page_title: Nathan Clifford
section_title: Judicial service and later life
hierarchical_section_title: Nathan Clifford / Judicial service and later life
caption_attribution_description: Nathan Clifford. Library of Congress description: "Clifford, Judge Nathan (Supreme Court)"
context_page_description: Nathan Clifford was an American statesman, diplomat and jurist, whose career culminated in a lengthy period of service as an Associate Justice of the Supreme Court of the United States.
context_section_description: 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, in the aftermath of Dred Scott v. Sandford. Clifford's was a hotly contested nomination. A perennial partisan Democrat, to the opposition Clifford seemed to be a political hack.  Clifford was labeled a "doughface," a Northern man with Southern sympathies. Especially due to his pro-slavery position, anti-slavery representatives in the United States Senate fiercely opposed Clifford. They almost blocked his nomination. Rather, they delayed his confirmation for thirty four days, and 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.
  His specialties were commercial and maritime law, Mexican land grants, and procedure and practice. Though he rarely declared any legal philosophy about the Constitution, Justice Clifford believed in a sharp dividing line between federal and state authority. One of his supporters, 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." Clifford supported a mechanical jurisprudence adhering to the strict text of the Constitution. Clifford was a Unionist, but distrusted federal authority. This meant that during the American Civil War he generally supported the government's policies, although he opposed the use of arbitrary powers. Then during the Reconstruction Era, Clifford ruled to try to limit federal power.
  During the Civil War, Clifford remained loyal to the Union. Besides voting with the minority in the Prize Cases, arguing that the blockade of the Confederacy was illegal unless war was declared against them, Clifford generally voted to uphold federal authority so that the North could pursue the war. After the war, Clifford voted to limit federal power, and make it easier for the South to return to the federal union. Clifford joined in the majority in Ex parte Milligan limiting the power of using military tribunals to prosecute citizens when civilian courts were available. He also ruled with the majority in outlawing test oaths as part of the conditions of returning to the Union in Cummings v. Missouri and Ex parte Garland.
  During Reconstruction, Clifford voted in ways that limited the reconstruction amendments, which in turn, harmed the newly freed slaves. He voted with the majority in the Slaughterhouse Cases, which differentiated between state and federal citizenship and that the Fourteenth Amendment only confers and protects the narrower rights of federal citizenship. In his concurrence in Hall v. DeCuir, Justice Clifford coined the phrase "equality is not identity," when referring to a case where a black woman was refused access to part of a steamship that was for whites only. This phrase would get translated to "separate but equal" in Plessy v. Ferguson.
  Clifford came to the Court in a time of Democratic majority. 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. Due to being outvoted so frequently, Clifford wrote a large number of dissents, about one-fifth of all of his opinions. This change in circumstance is especially highlighted in the Legal Tender Cases.
  The Legal Tender Cases had to deal with the Union's ability to issue paper money, and the use of paper money in paying debts. In 1861, the Union was struggling to finance the war. The collected revenue was lower than expected, and war costs were expected to be 320 million, but we
caption: Nathan Clifford in his elder years
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