“Hooted Down the Page of History”: Reconsidering The Greatness of Chief Justice Taney

Abstract

“Hooted Down the Page of History”: Reconsidering The Greatness of Chief Justice Taney Paul Flnkelman What is the office of ChiefJustice, if it has been used to betray Human Rights? The crime is great according to the position ofthe criminal.—SenatorCharles Sumner, February23,1865 In February 1865 the United States Senate considered what should have been a simple ap­ propriation. Four months earlier Chief Justice Roger Brooke Taney had passed away. The bill beforethe Senatewouldhaveprovidedmoneyfor a bust ofthe late Chief Justice to be placed with busts of all other deceased Justices. This was almost a pro forma honor. No other Justice had ever been denied his place in the pantheon of Americanjurists. But, no other Justice was like Roger Taney. At the time of his death, in 1864, he was de­ nounced and vilified. He was the author of the Supreme Court’s opinion in Dred Scott v. Sandford,1 and that was enough for opponents of slavery, like Senator Charles Sumner ofMassa­ chusetts, to oppose having his bust placed along side all other departed Justices. Sumner argued that “[i]f a man has done evil during his life he must not be complimented in marble.” Sumner noted that England had never honored the hated ChiefJustice Jeffreys, “famous for his talents as for his crimes.” Like Jeffreys, the Justice from Roger Brooke Taneyserved as ChiefJustice ofthe United States for twenty-eightyears butis primarilyremembered for one decision: DredScott. 84 JOURNAL1994 Maryland had been “the tool of unjust power.” Neither deserved honor. Taney had “adminis­ tered justice at last wickedly, and degraded the judiciary ofthe country, and degraded the age.” He was not to be remembered by a marble bust; rather Taney was to be dealt with inthe works of scholars. There, Sumner confidently predicted “the name ofTaney isto be hooted downthepage of history.”2 Taney and Historians In 1873, afterthe death ofTaney’s successor, Salmon P. Chase, who had been an active aboli­ tionist throughout his career, Congress finally appropriated money for busts of the last two ChiefJustices. ThisavoidedadebateoverTaney’s merits, butit did notrehabilitate him. Sincethen ChiefJustice Taney’s reputation has waxed and waned, often shaped by scholarly views about slavery, race, the Civil War, and economic devel­ opment. Most historiansofthe latenineteenth century had little good to say about Taney. ForNorthern­ ers, writing after the Civil War, Taney was a spokesman for the slavocracy that caused the War. They argued he had attempted to write the theories of John C. Calhoun into constitutional law. That was sufficient. The hooting down the pages of history continued until the turn of the century. The great nationalist historian John Ford Rhodes concluded that inDredScoffTaney “committed a grievous fault” and he “deserve[d] censure because he allowed himself to make a political argument, when only ajudicial decision was called for.” Rhodes thought “Taney sinned as a judge; and while patriotism and not selfseeking impelled him, thebetter motive does not excuse the Chief Justice; for much is demanded fromthe manwho holds thathighoffice. Poster­ ity must condemn Taney.”3 At the turn ofthe century, as American race relations changed, Taney’s reputationgrew. The North and the Supreme Court abandoned south­ ern blacks in what Rayford Logan accurately describedasthe“Betrayal oftheNegro.” Laissezfaire capitalism and social Darwinism shaped attitudes about race and politics while scholars adopted new views about slavery, race, and the coming of the Civil War. Popular culture, best exemplified by the movie Birth of a Nation, After the death of Salmon P. Chase in 1873, Congress appropriated funds for busts of Chase and Taney. By combiningthefundsintoalumpsum,Congressavoidedthe heated debate over Taney’s merits that had marked the earlier attempt to commemorate the ChiefJustice. reinforcedthese scholarlychanges.4 Not surpris­ ingly, scholars reconsidered Taney’s role in American constitutional history. Edward S. Corwin, for example, found Taney’s DredScott decisionconsistentwithAmericanconstitutional jurisprudence, althoughinthe end he considered the entire performance by the Court in that case “a gross abuse of trust.”5 In American Negro Slavery, published in 1918, Ulrich B. Phillips argued that slavery had in fact been benign, and ifnot apositive good for African-Americans, then certainly it had not beena great evilforthemeither. Phillips, the son of a former slaveowner from Georgia, had re­ ceived a Ph.D...