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Friday, December 04, 2020

The Inconsistency of Chief Justice Chase

Let's continue with my discussion of the first Fourteenth Amendment opinion--In Re Griffin. In my last post, I explained that Chief Justice Chase held in that case that Section Three of the Fourteenth Amendment was not self-executing and that no legislation applied that provision in Virginia in 1868.

Now contrast this holding with a different case before Chief Justice Chase in Virginia at the same time  --the treason trial of Jefferson Davis. The treason case against Davis was very controversial and raised many difficult questions (for one thing, what kind of jury could be impartial). Chief Justice Chase, who as the Circuit Justice for Virginia was supposed to preside over the trial in circuit court, worked hard to find ways to delay or avoid that proceeding.

After the Fourteenth Amendment was ratified, Chase hit on a novel idea. Section Three could be read as the exclusive punishment for anyone to whom the provision applied, including Davis. Thus, Davis could not be tried for treason. The Chief Justice then met with Davis's attorneys and pitched this idea to them. WHAT? Yes, you read that correctly. Davis's lawyers then made the Section Three argument in open court to Chase and District Judge John Underwood (circuit courts in those days had two judges).

In the course of their argument, Davis's lawyers said Section Three was self-executing, They had to say that, as there was no statute applying Section Three to Virginia in December 1868. Chief Justice Chase and Judge Undewrwood disagreed about the merits of the Section Three claim and the question was certified for appeal to the Supreme Court. The Chief Justice told the Court Reporter to note his view that Section Three barred Davis's treason prosecution. Shortly thereafter, President Andrew Johnson gave Davis a pardon.

Here is the punch line. In Griffin, Chief Justice Chase held that Section Three was not self-executing. In Davis, he concluded that Section Three was self-executing. This was at the same time in the same state. He must have reasoned that Section Three was self-executing in Davis's case, otherwise he could not have concluded that Section Three barred Davis's prosecution when he did.

How can we explain this discrepancy? Is it simply that Jefferson Davis was a prominent white defendant and Ceasar Griffin happened to be a poor Black defendant? More on that next time.


Posted by Gerard Magliocca on December 4, 2020 at 03:53 PM | Permalink


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