U.S. Chief Justice Salmon Portland Chase and Trump's disqualification under section 3 of the 14th Amendment
The Chief Justice's judgments were compromised by his vaulting ambition to secure the Democratic Party's nomination to the presidency.
Salmon Portland Chase craved the presidency.
Between terms in the U.S. Senate (1849–55, 1860–61), he was the first Republican governor of Ohio (1855–59). He sought the Republican presidential nomination openly in 1856 and 1860, and surreptitiously in 1864 while serving in Lincoln’s Cabinet; in 1868, during his chief justiceship, he sought the Democratic nomination as an opponent of the Radical Republicans’ program of reconstructing the defeated Southern states, and in 1872 he was once more an unsuccessful candidate.
He was appointed Chief Justice of the United States by President Abraham Lincoln in 1864 after serving as Secretary of Treasury. There, Chase had championed legal tender laws that made greenbacks a substitute for gold or silver as legal tender to discharge debts to facilitate the financing of the Union Army during the Civil War. But to curry favor with Democrats to become the Democratic nominee for president in 1872, Chief Justice Chase held his own legal tender handiwork unconstitutional in Hepburn v. Griswold, 75 U.S. 603 (1869), a precedent quickly overruled in Knox v. Lee, 79 U.S. 457 (1871).
Also in 1869, sitting as a Circuit Judge, Chase authored an opinion in In re Griffin, 11 Fed. Cas. 7 (C.C.D. Virginia) again to bolster his attraction as the Democratic Party presidential nominee for 1872. There, an inmate challenged his criminal conviction on the theory that the presiding judge was disqualified from serving under section 3 of the Fourteenth Amendment in supporting the Confederacy after having taken an oath to support the Constitution. Chase could and should have decided the case under the de facto officer doctrine and avoided the knotty section 3 constitutional question.
The doctrine sustains the validity of official acts by persons not legally appointed or serving to avoid the legal chaos that would ensue from wholesale invalidations over many years. The sensible remedy for an unlawful judicial appointment is removal from office, not showering windfalls on parties unable to show actual prejudice or error committed by the wrongfully appointed judge. Why should the criminal go free because of a blunder in a judicial appointment? The de facto officer doctrine was affirmed by the United States Supreme Court in Norton v. Shelby County, 118 U.S. 425 (1886).
Chase gratuitously declared that section 3 was not self-executing and was nothing but a scarecrow without implementing congressional legislation. The beneficiaries of Chase’s decision were overwhelmingly Democrats who had served the Confederacy and rejoiced at its partisan political ramifications. Constitutions are written to establish norms independent of the political branches, but Chase’s view makes section 3 a constitutional nullity with the demoted status of proposed congressional legislation.
The Colorado Supreme Court in its decision yesterday in Anderson v. Griswold disqualifying Trump for the presidency under section 3 after a five-day trial correctly disregarded In re Griffin as ill-reasoned and wrongly decided. Chase’s frolic will feature in Trump’s appeal to the U.S. Supreme Court to reverse the Colorado Supreme Court. It should be treated cum granis saltis—a campaign speech to capture the Democratic nomination for the presidency in 1872.