Samuel Chase, Forgotten Jurist

Natural Law and Church-State Relations in Early American Jurisprudence

Within conservative legal circles, questions of substantive justice and how to interpret the Constitution and the Founding have risen anew. While the spark that ignited the recent debates was a disavowal of originalism as an ineffective way to secure the common good, some scholars have found America’s founding ideals to be amenable to conservative notions of the Common Good. Josh Hammer, among others, has written that James Madison and Alexander Hamilton identify a way of securing the common good through American law. Yet, while the writings of Publius are often cited, the broader thought of early American judges are often ignored. To our detriment, this trend disregards a key part of American history and passes over important architects of a specifically American legal theory.

Conservative scholars have looked to the Founders’ and John Locke’s “law of nature” to interpret the American Constitution. Even the most radical of the Founders were, after all, disciples of Locke. Though Locke departs from the Thomistic natural law tradition by substituting pleasure for a metaphysical conception of the ultimate good, Locke’s concept still has a way to arrive at what is “good” by nature. Others have looked at various personal values, religious or otherwise, to find a higher moral ground in the constitutional order than we have grown accustomed to . Many, like Hammer, have cited Hamilton and Madison in defending a version of originalism which is more idealistic, maintaining the possibility of natural law and pursuit of the common good in the American legal system.^[1] Those interested in resolving the dispute between originalism and objective standards of justice ought to direct their attention to early American jurists.

Samuel Chase, is perhaps, the judge least deserving of being pushed to the wayside. This blustering founder is an unlikely hero to those looking for a Common Good vision of the Constitution. His jurisprudence, both on the Supreme Court and as a judge in Maryland, reveals a strong conviction that the legal order has higher grounding than the procedures by which it was adopted. Here, those with loftier goals can find what is absent from several of the other founders: a concern with tradition, and a profound respect for the place of the divine in American life. We can, most importantly, locate a precise moment where the American legal profession failed to heed his opinion, sending American jurisprudence on a course so dismal that today’s originalism became the lesser of two evils.

Chase’s Life

Born on Maryland’s agrarian Eastern Shore, Samuel Chase’s life reflected his rural roots. He had the ruddy complexion and hearty constitution of a man raised on farm work and a farm diet. Because of this, and his blustery temper, Chase’s colleagues on the Maryland Bar were inspired to dub him “Old Bacon Face,” a nickname that stuck for most of his life. He is also remembered as the only Supreme Court justice to be impeached. His impeachment—for letting “partisan leanings” influence his decisions—resulted from his disputes with Jefferson and the Democatic-Republicans, who were alarmed at the prospect of a hostile Supreme Court. Chase was eventually acquitted by the Senate and continued to serve on the court until his death. Even in his old years, long after his impeachment, Chase was described by fellow justice Joseph Story as “coarse.”

While his childhood on the Shore may have shaped his manners and countenance, Chase’s jurisprudence reflected the strong influence of his father, Thomas, an Anglican priest. Chase was a faithful Episcopalian his entire life, refusing to sequester his religiosity to private life. He held the strong conviction that the temporal power of the state should not challenge the spiritual authority of the church. Additionally, Chase thought that common law was central to American jurisprudence—that it had not been superseded by American independence and that the new government continued was obligated to defend common law rights. By extension, the American government was obliged to defend the rights of religion. After all, the Church of England had been established by an act of government and bolstered by judicial precedent in Britain. While the Church did receive its authority from the British government, the government received its mission from God and His law. A government that was built upon canon law and Scripture is foremost bound to both.^[2]

Chase’s Jurisprudence

As a member of Maryland’s post-colonial legislature, Chase championed bills to support the state’s Christian churches with tax revenue. While his legislation failed to pass, Chase soon revisited the issue in the courtroom instead of the statehouse. Chase upheld the long-standing common law presumption that churches, performing the necessary functions of worship and moral education, deserved state compensation.

In the 1799 case Runkel v. Winemiller, Chase granted a writ of mandamus to a Reformed Protestant cleric, Wiliam Runkel. Runkel, who was removed from his position as a minister, was reinstated in the decision because of his ouster’s failure to adhere to the terms of both the civil and ecclesiastical laws which governed his ministry.^[3] In the decision, Chase wrote, “Religion is of general and public concern, and on its support depends, in great measure, the peace and good order of government, the safety and happiness of the people.” Chase concluded that the ordained clergy could not be removed by a throng of angry congregants, and that “every endowed minister, of any sect or denomination of Christians, who has been wrongfully dispossessed of his pulpit, is entitled to the writ of mandamus to be restored to his function, and the temporal rights with which it is endowed.”

Clearly, Chase’s decision in Runkel upheld a very different balance of church-state relations than the one most familiar to Americans today. In Chase’s view, the state affirms the rights of the church and cannot act to usurp the rights and authority of the ordained—the state can only act in their support. By endorsing state accommodation of religion, Chase sought to empower the doctrinal authority of churches over and against the vagaries of public opinion. This position seems to go far beyond the measures of any present-day advocates of religiously-motivated originalism or its alternatives.

When he moved to the Supreme Court, Chase held the importance of religion in public life in a similar manner. A notable example of Chase’s unique jurisprudence can be found in his statements during the trial of Pennsylvanian auctioneer John Fries. Fries organized one of America’s earliest rebellions, fighting against the government’s legitimate authority to levy taxes. John C. A. Wood, a contemporaneous historian of the nation’s earliest years, wrote that Chase delivered a strong rebuke to the rebellious Fries, exhorting him to repent for his sedition, which Chase viewed as a crime against natural and divine laws—not only against positive statute.^[4] Chase exhorted Fries, “There is no repentance in the grave; for after death comes judgment; and as you die so you must be judged. By repentance and faith, you are the object of God’s mercy.” Chase also warned, that “[if Fries did] not repent, and have faith and dependence upon the merits of the death of Christ, [he would] die a hardened and impenitent sinner.” Further, Chase told Fries that “the mild government and laws, which [Fries] endeavored to destroy, permit [him] to commune with ministers of the gospel.” Which is to say that the state provides the possibility and encourages the reception of salvation and forgiveness in its subordination to divine law. Chase did not hold that American laws concerning the church were good because of some vague notion of “religious liberty,” which both Separationists and Originalists subscribe to today. Rather, he thought the law itself promotes the fullness of the Gospel.^[5]

Though Chase’s opinions in the Runkel case and the Fries trial promote a very different model of state support for the divine rights of the Church, Chase’s majority opinion inCalder v. Bull (1978) is even more important.^[6] The case dealt with a civil complaint by Mr. Calder about the effects of a Connecticut law on his inheritance. In this decision, Justice Chase wrote the majority’s opinion, joined by Justices William Cushing and James Wilson. A landmark precedent, it was determined that the ex post facto prohibition in the first article of the constitution solely applies to criminal, rather than civil, laws.

Chase ruled that natural law remained a valid, discernable, and proper measure in seeking to dispense perfect justice. In this case, natural law did not protect the complainant, Calder, because retroactive civil legislation does not turn innocence into criminal guilt. In Calder, Chase acknowledged that all ex post facto laws were retrospective, but that only retrospective laws meeting a limited range of criteria could be considered ex post facto. Unjust and ex post facto laws, as considered by Chase, are only laws wherein persons previously innocent were made criminal for actions outside of the scope of natural justice. Thus, courts had a duty to strike down these kinds of laws.

Chase did not believe that many laws governing inheritance, property regulation, and other civil disputes were restrained by natural law, though. Professor R. H. Helmholz notes in his book on the natural law foundations of the Constitution that Calder’s claim to recover his father’s property was not a “vested” or natural right, but a rudimentary claim to property that natural law didn’t necessarily confirm was inalienable.^[7] In this vein, Chase stated that “an act of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact cannot be considered a rightful exercise of legislative authority.”^[8] Thus, he suggested that the courts ought to nullify laws which infringe upon rights recognized by natural law even though it ought not interfere with all retrospective legislation. From there, it logically follows that a court has a moral duty to overturn unjust laws which exceed the bounds of natural justice

The Misfortune of Iredell

Unfortunately, contemporary American jurisprudence, by-and-large, has internalized Chief Justice Iredell’s concurrence in Calder v. Bull. While Iredell agreed that the constitutional prohibition on ex post facto legislation applied only to criminal laws, his opinion effectively destroyed the long tradition of applying natural law to evaluate statutes. This is because Iredell held a relativistic opinion that “ideas of natural justice are regulated by no fixed standard” and that they are “abstract.”^[9] Thus, Iredell suggested that the courts would be wrong to use them. Iredell crowned the statute as a good solely in itself, contrasting with Chase’s idea that statues were good when they were lawful by their natural antecedents. Moreover, he insinuated that the business of the court wasn’t to discern the morality, and consequently justice, of laws. Iredell’s view of the law was that the Constitution itself is the highest legal principle and that all statutes are good only insofar as they do not violate the law written in the Constitution. Little doubt, this view was revolutionary for its time and scandalous to those who believe that justice and injustice can readily be discerned by reason alone. Yet, the legal profession has clung to Iredell’s view and the moral inconsistencies it entails rather than adhere to natural law as the court’s majority had recommended.

Contemporary jurists and theorists, even conservative ones, have strayed far from Chase’s view of church-state relations. Not only have they grown distant from Chase’s view that the Constitution demands respect for divine law, but they have dispensed with the need to consider natural law in their jurisprudence. In natural law’s stead, the originalist doctrine of placing rigorous focus on precedent and re-reading of texts has taken hold—often with results that fall far short of just.

Contemporary American jurisprudence habitually considers most precedent from the past century while showing little interest in either the morality of civil law or the extent to which natural law originally informed it. Iredell’s concurrence is largely in line with this: his rejection of natural law as positive law’s antecedent has made jurists and scholars more interested in fresh precedent and textual analysis than justice. The expectation of deference that Iredell’s concurrence creates also discourages courts from intervening when legislatures pass manifestly bad laws. It is inconceivable to reject the imperatives of a majority opinion like Chase’s, with the weight of centuries of good, valid, and thoughtful law behind it. Iredell’s concurrence was intended to be mostly polemical and it is therefore odd to construct a theory from it.

Thus, judges should striked down bad precedents which violate natural law rather than be unjustly bound to stare decisis. One of Chase’s successors, Justice Clarence Thomas recommends doing this whenever the law violates principles of justice. Thomas has stated that the Supreme Court shouldn’t uphold precedents which are “demonstrably erroneous,” an attitude which Chase would likely find agreeable. Violating natural law, whether by actively doing so on the bench, or by being idle as states and congress do the same, are abdications of responsibility. Whether they like it or not, those who fetishize “liberty” or emaciated forms of conservatism don’t have justification to support statutes that are at odds with fundamental, irrevocable moral laws.

Of course, vacating bad precedent would be in the interest of the common good as well. Harmony and obedience to natural law, as well as its enforcement by statute, is a necessary condition of securing the common good. Chase’s notion that natural law should guide the courts ought to be taken up to strike down bad precedent, even if the changes this demands must be undertaken gradually.

Ultimately, Chase’s jurisprudence should be satisfying to originalism’s harshest critics as well as the best of its proponents. It provides strong moral principles toward which law must aim. His thought provides a tacit recognition that the Divine is essential to the wellbeing of American society, a realization that natural law is an antecedent of all human law, and a willingness to be informed by tradition. The legal thought of Samuel Chase is something for which jurists of myriad ideological orientations have been grasping but have consistently failed to recognize. Here, in this garrulous, boisterous, and coarse political dueler, they may find a trove of legal wisdom.

Featured image: Portrait of Samuel Chase (1836) by John Beale Bordley via Wikimedia Commons.

Leo Thuman studies Political Science and Economics at Case Western Reserve University. He also writes and does policy work. He invites you to follow him on Twitter.