So how do I feel about the removal of the statues of former Chief Justice Roger B. Taney (pronounced Taw-nee for those who may wonder)? Mixed emotions. However, I support the removal along with the Confederate statues, ultimately because of the history of race relations in Baltimore, though I am glad Taney's statues are not being destroyed. And ironically, this controversy will ignite more scholarship that give Taney more due than he has been given in the public eye--a good thing, I must add.
I tried to find on the web the marvelous speech Dean Acheson delivered on July 4, 1936 in the centennial year of Taney's ascension to the Chief Justice position. It is marvelous because it is so judiciously phrased and showed that Taney remained loyal to the Union, unlike Robert E. Lee, Jefferson Davis and the other traitors. Yes, let's use that word even though Acheson was wise enough to not go that far--as that was not his point he was trying to make. Those others, however, unlike Taney, took up arms against the United States government, and for a cause that is sickening, slavery. But enough of that. Let's talk Taney.
As Acheson recognized, Taney was a Lockean liberal, but like a true Lockean liberal (not the Ayn Rand-infested zombie caricature), Taney became worried about private money power almost immediately after helping steer President Jackson (Taney was Jackson's administration's Attorney General) to dismantle the national bank, which Taney saw, for better or worse, as a den of monopolistic financiers.
Taney was a controversial choice for Chief Justice because of his political position as Jackson's Attorney General, and he was barely confirmed to the Court after a first rebuke by the Senate. The truly great Chief Justice John Marshall, his predecessor, had actually supported Taney's eventual ascension to the Court before Marshall's death in 1835. for Taney had a great legal career, and had--ready?-- defended black slaves suing for freedom, and people who worked to protect free blacks from kidnapping. In one case he was arguing as a lawyer, he openly said to the judge in the case that slavery was a "great evil." Taney inherited slaves in 1820 and immediately freed them, providing them money or a pension if they were old.
Taney, in one of his early cases as a justice on the Supreme Court, wrote the opinion in the famous "Charles Bridge River" case that said a corporate charter, once given, is not inviolable, and that the State could revoke or modify that charter. The decision tempered one of the few John Marshall era decisions I found less than salutary ("The Dartmouth College" case). Taney wrote, "While the rights of private property are sacredly guarded, we must not forget that the community also have rights, and that the happiness and well being of every citizen depends on their faithful preservation." A nicely balanced phrase, that.
Acheson, in beginning his speech, quoted Shakespeare, particularly Shakespeare's channeling of Mark Antony, saying: "The evil that men do lives after them/The good is oft interred with their bones."
Re-reading Acheson's speech (reprinted in a book of his writings and speeches he edited and which was released in the last months of his life, entitled, "Fragments of My Fleece" (1971)), I came to my conclusion that the evil of the Dred Scott decision justified removing the statues, and we should no worry about any niceties. In the Dred Scott decision, Taney wrote:
In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.
...
They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.
Evil. Just plain, unadulterated evil. Taney's words formed the majority opinion in a case where a black man was denied the right to sue for freedom, having been taken to multiple states where slaves were deemed free. Taney foolishly thought if the Court came down hard one way or the other on slavery, the nation could avoid political strife. How wrong he was, as many historians believe Dred Scott made the Civil War inevitable. After the decision was announced, racist Southern plantation owners applauded at the federal government trampling on States' rights--so remember that when you hear the talk of "Southern heritage" and "States' rights." And what made the decision even worse is it disregarded all blacks' rights, whether free or slave. The decision was racist to the core.
Still, we ought to remember why the Taney statue was erected in 1871, as it captures the very mixed emotions I feel today. Taney died in 1864, while still serving as Chief Justice. Senator Charles Sumner, a so-called Radical Republican, and an anti-slavery stalwart, led the Senate to refuse a statue or bust of Taney to join the other Chief Justices in the late 1860s after the War ended. Sumner and other strong Republicans remembered it was Taney who issued the decision denying Lincoln the right to suspend habeas corpus, a decision Lincoln simply ignored. However, the Maryland State government, Taney's home state, wanted to honor Taney, as people there recognized Taney had done much good and served with distinction in many capacities including the Supreme Court. When Taney's successor, Salmon Chase, an anti-slavery stalwart, but corporate apologist, died a mere five years into his term as Chief Justice, both Chase and Taney had their likenesses erected in Washington, DC along with other Chief Justices. Therefore, erecting statues or busts of Taney did not arise from the same racist motivations that led to the statues of other Confederate political and military figures intended to justify the Confederacy, in an era where many historians, as well as elite members of society, had accepted racist bromides and the nonsense about the "Lost"--implied "Good"--"Cause."
Again, Taney remained loyal to the Union unlike the traitors. But the evil he did in the Dred Scott case lives on, in the form of the killing of Freddie Gray at the hands of Baltimore police, and the lack of justice in the subsequent prosecution of the police department there. And so, bury the good part of this man in the museum, and not leave the bad sitting on the grounds of a public edifice that is supposed to denote equality before the law.
Here is a 1936 book review of a Taney biography released in the same year as Acheson's speech and Taney's ascension to the Supreme Court. It is from a Yale Law School professor in the Georgetown Law Review, but reprinted through a scholarship repository at Yale Law School.
