Roger B. Taney Was as Bad as You Think

by Jeremy J. Tewell
10-25-16

Roger Brooke Taney, the fifth chief justice of the United States Supreme Court, died late in the evening on October 12, 1864. The following day Maryland voters narrowly approved a new state constitution that abolished slavery. When hundreds of African-Americans marched to the White House to celebrate, Abraham Lincoln observed that “it is difficult to realize that in the state where human slavery has existed for ages . . . by the action of her own citizens, the soil is made forever free.” Taney, one of Maryland’s most prominent citizens, would not have shared Lincoln’s satisfaction. As the author of the Dred Scott decision, he denied that blacks could be American citizens and declared congressional prohibition of slavery in the territories unconstitutional.

On October 13, 2016, the Historic Preservation Commission in Frederick, Maryland, where Taney worked as a lawyer and is buried, voted four to one to remove a bronze bust of Taney from the courtyard of city hall. A recent story in the New York Times recounts the efforts of Frederick residents, both black and white, to transfer the Taney bust to a site that would not convey public approval—a process that has been delayed by the city’s inability to find a suitable location. Only last month did Frederick’s Mount Olivet Cemetery, which is privately owned, agree to display Taney’s likeness. The former chief justice has thus been swept up in a national debate over the future of Confederate images on state and city property throughout the South.

However, Taney’s legacy has been particularly controversial, in part because he was not, strictly speaking, a Confederate. Already eighty-four years old when Fort Sumter surrendered, the chief justice did not resign his seat on the Court. Contrary to what some historians have claimed, he did not believe secession was constitutional. And yet his Dred Scott opinion had helped fuel secession by giving the southern position on slavery constitutional validation. Furthermore, while he may have denied the constitutionality of secession, Taney clearly believed it was morally justified. He blamed the crisis on “free state aggression” and denied that the federal government possessed any “rightful power to bring back by force the states into the Union.” In a private letter to former President Franklin Pierce, the chief justice expressed his hope that Americans would soon recognize “that a peaceful separation, with free institutions in each section is far better than the union of all the present states under a military government, and a reign of terror preceded too by a civil war with all its horrors.” Later, when his wife’s grandnephew visited him before heading off to join the Confederate army, Taney expressed approval: “The circumstances under which you are going are not unlike those under which your grandfather went into the Revolutionary War.”

As the conflict progressed, Taney’s opinions, both public and private, made it clear that he was eager to hinder Lincoln’s ability to successfully prosecute the war. He denied the president’s authority to suspend the writ of habeas corpus. He considered the blockade, conscription, the Legal Tender Act, and the Emancipation Proclamation unconstitutional. Fortunately for the Union war effort, cases involving habeas corpus, the draft, legal tender, and emancipation never made it to the Taney Court. And by 1863, as Lincoln appointees replaced justices who had died or resigned, Taney, who was frequently ill and absent from the Court in any case, found himself with little power to challenge the administration ...

http://historynewsnetwork.org/article/164153