Lincoln And Chief Justice Taney: Slavery, Secession, And The President’s War Powers By James F. Simon

This in essence is a brief dual biography of Lincoln and Chief Justice Roger Taney. There is little new here about Lincoln for those who have read much about him. But there is more than enough that is fresh (at least to me) about Taney and his jurisprudence to recommend the book. The strength of the book is the analysis of Taney’s judicial opinions, including but by no means limited to the infamous Dred Scott case. Simon makes a convincing case that putting Dred Scott aside, Taney could rightfully be considered one of the greatest of Supreme Court justices. But of course, that’s a lot to put aside. Taney’s primary legacy indeed is Dred Scott. Simon comments: “For Taney, the constitutional status of blacks in American society, a status that he struggled to define in his Dred Scott opinion, was forever frozen in 1789.” The parallel with the equally infamous 2022 Dobbs decision is unmistakable, where the Court does not have a problem with looking to 1868 to determine what the constitutional status of women in American society should be today. My guess is that Dobbs will define Alito much as Dred Scott has defined Taney.

Simon is particularly effective in analyzing several Supreme Court opinions, such as Prigg, Strader and Vallandigham, as well as Dred Scott. But beyond that, Simon explains how another opinion, in the Prize Cases, may have been a turning point of the Civil War. That was a 5-4 decision in which Taney was part of the dissent. But if Taney’s view had prevailed, writes Simon, then “The Taney Court, with the blessing of the Chief Justice, would then have produced a judicial calamity from which the Union might not have recovered.” But that was Roger Taney, a southerner who did not want the Union to prevail.

It was a fine idea of James F. Simon’s, to draw a parallel between the lives of Abraham Lincoln, arguably the best of all US Presidents, and Roger Taney, certainly the most controversial of Chief Justices.

Simon is particularly well suited for the task, since he’s both a historian and a lawyer. The same formula worked well in the first book of his I came across, and admired as much as this one: ‘What kind of Nation’ traced the contrasts and conflicts between Thomas Jefferson and Chief Justice John Marshall.

Roger Taney was an Andrew Jackson appointee. Lincoln was a long time admirer of Henry Clay. Taney and Lincoln can be seen as the heirs, a generation on, of the political antagonism between those two outstanding figures who dominated the 1830s and 1840s.

Taney represents the tradition of the Democratic Party of his day, committed to the exercise of power by and in the name of the people (or at least that portion of the people that was white and male), and an equal commitment to states rights and more specifically the rights of Southern states. The South felt itself increasingly dominated by the North and West with their burgeoning wealth and populations. And when we talk about defending the South in the period up to the Civil War, we inevitably mean defending slavery.

Here we meet one of the paradoxes about Taney that is central to Simon’s study: Taney, a Marylander, freed his own slaves. He clearly felt badly enough about human bondage not to want to engage in it himself. However, that could never override his feeling that the Federal government had no right, under the Constitution, to legislate on slavery – certainly not in the States where it was legal, but not in any other part of the US either. It was a matter for States to decide for themselves.

Taney’s views weren’t always rigid. Simon, for instance, points to the case of the Amistad. This was a Spanish ship that fell into US hands after its cargo of slaves, taken illegally in Africa, had risen and seized control. Justice Joseph Story, an adversary of Taney’s mentor Jackson, wrote the judgement of the US Supreme Court. He ruled against the ship owners and in favour of the return of the slaves to Africa, on the grounds that the initial seizure had been against the law. Taney sided with this judgement despite, as Simon underlines, his view that slavery was not a matter that ought to be determined at federal level.

In some respects, Lincoln saw things similarly. It’s true that he loathed slavery: “I hate it for the monstrous injustice of slavery itself” is a ringing declaration quoted by Simon. Even so, he was no abolitionist. He made it repeatedly clear that he did not feel the government should interfere with slavery in states where it existed, but slavery should not be allowed to expand beyond those states.

Both men also held similar racial views, at least initially. As Simon points out, Lincoln “agreed with Southerners that the black man was inferior to the white man politically and socially.”

In a sense, the starting points for their political evolution weren’t that far apart. But Simon shows how the pressure the slavery question exerted on the United States as a whole forced them increasingly apart.

The greater damage was done to Taney, whose reputation was forever tarnished by the infamous Dred Scott decision of the Supreme Court in 1857. Taney wrote the majority judgement. The concrete issue at stake concerned the right of Dred Scott, a slave, to plead in Federal Court for his freedom, which he claimed he obtained when his master took him into free States and Territories (land belonging to the US but not yet organised as States) before returning him to Missouri.

Taney, however, went far beyond this single question. Aside from whether moving a slave to a free portion of the US freed him, Taney made it clear that no black, slave or free, could ever sue in a US court. Indeed, as Simon writes, “Taney asserted that Dred Scott and every other American black, whether free or not, was forever destined to remain in a degraded status in civilised society and could never rise to the level of national citizen.” In Taney’s own words, blacks “…had no rights which the white man was bound to respect.” They never had, in his view, and the founders of the US had made that clear – the words “all men are created equal” evidently applied only to white men, as proved by their actions in allowing the enslaving of blacks. If they could be enslaved, they were obviously degraded.

Simon also shows that in this position Taney, despite his clear dislike of slavery itself, was not taking a novel position: already in 1832, as Andrew Jackson’s Attorney General, he had taken a similar position on the impossibility of black citizenship.

Moreover, in his Dred Scott decision, Taney announced that Congress had no right under the Constitution to ban slavery in new territories of the United States. That was a decision that could only be taken by the population of those territories, as they applied for statehood. So slavery could expand beyond the States where it was already legal.

This was too much for Lincoln. He drew heavily on the dissenting view on the Supreme Court expressed by Justice Curtis, to argue that Taney was profoundly mistaken on the citizenship question. Lincoln “honed in on Taney’s claim that the African Americans were purposely excluded by the framers of the Constitution. Contrary to Taney’s historical argument, said Lincoln, Justice Curtis demonstrates in his dissent ‘with so much particularity as to leave no doubt of its truth’ that free blacks voted in five of the original states and, in proportion to their numbers, ‘had the same part in making the Constitution that the white people had.’”

But Lincoln becomes even more powerful in his rhetoric on the question of general principle. Again, Simon quotes his words, on whether the proclamation in the Declaration of Independence that all men were created equal, applied only to a single race:

“I think the authors of that notable instrument intended to include all men, but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color, size, intellect, moral developments, or social capacity. They defined with tolerable distinctness, in what respects they did consider all men created equal – equal in ‘certain inalienable rights, among which are life, liberty, and the pursuit of happiness.’ This they said, and this [they] meant.”

Both men disliked slavery. Both men felt that blacks were racially inferior. But in the face of the pressures to break up the union that the slavery question would generate, Lincoln increasingly evolved towards a view of that inferiority as smaller than had been previously asserted, and less significant. Certainly, unlike Taney, he felt the fundamental right to life, liberty and the pursuit of happiness belonged to them as much as to whites. By the end of the Civil War, Lincoln was already backing voting rights for “more intelligent” blacks (whatever that may mean) and any who had fought for the Union. It would have been fascinating to see how far he would have gone towards embracing racial equality, had an assassin’s bullet not struck him down so prematurely.

Taney, on the other hand, reacted to the degenerating atmosphere of his country, by then only three years from secession and Civil War, by solidifying his stance and arguing for it more powerfully than ever. Or perhaps I should say intensely, rather than powerfully: as Simon makes clear, his arguments are badly built and draw on far too little authority to be even remotely convincing.

Lincoln had to react not only to the claims concerning black citizenship but, and even more strongly, to the notion that Congress could not legislate on slavery in the territories. Here was a particularly dangerous new development. Like many moderates in the free States, his position that slavery should be allowed to continue in the states where it was legal, was based on the conviction that it could never spread beyond them. But if Congress could not legislate on the subject, then it would be possible to see the peculiar institution spread across new States. Where would that end? Might it not even be reintroduced in the States that had banned it?

That was intolerable.

Between them, therefore, Lincoln and Taney drew the battle lines over which the Civil War would be fought. And one of the great features of Simon’s book is how he traces the continuing conflict right through that War. This part of their common history takes us into further ironies, for Lincoln undoubtedly pushed his notion of Presidential war powers a great deal further than many might have believed, or even believe today, they should really go.

There was a time, for instance, when Washington DC was in serious danger of being entirely isolated from the rest of the Union, with Virginia already seceded and Maryland, which surrounds the city on its other three sides, in serious danger of following suit. Lincoln was not above arresting secessionists in Maryland to prevent them acting on that threat. In these, and other similar cases throughout the war, Taney took a strong individual rights stance against Lincoln. It’s clear that on many occasions, he was driven by his undoubted southern sympathies, but it would be unfair to deny the value of having basic rights ably and actively defended at the highest judicial level, even in war time.

All these ironies, these great conflicts, these resolving and evolving contradictions, Simon traces with clarity and elegance. It’s a delight to read this excellent book. It shines a strong light on some of the greatest questions of their time, and on principles that still resonate today.

PS. The audio version.

As well as the printed book, I also listened to the version from Audible, read by Richard Allen. I enjoyed listening to it, although I found some of the inaccuracies of reading quite breathtaking: Salmon P. Chase became “Salmon P. Chance of Ohio”; it seems Lincoln wasn’t keen on “sectional welfare”, where the printed book suggests what he rejected was “sectional warfare”; I also liked the reference to the “130-man” Army of the Potomac, which somehow managed to lose 17,000 men.

I only wish these were the only errors. And even if they had been, I feel audio books deserve editing as carefully as their printed equivalents. Why are these faults allowed to stand?

Excellent book. Provided great factual insight into the Civil War and Lincoln’s violations of the Constitution as well as Taney’s failure to avoid committing the unpardonable sin of judicial activism in Dred Scott.

James Simon’s Lincoln and Chief Justice Taney is a wonderful look at a complex and little known but powerful American, Chief Justice Robert Taney. Author of one of the most reviled decisions in US History, it is easy to pillory Taney for activism and overreach, hind sight being 20-20. Simon bothers though to look further then most, revealing a rather decent man who seems to have lost his way once the institution of slavery came under threat in the late 1840s and 1850s.

While slavery had long since ceased to serve an agrarian purpose in places like Maryland and Tidewater Virginia, it still existed as an institution. Slaves were kept as a permanent servant class and for the appalling purpose to breed like livestock and then sell south into a life of misery. To his everlasting credit Taney broke with his family’s tradition of abuse not only freeing slaves but pensioning off the older ones who had served the Taney’s for decades but were now too old to help themselves. More then decent, it was an extraordinarily generous step.

Unfortunately, Taney’s humanity and decency seems to have peaked in his middle age. When the institution of slavery came under attack in the late 40s and 50s by abolitionists and a nascent Republican Party the then Chief Justice shifted gears, assuming the role of defender of the lash. It’s an unfortunate turn of events that lead to the appalling Dred Scott decision and infamy. Simon speculates perhaps like so many Taney became more conservative with age; perhaps he was simply enraged that Northerners were telling Southerners how to live. It is impossible to know for sure but Simon does a nice job of laying out the arguments to consider and evaluate.

Ironically (some would say hilariously) the ardent Jacksonian Democrat, who as Attorney General founded a deep well of Executive Privilege when it suited Andrew Jackson, could find almost none for Abraham Lincoln who was facing an armed rebellion in 13 states. Here I think Simon’s evaluation falters. Clearly Taney was being hypocritical, seeing powers for one president but not another. However, hypocritical is not the same as wrong. Since the first Adams’ Alien & Sedition Acts, presidents have been subverting the Constitution in order to save it: suspending habeas corpus, interring Japanese Americans, and torturing enemies for expedience and information.

It is an appalling tradition and whether Taney went toe to toe with Lincoln for good or ill reasons, it is never a bad thing to speak truth to power. Lincoln was a great president, however he was not a perfect one. Suspending habeas corpus is a last, not first resort in the defense of our liberties and Lincoln like so many others saw threats where there was merely opposition. They are not the same thing and Simon does a dreadful job of making a distinction between free speech and sedition. It is an unfortunate lapse in an otherwise excellent work.

By the end of his life, Robert Taney’s was regarded as at best a disgrace to the nation, at worst an enemy of the Republic. His reputation became an albatross around the neck of the Court, lowering it in the eyes of the public as never before. Unfortunately for him he lived to see his life’s work under unremitting attack and his reputation in tatters. There is some justice in that; justice he would never afford to African Americans.