Saturday, April 24, 2010


A review of James F. Simon’s Lincoln and Chief Justice Taney: Slavery, Secession, and the President’s War Powers (2006)

(Rating:5 of 5)

In my pervious review, I described Simon’s other work, What King of Nation, as the struggle between two American icons: Thomas Jefferson and John Marshall. This book is slightly different, although it also features the struggles of a famous president with the chief justice of the Supreme Court; this book features an American Icon vs. an American villain. It is unusual for me to name any historical figure a villain, even when they hold views I find deplorable, because to me that would be strong presentism*. However, when I find the presence of such a historical figure to be so negative that it makes almost erases any good points they might have had, I feel obligated to call them out for what they are and that is a villain. I realize that mine is not a perfect system and one could go on and on over the details of various figures, but with this acknowledged I still say: that Roger Taney was an outright villain in American history whose presence we could have done without. Yes, I realize that he was useful to President Jackson during the Bank War, but I think President Jackson would found someone else to fill the role that he needed played, and his evil role in issuing the Dred Scot decision far overrides any good that he performed in his career. While Lincoln is the icon, who saved the Union and ended legalized slavery in the United States.

Simon gives Taney a fairer treatment than I would give him, detailing a good deal of his career showing that he was at one point a half-way decent chief justice. Someone who entered the national stage and had participated in big events, back when Lincoln was still a young man trying to find his place in the world. This makes his sudden turn during the Dred Scot case even more shocking. A man who at one point had earned praise of even those who had been Andrew Jackson’s opponents suddenly turns away from law and reason. Simon describes how Taney’s decision completely upends almost three quarters of a century of precedent, in order just to satisfy his personnel feelings.

“Taney did not offer a single source of proof for his sweeping generalization. He lumped all of those who signed the Declaration and the Constitution together, the slaveholders of the South with the opponents of slavery in the North. He dismissed the idea that the Declaration of Independence’s proclamation that ‘all men are created equal’ should be taken literally. Blacks were permanently excluded, according to Taney, because they were a degraded class.” p.122

Taney attempt to protect slavery though the court backfired on him. Instead, it only intensified things, and cost the Supreme Court under his leadership the respect of a great deal of the nation. The case was brought up in the Lincoln/Douglas debates where Lincoln accuses Presidents Buchanan and Pierce, Senator Douglas, and Taney himself of being in a conspiracy to force slavery over the whole nation. Lincoln was of course exaggerating, but his star was rising. Lincoln would win the election of 1860 in a close four-way race in which he would receive less the forty percent of the vote. Before Lincoln ever took the oath of office states were already abandoning the Union to avoid living under a president who was going to be openly hostile to the cause of slavery.

Lincoln began to take steps to save the Union, having avoided a mob in Baltimore, things started to take an even more dangerous turn with riots and state officials even trying to persuade Lincoln not to have troops at all in Maryland, to which Lincoln chastises them for.

“Maryland remained dangerously volatile. Secessionists in northern Maryland destroyed railroad bridges between Washington and the North and cut telegraph lines. The state legislature, dominated by southern sympathizers, was scheduled to meet in Frederick on April 26. Anticipating a secessionist vote, General Scott recommended to the president that he be given the authority to arrest secessionist politicians in advance. If Maryland voted to secede, he told Scott, he would act decisively to put down the rebellion with ‘the bombardment of their cities—and of course the suspension of habeas corpus.’ Those drastic measures were not immediately necessary. The legislature did not vote to secede. Meanwhile, northern troops managed to filter into the capital in increasing numbers by a circuitous route, first ferrying down Chesapeake Bay to Annapolis, then boarding trains to Washington.” p.186

Even with the arrival of the Union army, Simon describes and environment in which the threat of sabotage was still ever present. With that, President Lincoln suspended habeas corpus and had military commanders arrest suspected secessionists and hold them without trial. This would give Taney, traveling circuit, an ability to undermine the Union cause from within. He ordered the military to hand John Merryman, the army commander, General Cadwalader, refused to hand him over citing orders from the president himself. In his famous decision, Ex. Parte Merryman, Taney strips to the president down to the bare minimum of constitutional authority. Taney’s new position is one that clashed with his own history and views on presidential power and government authority.

“To achieve his goal of proving that Congress alone could suspend the writ, Taney systematically reduced the president’s constitutional powers to Lilliputian proportions. Here Taney displayed the artistry of a partisan trial lawyer rather than the detachment of a judge. His interpretation was starkly at odds with Taney’s own reading of presidential power when he had been President Jackson’s Attorney General. In defending Jackson’s broad constitutional powers in the Bank War, Attorney General Taney discovered deep wells of presidential authority, totally independent of both Congress and the Supreme Court. And Chief Justice Taney, in an earlier judicial opinion that raised an issue much closer to Lincoln’s plight in 1861, declared that the governor of Rhode Island could use martial law to put down an armed insurrection. The power to do so, Taney wrote in works equally applicable to the president of the United States, ‘is essential to the existence of every government, essential to the preservation of order and free institutions, and is necessary to the State of the Union as to any other government.’” p.192-3

So low was the public opinion in the Roger Taney, that Lincoln just ignored the order and proceeded as he intended to do. Lincoln would win the war and would receive monuments built in his name for generations. Taney would die in 1864, and be replaced by Salmon P. Chase, formally Lincoln’s Secretary of the Treasury. I strongly recommended James Simon’s book to anyone who is interested in some of the legal aspects of America’s Civil War.

*Presentism is the comparing people of the past to the morals of today. Link

{Video taken from the 1989 classic Glory}

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