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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm happy. How are you?
J. Aughenbaugh: I'm feeling a little fishy.
N. Rodgers: Now, see? You're always fishy. I'm happy because of fishy. Because today we get to continue on our SCOTUS Eras journey. It is the Salmon Portland Chase Court. Now, that name makes me so happy. Salmon first of all, he's named after a fish salmon. Then his middle name Portland.
J. Aughenbaugh: Yes.
N. Rodgers: Chase. If I had a kid right now, that's what I would name it.
J. Aughenbaugh: You would want your kid to go ahead and get a whole bunch of abuse and beat up in school because you've named them Salmon Portland?
N. Rodgers: Could be. His name was getting beat up. Or it could be that he would be the toughest kid in the neighborhood.
J. Aughenbaugh: Well, that is true. Listeners, as Nia indicated, we are continuing our series of looking at errors of the Supreme Court. Again, for listeners who are unfamiliar, the errors of the Supreme Court are typically named for the Chief Justice of that particular time frame.
N. Rodgers: Who cares about the President?
J. Aughenbaugh: Yes. But, I mean, hey, we're talking about the institution of the Supreme Court, and we're working our way through the history of that institution.
N. Rodgers: When we last left off, we had the Tawny court, which was 1836-1864. 1864, momentous.
J. Aughenbaugh: Yes, because that was during what seminal historical event in the United States.
N. Rodgers: The uncivil war.
J. Aughenbaugh: Yes, the uncivil war. As Nia pointed out, Salmon Portland Chase replaced Chief Justice Roger Brooke, a lot of fish here. Roger Brooke Taney, Brooke Trout, for those of you who are not fisher people. But Chase was nominated by President Abraham Lincoln in December of 1864, and he was confirmed by the Senate on the day of his nomination.
N. Rodgers: I love that because modern nominations don't work like that at all.
J. Aughenbaugh: He benefited because listeners, the Congress at that time was basically populated by almost all Republicans. Because all of the Southern Democrats had basically given up their seats because their states had succeeded from the Union. He benefited by the fact that it was a one sided Congress. But nevertheless, there was no transition, very little time.
N. Rodgers: Like a week, wasn't it between his nomination and his being sworn into office?
J. Aughenbaugh: Yes. What's really fascinating, he didn't serve a long period of time, only about 8.5 years. In fact, but one of the more fascinating things about Lincoln nominating Salmon Chase, was that Chase, actually ran against him for the Republican Party nomination for president in 1860. Salmon Chase was one of Lincoln's team of rivals, which is the created by historian Doris Kearns Goodwin. He ran against Lincoln for the Republican Party nomination, lost. Lincoln wins the general election, and then Lincoln goes ahead and appoints pretty much all of his primary opponents as members of his cabinet. Chase was his Secretary of the Treasury.
N. Rodgers: That's actually a pretty smart way to go about.
J. Aughenbaugh: Oh, it's excellent.
N. Rodgers: One, it defangs your opponents from talking about you. But two, and more importantly, if they do have good ideas, you can use those ideas, and they will become part of your presidency. You get the benefit of having multiple viewpoints. Also defanging your angry opponent.
J. Aughenbaugh: With that latter point, defanging your opponents. Listeners, I'm going to give you a modern day example of this. Recall, Nia, that when Barack Obama won the presidency in 2008, he surprised a lot of people when he picked his primary opponent for the Democratic Party nomination, then Senator Hillary Clinton to be his Secretary of State. A lot of people were like, why would you do this? But it's a political master stroke because by bringing them into your cabinet, then they can't be on the outside criticizing you. They're a part of your administration, and they are subservient to you. You're going to want to succeed because otherwise, if they terminate you, you will look even worse than when you lost to them in the primary.
N. Rodgers: That's right. Now you're a double loser.
J. Aughenbaugh: It's a master stroke.
N. Rodgers: It also allows you as the president, to be able to admit that somebody may have had a good idea. Without having to give them credit publicly, like during your primary battle. If they do have a good idea, you can say, well, now's the time for you to implement that idea, and we'll see if it's any good or not. We'll see whether you can back up what you say to be true.
J. Aughenbaugh: Before we get to the history of Salmon Chase, there are a couple notable things that we should mention right from the get go. First of all, Salmon Chase may have been nominated and confirmed to serve as Chief Justice, but he didn't lose his aspirations to be president. He was considered for the Republican Party nomination in both 1868 and 1872, but he ultimately declined any consideration, and he remained Chief Justice, as I mentioned previously, until May of 1873. The other thing to note is that while he was Chief Justice, the membership of the Supreme Court, just the number, fluctuated. When he was first confirmed as Chief Justice, the court consisted of 10 total justices. 1866, two years after he became chief Justice, the Congress decided to reduce the court to seven justices. They did this because they were upset with the Supreme Court's ruling about the value of currency that the federal government issued during the Civil War to pay for the war efforts. The Republicans got upset. The Republicans which control Congress got upset, and they basically said to the Supreme Court, well, we will show you we will reduce the number of positions as justices either die or retire.
N. Rodgers: It wasn't we're going to boot you out. It's attrition. We will get there through attrition.
J. Aughenbaugh: Yes, because according to the Constitution, once you have been confirmed, the Congress can't take away your government job.
N. Rodgers: Especially the supremes. You have to have committed basically treason.
J. Aughenbaugh: Yes, you have to either be impeached, die, or retire. But once you vacate your position, then the Congress. Well, no, Congress can just go ahead and remove it, because, again, remember, Nia, in the US Constitution, there is no set number of Supreme Court seats.
N. Rodgers: Doesn't say how many.
J. Aughenbaugh: Yes, it was pretty funny that while he was.
N. Rodgers: Justice Catron?
J. Aughenbaugh: Yeah, John Catron.
N. Rodgers: Catron had died the year before?
J. Aughenbaugh: Was never replaced.
N. Rodgers: Then so then his seat was removed?
J. Aughenbaugh: Yes.
N. Rodgers: Then the next guy who died, his seat was removed.
J. Aughenbaugh: Yes.
N. Rodgers: Now we're down to seven.
J. Aughenbaugh: Yes.
N. Rodgers: Who's that Justice Wayne Justice?
J. Aughenbaugh: Yeah. James Moore Wayne.
N. Rodgers: Great names.
J. Aughenbaugh: People were frequently referred to by all three of their names, I love this, we have joked on air, but also off air. The only time that folks refer to us by all three of our names is typically when we're in trouble.
N. Rodgers: But think about that era, one of the most famous people of that era is John Wilkes Booth. Who's referred to with his three names. Then by 1967, we're down to eight justices two justices have died and not been replaced. We're at the congressional number.
J. Aughenbaugh: Then Congress reversed direction. In 1869, they expanded the court to nine, and it's been that way ever since. It's been that way.
N. Rodgers: But it doesn't have to be technically, cause didn't FDR try to change that, which we'll get to it during FDRs
J. Aughenbaugh: When we get to the Chief Justice Charles Evan Hughes, and the battles that those two had, great era. Listeners, you're going to love our discussion of the Hughes court. He was a fascinating figure, even if he had never become Chief Justice, But that's a little bit of fortune.
N. Rodgers: There's a tease in the future. 1869, we get to the modern size of nine justices. Now we have a vacancy.
J. Aughenbaugh: Yes. We get Joseph Bradley. The same year, Justice Greer retired. He was replaced by Justice William Strong. By the way, you don't need to remember Strong. According to one historian, he was a perfectly mediocre justice. I love that. Then the final change on the Chase Court came in 1872 when Justice Nelson retired and he was replaced by Justice, again, I love the name Ward Hunt. That sounds like the name in a romance novel book.
N. Rodgers: It does. That's the lead. That's the dashing man. Ward Hunt.
J. Aughenbaugh: Ward Hunt appeared to the Princess Castle, on his steed. Anyways, I digress.
N. Rodgers: Salmon Portland Chase was born January 13th, 1808.
J. Aughenbaugh: By the way, listeners, we should revere Justice Chase simply because of his birth date. You want to know why Nia?
N. Rodgers: Is that your birthday?
J. Aughenbaugh: That is my birth date. I put together these research notes, and it didn't even dawn on me that we share a birthday until you said it out loud. I'm like, hey, wait a minute. Who else do I know? Hey, that's my birth date.
N. Rodgers: That's your birthday. January 13th. Your birth date is not 1808. I know your students think you're old, but you are not that old. Let's clarify your birthday that you share with Salmon Portland Chase.
J. Aughenbaugh: Sorry for the levity listeners.
N. Rodgers: He's actually pretty young when he becomes Chief Justice. He's in his 50s.
J. Aughenbaugh: But, again, remember, life expectancy, particularly during the Civil War era.
N. Rodgers: Was lower. That's true. Actually shorter.
J. Aughenbaugh: The life expectancy in the United States, the average life expectancy declined a significant number of years during the Civil War because a whole bunch of young people died.
N. Rodgers: Well, lots of people died. He earlier served as the 25th United States Secretary of the Treasury 1861-1864. During the war era, which would be tough, I would think, working out the funding for the American Civil War. How do you pay for that?
J. Aughenbaugh: That was really difficult. Because, he was the one who made the recommendation to Lincoln that the union could go ahead and use paper money, which at that time, had next to no value because the American federal government was spending gobs of money but wasn't taking any in. A lot of people basically viewed the currency as promissory notes, because when they were getting paid, there was, like, no value of them. It wasn't like they could spend it on anything.
N. Rodgers: Then he goes on to be the 23rd governor of Ohio from 1856-1860.
J. Aughenbaugh: We're working backwards in regards to his bio.
N. Rodgers: He starts off. I should start. Let me start at the beginning. He's a Senator from 1849-1855.
J. Aughenbaugh: Yes, from Ohio.
N. Rodgers: Then in 1861, he's again elected, but then war breaks out and he becomes the Secretary of the Treasury instead of being a senator.
J. Aughenbaugh: Yes. Now, here's another interesting tidbit about Chase. Salmon Chase is one of the few American politicians who held constitutional office in all three branches of the federal government. There's only been 45 of them in the entire history of the United States. There's only been 45 who served in Congress, the executive branch, and the federal courts.
N. Rodgers: The courts would hang you up. Because lots of people have been in the executive branch and in the Congress. That's a pretty common senator and then secretary of whatever filling the blank thing or senator and then president. But it's the courts that hang you up on that, 45 in total. That's a tiny number of people who've served in all three branches.
J. Aughenbaugh: Think about that. You're talking about 230 plus years. There's only been 45 people.
N. Rodgers: He's one of them.
J. Aughenbaugh: Now, so let's go further back into his bio. Chase, before he migrated to the fine state of Ohio, was born in, I love this name, Cornish, New Hampshire. I love small town names in the United States. Cornish, New Hampshire. He didn't go to law school. He studied law. He had migrated to Cincinnati, Ohio, and he studied law. Like many federal judges during the 19th century, you didn't go to law school, one, because there were very few law schools in the United States. If you wanted to study law, you had to go over to Europe, Nia. But what you did was you did an apprenticeship with a lawyer who had already been admitted to the bar in your state, and you basically worked as a paralegal, you studied the law. When that lawyer thought you were ready, then you took the bar exam.
N. Rodgers: Not only did you have to study with this person, you had to win them over.
J. Aughenbaugh: Yes.
N. Rodgers: You had to show that you couldn't just cruise your way through.
J. Aughenbaugh: Once he gets his law degree almost immediately, he becomes one of the most prominent abolitionists throughout the entire United States. In fact, a huge chunk of his legal practice was representing fugitive slaves in court, where he would ask that they be emancipated from their Southern slave owners.
N. Rodgers: Not hugely popular with the Southerners, I would say.
J. Aughenbaugh: No. He was initially a member of the Whig party. Then he became the leader of the Ohio Liberty Party in 1848, which eventually, again, at this time, political parties came and went pretty quickly during the 1830s, 40s and 50s. The Liberty Party got consumed by the Free Soil Party.
N. Rodgers: Free Soil.
J. Aughenbaugh: Yeah, Free Soil.
N. Rodgers: I love that party now.
J. Aughenbaugh: Abolitionist.
N. Rodgers: If you're here, you're free. You're not a slave.
J. Aughenbaugh: That's right. He won election to the Senate. Again, we already discussed how he ended up representing Ohio in the Senate. He opposed the compromise of 1850, which basically would go ahead and establish which would be the slave states and which would be the free states going forward.
N. Rodgers: As they joined the Union.
J. Aughenbaugh: As they were admitted to the union, Chase then helped establish the Republican Party, which explicitly opposed in their convention platform, the extension of slavery into any of the existing territories that had not yet become states in the union. Then you left the Senate to serve as governor 1856-1860. Then he ran against Lincoln for the Republican Party nomination in 1860.
N. Rodgers: He loses to Lincoln, and Lincoln, as you said, does the whole rivals thing, and he has him a treasury, where he pretty much figures out how to finance the union.
J. Aughenbaugh: Yes.
N. Rodgers: He retains his popularity generally with the Republicans.
J. Aughenbaugh: Yes, particularly the abolitionist wing who thought that Lincoln was too accommodating to the south.
N. Rodgers: To radical Republicans?
J. Aughenbaugh: Yes.
N. Rodgers: To throw a bone to those guys, he gets nominated and he gets the Chief Justice position.
J. Aughenbaugh: Well, to a certain extent because after one term, Chase resigns as Secretary of the Treasury. Basically, for about a year, he does very little. But when Tony resigned, stepped down as Chief Justice, Lincoln spent next to no time in deciding to go with Salmon Chase. What's fascinating is the bulk of Chase's tenure as Chief Justice, the Chase Court was basically overseeing the aftermath of the Civil War.
N. Rodgers: We're talking what, 14th Amendment?
J. Aughenbaugh: 13th, 14th, and 15th Amendment. All got enacted after the war. But one of the first things he had to do as Chief Justice is he presided over whose impeachment trial.
N. Rodgers: Is that Andrew Johnson?
J. Aughenbaugh: Yes, President Andrew Johnson.
N. Rodgers: The Chief Justice presides over any impeachment trial in the Senate?
J. Aughenbaugh: Yes.
N. Rodgers: It doesn't matter how many lawyers there are in the Senate, and there are a bunch, always. That doesn't matter because the chief is always the one who presides over the trial. An impeachment is a trial.
J. Aughenbaugh: Listeners, the best way to understand the American impeachment process is that the House of Representatives are the prosecutors. They're the ones who draw up a bill of impeachment articles. It's like an indictment in a court. The Senate then acts as the jury.
N. Rodgers: They hear the evidence.
J. Aughenbaugh: They hear the evidence and then they take a vote whether or not to go ahead and find the person guilty of impeachment, worthy of an impeachment.
N. Rodgers: The Chief Justice decides which evidence can be submitted.
J. Aughenbaugh: They act as judge, just like in a trial. The judge is the one who entertains motion of, we have this witness and it's the chief judge who says, I don't think that witness has anything germane to this trial. Sorry strike or sure have them come on in and give testimony. We want to go ahead and present this document.
N. Rodgers: Piece of evidence can decide, that's not really related or that's a smoking gun. Put that smoking gun down.
J. Aughenbaugh: Yes.
N. Rodgers: Wouldn't it be really cool if somebody walked in with a smoking gun? He oversees the impeachment of Andrew Johnson. Was not Andrew Johnson impeached?
J. Aughenbaugh: He was found not guilty. Again, listeners, it's a two step process. A president can be impeached but found not guilty.
N. Rodgers: Clinton was impeached and found not guilty.
J. Aughenbaugh: Trump multiple times. It's one of the reasons why I've become so knowledgeable about the impeachment process is because in my lifetime, we've had two presidents who have been impeached multiple times. I am quite familiar with the impeachment process now. Which I got to be honest, when I was a grad student at Virginia Tech, in the late 80s, early 90s, I wasn't really thinking that I needed to go ahead and bone up on my impeachment bona fides.
N. Rodgers: When am I going to use that?
J. Aughenbaugh: Well, hopefully never.
N. Rodgers: It turns out.
J. Aughenbaugh: What are some of the key contributions of the Chase Court? First of all, interpreting the 14th Amendment. The Chase Court was the first one to interpret this amendment and did so with some rather narrow rulings on the meaning of the privileges and immunities clause, and also rejecting opportunities to establish the due process clause as the primary means of protecting fundamental rights.
N. Rodgers: Wait, rejecting the due process clause?
J. Aughenbaugh: No, they didn't reject it. They went ahead and declined to have the due process clause be the primary means. They issued narrow interpretations. The 14th Amendment Section 1 starts with privileges and immunities, meaning that states have to give all their citizens the same privileges and immunities, must provide them equal protection under the law, and then must give them due process if the state government wants to abridge their life, liberty, or property. Well, the meaning or scope of those clauses could be read broadly or narrowly. The Chase Court issued narrow rulings. If you will, the promise of the 14th Amendment was narrowed pretty significantly by the Chase Court, and it ends up shaping what successive future courts did.
N. Rodgers: It's interesting considering how much of an abolitionist he was.
J. Aughenbaugh: It is.
N. Rodgers: That's a divergent from his personal points of view, which just shows that justices can do that. They can separate themselves from the legal question at hand.
J. Aughenbaugh: Listeners, there is an old expression. It's called Miles Law. Where you stand depends on where you sit in government. You might argue as a governor that all slaves who make it to Ohio should be free. But your stance on the subject may change if you end up becoming a justice on the Supreme Court. Where you stand on an issue depends on where you sit.
N. Rodgers: Well, if you're a governor of a state, states rights are supreme. But then when you become president, you're like I don't know about all that states rights crap. Maybe we should go back to federalism.
J. Aughenbaugh: Or a great example is Robert Jackson. Robert Jackson served as solicitor general and attorney general in the Roosevelt administration, and he frequently found legal arguments that would allow Roosevelt to expand the US involvement in World War II. Then when he became chief Justice, he frequently voted with colleagues to reign in presidential power. Commentators were like, hey, wait a minute here. Wasn't he the same dude who was making these arguments that would expand presidential power? But what the hell happened? Well, what happened was he's now serving on the Supreme Court and he's like, hey, wait a minute, here.
N. Rodgers: This seems like a terrible idea.
J. Aughenbaugh: We may need to reign in the president. Where you stand depends on where you sit, behind which desk do you sit. A couple other notable contributions of the Chase Court. In contrast to the 14th Amendment, the Chase Court, their interpretation of the 13th Amendment was somewhat expansive. The 13th Amendment prohibits slavery. In 1867, in a case called In re Turner, Chase wrote the majority opinion that expanded the understanding of the 13th Amendment to include a positive right to freedom and declared any involuntary apprenticeship illegal. This was a case about a former slave who was doing an apprenticeship afterwards with his former slave owner. The slave owner basically said, I don't have to pay him because he's a former slave. The Chase Court is like, no, he's free.
N. Rodgers: The text says neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction. Then Section 2 says, Congress shall have power to enforce this article by appropriate legislation, so involuntary servitude.
J. Aughenbaugh: That's right.
N. Rodgers: None of that for you.
J. Aughenbaugh: Yes. We already talked about the Johnson impeachment. By all accounts, Chase did a really good job in a difficult case, because the radical Republicans in the Congress wanted Andrew Johnson to be impeached because Andrew Johnson was not a very aggressive implementer of laws passed by Congress during the reconstruction. Andrew Johnson was from Tennessee.
N. Rodgers: He dragged his feet.
J. Aughenbaugh: He dragged his feet. He was sympathetic to the Confederacy. Chase by all accounts, ran a pretty tight impeachment trial. A couple other points. The Chase Court is the court that went ahead and said that states could not legally secede.
J. Aughenbaugh: Okay.
N. Rodgers: The indestructible destructible. Union.
J. Aughenbaugh: Destructible Union. Yes. Because post civil war, there were a number of Southern states who were like, we lost the war, but we still have the authority to secede if we don't want to be in the union anymore. The Chase court said, No.
N. Rodgers: I don't. No, you don't.
J. Aughenbaugh: Once you get admitted, you're in the union.
N. Rodgers: This is a marriage from which there is no divorce.
J. Aughenbaugh: But that's right. If you got problems, you need to go to Congress and get policies changed. You can't just go ahead and say, I'm going to take my toys, and I'm going home because I no longer want to play with you in the playground. Nope.
N. Rodgers: Texas. We're talking to you.
J. Aughenbaugh: Yeah. We're talking about Texas. We're talking about California. We're talking about Alaska. You guys can go ahead and consider seceding from the Union today. But according to the Supreme Court, you're stuck.
N. Rodgers: Really, what that means is, you can say you're leaving. But we will send military troops to occupy you until you stop saying you're leaving. Like that's pretty much how that would work, and nobody will recognize your sovereignty. Nobody in the United States. If we won't recognize your sovereignty, we can guarantee you that nobody else will cause nobody else is going to argue with the greater United States over like Russia is not going to take Texas aside against the rest of the US. They're just not going to do it or Mexico more appropriately.
J. Aughenbaugh: This is a real life example. If McKenzie, my daughter ever listen to the podcast episode, she will be mortified when I give this example. It's like when I ask my daughter to do something and then she drags her feet. Then I actually stand in the room and watch her do it just so it gets done. Texas, California, you can say you want to secede. You may even pass a state law saying that you are but we're going to go ahead and send some federal troops into your jurisdiction.
N. Rodgers: We're just going to occupy you until you drop this silly idea.
J. Aughenbaugh: Until you actually start behaving appropriately, we're not leaving.
N. Rodgers: Well, in the Union, I understand that from the union point of view of you either have a country or you don't. This thing where people can come and go at will, sure, Texas may want to secede now, but in 15 years, Texas may, I'm going to say these words out loud and they'll sound ridiculous now out like that. That's not how countries work. You're either in or you're out. If you've chosen to be in, you're in. I get that. But it's interesting that it took until a civil war for somebody to say, hey, we really do need a ruling on whether that's, can you secede or not? Then the answer to that is no. Did they do any other big things?
J. Aughenbaugh: Well, a lot of what the Chase Accord had to deal with were constitutional legal issues that arose either during the war or right afterwards. How do you navigate reconstruction. Because the Congress was very skeptical that the former Confederate states, Southern border states would comply with the 13th, 14th, 15th Amendment.
N. Rodgers: No. Why on Earth would they be skeptical about that, Aughie?
J. Aughenbaugh: I know, shock. I'm shocked that there's gambling going on in this establishment.
N. Rodgers: Exactly.
J. Aughenbaugh: Sorry, listeners, that is what me want.
N. Rodgers: Casablanca reference.
J. Aughenbaugh: Yes, making a Casablanca reference. For instance, Congress passed a series of laws that together were referred to as the Congressional Reconstruction Acts. One of them, for instance, was placing federal government troops in the southern states to make sure that the Southern states were complying with laws passed by Congress, other laws passed by Congress, but also the 13, 14, 15th Amendments. The Chase Court refused to block the enforcement of those laws because they went ahead and said, Congress had the authority per those amendments to pass these laws. Nia, you pointed this out. In the 13th Amendment, there is a clause that says Congress can pass laws to make sure that there's no longer any slavery occurring. The 14th Amendment has a similar enforcement clause. The Chase Court said, yes, we understand that southern states have sovereignty. At the same time, Congress has the authority per these amendments to enact these laws. They did a lot of balancing of federal government authority and state government authority. They tried to balance it more so than what succeeding courts will do. But let's face it, it's a really difficult time because how do you go ahead and bring those states back into the union? Well, also, making sure that the Congress and presidents can be I think, suitably skeptical that Southern states would comply, right?
N. Rodgers: Right. Which we see with the Jim Crow era.
J. Aughenbaugh: That's right. In which to a certain extent, as we will discuss, future Supreme Courts issued rulings that allowed southern states to enact Jim Crow laws, right? The Chase court, however, was just like, on one hand, Congress, you can do this. On the other hand, we understand Southern states, you're upset, but right now this is the appropriate balance. I think in many ways, the Chase Court was a really good transition court. Unfortunately, as we will discuss in our next couple podcast episodes about Supreme Court eras, future courts were not as balanced in their rulings.
N. Rodgers: Because that's what allows Jim Crow to come in.
J. Aughenbaugh: That's right.
N. Rodgers: Is some of what I think of as the crabbier courts.
J. Aughenbaugh: Yes. Very narrow rulings, a lot of the promise of the 13th, 14th, and 15th Amendments by the next couple courts get gutted because of Supreme Court rulings, which gave Southern states a lot of constitutional cover to enact a lot of discriminatory laws.
N. Rodgers: It takes 100 years from the Salmon Chase Court to get all of that dealt with. To get to the Civil Rights Act and to get to things so that promise gets basically broken over the next several courts.
J. Aughenbaugh: You're talking about two generations of Americans, Nia, because the Chase Court ends in the early 1870s. Earl Warren becomes Chief Justice in 1953. You're talking about a good 80 years. Easily two generations, possibly three, of Americans that had to deal with a whole bunch of Supreme Court rulings that gave a lot of protection to a lot of bad behavior by Southern state governments.
N. Rodgers: This is a tease for a Scotus case that's coming up soon is they're going to take up the citizenship birth or the birthright citizenship clause of 14, aren't they this year?
J. Aughenbaugh: Yes, they are.
N. Rodgers: For anybody we're wondering that is all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. It's the first sentence of the 14th Amendment. Then it goes on to say that you can't abridge their privileges and immunities. That's the discussion Aughie was talking about before, privileges and fees. If you are going to take away somebody's liberty or property, you have to give them due process. That section is going to come into some legal discussion this year.
J. Aughenbaugh: In listeners, Section 1 of the 14th Amendment I would argue, one of the most important clauses of the US Constitution, simply because of what Nia just read to us. We're talking about some important civil liberties, and they're all listed basically in the first section, you could argue the first couple sentences of the 14th Amendment.
N. Rodgers: You can you get them and you can't have them taken away without somebody giving you dang good reason.
J. Aughenbaugh: That's right. This acts as a check on state government behavior that primarily existed prior to the Civil War. Again this is the reaction to, okay, what occurred before the Civil War and not trusting state governments to honor the basic civil liberties of their citizens. The Chase Court's pretty fascinating. He's a fascinating individual.
N. Rodgers: Well, he had quite a storied career, really. He's governor. He's a senator. He's the chief Justice. He's the Department Secretary of Treasury. His finger is in every pie in the sense of if it would have been interesting to interview him in terms of just his breadth of understanding of government and how government works and plays together.
J. Aughenbaugh: I would be remiss if I didn't go ahead and mention something that I came across in a number of biographies about Salmon Chase. For all of his accomplishments, even his biggest fans found his personality prickly. He was such a zealot, so self righteous that even some of his friends were like[OVERLAPPING].
N. Rodgers: I die. He's brilliant, but I don't want to have a beer with him.
J. Aughenbaugh: I thought about putting that in the research notes, but since the focus is more on the era, but I probably would be remiss if I didn't go ahead and mention this. Even voters.
N. Rodgers: You know what he is? He's that guy where every discussion comes back to abolition.
J. Aughenbaugh: Yes.
N. Rodgers: Everything that you talk about, you're like, I say to you, hey, Aughie, how was the Yankees game the other night? You go, they played like they should have been set free by their slave master. You know what I mean? You just bring it right back to abolition. There's nothing wrong with being that passionate about something, but it is important to remember that not everybody around you is as passionate about the thing as you are or feels the same way that you feel about the passionate thing you're passionate about.
J. Aughenbaugh: Yeah. It would be like me asking you, hey, Nia how's the weather? Then you respond with well, it's enslaving me today. Speaking of enslavement, let's like [OVERLAPPING] I just asked you about the weather. I haven't been outside. Can you tell me how the weather is.
N. Rodgers: It's not that you shouldn't care about these things. If you have a passion, you should care deeply about your passion, but you should find other people like you and not necessarily attempt to turn every single discussion into a discussion of that thing. By the same token, a person of conscience, who is watching that happen to other humans in real time. I could see where it would make you. Could be a prickly person because people are feeling that way about immigration right now. There's a lot of people who are very passionate about what's happening and they feel very pressured to do something or to say something.
J. Aughenbaugh: But also part of the criticism of Chase was that if you didn't agree with him, then you were evil.
N. Rodgers: You weren't misguided. You were bad.
J. Aughenbaugh: Yeah, you were bad. Again, that may be true. But in regards to getting progress on addressing the issue, it's pretty difficult to go ahead and get people to want to work with you if you are calling them evil or the enemy.
N. Rodgers: As opposed to calling them misguided. Can we have a discussion about this where we try to have a civil conversation? I don't know, a civil discourse. We should play a drinking game and see how many times we can see if we can get that mentioned in every single episode. But anyway, thank you, Aughie. Salmon Chase, he's fascinating to me, not only just for his name, but also for his that really must have been one of the hardest eras to be a Supreme Court justice of, because the tumult in the country was phenomenal. We can't picture. Everybody thinks now is the craziest time that's ever been in the United States, and I'm like, I don't know that I wouldn't say the Civil War was a crazier time in the United States, in terms of just sheer day to day. I have no idea what's happening one moment to the next.
J. Aughenbaugh: The devastation, the arguments being made.
N. Rodgers: People leaving the country.
J. Aughenbaugh: Inner family disputes. Brother against brother, etc. We need people like Chase who are willing to serve in these difficult times, and they may not get very much recognition going forward in the future, in terms of history, but they're necessary. You need a steady hand who can go ahead and lead that institution through that period of time. I do so, again, according to many historians in a somewhat balanced way.
N. Rodgers: Well, in an incremental, he was trying to do that thing that John Robert tries to do sometimes, which is incremental. We can't change all of it at once, but let's try to narrowly focus on what we can and make those changes. Yeah. So yeah.
J. Aughenbaugh: Thank you, Nia.
N. Rodgers: Thank you, Aughie, and we'll be back with another Who's next? Is it Justice Wait?
J. Aughenbaugh: I believe so.
N. Rodgers: I can't wait. See what I did there.
J. Aughenbaugh: I knew you were going there.
N. Rodgers: Sorry. Yes. I can't help it.
J. Aughenbaugh: He was succeeded by, again, I love the name Morrison Wait, okay?
N. Rodgers: Morrison. That's a great first name.
J. Aughenbaugh: Yes, Morrison. But that will be our next episode, listeners. Looking forward to it.
N. Rodgers: Thanks, Aughie.
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