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Jacob Howard on Due Process and Constitutional Obligation and Interpretation
Chris Green

Just after posting my comments on Jacob Howard yesterday, I happened to run across a very interesting 1862 speech by Howard making due-process objections to an early version of a Civil War confiscation act. While I do not know the due-process literature as well as I know that on the Equal Protection and Privileges or Immunities Clauses, I had not seen the speech mentioned before. Howard's interpretation of due process was unambiguously procedural, quoting at length Justice Curtis's opinion for the Supreme Court in Murray's Lessee (1856) as well as Curtis's Rhode-Island-state-constitutional opinion in Greene v. Briggs (C.C.D.R.I. 1852). Howard complained that confiscation, rather than being rooted directly on the war power, was based only on litigants' failures to appear at trial. The substantive reasonableness of confiscation was no Fifth Amendment consideration at all for Howard, but he was extremely upset about the unconstitutionality, as he saw it, of the procedure:

This is but a mock confiscation. It is unworthy of the Senate, unworthy of our Government. It is a disgrace to the ermine. It is seeking to use as a degraded instrument of violating the Constitution the courts of justice, around whom we ought always to cling with our best affections, our profoundest respect, and our most vigilant protection. ... Why are we called upon to vote for so strange and anomalous a measure? Where, sir, is the necessity for it? Is it not more manly, more becoming us as the friends of the Union, to walk up fairly to the question of confiscation, and say, as we may say with truth, that it is but an ordinary power of waging war, and that we will resort to it as a war power...

Howard's clarity and depth on the due process issue contrast with another Fourteenth Amendment founder, John Bingham. In February 1866, quite implausibly seeking to defend his initial draft of the Fourteenth Amendment as simply enforcing the Fifth Amendment and the comity clause of Article IV with federal power, Bingham breezily answered Andrew Jackson Rogers's question "I only wish to know what you mean by 'due process of law' " with "I reply to the gentleman, the courts have settled that long ago, and the gentleman can go and read their decisions." Jacob Howard, however, had actually read the decisions in significant detail and explained them at length to the Senate.

Independent of the thoroughness of Howard's consideration of due process, however, Howard's prefatory comments on the nature of constitutional obligation and constitutional interpretation are especially interesting. Howard was clearly an originalist who rooted his constitutional obligation in the Article VI oath seen from the perspective of the founders, and who thought that individual moral considerations or matters of conscience were irrelevant to the task of constitutional interpretation: 

Sir, I will not talk about conscientious scruples respecting points of law, whether constitutional or otherwise, for I do not think that with a mere naked question of law addressed to our judgments, understandings, conscience has anything to do. We are sworn to uphold the Constitution, to be sure, and that oath is binding upon our consciences, but we are sworn to support it as it was intended by its framers. To ascertain this intention involves merely exercise of the intellect, and having honestly employed our powers for that purpose there rests upon us as little responsibility to conscience as if we were seeking to solve a problem of mathematics or history.

Hurrah for Jacob Howard!