TheMarketForIdeas

Liberty thrives under rule of law when it applies equally to all. What Francis Lieber called institutional liberty hinges on a willingness of the public and their leaders to recognize and uphold constitutional limitations on the state. Civil liberty and self-government suffer when the law is misused as an ideological instrument to remold society. Given the relative ease with which institutions are captured and diverted from their original purposes, political courage is required to resist, oppose, and reverse any acquired needs or rights which might result. Two 19C American exemplars of principled resistance to plunder are President Grover Cleveland and Justice Stephen Field. 

“Sometimes the law defends plunder and participates in it. Thus the beneficiaries are spared the shame, danger, and scruple which their acts would otherwise involve.” – Frederic Bastiat 

“The view that law transcends politics – the view that at any given moment, or at least in its historical development, law is distinct from the state – seems to have yielded increasingly to the view that law is at all times basically an instrument of the state, that is, a means of effectuating the will of those who exercise political authority.” – Harold J. Berman 

Stephen Grover Cleveland: fighting fiscal corruption 

Grover Cleveland, a descendant of Connecticut Valley Puritans, was the fifth of nine children of a Presbyterian minister and his wife. The family moved to New York in 1841 and eventually to Holland Patent where the elder Cleveland died in 1853. The burly Grover abandoned plans to attend Hamilton College and spent a year at a school for the blind in New York City as his brother’s teaching assistant. While moving West, he stopped to visit an uncle in Buffalo and stayed to help him prepare a pedigree book on his stock of Shorthorn cattle. Then taking a job as a law clerk, he was admitted to the bar in 1859 after several years of study.

Already active in Democratic Party affairs, Cleveland won election as ward delegate and ward supervisor before being appointed assistant district attorney in 1862. The last meant a severe pay cut and responsibility for most of the district attorney’s work, but it positioned him for future races. A strong Unionist during the war, he hired a substitute for $150 so he could continue to support his mother and sisters. Then in quick succession he suffered two electoral setbacks, including the race for district attorney, which he lost to his roommate.

Chastened by defeat, Cleveland concentrated on his legal practice and became known for his skill and boundless energy. Twice he assisted the defense of Fenian rebels who had made raids into Canada. Cleveland won a libel case after proving the accuracy of a newspaper exposé of the common practice among grain dealers of using fraudulent warehouse receipts to obtain bank loans. Yet as serious-minded as he was at work, no less was he the jovial afterhours denizen of local saloons. It was this dual character of his personality that equipped him for his successful campaign for sheriff in 1870.

Mark Twain has described Buffalo in those days as a sink of iniquity, filled with gambling houses, saloons, and brothels. Upon taking office the conscientious Cleveland was dismayed by the corruption and brutality of the overcrowded county jail. He responded with a thorough housecleaning that made him unpopular with party leaders. He chose to preside over two hangings rather than hire a substitute and suffered considerable anguish on both occasions, especially in the case of a family man he sought to get off with a plea of insanity.

Cleveland completed his term in 1873 and joined with two friends, including his old roommate, to establish a new law firm. Known for his candor, integrity, and intense convictions, he was also generous with his time and tried many cases gratis when aroused to prevent or redress an injustice. In one case, as a newly elected mayor, he overcame the governor’s resistance and obtained commutation of a death sentence for one of his constituents. After a former law partner was killed, Cleveland undertook to manage the estate on behalf of the man’s widow and young daughter. He rose in prominence and helped found the City Club in 1877.

Cleveland returned to politics in 1881 after the nomination of the Republican mayoral candidate, a machine politician, led to rebellion in the ranks. Democratic leaders turned to Cleveland, whose known integrity made him an ideal candidate to win crossover support. He accepted the Democratic nomination with the stipulation that an unreliable candidate for another office be dropped from the ticket. Even though at the state level the Republicans still won Buffalo, Cleveland carried the local Democratic ticket to victory on his coattails.

What gave Cleveland his reputation as a reformer was his hostility to the prevailing cronyism. In June, he vetoed an extortionary street cleaning contract designed to enrich several aldermen. He also tackled a major public health hazard caused by raw sewage that was infiltrating the Hamburg Canal. Bypassing the city engineer, Cleveland fought to create a special commission of citizens to hire professional engineers and supervise a major long-term sewage treatment project. In each case, he skillfully maneuvered a hostile majority on the city council into compliance. The project was completed after he left office at half the original projected cost.

Coupled with his repeated vetoes of pork barrel appropriations – a form of what Frederic Bastiat called legal plunder – and his candor in admitting mistakes, these triumphs enhanced Cleveland’s reputation for bluff honesty. That summer, some political factions opposed to New York City’s Democratic Party political machine, known as Tammany Hall, deadlocked over two gubernatorial candidates, which led – after the urging of friends – to Cleveland’s entry into the race. His independence from the major factions made him an attractive compromise candidate. Meanwhile, meddling in the race by President Chester Alan Arthur, a member of the Republican political machine, split Republic party ranks. Nominated on the third ballot, Cleveland stayed in the background during the campaign, yet won handily.

As governor, Cleveland pursued a largely negative agenda. He stunned the state assembly by vetoing a politically expedient rate reduction on New York City’s elevated railroad and then used his veto message to single out its defects. It was a formula he was to follow repeatedly. He opposed the demands of organized labor and believed most social legislation to be outside the proper scope of government. He made an exception with reform legislation sponsored by Theodore Roosevelt, who had been investigating corruption in New York City.

Many of his difficulties stemmed from inexperience. When the boss of Tammany Hall complained of a loss of patronage, the temperamental Cleveland refused appointments to any of its members. Their feud culminated in a loss of Democratic control in the legislature. Political reality then forced him to mend fences within the party or face defeat in the next election.

Cleveland’s new-found flexibility persuaded Samuel Tilden and Daniel Manning, leaders of the conservative business wing of the party, to disregard their misgivings and promote him for the presidency. His hard money philosophy in favor of coin rather than paper bank notes, and his opposition to tariffs, squared with their own views. Cleveland’s reputation as a reformer made him attractive to Republican Mugwumps – those who opposed the corrupt political machine politics. Despite opposition from Tammany Hall, he was nominated on the first ballot at the national convention.

The campaign centered on personalities rather than issues. Cleveland’s frank acknowledgment that he provided financial support to a widow and her illegitimate son undoubtedly cost him votes. But offended Irish voters may have decided the outcome after a Republican clergyman castigated Democrats as the party of “Rum, Romanism, and Rebellion.” New York went to Cleveland and so did the presidency. It was the first of his three pluralities in the popular vote.

As president, Cleveland’s chief policy concerns were domestic. He brought Southerners into his cabinet, supported the civil service reforms, and signed the Dawes Severalty Act which placed Native Americans on reservations as wards of the national government. He strengthened the presidency by reasserting its independence from Congress and taking strong legislative and administrative initiatives on several occasions.

Cleveland worked long hours, personally reviewed veterans’ pensions and civil service appointments, and opposed protectionism. He also exercised the veto power to an unprecedented degree, rejecting two-thirds of the bills that came across his desk, most of which involved Civil War pensions. In 1887 he vetoed the Texas Seed Bill, declaring that “though the people support the government, the government should not support the people.”

Cleveland took pleasure in rooting corruption out of government affairs. He recovered thousands of acres of public lands awarded to the railroads and opened them to homesteaders. He vetoed a pension bill that would have permitted Civil War veterans to claim old age as a disability. He was less successful in reforming the civil service system. But he managed to eliminate enough patronage jobs to significantly reduce the leverage he had with Congress by promising jobs for votes. He stood firmly for preservation of the gold standard and reduction of the tariff but made little headway on either issue.

Despite his laissez faire economic philosophy, Cleveland supported limited federal regulatory initiatives, including creation of the Interstate Commerce Commission. He fought to revise federal land laws during his first term and issued executive orders to reclaim millions of acres of public lands that had been diverted by the railroad, cattle, and timber interests for their exclusive use. By the end of his second term, the size of the National Forest Reserve had been doubled.

In 1886, Cleveland married his ward, Frances Folsom, who became a popular White House hostess. Although married life smoothed some of his rough edges, he remained a formidable though increasingly embattled figure. The intractable tariff issue was his undoing. A large surplus induced him to call for lower tariffs during his annual message but his free trade rhetoric failed to convince the electorate. Industrialists and powerful leaders in both parties voiced strong opposition. Cleveland’s defeat in the 1888 election was due in part to Tammany Hall opposition and in part to his anti-tariff views.

The respite was welcome. Cleveland joined a New York law firm and often served as a consultant or referee. Once out of office, he voiced his strong opposition to “free, unlimited, and independent silver coinage” – a risky stand that could have cost him the nomination in 1892. Although he respected his Republican successor, the ability of special interests to plunder the treasury alarmed him. Yet he spurned the campaign trail until a Democratic tide swept Congress during the midterm elections. A week later, Cleveland publicly attacked the McKinley Tariff, then followed it with a speech on “The Principles of True Democracy” early in 1891. In the autumn, Frances gave birth to their first child, “Baby Ruth.” In 1892 Cleveland overcame Populist opposition in his party and defeated the incumbent.

The Panic of 1893 kept Cleveland off balance virtually from the start. The most severe economic downturn of the century, it was intensified by the rapid urbanization and industrialization of the country. Business failures continued for months; many railroads passed into receivership. Overseas investors worried about free-silver agitation by Populists. Cleveland’s campaign to repeal the inflationary Silver Purchase Act alienated many Senate Democrats and outraged Populists, who sought unlimited coinage of silver.

If the measure of man is best taken in the heat of battle, the character of Cleveland’s gritty determination is most clearly revealed by an incident that was kept secret for years after his death. Early in the summer, a cancerous growth was found on the roof of his mouth. Seeking to avoid causing a panic, the president slipped out of Washington and, while aboard a yacht on the East River, had his upper jaw surgically removed. Later fitted with an artificial jaw that left his appearance unchanged, he vacationed at Buzzards Bay while aides and his physician quashed rumors about his health. The experience left him thinner and he never fully regained his accustomed energy.

Unfortunately, Cleveland overspent his political credit on the “free silver” battle during that autumn and could not get a substantial tariff reduction the following year. When presented with the compromise Wilson-Gorman bill, the disappointed president let it pass without his signature. He made no protest when the Supreme Court later struck out the income-tax provision.

Cleveland’s actions alienated powerful factions within the party. In 1894, he sent troops to Illinois to break the Pullman strike because it disrupted the mail. That same year, armies of unemployed workers demanding public works projects tramped into Washington only to be turned away. Then, faced with a dangerous drain on the gold supply early in 1895, Cleveland accepted a loan to the treasury from a consortium of bankers led by J. P. Morgan, arousing Populist suspicions of a bank conspiracy.

In the area of foreign policy, Cleveland adhered to the Monroe Doctrine by maintaining the hegemony of the United States in the western hemisphere and avoiding entanglement in European power politics. His overall performance has been described as “an uneasy mixture of anti-imperialism, moralism, and belligerent nationalism.” The moralism is most strikingly evident in his refusal to annex Hawaii after American sugar plantation owners overthrew the monarch. His handling of the boundary dispute between Venezuela and British Guiana has been dismissed by many historians as irresponsible saber-rattling, but it cleared the air and was followed by improved relations with Britain.

During his last year in office, Cleveland was repudiated by his party during a bitter battle with Populist free silver advocates, who seized control and led the party back into another string of defeats. The annoyed president chose to sit out the election.

In 1897, Cleveland retired to Princeton, became a trustee of the university, and sometimes clashed with its president, Woodrow Wilson. His remaining days were productive and full of honors, though saddened by Ruth’s death in 1904. 

Stephen Johnson Field: the danger of blank checks 

During Cleveland’s first term of office, the Supreme Court issued a third ruling on legal tender currency. At issue was the constitutionality of issuing the greenbacks – unbacked paper currency – which were used to finance the Union’s war with the Confederate states two decades earlier, beginning in 1862. Greenbacks were also made legal tender through the stipulation that a debt holder was legally compelled to accept these bills of credit, which might easily depreciate in value, as payment for debts made payable in gold or silver coin.

Ironically, the first ruling by the Court in 1870 was against the practice. Moreover, the decision was written by Salmon P. Chase who, as President Abraham Lincoln’s treasury secretary, was responsible for issuing them in the first place. Indeed, his face was engraved on the one dollar bill and, long after his death, on the $10,000 bill. Following his resignation in 1864, Lincoln appointed him to the position of Chief Justice.

Here it is important to understand the political and historical context. During the Reconstruction period following the War Between the States, votes came to be bought and sold in the chambers of government as if it were an open market. Bribery and the so-called spoils system tested the mettle of a generation of public men. In practice, “government of the people” was being weighed in the balances and found wanting. A decline in civil liberty and the self-governing character of the citizenry which had earlier resulted in partisan disunity was now reflected in a growing cupidity, as well. People who had once stored their treasures in heaven were now exposing them on earth to the corruptions of a worldly power religion. Congress and the executive offices of the Presidency were, at times, virtually converted into political brokerage houses.

Such practices are in part traceable to financial abuses during the Civil War. All the stuff of which great fortunes are made became available through lucrative government contracts. War profiteering enabled a generation of nouveau riche industrialists and financiers, like John D. Rockefeller, Andrew Carnegie, and J. P. Morgan, to reach for the heights of political and social influence.

As with the War of 1812, the advent of the Civil War once again favored the sales pitch of a soft money policy for the sake of mobilizing the economy quickly. Hence the issuance of greenbacks, a fiat currency, by the Treasury. For a period of time a few key jurists were able to resist this popular, highly inflationary practice. The opinion of an Indiana Supreme Court Justice, Samuel Perkins, who wrote for a unanimous Court in Thayer v. Hedges, 22 Ind. 282 (1864), testifies to the continuing influence of biblical law: 

“Coin was the sacred currency as well as the profane, of the ancient world. Historically considered, we find that the Almighty, and His Prophets and Apostles, were for a specie basis; that gold and silver were the theme of their constant eulogy” (22 Ind. 282, 304). 

As Chief Justice, Chase soon felt obliged to reverse his soft money position. In Hepburn v. Griswold, 8 Wallace 603 (1870), the Court ruled that the greenbacks issued during the war had unconstitutionally impaired the obligation of contracts. In writing the majority opinion, Chase acknowledged that legal tender, which places creditors under a legal obligation to accept paper currency in payment of debts, impairs the obligation of contracts. In fact, it gives the government – the biggest debtor of all – virtually a blank check to diminish its own debts through inflation. A comparable practice is described in the New Testament in the Parable of the Dishonest Steward (Luke 16:1-8).

Unfortunately, a few hours after the Court’s ruling in the Hepburn case, President Ulysses Grant appointed two new Supreme Court justices who joined with the three dissenters a year later and reversed the Hepburn ruling in The Legal Tender Cases, 12 Wallace 457 (1871). Justice William Strong, one of the new appointees, wrote that “Congress has often exercised, without question, powers that are not expressly given nor ancillary to any single enumerated power. Powers thus exercised are what are called by Judge Story in his Commentaries on the Constitution, resulting powers, arising from the aggregate powers of the government.” This rationale provided a major precedent in favor of judicial fiat. The majority cited no specific constitutional basis for its reversal.

The Supreme Court took up the legal tender controversy again in 1884 when it heard another appeal in Juilliard v. Greenman, 110 U.S. 421 (1884). It reaffirmed its earlier ruling that upheld a power to make treasury notes a legal tender. But this time it went beyond its earlier “resulting powers” argument first by characterizing this power as an attribute of sovereignty – which is not constitutional language – then by making a brave attempt to locate the power in the credit clause of Article I, section 8. Charles Warren later characterized the Court’s ruling as “the most sweeping opinion as to the extent of Congressional power which had ever theretofore been rendered…”

Justice Stephen Field, a Democrat who had been appointed to the Court by Abraham Lincoln, wrote the lone dissent: “From the decision of the court I see only evil likely to follow.” Field denied the existence of “a power of inherent sovereignty in the government of the United States” and regretted an insidious tendency to redefine the language of the Constitution. Concerning the words “to borrow money,” he wrote: “They are not ambiguous; they have a well-settled meaning in other instruments. If the court may change that in the constitution, so it may the meaning of all other clauses; and the powers which the government may exercise will be found declared, not by plain words in the organic law, but by words of a new significance resting in the minds of the judges.” A few years later a Governor of Massachusetts, Charles Evans Hughes, remarked cynically that “the Constitution is what the judges say it is.” Perhaps less ironically this time, Hughes was later appointed Chief Justice.

The historian George Bancroft, who had been influenced by Daniel Webster’s opposition to legal tender years earlier, carefully reviewed early American experiences with paper money and demonstrated that the founders intended that nothing but gold and silver currency be used. But good sense did not prevail in the Juilliard case. As Bancroft aptly phrased it, the Constitution had been “wounded in the house of its guardians.” Justice Field’s dissent is excerpted in the appendix.

Moreover, the evil that Justice Field predicted may have begun to spread through the notorious and laughable effort by Justice William O. Douglas to find a “right to privacy” in “penumbras formed by emanations” from the Constitution, as he wrote in Griswold v. Connecticut, 381 U.S. 419 (1965), a case which prevented one state from restricting access to contraception devices.

Eight years later, this newly-minted right to privacy served – through a revival of “substantive due process” – as the basis for the Court’s imposition of a sweeping abortion mandate in Roe v. Wade, 410 U.S. 113 (1973), which reversed state restrictions and prohibitions across the country. This unprecedented ruling preempted the regular political process. According to the Justice Samuel Alito: “As Justice Byron White aptly put it in his dissent, the decision represented the “exercise of raw judicial power,” 410 U. S., at 222, and it sparked a national controversy that has embittered our political culture for a half century.”

This much-criticized decision and its rationale were struck down by the Supreme Court on June 24, 2022. The Court’s ruling in Dobbs v. Jackson, 597 U.S. (2022), returns the issue to “authority of the people and their elected representatives.”

Preserving a human prospect

An overlooked dimension of these earlier Supreme Court rulings is how they served as opening wedges in favor of major changes in public expectations as well as medical practice and ethics. Recent experience with the wholesale lockdown of economies has added to the sad chronicle of social and economic experimentation – eugenics, behavior control, mass contraception, green new deals, contradictory energy policies, the subsidization of new medical fads, the manipulation of guilt and fear – which is wrecking the institutional foundations of society. Ideological straitjackets are turning citizens into subjects, even into laboratory experiments. This is “the conquest by method” of which Paul Valéry warned in 1895.

We must preserve the past in order to remember who we are and pursue our own path into the future. America, as G. K. Chesterton observed, was founded upon a creed. It can thrive on no other basis. As the Irish politician John Philpot Curran said in 1790: “The condition upon which God hath given liberty to man is eternal vigilance.” The rule of men, even so-called experts, should never be confused with the rule of law. As Thomas Jefferson wrote in his Kentucky Resolution of 1798.

“It would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights; that confidence is every where the parent of despotism; free government is founded in jealousy, and not in confidence; it is jealousy, and not confidence, which prescribes limited constitutions to bind down those whom we are obliged to trust with power; that our Constitution has accordingly fixed the limits to which, and no farther, our confidence may go.”

Appendix: Justice Stephen Johnson Field’s great dissent 

The framers of the constitution, as I have said, were profoundly impressed with the evils which had resulted from the vicious legislation of the states making notes a legal tender, and they determined that such a power should not exist any longer. They therefore prohibited the states from exercising it, and they refused to grant it to the new government which they created. Of what purpose is it, then, to refer to the exercise of the power by the absolute or the limited governments of Europe, or by the states previous to our constitution? Congress can exercise no power by virtue of any supposed inherent sovereignty in the general government. Indeed, it may be doubted whether the power can be correctly said to appertain to sovereignty in any proper sense, as an attribute of an independent political community. The power to commit violence, perpetrate injustice, take private property by force without compensation to the owner, and compel the receipt of promises to pay in place of money, may be exercised, as it often has been, by irresponsible authority, but it cannot be considered as belonging to a government founded upon law.          ..

And in determining what measures may be adopted in executing the powers granted, Chief Justice Marshall declares that they must be appropriate, plainly adapted to the end, not prohibited, and consistent with the letter and spirit of the constitution. Now, all through that instrument we find limitations upon the power, both of the general government and the state governments, so as to prevent oppression and injustice. No legislation, therefore, tending to promote either can consist with the letter and spirit of the constitution. A law which interferes with the contracts of others, and compels one of the parties to receive in satisfaction something different from that stipulated, without reference to its actual value in the market, necessarily works such injustice and wrong.

From the decision of the court I see only evil likely to follow. There have been times within the memory of all of us when the legal-tender notes of the United States were not exchangeable for more than one-half of their nominal value. The possibility of such depreciation will always attend paper money. This inborn infirmity no mere legislative declaration can cure. If congress has the power to make the notes a legal tender and to pass as money or its equivalent, why should not a sufficient amount be issued to pay the bonds of the United States as they mature? Why pay interest on the millions of dollars of bonds now due when congress can in one day make the money to pay the principal? And why should there be any restraint upon unlimited appropriations by the government for all imaginary schemes of public improvement, if the printing-press can furnish the money that is needed for them? 

Bibliography 

Bancroft, George. A Plea for the Constitution of the United States, Wounded in the House of Its Guardians. Sewanee, TN: Spencer Judd, 1982 [1886].

Merrill, Horace Samuel. Bourbon Leader: Grover Cleveland and the Democratic Party. Boston: Little, Brown & Company, 1957.

Nevins, Allan. Grover Cleveland: A Study in Courage. New York: Dodd, Mead & Company, 1962 [1932].

Rice, Charles E. Contraception and Persecution. South Bend, IN: St. Augustine’s Press, 2014.

Samson, Steven Alan. “Stephen Johnson Field,” in American Conservatism: An Encyclopedia, ed. Jeremy Beer, Bruce Frohnen, and Jeffrey O. Nelson. Wilmington, DE: ISI Books, 2006, pp. 309-10.

Swisher, Carl Brent. Stephen J. Field: Craftsman of the Law. Washington, DC: Brookings Institution, 1930.

Welch, Richard E., Jr. The Presidencies of Grover Cleveland. Lawrence: University Press of Kansas, 1988.