Friday, July 3, 2009

Lincoln and Chief Justice Taney

I don't know the viewpoint (seems like Taney) taken in this title, but it focuses on the Lincoln-Taney relationship, which Goodwin pretty much ignored except for a reference to the Dred Scott Case.

This surprisingly taut and gripping book by NYU law professor Simon (What Kind of Nation) examines the limits of presidential prerogative during the Civil War. Lincoln and Supreme Court Chief Justice Roger Taney saw eye to eye on certain matters; both, for example, disliked slavery. But beginning in 1857, when Lincoln criticized Taney's decision in the Dred Scott case, the pair began to spar. They diverged further once Lincoln became president when Taney insisted that secession was constitutional and preferable to bloodshed, and blamed the Civil War on Lincoln. In 1861, Taney argued that Lincoln's suspension of habeas corpus was illegal. This holding was, Simon argues, "a clarion call for the president to respect the civil liberties of American citizens." In an 1862 group of cases, Taney joined a minority opinion that Lincoln lacked the authority to order the seizure of Southern ships. Had Taney had the chance, suggests Simon, he would have declared the Emancipation Proclamation unconstitutional; he and Lincoln agreed that the Constitution left slavery up to individual states, but Lincoln argued that the president's war powers trumped states' rights. Simon's focus on Lincoln and Taney makes for a dramatic, charged narrative—and the focus on presidential war powers makes this historical study extremely timely.


  1. It would seem Taney was to Lincoln what Marshall was to Jefferson, a royal pain in the ass. The case that apparently led Lincoln to seriously consider arresting Taney was the Merryman case,

    in which Taney stirred up a hornets' nest in regard to Maryland.

  2. Was Taney the justice who pre-prepared his arguments in support of slavery just waiting for a test case to be brought to the courts?

  3. That seemed to be the case with the Dred Scott case in which he issued a sweeping statement that pretty much would have allowed slavery in the territories. Many felt, including Lincoln, that the decision was set up between Taney, Franklin Pierce, James Buchanan and Stephen Douglas, which led Lincoln to give his "House Divided" speech.

    What I find interesting is that it seems there are quite a few conservative authors today who like to point to Taney's attempts to limit the extent of Lincoln's war powers, knowing full well that the reason behind this was to remove slavery as an issue from the war. Taney wanted to rescind the Emancipation Proclamation. Seems most of the arguments, like that of Napolitano, revolve around states rights, which Taney claimed to be upholding.

  4. I've never read the decision -- so many primary documents out there. But one of the members of that Harvard panel noted that the reason Lincoln offered to pay for the runaway slave from Kentucky was to prevent the man's "owner" from appealing in court. Lincoln knew he would lose if it went there, and the panelist said something like "...and so-and-so had a decision pre-written waiting for just such a case." I'm assuming he must have said Taney.

    On the state's rights business, I find it endlessly fascinating that Obama and the others want to allow the states to decide the issue of gay rights and marriage, instead of insisting it become a national, civil rights issue. Some things never change, I guess.

  5. We may not have followed the Goodwin book very closely (sorry, Robert!), but I sure have learned a lot in this discussion.

  6. "...Obama and the others want to allow the states to decide the issue of gay rights and marriage, instead of insisting it become a national, civil rights issue. Some things never change, I guess."

    Maybe Obama is holding off on this and "don't ask, don't tell," saving political capital for other matters (e.g., economy, health care) of concern to a broader constituency.

    Sad but true, marriage is regulated by the states unless there is a constitutional issue involved and unless/until a test case is pursued through the lower courts and accepted and decided by the Supremes as in Loving vs. Virginia, the interracial marriage case. Maybe at this point a constitutional issue would have to involve some fundamental right not provided for/covered by civil unions, maybe even something other than use of the term/word "marriage," which seemed to be the sticking point for at least one judge in the recent CA Supreme Court decision that upheld the power of state voters to amend its constitution (to ban gay marriage via Proposition 8). All kinds of right thinking people were let down by that decision and hoped the lower court's decision that even a majority of voters cannot change the state constitution to deny a fundamental right to a minority, but now the momentum is back with the gay community and supporters to change the mind of the voters in order to pass another proposition.

    Sigh...I remember when CA was more progressive than places like, say, Iowa.

  7. I understand Obama's reticence to get involved. I think I mentioned earlier that he has made a choice, for obvious reasons, to steer clear of most social issues so he can get other issues addressed (like our tanking economy to name just one).

    The political junkie that I am, I watched him on C-Span during the election and he got a ringer of a last question at a town hall from a young woman: what are you going to do about illegal immigration and gay marriage?

    He had a very measured reply to immigration -- he's good at that -- and then said this about marriage which is what I think he really believes: all couples should have equal protection and standing before the law and should be granted the same rights and responsibilities. Not sure if he said this exactly like this, but what he basically said, in a very Lincolnesque fashion, was that therefore all couples of legal age should be granted licenses by the state.

    However, because of the separation of church and state, all churches do not have to recognize that license and _marry_ the couple. This is where he apparently sees marriage -- as a religious issue. The state simply binds you legally.

    Then he tied the two questions together and said something about how we need to stop looking at what divides us or how people are different and start looking for those things that unite us. Very moving ending.

    In any event, his approach -- which I've never read or heard any other place -- seems like the perfect compromise and one that hopefully will be settled soon at a national level as a civil rights issue (and I've heard that the lawyers for both Gore and Bush have teamed together to do just that).

    Not that I equate marriage with slavery (at least not too much!), but these kinds of issues always seem to be pushed onto the back burner as not as important as other more so-called pressing issues, and to me that seems wrong, but that's apparently where we're at right now until someone can move it through the courts.

    (I'm opposed to the CA initiative process generally -- also seems wrong to me, as you say, to let the majority decide whom the state recognizes and whom it can legally discriminate against. If that were the case, we would have legal discrimination against gays and African Americans and probably Mexican Americans and even women in some states.)

  8. That should say he has _apparently_ made a choice, but I think it's pretty apparent.