Nathan Clifford

CLIFFORD, NATHAN

Nathan Clifford was an associate justice of the
Supreme Court from 1858 to 1881. A traditional Jacksonian Democrat strongly disposed to favor STATES’ RIGHTS, Clifford served on a Court that in his later career was largely dominated by Republicans. As a result, one-fifth of all his writing for the Court was made up of dissents: Clifford opposed centralization of power in the federal government at a time when the Court was moving toward expansion of federal authority; he was a Northerner who often sided with Southern democrats on issues related to SLAVERY; and he advocated a conservative interpretation of the Constitution. Clifford also served as attorney general of the United States from 1846 to 1848 and as a negotiator in the Mexican War. As the negotiator, he successfully procured a treaty with Mexico that added a huge amount of land to the southwestern part of the United States.

Clifford was born August 18, 1803, in Rumney, New Hampshire, the oldest child and only
son in a family with seven children. His English ancestors had moved to the United States in 1644. As a child he worked on his family’s small farm in New Hampshire. Although his parents did not encourage him to attend school he was able to receive some education at Haverhill Academy, where he earned his tuition tutoring and giving singing lessons to younger children. He hoped to attend Dartmouth College but that proved impossible when his father died.

Ever ambitious, Clifford persuaded a local
lawyer, Josiah Quincy, to take him on as an
apprentice.He learned enough of the law to pass
the bar in 1827 and moved to Newfield, Maine,
where he opened a law office. Most of his legal
work involved land claim disputes related to the
lumber business.
In 1830, at age 27, Clifford was elected to
Maine’s House of Representatives on the Democratic
ticket, quickly rising to Speaker of the
House in 1833. Beginning in 1834 he served four
years as state attorney general. During that time
he made an unsuccessful bid for the U.S. Senate.
He won a seat in the U.S. House of Representatives
in 1838.
As a Jacksonian Democrat—that is, a Democrat
in the mold of ANDREW JACKSON, who
served as president of the United States from
1829–1837—Clifford was suspicious of power
concentrated in urban centers of finance and
politics. He was also a strong supporter of MARTIN
VAN BUREN, a fellow Democrat who succeeded
Jackson as president. In Congress
Clifford opposed high tariffs, the creation of a
federal banking system, and attempts to abolish
slavery. The latter position earned him the label
of “doughface”—a northern Democrat with
southern sympathies. Clifford lost his seat in the
House in 1843 after serving two terms.
In October 1846, President JAMES POLK
appointed Clifford to become his attorney general.
Clifford accepted the post but when the
Supreme Court session was to begin he panicked
about his qualifications for the job and suggested
to Polk that he resign. Polk persuaded
him to stay on.While he served as attorney general
Clifford’s most notable case before the
Supreme Court was Luther v. Borden, 48 U.S. (7
How.) 1, 12 L. Ed. 581 (1849), which involved
Dorr’s Rebellion, the attempt by a group of
Rhode Island citizens to form a new, more democratic
state government to replace the established
one. The rebellion had been put down
through MARTIAL LAW imposed by the existing
state government. Representing the rebels in
court, Clifford had as his opposition DANIEL
WEBSTER, a leading politician and constitutional
lawyer. Clifford argued that a state could not
impose martial law and that the people of
Rhode Island had a right to change their constitution.
The Court ruled that the case was outside
of its jurisdiction.
Clifford also became involved in the Polk
administration’s policies regarding the Mexican
War, which occurred between 1846 and 1848.He
helped mediate differences between Polk and
Secretary of State JAMES BUCHANAN, who would
later, as president, nominate Clifford to the
Supreme Court. As the war came to a close, Polk
asked Clifford to resign as attorney general and
become emergency peace negotiator. Clifford
negotiated a treaty in 1848 that fulfilled the
administration’s expansionist goals in the
Southwest.He eventually worked for progressive
reform in Mexico, staying on there until September
1849.
When Whig candidate ZACHARY TAYLOR was
elected president in 1848, Clifford was recalled
from Mexico.He moved to Portland,Maine, and
resumed his legal career. Not content to simply
practice law, he attempted to gain the U.S. Senate
in 1850 and 1853. His hopes of achieving a
higher position and being rewarded for his work
in Mexico materialized on December 9, 1857,
when President Buchanan nominated him to the
Supreme Court, filling the vacancy of BENJAMIN
R. CURTIS who stepped down after the controversial
case DRED SCOTT V. SANDFORD, 60 U.S.
(19 How.) 393, 15 L. Ed. 691 (1857). In appointing
the New Englander Clifford, Buchanan
hoped to maintain the geographic balance of the
Court at a time when such balance was crucial.
The nation was increasingly divided over the issue of slavery when Clifford joined the Court.
In particular, different factions hotly debated the
admission of Kansas to the Union and the status
of fugitive slaves. As a Northern Democrat who
nevertheless had demonstrated his sympathy for
Southern causes, Clifford was a logical choice
for the Court. His nomination caused great
debate in the Senate, particularly over his strong
Democratic loyalties and his perceived lack of
legal training and qualifications. However, Clifford
was finally approved by the Senate on January
12, 1858, on a 26–23 vote.
Clifford showed his anti-abolitionist stripes
early when he joined a unanimous Court in
upholding the fugitive slave law in Ableman v.
Booth, 62 U.S. (21 How.) 506, 16 L. Ed. 169
(1859). When the Civil War came, however, he
strongly supported the Union, deeming secession
to be “wicked heresy.” Unlike his later years
on the Court, those during the Civil War saw
Clifford supporting Republican attempts to
expand federal authority in order to better conduct
the war. He stood behind the federal government
in its first attempts to issue paper
currency to finance the war effort. In TEXAS V.
WHITE, 74 U.S. (7 Wall.) 700, 19 L. Ed. 227
(1868), he concurred with the majority in
upholding the legality of congressional Reconstruction
laws. However, in the Prize Cases—67
U.S. 635, 17 L. Ed. 459 (1862); 70 U.S. 451, 18 L.
Ed. 197 (1865); 70 U.S. 514, 18 L. Ed. 200 (1865);
and 70 U.S. 559, 18 L. Ed. 220—he dissented
when the Court upheld the seizure of shipping
through the Union’s blockade of Confederate
ports.
After the war Clifford consistently found
fault with Republican attempts to increase federal
powers over the states. In the 1867 Test Oath
Cases—Cummings v. Missouri, 71 U.S. (4 Wall.)
277, 18 L. Ed. 356, and Ex parte Garland, 71 U.S.
(4 Wall.) 333, 18 L. Ed. 366—for example, Clifford
voted with the majority in striking down
laws requiring oaths of loyalty to the Union. In
two decisions—Hepburn v. Griswold, 75 U.S. (8
Wall.) 603, 19 L. Ed. 513 (1870) (the first of what
became known as the Legal Tender Cases) and
Knox v. Lee (heard concurrently with Parker v.
Davis), 79 U.S. (12 Wall.) 457, 20 L. Ed. 287
(1871)—regarding the constitutionality of the
Legal Tender Acts (12 Stat. 345, 532, 709), which
had allowed the government to print paper
money to repay war debt, Clifford reversed his
earlier stances on paper currency and considered
the act to be unconstitutional. In Hepburn,
he was in the majority, whereas in Knox, he dissented,
writing, “[T]he members of the Convention
who framed the Constitution . . . not only
knew that the money of the commercial world
was gold and silver, but they also knew, from bitter
experience, that paper promises, whether
issued by the States or the United States, were
utterly worthless as a standard of value for any
practical purpose.”
In a later decision, Ford v. Surget, 97 U.S. 594,
24 L. Ed. 1018 (1878), he argued for granting
clemency to the former Confederacy and honoring
agreements made after the war. Only
through these means could another civil war be
avoided. If the sovereign, he wrote, “does not
observe the terms of the capitulations and all
other conventions with his enemies, they will no
longer rely on his word. Should he burn and ravage,
they will follow his example, and the war
will become cruel, horrible, and every day more
destructive to the nation.”
Clifford consistently voted against federal
enforcement of the Fourteenth and Fifteenth
Amendments, both of which sought to protect
the rights of African Americans against infringements
by state legislation. In the SLAUGHTERHOUSE CASES, 83 U.S. (16 Wall.) 36, 21 L. Ed.
394 (1873), Clifford voted with the majority in
its decision to interpret the amendments narrowly.
He joined the majority in two 1876 decisions—
United States v. Reese, 92 U.S. 214, 23 L.
Ed. 563, and United States v. Cruikshank, 92 U.S.
542, 23 L. Ed. 588—that prevented federal
enforcement of VOTING RIGHTS for African
Americans as guaranteed by the FIFTEENTH
AMENDMENT. He also dissented in several decisions
that struck down racially discriminatory
jury selection.
Clifford expressed his judicial conservatism
in his dissent to Citizens’ Savings and Loan Ass’n
v. Topeka, 87 U.S. (20 Wall.) 655, 22 L. Ed. 455
(1875), in which he argued that courts can
declare laws unconstitutional only when state
and federal constitutions expressly prohibit such
legislation:
Courts cannot nullify an act of the State legislature
on the vague ground that they think
it opposed to a general latent spirit supposed
to pervade or underlie the constitution,
where neither the terms nor the implications
of the instrument disclose any such restriction.
Such a power is denied to the courts,
because to concede it would be to make the
courts sovereign over both the constitution
and the people, and convert the government
into a judicial despotism.
In 1877 Clifford presided over the electoral
commission established to resolve the contested
results of the presidential election between
RUTHERFORD B. HAYES and SAMUEL J. TILDEN.
Tilden, a Democrat, had won the popular vote,
but a controversy arose over the accuracy of
election returns in three states. Voting along
strict party lines, the Republican majority on the
commission accepted all electoral votes as originally
reported. Hayes, the Republican, therefore
won the election by the narrow margin of
185–184. Clifford officially signed the order certifying
Hayes’s victory but he never fully
accepted the legitimacy of his presidency.He did
not attend Hayes’s inauguration nor did he visit
the White House during the justices’ customary
visits to the White House.
Clifford’s last act of party loyalty consisted of
staying on the Court until a Democratic president
was elected and could nominate his successor.
Despite failing health and increasing
absentmindedness, Clifford stubbornly refused
to step down, hampering the Court’s effectiveness.
Even after suffering a severe stroke in 1880,
he remained on the bench. He died on July 25,
1881, in Cornish,Maine, unsuccessful in his last
attempt to stymie his Republican opponents.
The following year Republican president
CHESTER A. ARTHUR appointed HORACE GRAY to
take Clifford’s place on the bench.
Chief Justice MORRISON R. WAITE, who
served on the Court from 1874 to 1888, once
calculated that of the 66 significant constitutional
cases that he assigned between 1874 and
1881, only one went to Clifford. This fact owed
something to Clifford’s minority status as a
Democrat on a Court dominated by Republicans.
He remained a stalwart embodiment of
pre–Civil War Jacksonian Democracy even
when that era had passed away.

FURTHER READINGS
Cushman, Claire, ed. 1993. The Supreme Court Justices: Illustrated Biographies, 1789–1993. Washington, D.C.: Congressional Quarterly.

Friedman, Leon, and Fred L. Israel, eds. 1969. The Justices of the United States Supreme Court, 1789–1969: Their Lives and Major Opinions. New York: Chelsea House.

CROSS-REFERENCES
Dorr, Thomas Wilson; Fugitive Slave Act of 1850; Loyalty Oath; Texas v. White.