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The Destatuification of a Justice

Roger B. Taney statue, Mount Vernon Place, Baltimore, Maryland, USA. Sculptor William Henry Rinehart.

Roger B. Taney statue, Mount Vernon Place, Baltimore, Maryland, USA. Cast from an original by William Henry Rinehart.

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 jurisprudence1. 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

confederate flag photo

Image by Elvert Barnes

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

Dred Scott. Public domain, taken circa 1857. Sourced from wikimedia commons.

Dred Scott. Public domain, taken circa 1857. Sourced from wikimedia commons.

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

george washington photo

Image by ell brown

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.

andrew jackson photo

Image by lordsutch

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.

The Destatuification of a Justice

John Merryman, photographed later in life than the events of his famous case. Image in public domain.

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

taney statue photo

Image by randomduck

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.

supreme court busts photo

Image by ttarasiuk

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. []

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81 thoughts on “The Destatuification of a Justice

  1. This was a great piece. To me, the gravest mistake in the Dred Scott ruling–a ruling full of them–was the gratuitous rejection of the Missouri Compromise. Logically defensible, perhaps, but an inexcusable judicial overreach.

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    • 1. No path is free of hazard.

      2. Wasn’t Taney being an “activist” when he struck down the Missouri Compromise?

      3. “Activism” isn’t necessarily the same thing as kritocracy.

      4. With all of that said, yes, I favor a judiciary that exercises its powers even if occasionally it does so in ways I dislike. Call that “activism” if you feel you must.

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      • Actually, I think the path of no or least hazard is for the judiciary to do what they are supposed to do: Not “interpret” it, but rule on its constitutionality. If that means kicking it back to the Congress, so be it. They are the body that makes the laws, and are beholden to the people for what they do. Or a constitutional amendment can be passed.

        And if the law isn’t changed, well, “democracy has spoken” hasn’t it?

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        • I could ask this question in a spirit of points scoring (and maybe I am despite my protestations to the contrary), but what I’ve never been able to understand about your approach here is how one is supposed to come up with rigorous distinction between interpreting something and ruling on its constitutionality. The constitution almost always speaks in vague, general terms (a feature, not a bug IMHO), and statutes are routinely written in ways that permit multiple valid readings, whether by error or by design. The courts must rule on the disputes that reach them, so how are they supposed to avoid interpretation of statutes and the Constitution?

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          • Let me give you two, non lawyer-ly examples:

            1) The law reads as X. It is applied as X. If the law is unclear, unconstitutional,-kicked back to legislature for rewrite. Acceptable.

            2) The writers of the law specifically say the “fee” is not a tax. I find it is a tax because the law is a good thing to have. Unacceptable.

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            • 1) The law reads as X. It is applied as X. If the law is unclear, unconstitutional,-kicked back to legislature for rewrite. Acceptable.

              Damon, I hate to say this so baldly, but that makes no sense whatsoever. The whole purpose of the judiciary is to determine whether a particular reading of the law is constitutionally clear or not, and therefore, if they just say “yup! it’s clear!!” they’ve not only done their job but acted consistently with your methodology.

              Adding: re: 2, you got the term wrong. It’s not “fee”, it’s “penalty”.

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              • Yeah, that WAS rather bad wasn’t it. I though about what I’d wrote after the post and I should have tried to be clearer.

                You said it pretty clearly. The SC should rule on the constitutionality of the law AS WRITTEN, not what was intended to be said, what WAS said.

                Fee, penalty, tax, whatever. The SC seems to view them all as the same thing, why shouldn’t we?

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  2. As usual, this was excellent.

    Taney not ‘ahead of his time’ – as you chronicled, before he was on the Supreme Court, he supported a disastrous war, and worked to defund an important government program. He was *way* ahead of his time.

    Ex parte Merryman might be (is) good law, but you can’t use that case to rule that he *wasn’t* a partisan hack, as the ruling went against the same Lincoln administration that made him their prime boogeyman.
    (and Maryland was only unionist with ‘functioning’ civil government *because* the administration had stepped in and put their thumb on the scale from the get go. The feds imprisoned pro-secession members of the state legislature and helped the state government move from downcountry slave holding secession friendly Annapolis to upcountry mostly non-slave holding Frederick.)

    Slateist pitch that ever slatepitched – Taney’s Dred Scott decision, while horrible, was absolutely necessary, especially in its maximum, judicial activism form, to heighten the contradictions and bring the matter to a head. The result was, yes, a civil war but also, slaves were free.

    – If Taney would have taken the morally correct line (i.e. ruling in favor of Scott), the secession crisis would have happened right then, under the auspices of the Buchanan administration which was likely not up to handling it.

    – If Taney would have punted, the political stalemate would have continued for another decade or so. That delay has unknown ramifications (duh), but one road leads to a more entrench institution of slavery, and the south finally finding religion on the need for interstate infrastructure – which in turn makes eat easier to defend the South from Northern armies. Plus, a Northern political situation that gets increasingly fractious as industrial capitalism hits is full stride and class distinctions really start to put a strain on things.

    – So the pitch is Taney wasn’t a heroic man, but he was a necessary man. An anti-Edith Keeler.

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  3. First off, excellent piece. It has a bunch of stuff I didn’t know before, and is all nuancy in a good way.

    Part of this nuance is the question of why did this guy get a statue in the first place? This isn’t just with respect to Taney. Yes, George Washington had his flaws, but he isn’t honored for those flaws. Compare this with Jefferson Davis or Robert E. Lee. Had the Late Unpleasantness never occurred, they would be obscure historical figures known only to specialists. All those statues of them are honoring their roles in the war: they are celebrations of treason in defense of slavery.

    The fashionable argument for keeping the statues today is that said statues are part of history, and removing them is to remove history. I call bullshit. Yes, their existence is part of history. They should be properly displayed in museums with interpretive materials explaining how our appalling ancestors actually *honored* these guys. This is not, however, an argument for keeping the statues in situ. Their placement was chosen to honor these individuals, and keeping the statues in place carries the clear implication that we are still honoring them. And really, do we believe that this isn’t really the underlying point of the argument? The argument is so preposterous that I cannot believe it is made in good faith.

    We are having the same argument here in Maryland with respect to our state song. It is a sad state of affairs when the fact that it is sung to the tune of “O Christmas Tree” is only third on the list of why it is so embarrassing. We inadvertently elected a Republican governor. He recently quashed a move to replace the song, trotting out the “this is our history” argument. Yes, it is our history. This was made our state song by a bunch of appalling racists who wanted to honor appalling racism. We absolutely should remember this history. This is not, however, an argument for continuing to honor appalling racism. The guy is a schmuck.

    So bringing this back to Taney, a display of Chief Justices obviously should include him. This does not honor him individually. If his home town wants to have a statue, sure. Having a Chief Justice from your town clearly is a thing, even if you shuffle your feet and mumble when asked about what he actually did. But Baltimore? There is no creditable reason for Baltimore to be honoring this guy.

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    • And yet, there are many free walls in Baltimore.
      I’d rather fund more art than less.
      Paint’s cheap, and kids will work for free, or nearly so (if you catch them spraypainting grafitti you simply call it community service).
      Honor more people, make it a project. Is there not a painting of “Baltimore’s Heros”? Or of a particular neighborhood’s? Put one up.

      If you have ugly monuments, drown them in more monuments, more public art.

      Once you start treating every single unoccupied building as a canvass, the whole city starts looking better.

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    • I agree on the focus on who erected the statute, but I thought Taney lived in or near Baltimore. He practiced law there and had financial interests in the pet bank there. When the Merryman case was decided, he was presiding over the Circuit Court in Baltimore. Justices at that time were assigned circuits and I understood that Taney, as Chief Justice, assigned himself the Baltimore circuit so he could be close to home.

      The point that Taney was in Baltimore is an important one for the question of whether Taney was authorized to decide Merryman.

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      • I have reached the limits of my knowledge and what I can find easily. Yes, he practiced in Baltimore, but it’s not clear to me how long. He was 46 years old when he moved there in 1824. He was soon appointed state attorney general. I don’t know if this entailed physically relocating to Annapolis. He was appointed US Attorney General in 1831. He was nominated to the US Supreme Court in 1835, though apparently not confirmed until 1837. All in all, it looks to me like he was in Baltimore when he wasn’t somewhere else, which was most of the time.

        I’m sticking with my vote for a statue of Divine.

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    • There are monuments in New York City to people have little or no connection to New York City like that nice little statue of Ghandi in Union Square or to the Chinese civil servant that tried to crack down on the opium trade in China during the 1830s that led to the Opium War on Chatham Square. Taney was a Maryland native and Baltimore is the biggest city in Maryland. Regardless of the merits of the monument that is enough of a reason to put it there.

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      • Honoring someone because that person did something worthy of honoring is always appropriate. The discussion at hand is about honoring someone because he is a local boy, regardless of or in spite of what that person did. Sometimes cities stretch what counts as a local boy. I believe that not less than three major cities claim Edgar Allen Poe. If the standard is “we really want to claim this guy” then certainly Baltimore could lay claim on Taney. But the connection is not so strong as to meet the “Yes, he was an SOB, but he was our SOB” standard. This is what the issue really comes down to: is he someone whom we want to find some excuse to lay claim to?

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  4. I am no fan of Taney, nor Meryman, but I don’t start from the assumption that the continued presence of statuary in a location is an act of honor of subsequent generations. The statute was erected by people (in this case the City of Baltimore a few years after Taney’s death) to honor an important person in their community. I have no sense the honor was bestowed for anything more than the titular honor, as opposed to his views on race and the Civil War. Basically, there are two screens I operate on, who is the subject of the memorial, but more importantly, who are the people who erected it? Lee statutory erected, particularly outside Virginia, in the 1950s and 1960s is highly suspect.

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    • That’s the thing: Taney wasn’t a Baltimorean. He was from another part of the state, and had no particular connection to Baltimore. There are lots of people with a much stronger connection if they are looking for a replacement. I suggest Divine.

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  5. Oh, and the notion that Washington started the Seven Years/French-and-Indian War is absurd. Amusing, yes. Plausible, no. He was a party to a backwoods border skirmish. He did not cover himself in glory. (Keep in mind that while he carried the rank of Lieutenant Colonel, by experience and command he was more like a junior lieutenant commanding a platoon. He learned from experience. This is high praise.) Great wars are not caused by backwoods border skirmishes. (Next topic: the War of Jenkins’ Ear did not, in reality, have anything to do with Jenkins or his ear.)

    The North American portion of the Seven Year’s War was fought because the population of the English colonies had grown to the point where it was spilling over the Appalachian Mountains, and in particular into the Ohio Valley. The French regarded this, with pretty good reason, as their territory. This is why Washington was commissioned by the Virginia House of Burgesses to go wandering around western Pennsylvania (which they considered to be northwestern Virginia). The details of these wanderings are interesting, but not really relevant to why the subsequent war occurred.

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  6. One of my least favorite aspects of the current iteration of the Social Justice movement is how they go about trying to cast off any historical figure they identify as less than perfect, especially when that imperfection is in regards to race. Yes, there were many racist people in the past and these include a lot of people admired very deeply in popular history like Washington, Jefferson, or Theodore Roosevelt. There isn’t anything wrong in pointing it out but ignoring the entire record because of one major flaw from a modern standpoint seems to be missing the forest for the trees. For people like Taney or Cecil Rhodes, where their racism led them to commit great injustices and evil, than the demonization is appropriate but when the historical legacy is more complicated it seems simplistic.

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    • Meh. The history of many monuments is indeed complex. But some of it is less so, such as the various monuments to southern civil war heroes and confed flag obsession that started around the civil rights era. There was also another spate of civil war monuments in the beginning of the 20 the century. Most monuments are about more then just the thing they say they celebrate. Some of them are divisive and represent white supremacy.

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    • On the content of the post, I will also add this — which will likely make heads here explode.

      The older I get, the more I come of the mind that, at the end of the day, SCOTUSs are merely well organized and disciplined products of their time. D. Scott was decided the way it was, when it was, first and foremost because it reflected the wishes of the country at the time. Likewise Loving, Obergefell, and Plessy.

      I think this is an uncomfortable thought for most, because we like to believe in the narrative that the Constitution stays a fixed moral compass. But I think that, for the most part, every SCOTUS reflects the people it lives amongst as much as it does the framing document, if not more so.

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      • I’m not terribly bothered by that, actually.
        It’s us that need to keep the Supremes on the straight and narrow, just like the rest of the gov’t.

        And, at least with Obamacare, the Supremes have demonstrated that they will blink.

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      • Actually I have heard it said that the SCOTUS keeps on eye on the Constitution and another on the last poll results.

        Which makes sense- the 9 members live and pray and socialize within the larger community called America, after all- they aren’t oracles.

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      • This is as cogent a restatement as I might have conjured on my own, explaining why I have picked SCOTUS as the focus of my own study of our history and culture. The law touches everything. The law is the product of politics, which is a product of our culture, which is a product of ourselves as a people.

        One nuance I might throw in, though, is that SCOTUS is at least as often as not a lagging indicator of cultural progress. A study of how SCOTUS interacts with its contemporary society is usually going to be a study of elites from a previous generation confronting issues raised by younger people or events different from those which previously formed the world views of the Justices. I particularly enjoy how the best of them try to tease out that which is timeless and good from our history and apply those ideas to new situations.

        The lagging indicator thing is well reflected in Dred Scott, I think. The decision was 7-2 in favor of the slaveholder, which roughly reflects that in the generation previous to the case — the generation of Andrew Jackson’s political ascendancy and the cyclical fragmentation and reformation of political parties opposed to Jackson’s, a generation in which politicians played “kick the can” with slavery and competing visions of national unity, a generation whose elites focused themselves intensely on economic growth and westward expansion. Did you know that there was only one Whig ever on SCOTUS? It was Benjamin Curtis, nominated by Millard Fillmore, the same guy who resigned in protest to Dred Scott after dissenting. That’s rather telling about the political vicissitudes of the 1830’s and 1840’s, if you ask me.

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      • Dred Scott did not reflect the wishes of the country at the time. The next year, the Republicans took control of the House for the first time, and Stephen Douglas, angling both to return to the Senate and become the next President, had to argue that the opinion could be circumvented by hostile state legislation. This was clearly an example of a judiciary out-of-touch with popular sentiment and overreach.

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  7. Taney defunded the Bank of the United States, withdrawing all Federal monies on deposit from the institution.

    Which was a terrible idea, even though, or perhaps I should say particularly because, it was one of Andrew Jackson’s pet projects. At any rate, the resulting financial chaos led directly to the Panic of 1837.

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    • Not only that, Taney did this in a scene reminiscent of the Saturday Night Massacre. Jackson ordered the Secretary of Treasury to withdraw the deposits and he refused; the law had established pre-conditions to their removal. Jackson then fired the Secretary of Treasury and appointed Taney to the position, and Taney withdrew the deposits. Jackson was censured by the Senate and Taney was the first person rejected by the Senate for a cabinet position.

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          • Did you read the link? Clearly not b/c it doesn’t say that the end of the BUS caused the financial panic. Let me help you.

            “Speculative lending practices in western states, a sharp decline in cotton prices, a collapsing land bubble, international specie flows, and restrictive lending policies in Great Britain were all to blame.”

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            • Of course I read the link; I always read your links, because half the time they say the opposite of what you’re claiming, and that’s always good for a laugh.

              “Within the United States, there were several contributing factors. In July 1832, President Andrew Jackson vetoed the bill to recharter the Second Bank of the United States (BUS), the nation’s central bank and fiscal agent. As the BUS wound up its operations in the next four years, state-chartered banks in the West and South relaxed their lending standards, maintaining unsafe reserve ratios.”

              PROTIP: It helps when you read past the first paragraph of a piece. Often, useful information is contained beyond.

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    • It seems trivially easy to opine that the Panic of 1837, and the Panic of 1873, the Panic of 1907, the 1918 recession, the Great Depression, the stagflation crisis following the 1970’s oil shocks, and the Great Recession of 2008 were all — to borrow Dennis Sanders’ fine phrasing from another context — tragedies with many fathers.

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        • The terror that ideologues can exercise in this regard can go several different directions. A for-profit bank, with a charter from the federal government, that holds and manages the deposits of the government and serves thereby a class of bond holders can be grist for a critique similar to the anti-Wall Street Occupy’ism of recent note. It’s not only the anti-government reactionaries who would have supported dismantling the Bank of the US. It’s also the small-p populist crusade against “monopoly” and “special privilege” which some members of the left sometimes proclaim.

          Also, one distinction that that has gotten lost in this discussion is between Jackson’s refusal to sign the bill renewing the BUS, which he as president had the prerogative to do, and his decision to defund the BUS before its charter expired, which was at least arguably illegal (and why Jackson was censured for it).

          I say all this as someone who has an intense dislike of Jackson and the style of politics he represents and as someone who believes dismantling the BUS was a big error that probably contributed greatly to or aggravated the 1837 panic.

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          • It’s not only the anti-government reactionaries who would have supported dismantling the Bank of the US. It’s also the small-p populist crusade against “monopoly” and “special privilege” which some members of the left sometimes proclaim.

            The big error was dismantling it and replacing it with nothing.

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            • I’m inclined to say the pet banks and such decisions as the specie circular could count as “replacements,” but point taken. If Jackson had replaced the BUS with something like the Fed we have today then maybe things wouldn’t have been as bad in the late 1830s as they turned out to be.

              At which point, I think our main point of disagreement is how Jackson’s anti-BUS demagoguery compares (or doesn’t) to other strands of antimonopoly we’ve seen in this country since then. Even then, we might not necessarily be in too much disagreement.

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  8. The case against Taney is that after causing the Civil War, he spent his remaining time writing judicial opinions which would give the Supreme Court an important role in resolving the war, including a prepared opinion declaring federal conscription unconstitutional. That Taney’s Supreme Court never got to weigh in on any of the issues of the war was primarily because of the slow nature of appellate review during a fast-changing environment of war. No case ever got to the SCOTUS. Also Taney died in 1864.

    Somewhat similar to Robert E. Lee who kept a public face of duty to country, while secretly planning other designs, Taney was publicly conforming, while privately scheming.

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      • As far as I know, the original source on this was Don E. Fehrenbacher, Dred Scott: Its Significance in American Law and Politics. He reviewed the Taney Papers and found his later writings and concluded that he “would have struck down many of the administration’s principal war measures, including conscription, emancipation, and the currency program.”

        The Taney Papers do not appear to be on-line, but the main one of interest is an 8-page memorandum that Taney penned around the time of Lincoln’s inauguration, in which he concluded that the South was wrong in its belief that there was a Constitutional right of secession, but that the Union had no authority to force the seceding states back-in. (Essentially James Buchanan’s position) It is reasonable to conclude that Taney would not have upheld any of Lincoln’s war measures under this analysis.

        Mark E. Neely, Jr., specifically discusses Taney’s prepared opinion to strike down military conscription in Lincoln and the Triumph of the Nation: Constitutional Conflict in the American Civil War.

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    • I’d say direct federal conscription was at least plausibly unconstitutional when it was imposed in 1863, assuming I understand it correctly. The more indirect kind of conscription, demanding/asking for quotas from states, might have been more legit. But IANAL or Legal Historian.

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  9. First off, I’ll ditto those who commend Burt for this post.

    Second, one of my takeaways is that once a monument is created, it’s really hard to de-install it. That’s because it’s already there, but also because it quickly becomes part of a shared heritage and a site of contestation. The anti-Taney’ists gain something from its being there, even if they want to dismantle it but especially if they want to “recontextualize” it.

    So…..I guess going on in the future, we should think long and hard before setting up any future monuments. What seems like a good idea at the time might will take on a life and meanings of its own.

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    • I guess I don’t feel its that easy to take down a monument these days, and I might be one of the most anti-Taney people in this thread and I don’t want to see his statue removed.

      I am saddened that the Robert E. Lee statue at Lee Circle in New Orleans is being removed. I lived there a few years and remember looking at it from the window of the street car as it jerked its way to where I worked. It was an attractive, classic monument to a guy who had no connection with the City, erected by people who wanted to honor their soldiers. It’s a city with a lot of odd anachronistic juxtapositions of time periods, factual and mythical.

      I don’t live there any more. And before I came, a lot of white people left the city, leaving it to people with no connection to Lee or the Civil War, either they are foreigners like I was (pronounced Na’thner) or they are descendents of slaves. The city has lots of problems without easy solutions and voting the removal of statutory isn’t very costly.

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  10. I don’t want to honor this sort of history, but I don’t want us to forget it either.

    This is really, really well written, Burt. Invokes not just my usual envy of people who write so much better than I do, but makes me nervous that some other outfit that actually pays their writers is going to make you an offer.

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  11. In other Baltimore Monument news–well, not “news:” perhaps “stuff”–this statue is of John Eager Howard, who was a local Revolutionary War hero:

    https://www.google.com/maps/@39.2985888,-76.6157821,3a,25.3y,176.99h,91.38t/data=!3m6!1e1!3m4!1shB7s6tqTtW5pn36CQREUQA!2e0!7i13312!8i6656

    This statue is immediately to the north of the Taney statue, which you can see in the middle ground. The whomping big pillar beyond that is the Washington Monument–the real one, not the johnny-come-lately one a few miles down I-95.

    Why do I bring this up? Merely to point out that the local name for the Howard statue is “John Eager Howard prepares to turn right.”

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  12. Easy to imagine a statue going up of Scalia, or a statue approved, then later canceled, and a fight about it along parallel lines.

    The “statue” and its “status” (signified in part by its location) is a “statement” about the “state” or the state of the state. Citizens of a republic who revere their laws and those who carry them out loyally will honor their servants, offering them up as figures eternally or at least trans-generationally deserving of emulation, but a democracy that reveres the sentiments and aspirations of its present, equal citizens has no need for statues, for the raising up of an individual or his or her image above the mass of equals. So, if we’re going to bring down Taney – or relocate him to the museum, along with Lee and Jackson and the others – we should bring down Lincoln, bring down Washington, and bring down King, and bring down all those graven images of the Savior, too. They were all – all – imperfect beings, and only part of them or their messages that we as democrats can approve is the part that signifies our perfect equality.

    (Also we should stop naming places, not just after individuals, but at all. Every place-name is the commemoration of an unjust expropriation of land that properly belongs to no one or no culture or its language. As a practical matter, GPS coordinates should be sufficient for navigation. Someday soon perhaps we will unlearn this unjust focus on the human, and quit with words, and the histories of injustice they reflect, too. All beings are evolutionarily equal. Science says so.)

    Otherwise, I think I agree with Kolohe – https://ordinary-times.com/2016/02/12/the-destatuification-of-a-justice/#comment-1116100 – though possibly more than Kolohe himself does.

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