The Taney Monument and the Will to Remember

Winston Taney, American Renaissance, August 22, 2017

What the monument’s removal means for us.

I woke up last Wednesday morning to read that, overnight, Baltimore City had removed four so-called “Confederate monuments,” including the one of Chief Justice Roger B. Taney. It stood for 130 years in Mount Vernon Square, alongside the city’s Washington Monument. When I visited the area in the past, I stopped by Baltimore to pay tribute to both men. So on Wednesday, I decided to drive a few hundred miles to Charm City to pay my final respects to the fifth chief justice of the U.S. Supreme Court.

I didn’t anticipate how unpleasant it would be to see that beautiful statue gone, leaving only an empty pedestal in its place. Even more unpleasant was the glee of Baltimore inhabitants. I stayed for over an hour, observing how the diverse denizens circled the base where the monument once stood. Some sneered, others smiled—all of them celebrated. One black man proclaimed out loud that this was his city now. I thought how ironic this was, in a city that had long been dominated by his race.

I doubt that any of these people knew much about Chief Justice Taney, or even the fateful Supreme Court decision with which he has come to be associated. But they did know one thing, and they knew it more clearly than did any conservative at The National Review or Weekly Standard: This was one more sign that this country now belonged to them. They knew they were winning.

I would like to explore the significance of this removal, but will first offer some information about Roger B. Taney. What makes some people hate him so much today, and why is that hatred misguided?

Roger Brooke Taney

Taney was born in 1777 to a modest Roman Catholic family in Calvert County, Maryland. He excelled in college, and after being chosen valedictorian by his college classmates, chose to study law. In 1806, at the age of 29, he married the sister of Francis Scott Key, who eight years later would write “The Star Spangled Banner.” (Francis Scott Key died right next to where the Taney monument stood.)

In 1815, Taney was elected to the Maryland State Senate. While serving there, he took on a case in defense of a Methodist minister who had been charged with intending to incite a slave insurrection due to his passionate abolitionist writing. Against public outcry, Taney defended the minister’s right to free speech, and won an acquittal.

After leaving the Senate, Taney went into private practice in Baltimore, becoming the top lawyer in the region, even representing the State of Maryland in a case before the U.S. Supreme Court. Soon afterwards, Taney was appointed attorney general of Maryland, which, as he would later say, was the only public office he ever aspired to—a fitting statement for a lifelong defender of state sovereignty.

President Andrew Jackson had other plans, however, and in 1831, he appointed Taney attorney general of the United States. Four years later, Chief Justice John Marshall died, leaving a vacancy. Jackson nominated Taney to fill the position, and despite vehement opposition from Senators Henry Clay and Daniel Webster, who criticized Taney for supporting state sovereignty, Taney was confirmed.

In his nearly 30 years on the bench, just as he had done as an attorney general, Chief Justice Taney repeatedly held that the Constitution is a compact among sovereign states, leaving most matters of importance to state and not federal authority. But today Taney is not known for his commitment to compact theory but rather his “deplorable” commitment to the expansion of slavery. Why?

Chief Justice Taney and Slavery

Taney has this reputation largely because of two notorious Supreme Court decisions: Prigg v. Pennsylvania (1842), about the enforcement of federal fugitive slave law within a non-slave state, and Dred Scott v. Sanford (1857), about whether a slave can be considered a U.S. citizen for purposes of federal jurisdiction. In both cases, Chief Justice Taney took legal positions that, at the very least, facilitated the preservation of slavery, and at worst, expanded slavery and therefore conflicted with Taney’s general commitment to state sovereignty. I think Taney was mostly wrong—as a matter of law, politics, and morality—in both Prigg and Dred Scott, but it is laughable to say that these opinions were, as Rich Lowry now conveniently claims in National Review, “monstrous.”

Chief Justice Roger B. Taney

By far the more famous of these two decisions is Dred Scott, which turned on whether blacks were citizens of the United States. I will make six points that were common in elite legal publications before the Civil Rights Movement[1] but that are now rarely expressed:

First, it is one of the first Supreme Court opinions explicitly to limit itself to the “original meaning” of the Constitution. Indeed, sounding just like a 21st century conservative, Taney wrote that “[t]he duty of the court is to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.” Although one can argue about whether Taney was right about the original constitutional meaning of national citizenship, it is undeniable that his opinion is one of the first to make original meaning the core of its reasoning.

Second, in determining whether people of African descent were so integral to the American political community as to be considered citizens under the original meaning of the Constitution, Taney explored the legal and social relationship between people of African and European descent. He concluded that Europeans had long found Africans to be “of an inferior order, and altogether unfit to associate with the white race.” Although there certainly were exceptions, this statement is generally accurate as a matter of historical fact.

Third, Taney found that this thinking about people of African descent carried over from Europe to the American colonies. Taney discussed how, in both slave and non-slave states, laws limited relations between the two races, because it was widely believed that “a perpetual and impassable barrier was intended to be erected between the white [and black] race.” This is generally an accurate assessment of 17th and 18th century colonial law.

Fourth, Taney explored whether the Declaration of Independence and its proposition that “all men are created equal” changed the legal and social status of blacks in America. Taney acknowledged that, if read in isolation, this broad language could conceivably “embrace the whole human family.” However, if put in the proper historical context, where blacks and whites had long occupied distinct legal and social spheres, “it is too clear for dispute that [blacks] were not intended to be included, and formed no part of the people who framed and adopted this declaration.”

Although one can certainly interpret the Declaration more broadly and philosophically, as Harry Jaffa did later, Taney is probably right: The best reading of the Declaration is that it stood only for the proposition that the colonists, as Englishmen, had the same rights to self-determination and self-governance as their British kin.

Fifth, Taney examined whether the U.S. Constitution changed the status of blacks so as to make them part of the American legal and political community. Here, Taney focused on how the Preamble announced that the United States were formed by “the people”—“that is to say, by those who are members of the different political communities in the several States.” Moreover, Taney explained, the people of these different political communities created the Constitution “to secure the blessings of liberty to themselves and their posterity.” Taney concluded that blacks were simply not intended to be part of “the people” and “their posterity.” Most states, both in the North and South, had long distinguished between blacks and whites in terms of social and legal rights, and the Constitution itself implicitly distinguished between blacks and whites in the Migration and Importation Clause (permitting abolition of the slave trade only after 1808) and the Fugitive Slave Clause (requiring the return of escaped slaves).

One could contest these interpretations. For example, in his Dred Scott dissent, Justice Curtis pointed out that some Northern states had provided equal privileges to blacks and whites alike. But as the eminent historian Carl Brent Swisher wrote in his extensive biography of Taney, it is probably the case that Taney had the stronger constitutional argument because his account was the more “accurate portrayal of relations between the two races in communities where both lived in considerable numbers.”

Finally, Taney looked to early federal statutes for further evidence of what the Founders thought about who constitutes “the people of the United States.” In particular, Taney found two federal laws, passed within a few years of ratification of the Constitution. One is the first naturalization law, passed by the first Congress in 1790, providing that aliens could become citizens only if they were “free white persons.” Taney concluded that “citizenship at the time was perfectly understood to be confined to the white race.” The other is the first militia law, passed by the second Congress in 1792, requiring enrollment in the militia for every “free able-bodied white male citizen.”

Given this history, Taney concluded that people of African descent were not citizens of the United States, so there was no federal jurisdiction over Dred Scott’s lawsuit. To rule otherwise, Taney warned, would require “the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.” Such a “liberal construction” would exceed the Supreme Court’s powers.

Taney also considered whether Congress had the authority to ban slavery in the territories as part of the Missouri Compromise. He declared that Congress had no such authority, because it would amount to Congress depriving citizens of property without due process, in violation of the Fifth Amendment. This was technically what lawyers call “dictum”—i.e., language that is unnecessary to the case’s outcome and therefore not binding on later courts—but this reasoning suggested that Congress had no authority to prevent the expansion of slavery.

Is Taney’s opinion monstrous? Certainly, by contemporary standards, to the extent that it perpetuated what we now consider a monstrous practice, but Taney did not project some foreign monster onto the American constitutional and legal framework. Conservatives such as Mr. Lowry want to make Taney a monster, not American history itself.

The truth is that both the citizenship and the due process elements of Taney’s opinion were firmly grounded in widely accepted legal precedents. As one observer wrote in the Yale Law Journal in 1909, “One may accord to Taney’s opinion logic and learning, but one cannot concede to it an enlightened and forward looking spirit.”

Taney’s reasoning about the meaning of American citizenship reflects an idea that continues to trouble American social life: that people of African and European descent may simply be too different to share the same space. If this part of Taney’s reasoning is monstrous, we have a lot more to uproot than a single statue. We also have to uproot much of the American social order and perhaps nature itself.

Taney’s personal thoughts on race

There is another reason why the “Taney is a monster” story is false: He opposed slavery. In 1818, the year he took on the case for the abolitionist Methodist minister, he freed eight of his 10 slaves, and did not emancipate the others because they were elderly and Taney felt responsible to keep them in their old age.

But Taney was a race realist. After the Dred Scott decision, he became very circumspect about expressing his personal views on race, but in an 1857 letter to Samuel Nott, a congregational minister in Massachusetts who had written honestly and extensively on race relations, Taney explained: “Every intelligent person whose life has been passed in a slaveholding state and who has carefully observed the character and capacity of the African race, will see that a general and sudden emancipation would be absolute ruin to the negroes, as well as to the white population.” Taney worried that violence would follow emancipation, because the two races were not suited to living together.

This anti-slavery, pro-separation outlook was essentially the same as that of the Founders, including such important figures as Thomas Jefferson, James Madison, John Taylor, and St. George Tucker.

There were exceptions among the Founders. Alexander Hamilton did seem to accept the possibility of a multiracial society, proclaiming as early as 1779 that “their natural faculties are as good as ours.” But Hamilton also bought and sold slaves throughout his life.

So who was the monster: Taney who freed his slaves and believed that a multiracial society was impossible due to natural racial differences, or Hamilton who bought and sold people he claimed were his equals? Our upside-down society has answered that question in favor of Hamilton, to the tune of a rap musical.

Likewise, Taney hoped for a peaceful separation of North and South, writing in an 1861 letter to Franklin Pierce that he hoped “that the North, as well as the South, will see 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, and which end as it may will prove ruinous to the victors as well as the vanquished.”

By contrast, Abraham Lincoln insisted on a “perpetual union,” destroying the South and killing nearly 700,000 Americans. And Lincoln promised that he would continue the bloodshed “until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword.”

Again, who was the monster?

What the Taney monument means for us

Over the past week we have seen a crystallization of patterns that have been in place since the Civil Rights Movement: a joint effort between Left and Right, a multicultural convergence against the truth on matters of race and identity.

The Left has historically been more honest about American history and its vexed race relations, but only as part of its campaign to transform contemporary America and promote the egalitarian leveling that is central to progressive thought. The Left engages the past honestly for the purpose of justifying a more ruthless domination of the present.

The Right, by contrast, has been less honest about the past, eager to revise our understanding of American history so as to make the Founders seem like color-blind egalitarians. It seeks to eliminate ethnic identity in the present, rendering us all, black and white alike, anonymous and replaceable cogs in the same commercial machine. But with the emergence of white racial consciousness, Left and Right unite—a rarity in these divided times—in righteous indignation.

In Remembering Who We Are: Observations of a Southern Conservative (1985), Mel Bradford wrote presciently that “monuments to the memory of heroic figures are celebrations of a continuity sustained against the inevitable hazards of change and blind chance, the forces which make for anonymity and oblivion.”

In 2017, the Left wants us to change who we are, and the Right wants us to forget who we are.

Our task is to remember—and to be—who we are. And unless we succeed, we will end up much like the pedestal that now stands alone in downtown Baltimore: empty and deracinated, destined for “anonymity and oblivion.”

The pedestal where the Roger B. Taney Statue stood. (Credit Image: © Shen Ting/Xinhua via ZUMA Wire)

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[1] Some good examples are the following: (1) Carl Brent Swisher, Robert B. Taney (1935); (2) Bernard Christian Steiner, Life of Roger Brooke Taney: Chief Justice of the United States Supreme Court (1922); (3) Charles Noble Gregory, A Great Judicial Character, Roger Brooke Taney, 18 Yale Law Journal 10 (1908); (4) Samuel Tyler, Memoir of Roger Brooke Taney, LL.D.: Chief Justice of the Supreme Court of the United States (1872).

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Winston Taney
Winston Taney is a constitutional law professor and conservative Christian, struggling to believe in constitutionalism, conservatism, and Christianity in 21st century America.
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