Friday, May 6, 2011

How many traitors have served on the Supreme Court?

As I am sure you know, this year marks the start of the Civil War's sesquicentennial. As part of the celebration, the New York Times has started the "Disunion" blog. "Disunion" attempts to cover the events of the war from the perspective of what happened 150 years ago on the date of the posting. It is an interesting blog. Although, it does not capture my imagination the same way that the "Bicentennial Minute" did when I was 9 (I wish those were on DVD).

Anyway, last night the Disunion entry for April 29th caught my eye. Ostensibly, the post is the story of Thomas Dwight Witherspoon, a Presbyterian preacher who served with Company G of the 11th Mississippi Infantry. The article contains this paragraph:
Witherspoon enlisted in the Lamar Rifles, a local militia company named for Lucius Quintus Cincinnatus Lamar, a member of the House of Representatives who resigned to join the Mississippi Secession Convention. Lamar drafted the ordinance that severed ties with the Union. He went on to serve in the Confederate army and government; later, despite his secessionist activities, President Grover Cleveland appointed him to the Supreme Court.
(emphasis mine). I read the highlighted sentence and thought, "Wait, what? The guy who drafted Mississippi's secession ordinance was appointed to the Supreme Court after the war?" Turns out the Times is correct. Not only did Justice Lamar draft the secession ordinance, check out this quote he made about the Confederacy. According to the Wikipedia page about Justice Lamar, the Ken Burns documentary "The Civil War" quotes Justice Lamar as saying this about Mississippi's secession, "Thank God, we have a country at last: to live for, to pray for, and if need be, to die for." Apparently prior to secession, Justice Lamar, who was a member of Congress until Mississippi left the Union, did not think the antebellum United States was a country worth living for, praying for, or dying for.

This got me wondering, what cases did this traitor to his country help decide? As Justice Lamar served from 1888 to 1893, he was an associate justice for the last year of the Waite Court and the first five years of the Fuller Court.

The Waite Court issued a number of cases that we read in law school. It is responsible for such classics as Pennoyer v. Neff, United States v. Cruikshank, and the Civil Rights Cases. However, by the time Justice Lamar joined the Waite Court, its most famous decisions were behind it. Unless you are a patent lawyer.

The Fuller Court is most famous for Plessy v. Ferguson. However, Justice Lamar was dead when that case was decided, so we can't blame him for that. During the brief time that Justice Lamar served, the Court's most notable decision was Davis v. Beason, which upheld a law requiring voters to swear that they did not belong to organizations that promoted polygamy from a First Amendment challenge. It also decided Nix v. Hedden which found that tomatoes, while not a de facto vegetable, are a de jure vegetable.

Learning about Justice Lamar also made me wonder if any other people who betrayed the Union later served on the court after the war. It turns out that three other justices either fought in the Confederate Army or had roles in governing the Confederate States of America. One of them, Edward Douglas White, was actually named Chief Justice by President Taft. Another, Horace Lurton, was apparently paroled from a Union prisoner of war camp due to the intervention of President Lincoln. The third, Howell Jackson, was appointed by Benjamin Harrison. Thus, it came to pass a former brigadier general in the Union Army (and grandson of a hero of the War of 1812) appointed to the Supreme Court a guy who once served the Confederate States of America as a receiver of property confiscated from Unionists during the Civil War and whose brother was a Confederate brigadier-general. Justice Jackson was appointed to replace Justice Lamar and Justice Lurton was appointed to the same seat following the death of Justice Rufus Wheeler Peckhamm(who was appointed to replace Jackson). Maybe this seat was viewed as the "Confederate Seat" or something.

Justice Lurton served on the court at the same time as Justice Holmes. One wonders what Justice Holmes, who was wounded three times while serving in the Union Army and who kept his blood stained uniform and the bullets that wounded him until his death in 1935, thought of serving on the court with somone whose rebellion caused his wounds.

I don't know about you but I find it very odd that these people were appointed. I would like to say that the Reconstruction policies that allowed these former rebels to fully participate in American life after the war were a merciful thing. However, I can't really do that because letting people who secceded from the Union back in power directly led to the creation of the Jim Crow era in the South. So what do we call it, misguided mercy?


  1. Very interesting post.

    That "Disunion" blog has been very confusing to me, as they often feature headlines from it on the front page of I see headlines such as "South Carolina secedes!" and think, "Again?!"

  2. Neither Justice Lamar, nor the others you name, were traitors, nor were the Confederate States properly considered rebels. Sovereigns never rebel; to hold otherwise would be to consider consent of the governed meaningless.

  3. Oddly, they were US citizens levying war against the United States, so the Constitution begs to differ with you.

  4. Thanks for the comments Anonymous (assuming that the same commenter made both anonymous quotes). I suppose it would help to define the term traitor. What I meant by traitor was citizens of the United States who take up arms against the United States or materially assist those who take up arms against the United States. The three justices I mention all did that. Article 3 Section 3 of the Constitution states:

    Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

    I don't think it can be reasonably disputed that the Civil War wasn't a war. It also can't be reasonably disputed that the Confederacy was the enemy of the United States. As such, all three justices meet the definition.

  5. (For info: I'm first anon, not second).

    The Confederate justices, and other adherents of the Confederate States were no more traitors than George Washington. The "Civil War" -- more properly called the "War for Southern Independence" (just as the Revolution would be more properly refered to by the British name as the "War for American Independence") was most certainly a war.

    The original states which formed the union never would have joined it, or created the Constitution of 1787, had they not believed that they could resume their sovereignty if their peoples so desired, as they did in 1861. The states created the Federal government, their citizens delegated soverign power to it, and they can resume it, at least to the extent consent of the governed has any meaning whatever.

    The idea that the union could be maintained by coercion, that states could be forced to remain in the Union at bayonet point, would have been unimaginable to Jefferson and to Madison, and probably to all of the founders save Hamilton.

    As an aside, I think nullification is ruled out by Article VI of the Constitution -- if a state is within the Union, then the laws of the US are supreme. But the right to leave the union, to revoke the ratification of the Constitution and its amendments, belongs to the sovereigns, the people, acting through their states.

    Even the process of Reconstruction implicitly recognized this -- Lincoln's theory of the Constitution and of the Union was that the States had never left the Union, but had simply got themselves out of proper relations with it.

    However, that was not the legal view that ultimately prevailed: postwar, the Congress treated the Confederate States as conquered provinces, governed initially by the military, and to be reconstructed, the states were required to repeal their secession acts and ordinances. They had to be in legal existence to be repealed, and they had to establish governments and constitutions acceptable to Congress. That argues powerfully that the seceeded states were in fact out of the Union -- they were certainly treated as such.

    Were it not for slavery (the ending of which was an unmitigated blessing to North, South and all humankind) Lincoln's decision to forcibly maintain the Union would no doubt be viewed much less favorably by history. The US certainly had the power to keep the seceded states in the Union -- the war proved that, but it certainly did not prove that there was a right to do so.

    Do some googling on the "Second Vermont Republic" -- a mostly left-wing movement that wants Vermont to leave the US. Now I don't rate their chances of persuading the people of Vermont that this is a good idea very high, but suppose they made their political case? What if the people of Vermont, or any other state, REALLY decided they wanted the hell out of the US? Do you really think the rest of us have some right to make them stay in by armed force if they don't want to? Would you want to live in a country that would do that?

    The Confederates of 1860, and their reasons for acting as they did, are hard for us today to sympathize with. But that doesn't make them traitors, and it is an abuse of language to call them such.

  6. Anon1,
    Sorry for the delayed posting of your comment. Apparently the blog's spam filter thought it was spam. I didn't realize the blog even had a spam filter until today when I noticed it and freed your comment from the filter. I will try to figure out a way to blame Mr. Torvik for the snafu.

    You are correct when you state that Lincoln’s view of the South’s relationship to the Union was not adopted by Congress after his assassination. You are also correct that during Reconstruction, the South was treated like conquered territory. However, I think reasonable minds can differ as to whether this treatment was because the South was a conquered territory or due to a recognition that the South, without Reconstruction, would be run the same as it was pre-war without an occupation. Given what happened when Reconstruction ended, perhaps it was the latter that drove the division of the south into military districts. After all, only Virginia lost any territory as a result of the Civil War. That loss, the creation of West Virginia occurred shortly after the Civil War started and not as a result of any Congressional reconstruction policy. If Congress had truly regarded the South as conquered territories, it undoubtedly would have changed the boundaries of the southern states as part of reconstructing the Union.

    I find it hard to imagine the United States forcing Vermont to stay in the Union if it tried to secede today. But that may be more an indication of a failure of imagination on my part. It is easier to imagine that if New York, home of the country’s financial backbone, tried to secede that the government would not let it. Similarly, I have no trouble believing that if, during the Cold War, North Dakota had tried to secede, the government would not have let them leave because North Dakota was then home to large portion of our nuclear missile silos.

    As for whether any of the founding fathers would have thought secession from the Union was an option, I am inclined to think they would not have thought states could secede after joining the Union. Pauline Maier’s book, "Ratification: the People Debate the Constitution 1787-1788", gives the impression that the Founders did not consider the issue. First, they set the ratification process up so that after 8 states had agreed to adopt the Constitution, the remaining states would simply be voting to join or not join the Union. That process doesn’t suggest to me that they thought states could leave after joining. Second, to the extent the various state ratification conventions considered secession, they were concerned that parts of the states would secede the state if a state failed to adopt the Constitution. For example, Virginia was worried that both the Northern Neck section of the state as well as the territory that would eventually become Kentucky would secede Virginia if it did not join the Union. Similarly, delegates to New York’s ratification convention were concerned that the southern portion of the state would secede if New York did not ratify the constitution. The delegates to these conventions weren’t concerned about leaving the Union, they were concerned about never getting in the Union.

    As to your last point, I don’t think my definition of treason is an abuse of language. I am simply applying the definition of treason found in Article III. Justices Lamar, Lurton, White, and Jackson were all citizens of the United States who levied war against it. Article III defines that as treason. That definition is good enough for me.


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