Nathan Clifford

Initially, Clifford ran for the Senate and lost.[3] Then, Clifford was elected as a Democrat to the 26th and 27th Congresses, serving March 4, 1839 through March 3, 1843.

In Washington, he followed the Democratic party line on policies, and was a strong supporter of the Van Buren administration. Clifford was opposed to a high tariff, supported internal improvements, endorsed state banking, and was in favor of federal retrenchment. He also criticized abolition, saying that its supporters were well intentioned but denounced the "mean and incendiary schemes of political Abolitionists."[3]

Due to re-redistricting and political infighting, Clifford was not a candidate for re-election in 1842.

In 1846, President James K. Polk appointed him 20th Attorney General of the United States after his predecessor, John Y. Mason, returned to being Naval Secretary. Clifford served in Polk's Cabinet from October 17, 1846, to March 17, 1848.

Clifford resigned his post with the Justice Department to become the U.S. Envoy Extraordinary and Minister Plenipotentiary to Mexico, serving from March 18, 1848, to September 6, 1849. It was through Clifford that the Treaty of Guadalupe Hidalgo was arranged with Mexico, by which California became a part of the United States.

A Whig Presidential victory meant that Clifford was recalled to the United States.[4] Following his service in the diplomatic corps, Clifford resumed the practice of law in Portland, Maine.

On December 9, 1857, President James Buchanan nominated Clifford to be an Associate Justice of the Supreme Court of the United States, to fill the vacancy created by the resignation of Benjamin R. Curtis.

Clifford's nomination came in the immediate wake of the Dred Scott v. Sandford decision and was hotly contested. As a longtime partisan Democrat, the opposition labeled Clifford a political hack and a "doughface" — a Northern man with Southern sympathies.[5] Anti-slavery representatives in the United States Senate fiercely opposed Clifford due to his pro-slavery record. They delayed his confirmation for thirty-four days, but were unsuccessful in blocking it completely. Clifford was confirmed on January 12, 1858, by a narrow margin of 26 votes to 23 in the Senate. If not for the Democratic Party rallying around their candidate, the absence of two of his opponents, and the last minute change in stance by a Democratic Senator, Clifford would have lost.

When Clifford joined the Court in 1858, all but one of the justices were affiliated with the Democratic Party. By 1872, Clifford had outlived his Democratic colleagues, and his new Republican colleagues tended to outvote him for his remaining nine years on the Court. Therefore, about one-fifth of all his opinions were in dissent.[6] He wrote the majority opinion in 398 cases.[7] His opinions were comprehensive essays on law and have sometimes been criticized as overly lengthy and digressive.

Justice Clifford rarely declared any legal philosophy about the Constitution, but believed in a sharp dividing line between federal and state authority.

One admirer, United States Senator James Bradbury, said Clifford's view was 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."[6] Clifford supported a mechanical jurisprudence adhering to the strict text of the Constitution.

Clifford's fields of expertise were commercial and maritime law, Mexican land grants, and procedure and practice.

Clifford's major contribution to constitutional interpretation may have been his dissent in Loan Association v. Topeka rejecting "natural law" or any ground other than clear constitutional provision as a basis for the Court to use to strike down legislative acts.

During the Civil War, Clifford remained loyal to the Union. He distrusted federal authority, but generally upheld federal power as far as was necessary to prosecute the war. Some exceptions were the Prize Cases, where he joined the dissent in arguing that the blockade of the Confederacy was illegal without a declaration of war, and Ex parte Milligan, where he joined the majority to limit the use of military tribunals to prosecute citizens when civilian courts were available.

During Reconstruction, Clifford continued his skepticism of the federal government, now unrestrained by any consideration for the exigencies of wartime emergency powers. He more readily voted to limit federal power and make it easier for the South to rejoin the Union. In Cummings v. Missouri and Ex parte Garland, Clifford joined the majority in outlawing test oaths as part of the conditions of returning to the Union.[8]

Perhaps Clifford's most prominent declaration against exercise of federal authority came in the Legal Tender cases. The cases dealt with Legal Tender Act of 1862, passed to permit the issuance of paper money to pay war debts and establishing that paper currency would be valid as legal tender.[9] In Hepburn v. Griswold (1870), a debtor whose note was made prior to the Act's passage challenged its application to her debt.[10] Clifford joined the majority in a 5–3 decision holding that the Legal Tender Act could not constitutionally apply to preexisting debts.[11]

Almost immediately after Griswold, the composition of the Supreme Court changed. Terminally ill Justice Robert Grier, who had joined the majority in Hepburn, resigned. President Ulysses S. Grant filled his seat with William Strong. The Court was also expanded by an Act of Congress from eight to nine members, with Joseph Bradley filling the new seat.[12]

This change had an immediate impact on the pending case Knox v. Lee (1871). The case dealt with remuneration for goods confiscated by the Confederate Army. The lower court ruled that the plaintiff must be repaid in paper money and that the defendant had to pay the difference in the valuation of the goods in gold to greenbacks.[13] Justice Clifford, joined by Justices Field and Nelson, dissented from the grant of certiorari, stating publicly, "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..."[14]

On May 1, 1871, the Court ruled 5–4 to overturn Hepburn v. Griswold and find the Legal Tender Act constitutional — facially and as applied to pre-existing debt. The four justices who formed the majority in Hepburn (minus the late Justice Grier) all dissented in Knox. The new justices, Bradley and Strong, were the deciding factor.[15] Clifford submitted an 18,000 word dissent, angered that the Court would reverse its opinion in such a short amount of time. He also argued that the Legal Tender Act was facially unconstitutional, arguing that only hard money (gold and silver) with intrinsic value could serve as legal tender.[16]

Clifford held to a limited interpretation of the Reconstruction amendments. He joined the majority in the Slaughter-House Cases (1873), which distinguished state and federal citizenship and held that the Fourteenth Amendment only protects the narrower rights of federal citizens. In Hall v. DeCuir (1877), Justice Clifford wrote a separate concurrence to uphold segregation on steamships, coining the phrase "equality is not identity." His concurrence may have foreshadowed the principle of "separate but equal" laid down after his death, in Plessy v. Ferguson (1893).[8]

Nathan Clifford in his elder years

Clifford was president of the Electoral Commission convened in 1877 to determine the outcome of the 1876 presidential election. Clifford voted for fellow Democrat Samuel Tilden, but Rutherford B. Hayes won by a single vote.

Clifford believed that the commission erred in nullifying Tilden's apparent victory and never accepted Hayes as the lawful president.[17] Still, he signed off on Hayes' order for inauguration. In this instance Clifford put the country before his strong party beliefs, and his personal hope of having a Democratic president choose his successor.[18]

By 1877, Clifford's mental faculties had declined and impaired his ability to be an effective Justice. Justice Samuel Miller wrote that Clifford's mental deterioration was "obvious to all of the Court" and "in the work we do, no man ought to be there after 70." (Clifford was 74.) In 1880, Clifford experienced a stroke that, according to Miller, "rendered him a babbling idiot." He did not participate in any cases during that year, but still refused to step down, hoping that a Democratic president would be elected in 1880 and appoint a successor. He died on July 25, 1881. His successor on the bench, Horace Gray, instead being appointed by Republican president Chester Arthur.[19][20]