The Law is what powerful men say it is


This cool looking, melancholy character, begging to be drawn by Robert Crumb, is Chief Justice Roger B. Taney (pronounced Tawny, for some reason)  one of our longest serving Supreme Court justices (March 28, 1836 – October 12, 1864, the day he died at 87).    He had a long and distinguished legal career, issuing many nuanced decisions as Chief Justice, serving at one time as Andrew Jackson’s Attorney General, Secretary of the Treasury and Secretary of War.    His nomination to the Supreme Court by Jackson was apparently stalled in Congress, a la Merrick Garland,  until Congress expired, but he was nominated again by Jackson when Old Hickory was reelected and Taney was voted onto the nation’s highest court, replacing Chief Justice John Marshall.   He is remembered today chiefly for his greatest mistake, his brilliantly argued but deeply flawed, racist 1857 decision in the Dred Scott v. Sandford. 

I say brilliantly argued because I read the decision in its entirety on a kind of dare from the great civil rights lawyer Arthur Kinoy who characterized it as a magnificent piece of legal legerdemain, the kind that Scalia was a master of.  Kinoy was around 80 then, still teaching at Rutgers Law School, and he challenged the class to find a single weak link in Taney’s chain of legal reasoning, outside of his flawed premise.   The chain is pretty sound, once you accept this idea, expressed succinctly by Taney in his close to 100 page (as I recall it) opinion.  Not a weak link in its legal reasoning from one point to another, though many of the links were arguably made of shaky material.  The Encyclopedia Brittanica, for example, rips the reviled decision several new assholes. [1]

Taney was one of the original Originalists, looking at the “intent of the framers” in his ruling.   He argued that (I write, directly plagiarizing Wikipedia), since the time of the ratification of the Constitution, blacks had been “regarded as beings of an inferior order, altogether unfit to associate with the white race … and so far inferior, that they had no rights which the white man was bound to respect.” [2]

When the Supreme Court rules, there is nobody to appeal to.  When you have the last word, as long you can get five of the nine votes, you have the last word.   In Taney’s case it was “blacks had no rights which the white man was bound to respect.”

Born to a wealthy, slaveholding family in 1777, the year after the born-wealthy, slaveholding Author of Liberty declared the self-evident truth that all men are… ah, you know the thing!    Created equal, yeah, all men are created equal and endowed by their creator with the unalienable rights of life, liberty and the pursuit of… you know the thing, come on, man!  PROPERTY, the pursuit of property, like the human chattels you can buy that will work for free and have no rights the white man is bound to respect, as the man said.

Ironically, Roger Taney (first Catholic on the Supreme Court) had a nuanced attitude toward slavery, though he was, as many of his time (and any time, for that matter) staunch in his racist belief about “white supremacy”.   Unlike the Author of Liberty, America’s eloquent and revered defender of human freedom, Taney emancipated his own slaves and supposedly gave pensions to the ones too old to work [3].

But in crunch time, at a moment in our history when a more embracing idea of human rights was either to be enforced or ignored, Taney wrote the famous decision that played a large part in deciding that the country would have to go to war to figure out if blacks had rights the white man was bound to respect, among other things.  Taney’s Dred Scott decision was explicitly nullified by the Thirteenth and Fourteenth Amendments, for what it’s worth.   The fact that more than a century and a half later this matter of what rights a white man is bound to respect is still being debated… though it is arguably part of the original intent of the slaveholding framers, I suppose.

As a result of our recent reexamination of our nation’s racist jurisprudence, the statue of Taney in Baltimore was removed from its pedestal in 2017.  So there.


[1]  Brittanica:

Chief Justice Roger Brooke Taney’s opinion for the court was arguably the worst he ever wrote. He ignored precedent, distorted history, imposed a rigid rather than a flexible construction on the Constitution, ignored specific grants of power in the Constitution, and tortured meanings out of other, more-obscure clauses. His logic on the citizenship issue was perhaps the most convoluted. He admitted that African Americans could be citizens of a particular state and that they might even be able to vote, as they in fact did in some states. But he argued that state citizenship had nothing to do with national citizenship and that African Americans could not sue in federal court because they could not be citizens of the United States. Scott’s suit, therefore, should have been dismissed for lack of jurisdiction by the district court. On this point, however, Taney stood on shaky constitutional ground: if even one state considered an African American a citizen, then the Constitution required that all states, and by inference also the federal government, had to accord that person “all Privileges and Immunities of Citizens in the several States” (Article IV, Section 2), which includes the right to sue in federal court. Furthermore, Article III, which establishes the jurisdiction of the federal courts, does not mention national citizenship but rather declares that “the judicial Power” shall extend, among other things, “to Controversies…between Citizens of different States” (the so-called “diversity jurisdiction”).

Even with this weak argument, Taney could have been accused of nothing worse than faulty reasoning, if he had stopped there. If Scott was not a U.S. citizen, he could not sue in federal court, and the case would therefore have been improvidently granted. But Taney was determined to impose a judicial solution on the slavery controversy. Although later courts would adopt the policy of deciding constitutional questions on the narrowest possible grounds, the pre-Civil War courts often decided all issues that could support their rulings. Thus Taney continued, holding that Scott had never been free and that Congress had in fact exceeded its authority in the Missouri Compromise because it had no power to forbid or abolish slavery in the territories. The Missouri Compromise, which had served as the accepted constitutional settlement for nearly four decades, thus fell. Even the doctrine of popular sovereignty as articulated in the Kansas-Nebraska Act (1854)—whereby the people of each federal territory would have the power to decide whether the territory would enter the Union as a free or a slave state—lacked constitutional legitimacy, according to Taney. He thus voided the principles of free soil (opposition to slavery in the territories and in newly admitted states), territorial sovereignty, and indeed every aspect of antislavery constitutional thought.


 [2] Wikipedia snarkily adds:  To bolster the argument that blacks were widely regarded as legally inferior when the Constitution was adopted, Taney pointed to various state laws, but ignored the fact that five states had allowed blacks to vote in 1788.[39]

[3] Wikipedia:   Taney’s attitudes toward slavery were complex. He emancipated his own slaves[8] and gave pensions to those who were too old to work.[citation needed] In 1819, he defended an abolitionist Methodist minister who had been indicted for inciting slave insurrections by denouncing slavery in a camp meeting.[citation needed] In his opening argument in that case, Taney condemned slavery as “a blot on our national character.”[9]

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