The Rebel Soldier Who Became Chief Justice of the United States: The Civil War and Its Legacy for Edward Douglass White of Louisiana by Andrew Kent :: SSRN
Andrew Kent, in a forthcoming issue of the American Journal of Legal History, has resurrected the little remembered personality and jurisprudence of Edward D. White, Jr., a Louisianan, Confederate soldier, Redeemer politician, and Chief Justice of the United States. A relentless researcher, Fordham law professor Kent has exhaustively detailed and assessed the sketchy and diffuse records of White’s youthful role as a Confederate loyalist and soldier. Kent probes the mystery of how White, the son of a plantation owner, Congressman and Governor spent the war years in Louisiana, became a soldier and POW however briefly, and afterward opposed Reconstruction.
A United States Senator when named to the Supreme Court by President Grover Cleveland in 1890, White was a southerner who became a `nationalist’ judge supporting expansions of federal authority. Promoted to the chief justiceship by President William Howard Taft in 1910, White in Standard Oil Company of New Jersey v. United States embraced a narrowing construction of the sweeping Sherman Act. The anti-trust measure states at 15 U.S.C. 1 “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.” His rule of reason - only unreasonable restraints are barred - remains the foundation of anti-trust law today.
During World War I, White wrote two important decisions in favour of federal emergency powers. Wilson v. New (1917) sustained the Adamson Act of 1916, fixing minimum wages and maximum hours for railroad workers. Military conscription was upheld in the Selective Draft Law Case (1918).
Today’s conservative Justices hark back habitually to the now scriptural Federalist Papers and the compromises of the 1787 Federal Convention. Some expressions - such as those of Antonin Scalia dissenting in the Arizona v. United States immigration law case - employ language evocative of the Articles of Confederation, Article II, if not that of the Confederate States. Scalia there wrote: “The United States is an indivisible “Union of sovereign States.” [Citing Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U. S. 92, 104 (1938).] But White, who experienced the defeat of secession and the re-founding of the nation via the Civil War Amendments expressed a remarkably different vision in the 1918 Selective Draft Cases:
under the Constitution as originally framed, state citizenship was primary, and United States citizenship but derivative and dependent thereon, therefore the power conferred upon Congress to raise armies was only coterminous with United States citizenship, and could not be exerted so as to cause that citizenship to lose its dependent character and dominate state citizenship In reviewing the subject, we have hitherto considered it, as it has been argued, from the point of view of the Constitution as it stood prior to the adoption of the Fourteenth Amendment. But to avoid all misapprehension, we briefly direct attention to that Amendment for the purpose of pointing out, as has been frequently done in the past, how completely it broadened the national scope of the Government under the Constitution by causing citizenship of the United States to be paramount and dominant, instead of being subordinate and derivative, and therefore, operating as it does upon all the powers conferred by the Constitution, leaves no possible support for the contentions made, if their want of merit was otherwise not so clearly made manifest.Kent has done important service on a number of counts. His meticulous reconstruction of White’s Civil War experience conveys the complexities of wartime life in Louisiana which, though New Orleans fell to the Union on May 1, 1862, remained contested territory throughout the war. This biographical exploration provides an important angle to understand the evolving thinking of a man who as Associate Justice and Chief Justice helped to develop a jurisprudence of national authority which feels quite contrary to the vision embraced by today’s conservatives who embrace not the early Federalists with whom the mature White would have been comfortable but rather the grumbles and cavils of the Jeffersonian Democrats. - gwc
* White, the first Roman Catholic Chief Justice, was a member of Council #2473 of the Roman Catholic civic organization the Knights of Columbus
Edward Douglass White (1844-1921) was appointed associate justice of the U.S. Supreme Court in 1894 when he was a sitting U.S. senator, and was elevated to chief justice in 1910. Given his background — White was a Democrat, Confederate veteran, sugar planter, and lawyer from New Orleans, and son of a Louisiana governor — one would have expected White to share the legal and political views of others of his background, class, and region, which were generally hostile to federal power and fervently in favor of white supremacy. Yet White was a nationalist on the Supreme Court. He was considered a de facto Republican by many prominent northern Republicans, and was elevated to the chief’s seat by William Howard Taft. As a justice White voted repeatedly to uphold expansive uses of Congress’s regulatory and taxing powers, including powers first exercised by the Union during the Civil War to tax income and raise armies by conscription. White did not have enlightened racial views, and joined the majority of the Court in Plessy v. Ferguson and other decisions that denied equal rights to African-Americans. But he also wrote the Court’s decisions holding unconstitutional that so-called “grandfather clauses” that were used in the South after the war to prevent African-Americans from voting, and voted in favor of civil rights in other important cases.
Previous biographers have recognized the importance of White’s experience as a Confederate soldier to his life and later judicial and political outlook. But the details they have published about White’s military service have been only brief and vague, and sometimes simply wrong. Relying on a far broader array of original and secondary sources than any previous study, this paper explores what exactly White did, saw, and experienced during the Civil War. Crucially, though, the story is also one about omissions and even deception by White. A newly-discovered document shows that he lied to Federal interrogators about his war service when he was captured in 1865. In later life White rarely spoke of the war, and when he did he offered almost no details about his service. He failed to correct the record when inaccurate biographical details about his service were published. His actual war service was almost certainly much less extensive and honorable than previous biographers have claimed. The most detailed information we possess shows him joining a marauding guerrilla band in rural Louisiana in the closing months of the war.
Later in life, the one thing that White clearly and honestly expressed about the war was deep regret that it occurred at all, anguish about its human toll and effect on his beloved country, and self-criticism about his youthful service on the Confederate side. This picture that emerges of White and his war service is much more complex than offered in previous biographical studies, and provides a surer foundation for assessing his life and judicial work, and accurately understanding his place in the country’s political and legal history.