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Monday, December 07, 2020

Explaining Chief Justice Chase's Inconsistency

In my prior post, I explained that Chief Justice Chase reasoned in Jefferson Davis's that Section Three of the Fourteenth Amendment was self-executing in Virginia in December 1868 and held in Griffin's Case that Section Three was not self-executing there at the same time. How can this be explained?

Let's start with extrajudicial explanations. Was Chase a racist who wanted to help a white defendant and not Black defendants? Hardly. He was a great anti-slavery lawyer. Did Chase act as he did because he wanted to be President and was putting his finger in the wind? Maybe. Chase pursued the Presidency even while he was Chief Justice. Did Chase rule differently in the two cases because he wanted the South to accept the legitimacy of the Fourteenth Amendment. Could be.

Turning to internal answers, there is a candidate. One is that in both cases Chase was acting as a small c-conservative who did not want to rock the boat. Concluding that Jefferson Davis could not be tried for treason due to Section Three would avoid a highly divisive trial. And concluding that Section Three did not authorize the release of many prisoners in Virginia avoided a different disruption. Put another way, Chase may have wanted to tame the Fourteenth Amendment as best he could.

Whatever the answer, one lesson from the Davis/Griffin pair is the the Fourteenth Amendment was destined to be read more favorably for whites than for Blacks even if that was not the intent. It was, you might say, in the judicial DNA from the very beginning. 

I will have more to say about Section Three of the Fourteenth Amendment soon, as I'm getting close to finishing the draft paper.  

Posted by Gerard Magliocca on December 7, 2020 at 09:12 PM | Permalink

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