During his fourteen years as chief justice, Waite stood firm for the understanding that the Reconstruction era amendments had not drastically altered the U.S. constitutional system.

Waite was chief justice during a time of great change in the United States. The meaning of freedom for the four million former slaves was still unsettled, although the nation had already begun its retreat from the promises of Reconstruction. Industry was growing rapidly, and big business attempted to use the Fourteenth Amendment, intended to protect the former slaves in all the rights of citizenship, to defend its property interests against government regulation. Therefore, the most important issues considered by the Waite Court were the meaning of the ReconstructionReconstruction amendments and the extent to which government could regulate corporate greed. Waite’s judicial contribution can best be understood as an attempt to preserve the traditional system of dual federalismDual federalism in which both state and national governments are sovereign in their own separate spheres. Waite’s devotion to dual federalism was first apparent in Minor v. Happersett[case]Minor v. Happersett[Minor v. Happersett] (1875), in which the Court ruled that the vote was not one of the privileges and immunities of national citizenship. Virginia Minor, therefore, had no right to vote under the Fourteenth AmendmentFourteenth Amendment. By construing the Fourteenth Amendment narrowly, Waite left a wide scope for state authority.Grant, Ulysses S.;nominations to the Court

Morrison R. Waite

(Collection of the Supreme Court of the United States)

Waite’s nomination by President Ulysses S. Grant was completely unexpected. Three previous candidates political cronies of the scandal-ridden Grant administration were unacceptable to the Senate. Although relatively unknown, Waite was a man of character and integrity. The son of a Connecticut state chief justice, Waite graduated from Yale in 1837, then studied law with his father before moving to Ohio. There he established a successful law practice, served as a Whig in the state legislature, and helped organize the state’s Republican party. After the Civil War (1861-1865), he distinguished himself as a member of the Geneva Commission, which settled claims involving the British-produced Confederate ship Alabama. Waite had no previous judicial experience and had never argued a case before the Court when he took his seat.

Vilified for his narrow interpretations of the Enforcement Acts (1879-1871) and the Fourteenth and Fifteenth Amendments, Waite was accused of abandoning the former slaves to the mercies of their former owners.Civil rights and liberties While his opinions in United States v. Cruikshank[case]Cruikshank, United States v.[Cruikshank, United States v.] (1876) and United States v. Reese[case]Reese, United States v.[Reese, United States v.] (1876) were indeed formalistic, looking to the letter rather than the spirit of the Enforcement Acts, it is unfair to say that Waite was unconcerned about the rights of African Americans. He was bound in Cruikshank by the Court’s original interpretation of the Fourteenth Amendment in the Slaughterhouse Cases[case]Slaughterhouse Cases[Slaughterhouse Cases] (1873), which had distinguished sharply between state and national citizenship and left the protection of ordinary rights to the states. Still, it was not clear exactly what the privileges and immunities of national citizenship were, and Waite had the opportunity in Cruikshank to read the Bill of Rights into the Fourteenth Amendment. Instead he favored the states, suggesting that there must be overt discriminatory state action in order for the federal government to protect the civil rights of the freed slaves. Locked into a traditional understanding of dual federalism, Waite missed the change in federal-state relations inherent in the Fourteenth Amendment.

However, Waite had not completely turned his back on the needs of the freed slaves. Although he declared two sections of the First Enforcement Act (May, 1870) unconstitutional in United States v. Reese, he nevertheless suggested that indictments that averred race as a factor in voting rights cases under the Fifteenth Amendment would be acceptable in federal court. In addition, Waite voted with the majority in Ex parte Yarbrough[case]Yarbrough, Ex parte[Yarbrough, Ex parte] (1884), which demonstrated that Article I, section 4, of the U.S. Constitution protected the franchise in federal elections without reference to race. Therefore, Waite was not averse to federal protection of black voting rights, though he preferred a federal system in which states protected the rights of all citizens.

Overall, the Waite Court’s civil rights decisions did not display the overt racism that was characteristic of the Fuller Court that followed it. The justices steered a middle course and ruled in the Civil Rights Cases[case]Civil Rights Cases[Civil Rights Cases] (1883) that the Fourteenth Amendment allowed Congress to act when state, not private, actions interfered with an individual’s due process and equal protection rights; however, they upheld the rights of African Americans when there was overt state discrimination as in Strauder v. West Virginia[case]Strauder v. West Virginia[Strauder v. West Virginia] (1880). Waite’s personal concern for African Americans is evident in the long hours he worked on the Peabody and Slater Funds, northern philanthropies that funded black schools and colleges in the South as well as scholarships for African Americans to study in the North and abroad. Clearly he believed education was the solution to the problems African Americans faced in the United States.

Waite’s preference for state-centered federalism made him amenable to state regulation of the economy in an era when the Court was moving toward the protection of big businessBusiness, regulation of under the due process clause of the Fourteenth Amendment. Waite’s landmark opinion in Munn v. Illinois[case]Munn v. Illinois[Munn v. Illinois] (1877), one of a series of Granger cases and the chief justice’s best-known decision, upheld state power to regulate businesses “affected with a public interest.” In the majority opinion, Waite stated that government regulation of fees charged by grain storage warehouses was not a deprivation of property without due process of law, demonstrating his clear preference for legislative over judicial regulation. Similarly in Stone v. Farmers’ Loan and Trust Co.[case]Stone v. Farmers’ Loan and Trust Co.[Stone v. Farmers’ Loan and Trust Co.] (1886), Waite found that government regulation of railroad rates did not constitute a “taking” of property without due process. However, Waite suggested in this opinion that the power of regulation had limits, a notion the Court would embrace with a vengeance in the 1890’s when Waite was no longer on the bench.

Waite was a good, if not great, chief justice. He is underrated today for two reasons: civil rights decisions that became unpopular after the Civil Rights movement, however much they reflected the tenor of his time, and a lackluster writing style. However, Waite’s character, integrity, and leadership abilities helped restore a dignity to the Court that had been lacking ever since the Scott v. Sandford (1857) decision.

• Bader, William H., and Roy M. Mersky, eds. The First One Hundred Eight Justices. Buffalo, N.Y.: William S. Hein, 2004.
• Howard, John R. The Shifting Wind: The Supreme Court and Civil Rights from Reconstruction to Brown. Albany: State University of New York Press, 1999.
• Magrath, C. Peter. Morrison R. Waite: The Triumph of Character. New York: Macmillan, 1963.
• Stephenson, D. Grier. “The Chief Justice as Leader: The Case of Morrison R. Waite.” William and Mary Law Review 14 (1973).
• Stephenson, D. Grier. The Waite Court: Justices, Rulings, and Legacy. Santa Barbara, Calif.: ABC-Clio, 2003.

Civil Rights Cases

Cruikshank, United States v.

Fifteenth Amendment

Fourteenth Amendment

Minor v. Happersett

Munn v. Illinois

Reconstruction

Reese, United States v.

Slaughterhouse Cases

State action

Vote, right to