Nathan Clifford

Nathan Clifford (August 18, 1803 – July 25, 1881) was an American statesman, diplomat, and jurist who is one of the few individuals to have held a constitutional office in each of the three branches of the United States federal government. He represented Maine in the U.S. House of Representatives from 1839 to 1843, served as U.S. Attorney General from 1846 to 1848 and as U.S. Ambassador to Mexico from 1848 to 1849 in the administration of President James K. Polk, and was appointed an associate justice of the U.S. Supreme Court by President James Buchanan in 1858, serving on the Court until his death in 1881.

Clifford was born on August 18, 1803, in Rumney, Grafton County, New Hampshire, to Deacon Nathaniel Clifford and his wife Lydia (née Simpson). He was the eldest and only son among seven children in a family of old New England, or “Yankee,” stock. His ancestry included Ann Smith, his great-great-grandmother, who as a young girl in 1672 was an accuser of Eunice “Goody” Cole, the only woman in New Hampshire convicted of witchcraft. Clifford attended the public schools of Rumney and then pursued further studies at Haverhill Academy in Haverhill, New Hampshire. He later enrolled at the New Hampton Literary Institute (now the New Hampton School) in New Hampton, New Hampshire, where he completed his formal education before turning to teaching and the study of law.

After teaching school for a time, Clifford read law in the offices of Josiah Quincy III in Massachusetts, following the then-common practice of legal apprenticeship rather than attending a formal law school. He was admitted to the bar in Maine in 1827 and established his first law practice in Newfield, York County, Maine. Clifford quickly became active in local affairs and the Democratic Party, building a reputation as a capable lawyer and advocate. His growing prominence led him into state politics, where he began a steady rise through Maine’s public offices.

Clifford served in the Maine House of Representatives from 1830 to 1834 and was chosen Speaker of the House from 1833 to 1834. In 1834 he was appointed Maine Attorney General, a position he held until 1838. Initially, Clifford sought election to the United States Senate but was unsuccessful. He then turned to the House of Representatives and was elected as a Democrat to the Twenty-sixth and Twenty-seventh Congresses, serving from March 4, 1839, to March 3, 1843, as a representative from Maine. In Washington, he followed the Democratic Party line and was a strong supporter of the policies of President Martin Van Buren. Clifford opposed high protective tariffs, supported internal improvements, endorsed state banking systems, and favored federal retrenchment and economy in government. On the issue of slavery and abolition, he criticized abolitionism, acknowledging the good intentions of some of its supporters but denouncing what he called the “mean and incendiary schemes of political Abolitionists.” Owing to redistricting and political infighting within Maine, Clifford was not a candidate for re-election in 1842 and left Congress at the close of his second term.

In 1846, President James K. Polk appointed Clifford as the nineteenth Attorney General of the United States, succeeding John Y. Mason, who returned to his prior post as Secretary of the Navy. Clifford served in Polk’s Cabinet from October 17, 1846, to March 17, 1848, during a period dominated by the Mexican–American War and debates over territorial expansion and slavery. He resigned as Attorney General to accept appointment as Envoy Extraordinary and Minister Plenipotentiary to Mexico, serving as U.S. Ambassador from March 18, 1848, to September 6, 1849. In this capacity, Clifford played a central role in arranging and securing Mexican assent to the Treaty of Guadalupe Hidalgo, which formally ended the Mexican–American War and by which vast territories, including California, were ceded to the United States. Following the election of a Whig president, Zachary Taylor, Clifford was recalled from his diplomatic post and returned to Maine, where he resumed the practice of law in Portland and reestablished himself as a leading member of the state bar.

On December 9, 1857, President James Buchanan nominated Clifford to be an associate justice of the United States Supreme Court, filling the vacancy created by the resignation of Justice Benjamin R. Curtis in the aftermath of the Dred Scott v. Sandford decision. Clifford’s nomination was controversial and was vigorously opposed by anti-slavery senators, who viewed him as a partisan Democrat and a “doughface,” a Northern man with Southern sympathies. His record as a Democrat who had supported positions favorable to Southern interests and his perceived pro-slavery leanings made his confirmation contentious. After a protracted 34-day confirmation battle, the United States Senate confirmed him by a narrow vote of 26 to 23 on January 12, 1858. Clifford was sworn in as an associate justice on January 21, 1858. At the time he joined the Court, all but one of the justices were affiliated with the Democratic Party. Over the next decade and a half, as Republican appointees gradually replaced his Democratic colleagues, Clifford increasingly found himself in the minority; by 1872, he had outlived his fellow Democratic justices, and for his remaining nine years on the Court he was often outvoted by his Republican colleagues.

During his long tenure on the Supreme Court, Clifford wrote the majority opinion in 398 cases, and about one-fifth of all his opinions were dissents. His opinions were noted for their thoroughness and detail, sometimes criticized as overly lengthy and digressive, and reflected his preference for what contemporaries called “mechanical jurisprudence,” an approach that adhered closely to the text of the Constitution and statutes. Clifford rarely articulated a broad legal philosophy, but he consistently maintained a sharp distinction between federal and state authority and resisted expansive readings of federal power. Senator James W. Bradbury, an admirer, summarized Clifford’s view that the Constitution was not an “elastic instrument to be enlarged or impaired by construction, but to be fairly interpreted according to its terms, and sacredly maintained in all its provisions and limitations, as the best guaranty for the perpetuity of our republican institutions.” Clifford’s particular fields of expertise on the Court included commercial and maritime law, questions involving Mexican land grants arising from the territories acquired after the Mexican–American War, and issues of procedure and practice. His most significant contribution to constitutional doctrine may have been his dissent in Loan Association v. Topeka, in which he rejected “natural law” or any extra-constitutional ground as a basis for the Court to invalidate legislative acts, insisting instead on clear constitutional provisions as the only legitimate basis for judicial review.

Clifford’s jurisprudence during the Civil War and Reconstruction reflected his skepticism of centralized authority, tempered by his loyalty to the Union. During the Civil War, he remained faithful to the Union cause and, though distrustful of broad federal power, generally upheld federal authority to the extent he believed necessary to prosecute the war. He joined the dissent in the Prize Cases, arguing that President Abraham Lincoln’s blockade of Confederate ports was unlawful in the absence of a formal declaration of war by Congress, and he joined the majority in Ex parte Milligan, limiting the use of military tribunals to try civilians when civilian courts were open and functioning. After the war, during Reconstruction, Clifford’s doubts about federal authority were no longer moderated by wartime exigencies, and he more readily voted to restrict federal power and to ease the conditions under which the former Confederate states could rejoin the Union. In Cummings v. Missouri and Ex parte Garland, he joined the majority in striking down “test oaths” imposed as conditions for participation in public life, viewing them as unconstitutional penalties and impediments to reconciliation.

Clifford’s most prominent stand against federal authority came in the Legal Tender Cases, which tested the constitutionality of the Legal Tender Act of 1862 authorizing the issuance of paper money (“greenbacks”) as legal tender for the payment of debts, including those contracted before the Act’s passage. In Hepburn v. Griswold (1870), involving a debtor whose note had been executed prior to the Act, Clifford joined the 5–3 majority in holding that the Act could not constitutionally be applied to preexisting debts. Shortly thereafter, the composition of the Court changed: Justice Robert C. Grier, who had joined the Hepburn majority, resigned due to ill health, and President Ulysses S. Grant appointed William Strong to succeed him. Congress also expanded the Court from eight to nine members, and Grant appointed Joseph P. Bradley to the new seat. These changes immediately affected the pending case of Knox v. Lee (1871), which involved compensation for goods confiscated by the Confederate Army and raised anew the validity of legal tender paper currency. Clifford, joined by Justices Stephen J. Field and Samuel Nelson, dissented from the Court’s decision to grant reargument on the constitutional question, publicly declaring, “I dissent from the order of the Court in these cases, especially from that part of it which opens for re-argument the question whether… the Legal Tender Act is constitutional as to contracts made before its passage—as I hold that the question is conclusively settled by the case of Hepburn vs Griswold…” On May 1, 1871, the Court, by a 5–4 vote, overruled Hepburn v. Griswold and upheld the Legal Tender Act both on its face and as applied to preexisting debts, with the two new justices, Bradley and Strong, providing the decisive votes. Clifford joined the four dissenters from Knox, submitting an 18,000-word dissent in which he expressed anger at the Court’s rapid reversal and argued that the Act was facially unconstitutional, maintaining that only “hard money”—gold and silver with intrinsic value—could constitutionally serve as legal tender.

In interpreting the Reconstruction Amendments, Clifford adhered to a narrow view of federal power and the scope of the new constitutional guarantees. He joined the majority in the Slaughter-House Cases (1873), which held that the Fourteenth Amendment’s Privileges or Immunities Clause protected only a limited set of rights of federal citizenship and did not incorporate the broader civil rights traditionally regulated by the states. In Hall v. DeCuir (1878), involving racial segregation on interstate steamships, Clifford wrote a separate concurring opinion upholding the challenged segregation practices and coining the phrase “equality is not identity,” suggesting that legal equality did not require the commingling of races in all circumstances. His concurrence has been viewed by some scholars as an early articulation of the “separate but equal” rationale that the Supreme Court would later endorse in Plessy v. Ferguson (1896), fifteen years after his death.

Nathan Clifford remained on the Supreme Court until his death on July 25, 1881. By the end of his judicial career, he had become one of the longest-serving justices of his era, leaving a substantial body of opinions that reflected his commitment to a strict, text-based interpretation of the Constitution, a limited view of federal authority, and a strong deference to state sovereignty and legislative judgment.