2015, October 13 | Tuesday 4:50 am

by Peter Samuel

Talk by Ron Soodalter at Taney symposium of Historical Society of Frederick County 2015-10-02 (CONDENSED)

On the 4th of March, 1861, in what a historian described as “one of the most awkward moments in American political history,” two of the nation’s most powerful figures faced each other over a Bible. The occasion was the inauguration of Abraham Lincoln as the nation’s 16th President, and the man administering the oath was Roger Brooke Taney, Chief Justice of the United States Supreme Court. For the previous four years, the two men had opposed one another politically, and Taney was now swearing in the man he would have least liked to see in the White House… During Lincoln’s administration, he and Taney would battle bitterly over the institution of slavery, the right of a state to secede, and the wartime powers of the President.AbeSmall

America had never faced such a crisis as was brought by the waging of a civil war, and both the President and the Supreme Court (were) feeling their way. Executive decisions were made that had no precedent in the young nation’s history. And for every broad interpretation of the Constitution Lincoln made, Taney was there to attempt to strike it down, with the Supreme Court as his sword.

Taney the man

Taney was not an easy man to warm up to… Born to wealthy Calvert County tobacco farmers, he had a patrician-like demeanor that bespoke his standing as a sixth-generation propertied Marylander, with all the privileges commensurate with his station…. (H)is attitude regarding race and the black man was harsh, and reflected that of much of the South. This, in and of itself, would have simply been a matter between Taney and his conscience, were he not the occupant of the highest judicial office in the land (chief justice US Supreme Court.)

Brian McGinty, the author of Lincoln & the Court, best describes the fertile soil in which Taney’s attitudes took root: “To understand Taney’s judicial views…it is helpful to know that he was raised in the late 18th century on a tobacco plantation in Southern Maryland, in the midst of a slave population; that he spent his early professional years as a lawyer in Frederick, Maryland, where slaves worked in his office and his home; that he rose to national prominence through the favor of President Andrew Jackson, a slaveholder; and that, to the end of his long life, he sympathized with the South in its commercial, social, and political struggles with the North, growing bitter in the vague realization…that his views on the great issues dividing the nation were not shared by most Americans.”

Civil rights set back decades, bloodiest war in US history incited

RSoodalter2844(Taney’s Dred Scott decision) set the cause of progress and of civil rights back decades, and was instrumental in inciting the bloodiest war in United States history. It would also provoke the first in a series of long and bitter battles with the man who would prove to be his nemesis.

(Before Dred Scott) Taney enjoyed a long career in public service, (first) the Maryland House of Delegates, (then) the state senate. (Taney) the young politician became a favorite of President Andrew Jackson, and served as Jackson’s attorney general, secretary of the treasury, and acting secretary of war. In short, he was, for decades, a respected public servant.

Dred Scott case “disastrous”

The Dred Scott Case was a disastrous decision of the first order, and clearly the worst of Taney’s entire career. In it, he ignored precedent, distorted history, and blatantly brushed aside powers long granted in the Constitution. Ironically, this man who had spoken so eloquently against slavery in his youth, and for its eradication, employed convoluted logic and outright bigotry to manufacture a decision that was designed to perpetuate and extend slavery’s place in the American system, at a time when it was under increasing assault as an archaic and barbaric institution.

The decision tore the Democratic Party down the middle, along sectional lines. Not surprisingly, it infuriated many Northerners, anti-slavery citizens of the territories, and the nation’s abolitionists…

(Before the Civil War) Abraham Lincoln was by no means an abolitionist, nor did he believe in the equality of the races. At this time, practically no one did. Lincoln had always been clear on his feelings toward the institution of slavery: “I have always hated slavery,” he said… When later attempting to hold the nation together in the days before the war, he would write, “We must not disturb slavery in the states where it exists, because the Constitution, and the peace of the country, both forbid us.”

Judicial over-reach

The issue that most plagued Lincoln about Taney’s decision in the Dred Scott Case was his misuse of the Supreme Court and the Constitution to distort the law for his own purposes.

Lincoln according to historian David Donald was appalled at Taney’s “gratuitous assertion that neither the Declaration of Independence nor the Constitution was ever intended to include blacks….So blatant was Taney’s misreading of the law, so gross was his distortion of the documents fundamental to American liberty, that Lincoln’s faith in an impartial, rational judiciary was shaken, never to recover; never again did he give deference to the rulings of the Supreme Court.”

Lincoln accused Taney, Douglas, President Buchanan and former President Franklin Pierce of forming a conspiracy to (spread slavery nationwide.) Lincoln spoke against the Court for denying blacks their basic humanity:

“Chief Justice Taney,” Lincoln said, “in his opinion in the Dred Scott case, admits that the language of the Declaration [of Independence] is broad enough to include the whole human family, but he…argues that the authors of that instrument did not intend to include negroes… I think the authors of that notable instrument intended to include all men…They defined with tolerable distinctness, in what respects they did consider all men equal – equal in ‘certain inalienable rights, among which are life, liberty, and the pursuit of happiness.’ This they said, and this they meant….(For) Dred Scott, his wife and two daughters.. (w)e desired the court to have held that they were citizens so far at least to entitle them to a hearing as to whether they were free or not; and then, also, that they were in fact, and in law really free.”

Lincoln v Taney during the civil war

There were other fundamental issues key to the nation’s future and wellbeing upon which (Lincoln and Taney) disagreed,… Taney believed that the federal government had no constitutional authorization to prevent a state from seceding. Moreover, he thought secession to be in the best interests of both sides. Lincoln, on the other hand, believed that nothing was more important than the preservation of the nation as a union of states…RBTbust

(I)n early March, 1861, as Roger B. Taney administered the oath of office to Abraham Lincoln, the Chief Justice was not a happy man. He was looking into the face of the person who had most publicly and aggressively opposed his politics, his decisions, and his very integrity,…. In his inaugural address, the president-elect… attacked the Dred Scott Decision – with its author only a few feet away – and reaffirmed his promise that the Supreme Court’s position on slavery would not stand. “[I]f the policy of the government on vital questions affecting the whole people … is to be irrevocably fixed by decisions of the Supreme Court … the people will have ceased to be their own rulers.”

Each man was fully aware that he was facing an implacable adversary…

The bitterness between the two men that had started with the Dred Scott Case was exacerbated at the very beginning of the war. After the April 13, 1861, attack on Ft. Sumter, the call went out for troops to quell the Rebellion. Less than a week later, as the Sixth Massachusetts Militia attempted to march through the rabidly pro-Southern city of Baltimore on their way to defend the nation’s capital, they were attacked by anti-war and pro-Rebel mobs…

Suspending Habeas Corpus

President Lincoln – aware of the proximity of Baltimore to a potentially unprotected Washington – responded by declaring martial law in Maryland, and ordering the commander of the Union Army to suspend the writ of habeas corpus if he felt it necessary, to provide for unimpeded troop movements and to ensure the safety of the capitol.

The writ of habeas corpus is a… time-honored provision that protects the innocent from unlawful arrest and imprisonment. It allows the courts to summon alleged offenders, and if warranted, affect their release. It is a cornerstone of due process that protects against arbitrary arrest.

The Constitution provides for the… suspension (of habeus corpus) during times of rebellion – but… the Founding Fathers neglected to specify precisely who can exercise this all-important right…

President suspended the writ between Philadelphia and Washington

AbeL(With secessionist mobs in Baltimore attacking Union troops and secessionists burning railroad bridges between Baltimore and Philadelphia at the outbreak of the war President Lincoln authorized the military) to arrest and hold without indictment, hearing or trial a number of troublesome and potentially troublesome Marylanders. Among them was a highly regarded but Southern-leaning citizen named John Merryman. A wealthy young landowner, legislator and Confederate cavalry officer, Merryman was suspected of having burned railroad bridges and destroyed telegraph wires. Troops broke into his bedroom on May 25, and locked him in Fort McHenry, in Baltimore Harbor…. Merryman’s lawyers drafted a petition for a writ of habeas corpus, demanding a speedy hearing.

Chief Justice Taney saw this as his first real opportunity to publicly challenge the authority of the President, and he issued a writ of habeas corpus ordering the arresting officer… General George Cadwalader, commander of the military forces (at Fort McHenry) – to appear in court, along with his prisoner. Cadwalader (sent a subordinate to tell the court) that Merryman was being held for treason, and by presidential order, the writ of habeas corpus had been suspended, ‘for the public safety.’

Taney sent a second order… Again, he was rebuffed. An apoplectic Taney vented his fury in ex parte Merryman, his lengthy opinion on the case. He began by stating that the President, “under the constitution of the United States, cannot suspend the privilege of the writ of habeas corpus, nor authorize a military officer to do so.” Only Congress, he wrote, had this right.

The President, wrote Taney, had no power to arrest anyone charged with a crime against the United States, nor could he deprive a person of life, liberty, or property without due process of law – which was a judicial function – in other words, Taney’s.


By the time he finished defining the wartime powers that the President did NOT have, he left Lincoln with the role of seeing “that the laws shall be faithfully executed.” Were Lincoln to subscribe to the old chief justice’s interpretation of the Executive’s function, he would have been completely hamstrung in attempting to conduct a war inside our own borders.DScott

No previous President had been so cuckolded.. Thomas Jefferson had sent the navy to fight and vanquish the Barbary pirates who were attempting to hold American commerce at ransom. He also doubled the size of the country by his Louisiana Purchase, without troubling Congress to vote on it. Nor would any judicial power have dreamed of so limiting George Washington’s capacity to wage war against an enemy on our own soil.

Curiously, in his lengthy opinion – which, while couched in eloquent legalese, was largely a diatribe against the President – at no time did the Chief Justice acknowledge, or even mention, that the lower section of the nation was in a state of open rebellion. Taney was following a perilous course… completely ignor(ing) the life-threatening plight now confronting the country.

Taney read his opinion aloud and delivered an emotional speech on the (Lincoln) Administration’s total disregard for the law. He also went public in a big way, releasing his opinion to the press, and having it printed in pamphlet form.

Lincoln fighting the South on the field of battle, Taney in the courts

From (Merryman) on, Lincoln would be fighting two wars. One threatened to destroy the nation, and would ultimately claim 3/4 of a million lives. The other swirled around the true meaning of the Constitution, the rights of the individual states, and the limits of Executive powers.

Lincoln and Taney clashed again the following year over the Prize Cases. When hostilities broke out, Lincoln had blockaded the Southern ports without formally declaring war, in an attempt to deprive the South of belligerent’s status. Months later, the Supreme Court was called upon to decide whether he had the right to seize ships and cargoes without an express declaration of war…. A loss (in Taney’s court) would render the blockade illegal… opening the door for foreign cooperation with the Confederacy. It would also be a humiliation for Lincoln…, and potentially undercut his war powers to the point of military defeat.

TaneyHair(W)hen Lincoln and Congress sought to adopt… conscription to fill the Union ranks, and the issuance of paper money to finance the war effort, it was with the court (majority)’s approval – (but) with Taney consistently dissenting.

No instance of Taney’s waning control over the court is more telling than (Lincoln’s) issuance of the Emancipation Proclamation. Taney strongly disapproved of it as both an attack on the property rights of slaveholders and yet another executive usurpation of constitutional power. ..

Dicta opinions
(But) as time passed, the ancient chief justice became less… of a threat to Lincoln’s wartime administration. Continually losing allies on the bench (and) wracked by ill health… he spent more time in his bed, and less in court. He began writing opinions without conferring with his fellow jurists, on cases he hadn’t yet heard.

As one biographer observed, this practice “raises the alarming specter of a judge whose mind had already been made up and who was not even trying to maintain the appearance that it was open.”

(After his death in October 1864) a letter to a New York newspaper summed up what Taney had become: “[H]e was – next to Pontius Pilate – perhaps the worst that ever occupied the seat of judgment among men.”

While many acknowledged Taney’s role in forging the nation’s early history, his passing prompted relief – and in some instances, undisguised delight – among those who refused to forgive what they viewed as his unpatriotic and obstructionist policies.CWar2

Massachusetts senator Charles Sumner commented, “Providence has given us a victory in the death of Chief Justice Taney. It is a victory for Liberty and the Constitution….The name of Taney is to be hooted down the page of history.”

“Forfeited respect as a judge” with Dred Scott

Lincoln’s secretary of the navy Gideon Welles wrote that with the Dred Scott case Taney “forfeited respect for him as a man or a judge.” And New York diarist George Templeton Strong, on learning that the Maryland legislature had abolished slavery within its borders at virtually the same time as Taney’s death, wrote, “[T]wo ancient abuses and evils were perishing together.” ..Mrs. John A. Logan, wife of a general and future senator… (wrote) in her journal that Taney “had outlived his epoch, and was shunned and hated by the men of the new time of storm and struggle for the principles of freedom and nationality.”

With the passage of time, Abraham Lincoln was destined to achieve one of the loftiest places in the pantheon of America’s greatest men, while Roger Brooke Taney – despite a life spent in public service – is remembered chiefly for his role in the decision that helped sunder the nation.

Perhaps it is best – and kindest – to apply to Taney’s actions and judgments what the late Chief Justice William Rehnquist called “the human factor that inevitably enters into even the most careful judicial decision.”

Judges are neither impersonal nor objective, any more than even the most erudite and informed historians. The best of them try to rise above their personal quirks and biases; the others use the law to support their own agendas. The judgment of history tells us that in the end, Roger Taney could not rise above.



- from an address by Ron Soodalter at the Historical Society’s symposium on Roger Brooke Taney October 2 in Frederick

Ron Soodalter’s website: www.ronsoodalter.com

Historical Society of Frederick County: www.hsfcinfo.org

- editor 2015-10-13


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