal Tender Cases, 79 U.S. 457 (1871) The Court 9s decision in Hepburn was a judicial move to defend hard money and the rights of contract. While many in the business constituency of the post-bellum Republican Party believed in the sanctity of contract, their Whig heritage also left them sympathetic to the banks and fiat money. By contrast, the Democrats had often been skeptical of banks and financial speculation. Both parties were internally torn by ideology and economic interests over whether and how quickly to remove legal tender from the economy. The Grant administration had reached an uneasy compromise that left over $300 million greenbacks in circulation. Raising these policies to the constitutional level threatened to tie the hands of the federal government in managing the money supply and its own finances, and the Court 9s decision in Hepburn raised the immediate prospect of a rush on hard currency and a rash of defaults as debtors found that they could no longer afford to meet their obligations if they could not rely on the inflated greenbacks. The same day that the decision in Hepburn was announced, President Grant made two nominations to the Supreme Court. One nominee was to fill the seat of Justice Robert Grier, who had resigned. The other nominee was to fill a new, ninth seat on the Court 3 a gift from the Republican Congress to President Grant, and a seat that had been temporarily eliminated during the presidency of Andrew Johnson. Grant had some difficulty filling the seats (one nominee was defeated, another died), but soon added two reliable Republican voices to the high bench. William Strong and Joseph Bradley GGW 8/10/09 13 became the sixth and seventh justices appointed to the Court since Lincoln, and gave the Republican Party six justices on a nine-member bench. Grier had been a member of the Hepburn majority, even though he resigned before it was publicly announced. It was widely recognized, and discussed during the confirmations, that the two new justices could shift the balance of the Court on the legal tender question. With a full complement of nine justices, the Court ordered a new hearing on the legal tender laws, with Chief Justice Chase and the other three remaining members of the Hepburn majority publicly dissenting from that order. Under a cloud of controversy, the Court heard a collection of cases that became known as the Legal Tender Cases , promptly overturned the precedent established in Hepburn , and upheld the currency laws. Opponents quickly denounced what they saw as the successful cpacking d of the Court by Grant and the apparent subversion of judicial independence by politics. Strong wrote the opinion of the Court, and Bradley added a concurrence. MR. JUSTICE STRONG delivered the opinion of the Court. . . . . It would be difficult to overestimate the consequences which must follow our decision. They will affect the entire business of the country, and take hold of the possible continued existence of the government. If it be held by this court that Congress has no constitutional power, under any circumstances, or in any emergency, to make treasury notes a legal tender for the payment of all debts (a power confessedly possessed by every independent sovereignty other than the United States), the government is without those means of self-preservation which, all must admit, may, in certain contingencies, become indispensable, even if they were not when the acts of Congress now called in question were enacted. It is also clear that if we hold the acts invalid as applicable to debts incurred, or transactions which have taken place since their enactment, our decision must cause, throughout the country, great business derangement, widespread distress, and the rankest injustice. . . . The consequences of which we have spoken, serious as they are, must be accepted, if there is a clear incompatibility between the Constitution and the legal tender acts. But we are unwilling to precipitate them upon the country unless such an incompatibility plainly appears. A decent respect for a coordinate branch of the government demands that the judiciary should presume, until the contrary is clearly shown, that there has been no transgression of power by Congress . . . . Such has always been the rule. . . . Nor can it be questioned that, when investigating the nature and extent of the powers, conferred by the Constitution upon Congress, it is indispensable to keep in view the objects for which those powers were granted. . . . In no other way can the intent of the framers of the instrument be discovered. . . . . . . . And here it is to be observed it is not indispensable to the existence of any power claimed for the Federal government that it can be found specified in the words of the Constitution, or clearly and directly traceable to some one of the specified powers. Its existence may be deduced fairly from more than one of the substantive powers expressly defined, or from them all combined. It is allowable to group together any number of them and infer from them all that the power claimed has been conferred. . . . . . . . [T]he whole history of the government and of congressional legislation has exhibited the use of a very wide discretion, even in times of peace and in the absence of any trying emergency, in the selection of the necessary and proper means to carry into effect the great objects for which the government was framed, and this discretion has generally been unquestioned, or, if questioned, sanctioned by this court. This is true not only when an attempt has been made to execute a single power specifically given, but equally true when the means adopted have been appropriate to the execution, not of a single authority, but of all the powers created by the Constitution. Under the power to establish post-offices and post-roads GGW 8/10/09 14 Congress has provided for carrying the mails, punishing theft of letters and mail robberies, and even for transporting the mails to foreign countries. Under the power to regulate commerce, provision has been made by law for the improvement of harbors, the establishment of observatories, the erection of lighthouses, break-waters, and buoys, the registry, enrolment, and construction of ships, and a code has been enacted for the government of seamen. . . . . . . . It was. . . in McCulloch v. Maryland that the fullest consideration was given to this clause of the Constitution granting auxiliary powers, and a construction adopted that has ever since been accepted as determining its true meaning. . . . [T]his court then held that the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. . . . With these rules of constitutional construction before us, settled at an early period in the history of the government, hitherto universally accepted, and not even now doubted, we have a safe guide to a right decision of the questions before us. Before we can hold the legal tender acts unconstitutional, we must be convinced they were not appropriate means, or means conducive to the execution of any or all of the powers of Congress, or of the government, not appropriate in any degree (for we are not judges of the degree of appropriateness), or we must hold that they were prohibited. . . . . . . . It may be conceded that Congress is not authorized to enact laws in furtherance even of a legitimate end, merely because they are useful, or because they make the government stronger. There must be some relation between the means and the end; some adaptedness or appropriateness of the laws to carry into execution the powers created by the Constitution. But when a statute has proved effective in the execution of powers confessedly existing, it is not too much to say that it must have had some appropriateness to the execution of those powers. . . . . . . . [W]e proceed to inquire whether it was forbidden by the letter or spirit of the Constitution. . . . To assert . . . that the clause enabling Congress to coin money and regulate its value tacitly implies a denial of all other power over the currency of the nation, is an attempt to introduce a new rule of construction against the solemn decisions of this court. So far from its containing a lurking prohibition, many have thought it was intended to confer upon Congress that general power over the currency which has always been an acknowledged attribute of sovereignty in every other civilized nation than our own, especially when considered in connection with the other clause which denies to the States the power to coin money, emit bills of credit, or make anything but gold and silver coin a tender in payment of debts. . . . . . . . We come next to the argument much used, and, indeed, the main reliance of those who assert the unconstitutionality of the legal tender acts. It is that they are prohibited by the spirit of the Constitution because they indirectly impair the obligation of contracts. . . . The argument assumes two things, -- first, that the acts do, in effect, impair the obligation of contracts, and second, that Congress is prohibited from taking any action which may indirectly have that effect. . . . We have been asked whether Congress can declare that a contract to deliver a quantity of grain may be satisfied by the tender of a less quantity. Undoubtedly not. But this is a false analogy. There is a wide distinction between a tender of quantities, or of specific articles, and a tender of legal values. Contracts for the delivery of specific articles belong exclusively to the domain of State legislation, while contracts for the payment of money are subject to the authority of Congress, at least so far as relates to the means of payment. They are engagements to pay with lawful money of the United States, and Congress is empowered to regulate that money. It cannot, therefore, be maintained that the legal tender acts impaired the obligation of contracts. . . . . Closely allied to the objection we have just been considering is the argument pressed upon us that GGW 8/10/09 15 the legal tender acts were prohibited by the spirit of the fifth amendment, which forbids taking private property for public use without just compensation or due process of law. That provision has always been understood as referring only to a direct appropriation, and not to consequential injuries resulting from the exercise of lawful power. It has never been supposed to have any bearing upon, or to inhibit laws that indirectly work harm and loss to individuals. A new tariff, an embargo, a draft, or a war may inevitably bring upon individuals great losses; may, indeed, render valuable property almost valueless. They may destroy the worth of contracts. . . . . . . . But, without extending our remarks further, it will be seen that we hold the acts of Congress constitutional as applied to contracts made either before or after their passage. In so holding, we overrule so much of what was decided in Hepburn v. Griswold , as ruled the acts unwarranted by the Constitution so far as they apply to contracts made before their enactment. That case was decided by a divided court, and by a court having a less number of judges than the law then in existence provided this court shall have. These cases have been heard before a full court, and they have received our most careful consideration. The questions involved are constitutional questions of the most vital importance to the government and to the public at large. We have been in the habit of treating cases involving a consideration of constitutional power differently from those which concern merely private right. We are not accustomed to hear them in the absence of a full court, if it can be avoided. Even in cases involving only private rights, if convinced we had made a mistake, we would hear another argument and correct our error. And it is no unprecedented thing in courts of last resort, both in this country and in England, to overrule decisions previously made. We agree this should not be done inconsiderately, but in a case of such far-reaching consequences as the present, thoroughly convinced as we are that Congress has not transgressed its powers, we regard it as our duty so to decide and to affirm both these judgments. . . . . MR. JUSTICE BRADLEY, concurring. . . . . The doctrine so long contended for, that the Federal Union was a mere compact of States, and that the States, if they chose, might annul or disregard the acts of the National legislature, or might secede from the Union at their pleasure, and that the General government had no power to coerce them into submission to the Constitution, should be regarded as definitely and forever overthrown. This has been finally effected by the National power, as it had often been before, by overwhelming argument. . . . . Such being the character of the General government, it seems to be a self-evident proposition that it is invested with all those inherent and implied powers which, at the time of adopting the Constitution, were generally considered to belong to every government as such, and as being essential to the exercise of its functions. . . . . . . . . . . [T]he historical fact [is] that when the Constitution was adopted, the employment of bills of credit was deemed a legitimate means of meeting the exigencies of a regularly constituted government, and that the affixing to them of the quality of a legal tender was regarded as entirely discretionary with the legislature. . . . . . . . This power is entirely distinct from that of coining money and regulating the value thereof. It is not only embraced in the power to make all necessary auxiliary laws, but it is incidental to the power of borrowing money. It is often a necessary means of anticipating and realizing promptly the national resources, when, perhaps, promptness is necessary to the national existence. . . . . . . . GGW 8/10/09 16 No one supposes that these government certificates are never to be paid -- that the day of specie payments is never to return. And it matters not in what form they are issued. . . . But it is the prerogative of the legislative department to determine when the fit time for payment has come. It may be long delayed, perhaps many may think it too long after the exigency has passed. But the abuse of a power, if proven, is no argument against its existence. And the courts are not responsible therefore. Questions of political expediency belong to the legislative halls, not to the judicial forum. . . . . . . . It is absolutely essential to independent national existence that government should have a firm hold on the two great sovereign instrumentalities of the sword and the purse, and the right to wield them without restriction on occasions of national peril. In certain emergencies government must have at its command, not only the personal services -- the bodies and lives -- of its citizens, but the lesser, though not less essential, power of absolute control over the resources of the country. . . . . . . . But the creditor interest will lose some of its gold! Is gold the one thing needful? Is it worse for the creditor to lose a little by depreciation than everything by the bankruptcy of his debtor? Nay, is it worse than to lose everything by the subversion of the government? What is it that protects him in the accumulation and possession of his wealth? Is it not the government and its laws? and can he not consent to trust that government for a brief period until it shall have vindicated its right to exist? All property and all rights, even those of liberty and life, are held subject to the fundamental condition of being liable to be impaired by providential calamities and national vicissitudes. . . . There are times when the exigencies of the state rightly absorb all subordinate considerations of private interest, convenience, or feeling. . . . . . . . I do not say that it is a war power, or that it is only to be called into exercise in time of war; for other public exigencies may arise in the history of a nation which may make it expedient and imperative to exercise it. But of the occasions when, and of the times how long, it shall be exercised and in force, it is for the legislative department of the government to judge. Feeling sensibly the judgments and wishes of the people, that department cannot long (if it is proper to suppose that within its sphere it ever can) misunderstand the business interests and just rights of the community. . . . . Regarding the question of power as so important to the stability of the government, I cannot acquiesce in the decision of Hepburn v. Griswold . I cannot consent that the government should be deprived of one of its just powers by a decision made at the time, and under the circumstances, in which that decision was made. . . . Where the decision is recent, and is only made by a bare majority of the court, and during a time of public excitement on the subject, when the question has largely entered into the political discussions of the day, I consider it our right and duty to subject it to a further examination, if a majority of the court are dissatisfied with the former decision. . . . CHIEF JUSTICE CHASE, dissenting. . . . . . . . [I]t is a common error. . . that considerations pertinent to the issue of United States notes have been urged in justification of making them a legal tender. The real question is, was the making them a legal tender a necessary means to the execution of the power to borrow money? If the notes would circulate as well without as with this quality it is idle to urge the plea of such necessity. But the circulation of the notes was amply provided for by making

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