Book Review: Lincoln and Chief Justice Taney: Slavery, Secession and the President’s War Powers

Book Review: Lincoln and Chief Justice Taney: Slavery, Secession and the President’s War Powers by James E. Simon

Those of us with a cursory knowledge of American history, like myself, have heard of the Dred Scott decision of 1857, in which Supreme Court Chief Justice Roger B. Taney opined that the black man had no rights that the white man was bound to honor.  An unjust decision that was swept into the dustbin of history with the outcome of the American Civil War, along with Justice Taney himself.  But as with many pieces of history, there’s a lot more to be learned.

This book focuses on a compare and contrast of Abraham Lincoln and Roger Taney, specifically the areas where their political and philosophical ideas clashed.   The Lincoln material is pretty standard; if you’ve ever read a good Abraham Lincoln  biography, there’s nothing new here.

So let’s take a look at Taney.  He was born in Maryland in 1777, while the American Revolution was still in progress.  After success as a trial lawyer, showcasing his legal knowledge and reasoning ability, Mr. Taney served as a state legislator.  During this time period, Taney was known for being anti-slavery, as he believed the practice to be immoral.  He freed his own slaves, and encouraged others to free theirs where economically possible.

However, Taney was a proponent of “gradualism”, the position of moderates in the South.  The idea was that as new ways to manage agriculture were found, the economic necessity to employ slave labor would lessen, and it would be more possible to free the enslaved without going broke.   Moral suasion would do the rest, and slavery would gradually vanish.

The more radical abolitionists, on the other hand, felt that the moral evil of slavery was such that it was best to eliminate the practice as quickly and totally as possible, even if this caused economic disaster for those areas that depended on slave labor.   Naturally, this viewpoint was much more popular in the Northern states, where slavery was much less economically necessary and several states had already banned slave labor.

Politically, Mr. Taney was allied with the Anti-Federalist movement, which distrusted centralized government and wanted to keep as much power as possible at the state or even local level.  While Attorney General for Maryland, he fought hard for the populist candidate, Andrew Jackson.  Jackson lost to John Quincy Adams in a rare House of Representatives decision, but succeeded on a second try.

President Jackson did not forget Taney’s service, and soon appointed him as Attorney General of the United States.  The big public legal question of the time was the power of the Bank of the United States.  This central government bank had been the brainchild of Alexander Hamilton, who thought it necessary to maintain the young country’s economic stability and provide the federal government the ability to meet its fiscal responsibilities.

Jackson and his allies felt this centralized fiscal power far too much in the hands of the central government, and it did not help that the Bank had become something of a fiefdom under its president Nicholas Biddle.  They launched repeated attacks against the Bank, with Taney providing the Constitutional arguments.  When the then Secretary of the Treasury balked at carrying out an order to withdraw all federal funds from the Bank, President Jackson fired the man and put Taney in his place.

The Bank’s allies in Congress refused to confirm Taney’s nomination at Treasury, and then also denied him a nomination for Supreme Court Justice.  But the next mid-term election went Jackson’s way, and a more compliant Congress accepted Taney’s nomination for Chief Justice.

As a Supreme Court Chief Justice, Roger Taney was an “originalist” who put much more emphasis on “what did the Founders intend at the time they wrote the Constitution?” than on “given changing circumstances, what interpretation of the Constitution produces the most just outcome?”  Like many originalists, Chief Justice Taney tended to rely on the Founders whose words supported his preferred outcome, while ignoring those that did not (like Alexander Hamilton most of the time.)

With his distrust of centralized government power, Taney on average ruled to limit expansion of federal dominion.  And as he was very good at clearly presenting the logic and making restrained, narrowly defined judgments, this worked well for many years.   Taney earned a reputation for being an excellent jurist.

But as the decades passed, slavery became much more of a pressing issue.  The abolitionist view had gained much more credence in the North and West, while in the South, those in power were pro-slavery hardliners, who not only wanted to preserve their “peculiar institution” but expand it.  Due to the country’s development pattern, the South had had a disproportionate influence on the Supreme Court and Congress, but this was waning as more “free” states joined the Union.  Taney became more and more disgruntled with Yankees who sat on a moral high horse when it came to Southerners and slavery.  He feared a civil war.

Then came the Dred Scott case.  To vastly simplify the case, Mr. Scott was a slave who had been taken north to a free state, and under that place’s laws had become free.  After spending some time as a free man there and in a free territory, Dred Scott voluntarily returned to his home state–but under their laws he was still a slave, a piece of property.  He was filing to have his freedom recognized.

Chief Justice Taney saw an opportunity to heal the wounds of the nation and head off war by settling the question of slavery once and for all.  Now, had he followed his usual custom and ruled on the narrow question of “is Dred Scott still a slave?” Taney could have relied on ample precedent and the Tenth Amendment to say “yes.”  It would have been an unjust outcome, but not particularly controversial.

But instead Roger B. Taney created a long decision which selectively cited various Founders and colonial/early state laws to claim that the Founding Fathers had never intended for black people to have any rights under the United States Constitution, and therefore, black people did not in fact have any Constitutional rights and were hereby prohibited from bringing suit in Federal court.  (Any rights granted by individual states ended at the state’s borders.)

Much to Taney’s surprise, this decision was vastly unpopular outside the slave states, seen as unjust, and only inflamed passions.  Another Supreme Court Justice actually resigned in protest!   One of the politicians energized by the decision was Abraham Lincoln, who mistakenly believed it was part of a conspiracy to force slavery to be legal in all parts of the United States.

Lincoln was in fact a moderate on slavery by comparison to the fire-breathing Radical Republicans, but by the time he ran for president, the slave states would not accept anything but a full-throated support for slavery from a potential president.   The Democrats split their votes between their own moderate and a pro-slavery candidate, and so Lincoln won.  The Southern states began to secede.

Chief Justice Taney believed that a state was constitutionally allowed to peacefully secede from the Union, while Lincoln did not.  The point never got to court, as the Confederate Army fired the first shot at Fort Sumter, turning the secession into a civil war.

President Lincoln was faced with many difficult decisions during the Civil War, some of which he attempted to solve with his war powers.  Sometimes he overstepped, as with suspending habeus corpus for civilians accused of aiding the enemy.  The now elderly and ailing Taney tried to rein in what he saw as abuse of power with his decisions.  The Chief Justice died in October of 1864, with the great conflict he’d tried to stave off still raging.  Salaries for Supreme Court justices were actually quite low, and he died in poverty, his female heirs having to find jobs despite their own advanced age.

President Lincoln brought the Civil War to a successful conclusion, but did not survive to win the peace.

This book was interesting because of its long and in-depth look at one of the people usually remembered only for his one huge mistake, winding up in the “villain” column of history.  There are no pictures, but decent endnotes and a full index.  I found the writing readable, but mostly adequate.

Recommended for history buffs, particularly those interested in the lead up to the American Civil War, and those who want to know more about the Supreme Court and how it functioned.