The Destatuification of a Justice

Pictured to the right is a photograph of the statue of Roger B. Taney, the Fifth Chief Justice of the United States Supreme Court, bronze-cast in 1887 after an original by the noted American neoclassicist sculptor William Henry Rinehart. This particular statue is a copy of the original, which is on display in Annapolis, Maryland.

The copy depicted here and at the center of recent events is on display in the North Garden of Mount Vernon Square in Baltimore, Maryland. Many commenters find poignance in noting that as Baltimore displays the statue, Taney faces south, though I say it is better to interpret it as facing Washington, D.C.

The City of Baltimore appears poised to remove the statue from public display. What will become of it is unclear. Why Baltimore’s citizens would choose to remove this statue even while their city has so many other problems on its plate, however, is clear as crystal.

 

I

Roger Brooke Taney was born in 1777 to wealthy northern Maryland tobacco farmers and educated at what is today Dickinson College in Carlisle, Pennsylvania. As a young man, he was an active Federalist, read the law and established a reputation as a skilled attorney, and for a time ran the Baltimore branch of the Maryland State Bank. When the national Federalist party opposed the War of 1812, Taney broke ranks to support the war, and folded his faction of the Maryland Federalists into the Democratic-Republican Party. He wound up solidly in the faction of that party controlled by Andrew Jackson.

Jackson recognized Taney’s political and legal abilities, and relied heavily on Taney’s counsel in forming his policies. Taney served in three cabinet positions under Jackson: first as acting Secretary of War, then as Attorney General, and then as Secretary of the Treasury. It was in this last position that Taney accomplished what Jackson had promised to do politically for a long time: Taney defunded the Bank of the United States, withdrawing all Federal monies on deposit from the institution.

Taney only held the Treasury position as a recess appointment in 1833, and he also holds the distinction of being the first Presidential cabinet nominee to be rejected by the Senate. This should be understood as saying more about the partisan brawling that characterized the Jackson administration than it does about anything else. When in the winter of 1835, the great Federalist Chief Justice John Marshall died, Jackson’s first and really only choice to replace him was Taney. A more consequential succession on the High Court has not occurred since.

A quick search of the Cornell Law Library’s database of opinions reveals 204 opinions authored by Chief Justice Taney throughout his career: there are six which exemplify his jurisprudence ¹. One of these stands out as Taney’s historical epitaph, his legacy, and the single most odious case yet published by the Supreme Court, a decision historians often count among the precipitate causes of the Civil War.

 

II

Baltimore’s inquiry into the appropriateness of public art is part of a larger movement. Tragically, efforts to take down public remembrances like the Confederate battle flag are underway because of multiple racially-motivated acts of intolerable and deadly violence.

Public remembrances of dead people are signals of honor. Commemorations indicate that in the past, a person did or was something that the community admires in the present. Such cultural signals of approval are often given by a governmental entity. They identify heroes. Not everyone gets them. To pick an easy case, there are properly very few statues of Benedict Arnold in our nation. ²

Given that people have different opinions of our shared culture, designating heroes is a delicate task. Sometimes people who do good things also do bad things. Sometimes people who do things we admire come from times when it was culturally acceptable to do other things, not the things that we admire them for, things that today seem reprehensible. Thus, though they are given heroes’ honors both within and without formerly Confederate states, I say that figures like Robert E. Lee and Jefferson Davis do not deserve such honors. Their bad deeds outweigh their merits. Their apologists claim that these men fought under a code of honor, for a plausible legal understanding of the nature of the federal union, intending more to secure peace for their states than to preserve the disliked institution of slavery. Even were these things unambiguously true — which they are not — the sheer quantity of American blood staining their hands as a result of treason eclipses any mitigation found within such apologia. The Confederacy’s leaders deployed their considerable skills knowing that the fruits of those labors would be the preservation of slavery. They do not deserve public honors.

Though some disagree with this opinion, there is no need here to dwell further upon the matter of public honors afforded to Confederate leaders. Roger Taney was never among their number. Taney’s controversial role in history arises from a different source entirely.

III

A slave named Dred Scott was bought in 1832 by an Army surgeon, Dr. John Emerson of St. Louis, Missouri. Scott married a woman named Harriet and over time they had two daughters, ³ all of whom were Dr. Emerson’s property under Missouri law. As Dr. Emerson traveled from post to post, the slave family went with him, through multiple slave states, at least one free state (Illinois) and the Wisconsin Territory. In 1840, Emerson was transferred to Florida, and rather than take the Scotts with him, he hired them out and collected their wages. After Dr. Emerson died in 1843, and his wife Irene continued the practice. In 1846, the Scotts attempted to purchase their family’s emancipation from Irene, who refused.

They then sued for their freedom with the aid of abolitionist activists, relying upon an 1824 Missouri legal precedent which held, “Once free, always free.” Since they had traveled to Illinois and the Wisconsin territory, they argued, they had been emancipated. Eventually their cases were combined. The case was appealed to the Missouri Supreme Court, where the Scotts lost, and then was taken up by the U.S. Supreme Court.

Thus, Dred Scott v. Sandford, 60 U.S.393 (1857) became a “test case” useful to anti-slavery activists. The ploy was to pinion slavery as opposed to principles of Federalism, because the Missouri Compromise and Illinois law both did not recognize slavery, and Missouri law held that “once free, always free,” so the Scotts were already free by virtue of Dr. Emerson having taken them into non-slavery jurisdictions.

Taney led the Court to a decision against the Scotts. He wrote into his own opinion an argument he had previously advanced while serving as Attorney General: because the Constitution as originally drafted always contemplated accommodation for slavery, and distinguished between black slaves and citizens, blacks have never been and can never be citizens of the United States nor of any state therein.

Thus, Taney reasoned, only the owner of a slave could emancipate him, not any law of any state nor of the Federal government.

Moreover, Taney ruled that a state’s claim that a black man was a citizen was a nullity, and certainly would not carry back over to the slave state of Missouri should the slave ever return there. ⁴

Finally and most breathtakingly, to the extent that Congress had prohibited ownership of “property” in Federal territories north of an arbitrary geographic line in the Missouri Compromise, it violated the Fifth Amendment’s prohibition of deprivation of property without due process of law and was therefore unconstitutional. This was only the second time in the Court’s history that an Act of Congress was held by the Supreme Court to have violated the Constitution, invoking as its closest precedent the even more political case of Marbury v. Madison.

Students of Constitutional law must address the claim that given the Constitution as it stood in 1857, with only the first twelve Amendments, Taney’s argument was logically valid though cold-blooded. This was not the only possible result: two of the Nine justices dissented. ⁵ Apologists claim that Taney wanted to take slavery off the table as a legal issue, to focus discussion of abolition at the level of Constitutional amendment. ⁶ If that was his intent, he failed utterly.

The political response was as a hurricane: widespread, calamitous, and violent. Abraham Lincoln, laying the foundation for his Presidential bid, spoke of Dred Scott in his famous “House Divided” speech: “We shall lie down pleasantly dreaming that the people of Missouri are on the verge of making their state free; and we shall awake to the reality that instead, the Supreme Court has made Illinois a slave state.” Taney’s opinion catalyzed rather than defused the moral tension that tore the nation in two.

This decision is the overpowering focus of Taney’s legacy, the singular act of his life for which the man is remembered by history.

IV

Of course, no historical figure is going to turn out to be a perfect specimen of humanity, free of moral misstep, for no such person has yet existed. Take, for example, the most honored figure in all of American history: George Washington. Our first President was a slaveholder. As a young man, he impetuously started an avoidable (albeit likely) war. Most of his colleagues were repelled by his overly healthy ego, and he had a long-standing emotional if not physical infidelity from his wife (whom he may have married for her money or maybe even because she was good-looking arm candy rather than out of any sort of personal affection).

Still, we do and should afford Washington tremendous honor. His military skill was critical to our national independence. His dedication to republican ideals led him to decline the crown that was effectively on offer after the war. He deployed his reputation to cement the union of the states both in its wartime birth of the late 1770’s and in its peacetime re-Founding of 1787.

Thus, we give his memory significant public monuments, we place his portrait on our money and on revered military honors. We’ve given him the singular honor of naming the capital of our nation and one of our states after him. Washington’s achievements and merits far outweigh his flaws and failures. Maintaining those honors demonstrates that today, we continue to celebrate George Washington. We could change these things, if we wanted to, yet we don’t and won’t. To we Americans who live today, as he was to our predecessors, George Washington is a hero.

 

V

If George Washington’s principal role in our history is that of Father of the Nation, Roger Taney symbolically bridges the two generations of Americans who followed Washington’s. The alpha of Taney’s career rests in Andrew Jackson’s Presidency, and its omega in that of Abraham Lincoln. Let us briefly consider these figures before returning to Taney himself.

It’s become somewhat fashionable to criticize Andrew Jackson in recent years, as an uncouth, uneducated, ill-tempered demagogue, a slaveholder and indeed a slave trader, the instigator of genocide, and most relevant to this essay, a dangerous state’s rights proponent who helped lay the foundation for Civil War. In the 1820s and 1830s, these policy positions atop an already impressive political and military C.V. made him hugely popular.

While other of these accusations might be just, Jackson was no friend to strong “state’s rights” legal theories. He split with his first Vice President, John C. Calhoun over the issue and dealt the concept of state nullification of Federal laws a generation-long political setback. Roger Taney was a significant architect of Jackson’s strident stance against nullification, interposition, and secession.

Despite this, by the 1850’s Taney thought Abraham Lincoln and his new Republican Party went too far in the other direction. He recognized Lincoln’s “free soil” policy for admitting new states was slow poison for the institution of slavery. That, in turn, was the Federal government using the law to take private property from private people because of the moral qualms of a political faction, qualms upon which Taney thought reasonable people might peaceably disagree. By the time Lincoln and the Republicans arrived on the political scene, Chief Justice Taney had cemented his own thought on the matter of slavery: simultaneously a moral wrong and a legal right.

 

VI

With this understanding of Taney’s contemporaneous orientation, is there any reason, valid and relevant today, to commemorate his memory today? Or was Charles Sumner prophetic when he said that “…the name of Taney is to be hooted down the page of history. … [A]n emancipated country will fasten upon him the stigma which he deserves“?

There is the simple fact that he once held the highest judicial office of the land. That much probably obliges something like a portrait or a bust in the Supreme Court building. Still, if public displays of honor are to be kept updated and current as expressions of how we today admire our predecessors, this doesn’t seem like enough for a display elsewhere than the Court.

Let us try to redeem Taney another way: despite the sentiments of half or more of his fellow Marylanders, Taney opposed secession all his life. Despite his great personal and policy distaste for President Lincoln, Taney never suggested Lincoln lacked authority to use military force to respond to the rebellion. So he was loyal to the Union when it would have been easy not to be. Again, though, this feels like searching for something extraordinary and finding instead the merely acceptable.

What about Taney’s other legal opinions? Was he an unprincipled partisan hack, doing Jackson’s dirty work on the bench even after Jackson had passed away? In my opinion, no. Roger Taney had at least one fine hour as a jurist, in the case of Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861).

At the beginning of the Civil War, troops marched from the northern states, through Maryland and particularly through Baltimore, to protect Washington. Pro-Southern mobs harassed and in one instance attacked the columns of troops and materiel thus en route. While Maryland rejected secession, the Legislature also closed rail and road transit lines to all combatants. President Lincoln declared martial law in Maryland, re-opened the rail routes, and authorized General Winfield Scott to suspend habeas corpus at his discretion. General Scott delegated command to subordinate officers with local theaters of command. One of these was General George Cadwalader who was stationed at Fort McHenry near Baltimore and tasked with maintaining open supply lines through Maryland to the front in Northern Virginia.

John Merryman was a lieutenant in the Maryland militia. He was arrested by Cadwalader’s troops, who had suspected him of secessionist sympathies. He stood accused of attempting to blow up bridges in fulfillment of a purported instruction by the Governor to deny cooperation to the Federal army — in other words, treason. He filed a petition for habeas corpus, predictably pleading that whatever it was he was doing, he was executing a valid order of the Governor, authorized by the law of the state of Maryland. The application was presented to Taney at Taney’s home in Baltimore, and his initial response was a brief note that Cadwalader and Merryman should present themselves to Taney the next day to explain their legal positions. This didn’t happen; Cadwalader sent a subordinate, and Merryman stayed in military custody. So Taney issued a longer ruling the next day, ordering Merryman freed.

Taney railed at Lincoln’s unilateral declaration of martial law, assumption of power, and in this case in particular, his claim to have purportedly authorized the military to make arrests and suspend habeas corpus. Calling back to the interplay of the Courts and various Kings of England before the Revolution, and citing the abuses of power by King George III cited in the Declaration of Independence, Taney noted that precisely the sort of exigent circumstances that gripped the nation in general and Maryland in particular had been contemplated by the Framers:

If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the Legislature to say so. That question depends on political considerations, on which the Legislature is to decide. Until the legislative will be expressed, this court can only see its duty, and must obey the laws.

Thus, Taney referred the matter directly back to Cadawalder, enjoining the entire military including the commander-in-chief to avail themselves of the regular judicial processes of the state of Maryland then at their disposal rather than acting unilaterally. Maryland, after all, was not (then) a war zone; it had a functioning civil government loyal to the United States. So there was no reason to use a military police process.

It was for naught: Merryman was never presented to any judge. ⁷ Nevertheless, Ex parte Merryman is a Constitutional needle-thread worth celebrating. In it, Taney opposes southern secession and rebellion, and also opposes Lincoln and the manner in which Lincoln has responded to secession and rebellion. If Merryman is obstructing the war effort that’s probably a crime. Since this part of the country was not at war, the place to decide that is the regular court system. Congress had not authorized suspension of habeas corpus, so wartime or no, Lincoln didn’t have the right to simply imprison someone who hadn’t committed a crime, nor did military officers under his command have the ability to arrest someone they found politically inconvenient.

Simply put: we don’t stop being a nation of laws, even when we are at war.

Merryman is as nuanced a balancing of the competing demands of liberty and security during wartime as has yet been written, which still forcefully argues its central point. Unlike subsequent jurists who proved themselves quite willing to permit the arrest of people speaking out against the draft in wartime for using strong language and worse, quite willing to permit the warrantless and causeless detention of American citizens based on their race, ⁸ Taney came down on the side of insisting upon maximizing adherence to the black letter of the Constitution even in the difficult circumstance of wartime. Though the contemporary Supreme Court has followed Taney’s example and again affirmed that habeas corpus applies even in wartime, ⁹ today’s Justices did so in circumstances considerably less trying and challenging than Taney faced. While one might lodge criticisms against it, ¹⁰ Taney’s Ex Parte Merryman opinion is, on balance, admirable.

Much of his other jurisprudence uses overt reliance upon the black letter text of the Constitution to cause the political branches of government to seek a middle path between an aggressive interpretation of the Federal commerce power and aggressive interpretation of the Tenth Amendment, insisting that both levels of government had legitimate interests that could and should be finessed and harmonized. For the most part, the Taney Court played the role of facilitating political compromises between the states and the Federal government. Alas that this general theme of comity did not prevail when issues of slavery arose.

In his personal life, he seems to have been a good man. He was, briefly, a slaveowner himself: he inherited a number of slaves that were his father’s property. Within a few months of that inheritance, he manumitted the slaves and set aside pension funds for the older freedmen, who would be unlikely to find employment. This appears to have been near the limit of at least his comfortable financial abilities.

Like so many other men of means of his day, Taney probably overestimated his talents as a businessman and real estate speculator. Eventually he suffered a streak of losing transactions and couldn’t recover. On October 12, 1864, impoverished, widowed, sick, unloved by unionists and secessionists alike, in a home he could no longer afford, attended to only by his also-ill adult daughter, he died in bed. ¹¹ Thus ended the career, and the life, of Roger B. Taney.

Neither a warrior nor a hero of the Confederacy, Taney was a legal champion of the Union and a critic of its leader. He accepted and acknowledged Abraham Lincoln’s Presidency despite his personal opposition to pretty much everything that Lincoln stood for. Privately opposed to slavery, Taney only ever considered abolitionism as a young lawyer. Upon assumption of political ascendancy and then judicial office, he treated slaves as no different from any other kind of property.

Some facets of this portrait are handsome, and some are ugly. The ugliness of Dred Scott looms over all of the rest of it. When Dred Scott came up for review, Americans needed a hero on the Supreme Court. What we got was Roger Taney.

VII

So, after all of this, we are still left with monuments and memorials to the man scattered throughout the nation, and especially in his native Maryland and in the Supreme Court. Should they stay, or should they go — and if they do go, then where should they go?

An advisory commission of the City of Baltimore voted 4-3 in favor of removing Taney’s statue in January of 2016. The majority argument was articulated by Donna Cypress, director of library services at Lincoln College of Technology and member of Maryland Commission on African American History and Culture: “Roger B. Taney is a monument that symbolizes racism.” Others thought that as with certain statues of Confederate soldiers, his statue might be kept while “adding context.” Elford Jackson, a civil engineer and member of Baltimore City Public Arts Commission, argued that he wanted to see more art in Baltimore, not less. … “[Statues like Taney’s] are pieces of art … Do they have a negative connotation? They sure do.” Similarly, another Baltimorean, who also offers apologies for a statue of Robert E. Lee and Thomas “Stonewall” Jackson, says about the removal of Taney’s statue:

…his decision in the Dred Scott case was the only one he could render under the Constitution as written, not as later amended. He freed his own slaves but was powerless to interfere with the institution which was provided in the U.S. Constitution. [¶] Rather than bringing people together, removal of these memorials will only cause resentment and trying to rewrite history will further divide us.

Taney’s decision in Dred Scott was not the only outcome possible given the prevailing state of the law. Two of Taney’s colleagues reached opposite results. Which of the various opinions was best-reasoned can be argued with validity and principle in many directions. For my part, I say only that given the state of the law at the time, Taney’s opinion was logically defensible. His blind spot concerning the morality and legality of race-based slavery was very similar to the one suffered by no less esteemed a hero of American government than Thomas Jefferson.

Taney was a man of his time. Unlike Jefferson, he was a not man ahead of his time. Dred Scott called unavoidably for decisive action by someone of greatness and vision, someone able to see above the fog of contemporary politics. Roger B. Taney was not that person. ¹² The Dred Scott opinion should have been a call to moral clarity in the direction of emancipation. If not that, second-best and perhaps closer to Taney’s style might have been a depolarizing pathway to gradual emancipation so as to avoid rather than catalyze war. Taney’s personal manumission of his inherited slaves and his clarity of focus in Ex parte Merryman inform us that the potential for such legal heroism was within Taney all along.

Served with an opportunity for greatness and equipped with the tools to make greatness manifest, Taney made things worse instead of better. Along the way, he stained the law of the nation so badly that a four-year civil war and three amendments to the Constitution were needed to cleanse it. Though he perhaps was not a “villain,” he surely was not a “hero.” He should be remembered, not honored. A public place of honor is not for men of his measure.

Baltimore’s Mayor, Stephanie Rawlings-Blake, will make the final decision, likely in a week or two, and we should only be surprised should she opt to keep Taney’s statue on display.

On balance, this is the right call. A place of memorial, contemplation, analysis, debate, and understanding is more appropriate for the memory of Roger Taney than a public park. His statue belongs in an alcove in the Supreme Court, perhaps near his official marble bust (illustrated to the left). In that place and setting, we may examine the ambiguous and uncomfortable role in history Taney played as the principal custodian of our law — even while the upper floors of that building house the incumbent Justices, men and women from whom we hope, expect, and demand better than our nation got from Chief Justice Roger B. Taney.

1. This essay discusses two of them. The other four are Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 36 U.S. 420 (1837), Luther v. Borden, 48 U.S. 1 (1849), Ableman v. Booth 62 U.S. 506 (1858), and Kentucky v. Dennison 65 U.S. 66 (1860).
2. In an alternate history in which the man had managed his own finances better and had a flask of booze strapped to his shin while fighting the Battle of Québec, Benedict Arnold would easily have been esteemed a hero today.
3. Both daughters were born in free territory.
4. Recall that the Scotts’ daughters had been born in free territory. Had that not been a fact in the case, perhaps Taney would not have included this noxious holding as part part of his opinion.
5. The reasoning was that a) five of the original thirteen states extended citizenship to blacks at the time they initially ratified the Constitution; b) the pre-Constitutional Northwest Ordinance also banned slavery in Federal territories with no legal challenges thereto, implying that the current national government could ban slavery in the territories; and c) if the majority was right to say Scott has no standing to sue as a non-citizen the rest of the opinion should have been withheld. One of the dissenters, Benjamin Curtis, resigned from the Court in protest shortly after the Dred Scott opinion was handed down.
6. A dubious proposition, in my opinion.
7. The decision is infamous with critics of Lincoln for the accusation that Lincoln simply ignored it, though it’s quite likely Lincoln was not aware of any of the proceedings until they were all over.
8. Chaplinksy v. New Hampshire (1942) 315 U.S. 568; Korematsu v. United States (1944) 323 U.S. 214.
9. Hamdan v. Rumsfeld (2006) 548 U.S. 557; Boumedine v. Bush (2008) 553 U.S. 723.
10. Was Taney playing fast and loose with the very real danger of Maryland seceding? Did Taney take gratuitous shots at Lincoln, inserting dicta logically unnecessary to resolve the case? Did he not afford sufficient gravity to the fact that there was a war going on less than fifty miles from where the military authorities were acting? Was it realistic or practical to expect Congress to meet and pass a law suspending habeas corpus under those exigent circumstances? Was Maryland really still loyal to the United States, its Governor having (purportedly) ordered Merryman to blow up bridges so as to impede actions of the Union Army? Taney’s critics have some trenchant points to score here despite my praise for the decision. Note, though, that Congress did meet, mere weeks later, passing a law authorizing suspension of habeas corpus.
11. On the same day, Maryland voted to abolish slavery.
12. Would you or I or someone else have been that person? It is pleasant to fantasize so. I confess that I do not know what I might have wrote had I been tasked with writing an equivalent to Brown v. Board of Education in 1857. Of the then-living lawyers who had been Democrats in at the time of Taney’s nomination, maybe William H. Seward, or Hannibal Hamlin could have risen to the occasion? We’ll never know.