Lincoln and Chief Justice Taney Slavery, Secession, and the President's War Powers by James F. Simon
Simon and Schuster, 336 pp., $27
On March 4, 1861, in what must have been one of the most intriguing moments to witness in American history, Abraham Lincoln took the presidential oath of office from Chief Justice Roger B. Taney. The new president, who had recently risen to national fame as the most thoughtful and outspoken critic of the Supreme Court's 1857 decision in Dred Scott v. Sandford, now stood face-to-face for the first time with the author of the pro-slavery ruling.
In his famous debates with Stephen Douglas in 1858, Lincoln had sharply criticized the Court's holding that the Constitution prohibited Congress from banning slavery in new territories. Lincoln had warned of the dire consequences of providing such strong constitutional support for slavery, and he had even implied that the chief justice engaged in a conspiracy with other pro-slavery political leaders to spread the South's "peculiar institution" throughout the country.
In his inaugural address, delivered just before he took the oath, Lincoln leveled another criticism at the chief justice, who sat nearby. He charged that if the Court possessed the power to establish national policy on such vital questions, "the people will have ceased to be their own rulers, having, to that extent practically resigned their government into the hands of that eminent tribunal."
This remarkable meeting on the steps of the unfinished Capitol represented a pivotal moment in the history of the Constitution. Lincoln's inauguration, which occurred in the midst of the secession crisis, culminated at least a decade of intense debate over the legal status of slavery and signaled the start of a civil war that enormously expanded the powers of the executive. James F. Simon, dean emeritus at New York Law School and the author of a similar dual biography of Thomas Jefferson and John Marshall, describes this epic struggle over the Constitution in dramatic fashion, by skillfully weaving together biographical detail, political intrigue, and constitutional history.
Simon suggests that, despite their differences, Lincoln and Taney had much in common. Tall, homely, and rumpled in appearance, both men were known for their personal integrity, legal skill, and political ambition. Born in 1777 in southern Maryland, Taney built a successful law practice while taking an active role in politics. Apparently antislavery in his views during the early 19th century--he even emancipated all of his own slaves--Taney, in subsequent years, began to take on a decidedly more Southern character. He supported Andrew Jackson for president and served in Jackson's cabinet, first as attorney general and then as secretary of the treasury.
Known for his loyalty to Jackson and the Democrats, Taney made his share of enemies, and when Jackson appointed him chief justice in 1836, the president's Whig opponents howled. Still, over the next 28 years, Taney gradually silenced the critics and earned a reputation for moderation and fairness.
Lincoln, born of more humble origins in 1809, emerged as a successful lawyer and prominent Whig in Illinois. As a member of the state legislature during the 1830s he championed policies typical of his party--support for internal improvements, for example--but what distinguished him from many was his distaste for slavery. In 1837 he was one of only six Illinois legislators to vote against a resolution affirming slavery's constitutionally protected status and condemning the spread of abolitionism. After serving a single term in Congress, in 1849 Lincoln returned to his Illinois law practice.
Five years later, Lincoln reentered politics after the passage of the Kansas-Nebraska Act. That act allowed residents of the two territories to decide the fate of slavery by popular vote, thus overturning a previous federal law that had banned the institution there. Believing that the Framers of the Constitution had never intended slavery to spread beyond the South, Lincoln publicly condemned the measure as a "great wrong and injustice."
Lincoln's return to politics coincided with Taney's decision in Dred Scott. The case involved a Missouri slave who had initiated a suit for freedom, based on his nearly two years of residence in the free territory of Wisconsin. Taney had deftly handled a similar matter in Strader v. Graham, an 1850 case in which he penned a brief, unanimous opinion upholding the constitutional authority of slave states to determine the fate of such "slave sojourners." Although the Court considered issuing a similar, narrowly tailored opinion in Dred Scott, divisions among the justices, and political pressure to resolve the growing conflict over the slavery issue, resulted in a more far-reaching decision.
In a 7-2 majority opinion, Taney not only denied Scott's freedom but also ruled that the Fifth Amendment's guarantee of property rights prevented Congress from passing any legislation interfering with slavery in the territories. In doing so, Taney attempted, once and for all, to resolve this explosive political issue, and he did so by coming down squarely on the side of slaveholders.
Simon portrays Taney's pro-slavery decision in Dred Scott as an exception to an overall record of moderation and restraint on the slavery question, and he convincingly demonstrates that many Americans at the time seemed to desire a judicial resolution of the problem. To Lincoln and other antislavery Republicans, though, the ruling represented a dangerous example of judicial overreaching. Although Lincoln failed to unseat Douglas in the Senate in 1858, his ability to convince the North that Dred Scott represented a dangerous step toward the nationalization of slavery helped to win him the presidency.
After secession and the onset of war, the slavery issue receded into the background as the new president confronted immediate threats to the security of the nation's capital. With Confederate sympathizers in abundance in Maryland, and with Congress out of session, Lincoln suspended the writ of habeas corpus between Philadelphia and Washington, thus giving power to the military to arrest and imprison suspected traitors without any formal proceedings.
Simon skillfully recounts the famous 1861 case of John Merryman, the wealthy Marylander arrested by Union soldiers who challenged Lincoln's order in Taney's federal circuit courtroom. Despite fearing his own arrest, Taney defiantly opposed the president by claiming that, under Article I, Section IX of the Constitution, only Congress could suspend the writ. In Ex parte Merryman, the chief justice, with the aid of every legal authority he could muster, defended the historic foundations of habeas corpus and attacked the president's constitutional authority.
While admiring Taney's respect for civil liberties, Simon criticizes the opinion for ignoring the fact that 11 states had seceded and for displaying "the artistry of a partisan trial lawyer rather than the detachment of a judge." Lincoln paid no attention to Taney's ruling, except when he explained in a subsequent address to Congress that he had acted in a crisis to prevent the destruction of the government. At his request, Congress later authorized the suspension of the writ.
Lincoln took other unprecedented actions. During the first few months of the war--with Congress out of session--he blockaded southern ports, censored the mail, and authorized the payment of $2 million to private citizens to expedite the recruitment of soldiers. Later, of course, he issued the Emancipation Proclamation, which claimed to liberate three million slaves in the Confederate states. (The Union Army eventually did most of the liberating.) Of these measures, only the blockade ever came before the Court, and Taney found himself on the losing side of a 5-4 decision. The majority upheld the constitutionality of Lincoln's blockade, viewing it as a justifiable measure given the essential fact of war.
Throughout the war Taney, aged, ill, and angry, made no secret of where his sympathies lay. Although he remained chief justice of the United States until his death in 1864 at age 87, he believed in the constitutional right of secession and wished for the peaceful establishment of the Confederacy.
Simon offers a compelling narrative, though not always a trenchant analysis. While his willingness to challenge the simplistic portrait painted by recent scholars of Taney as a pro-slavery partisan is commendable, Simon tries a bit too hard to emphasize the similarities between his two subjects. He begins nicely by emphasizing what the two had in common, but clearly overstates his case when asserting that both "disapproved of the institution of slavery" and "agreed on the need for a strong Union." Much of Simon's own evidence, particularly the chapters dealing with the Civil War, shows how Taney's views hardened over time. By the end of his life, Taney's political, sectional, and familial loyalties (his grandson fought for the Confederacy) increasingly dictated his legal opinions.
Lincoln, in contrast, became more adaptable, pragmatic, and expansive in his thinking about what it would take to win the war and restore the Union. In addition to being men of different regions, classes, and political parties, Lincoln and Taney displayed distinct intellectual temperaments.
Readers will draw their own conclusions about whether the conflict between Taney and Lincoln offers lessons about either judicial hubris or wartime presidential power. Taney's opinion in Dred Scott remains the most reviled judicial decision in American history, and nearly everyone has criticized it as an example of the dangers of judicial activism. Lincoln's actions in wartime have provided similar fodder for those arguing over the appropriate role of the state in an age of terrorism.
Simon does not provide much in the way of argument on either of these important questions. Still, as pure, old-fashioned historical narrative, the story of these two titans of the Civil War era is hard to beat.
Timothy S. Huebner, who teaches at Rhodes College, is the author of The Southern Judicial Tradition: State Judges and Sectional Distinctiveness and The Taney Court: Justices, Rulings, and Legacy.