Chief Justice Taney: A Pro-Slavery Radical?

7/29/2019 Chief Justice Taney: A Pro-Slavery Radical?

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Christopher Sarmas

Professor Neddenriep

PSCI 320: Constitutional Law

13 November 2012

Chief Justice Taney: A Pro-Slavery Radical?

Justice Taney's impact on the Supreme Court and legacy to the United States cannot be

reduced to his majority opinion in Dred v. Scott, for the 1856 ruling violated Taney's principles

of interpreting the Constitution as a penal statute; to disregard political questions and determine

how the framer's intent constructed the laws. Of course it is convenient for judicial analysts to

deride these principles of Taney as foils for his fealty to the Southern "slavocracy;" his outlook

towards a strict construction of the constitution being nothing more than a ploy to aggrandize the

slave states. But this view of Taney is a gross generalization for how he actually decided cases

and of the domestic circumstances Taney faced during his tenure. Just as it is shortsighted to

weigh Taney's legacy on one court case, it is erroneous to argue that principles he vouched for:

dual federalism, and powers reserved to the states, was intended to punish the North and benefit

the South. The fact remains, and will be demonstrated later on, that the Chief Justice was no

"radical agrarian" trying to plunder the livelihood and profits out of corporations but struck a

middle ground in Charles River Bridge v Warren Bridge (1837). He was no localist either but in

applying the principle of dual federalism concerning the Commerce doctrine by granting police

powers to states where no congressional acts were transgressed upon (New York v. Miln, the

Passenger Cases and Cooley v Board of Wardens). He was certainly not pro-slavery-- evident in

his personal condemnations of the institution-- but was frightened at the economic dominance of

the north and the irreconcilable views of both factions leading Taney to abandon his



prudential, interpretive view of the Constitution and join the ranks of Marshall with

an unprecedented act of judicial review in Dred v. Scott. This last point highlights the irony of

Taney's tenure as chief justice: his attempt to mitigate the raw judicial power exerted by

Marshall-- which proved successful in taming the broad powers the federal government used in

interstate commerce-- was overridden in his desire to act as both legislator and executive in

solving the slavery question.

In 1837, the key issue of rights and privileges came to the fore at the start of Taney’s

appointment as chief justice with Charles River Bridge v. Warren Bridge. The background of the

case started with the charter of the Charles River Bridge Company (C.R.B.C) granted by the

Massachusetts legislature in 1785 (the bridge connected Boston and Cambridge). The legislature

gave the CRBC the ability to collect tolls for 40 years and it was later extended to seventy years.

With the toll-rights of the company still intact by 1828, the legislature chartered a neighboring

toil-free bridge built by the Warren Bridge Company (W.B.C.) (Newmeyer 237). The legal

dispute centered on whether the vague wording of the legislature’s charter to the C.R.B.C.

accorded it a monopoly; if it did, than the charter granted to the W.B.C. explicitly arrogated the

toll rights of the C.R.B.C. and breached the contract clause of the Constitution. At bottom, the

case highlighted two diametrically opposed interpretations of state contracts: one taken by the

Federalists (morphing into Whigs) who looked to Justice Marshall’s ruling in Dartmouth v.

College in arguing that the Courts had an inherent right — through the contract clause-- to strike

down any state legislation that violated corporate charters (Kutler 45). Taney’s majority

opinion — ignoring the doctrine of applied contracts — maintained that the CRBC did not have

exclusive rights to operate the bridge. Taney argued, on the basis of common law, that any

“ambiguity in the terms of the contract, must operate against the adventurers, and in favor of the



public” (Taney 1837, 537) and countered the Whigs with a Jacksonian sentiment in averring that

“we must not forget that the community also have rights, and that the happiness and well-being

of every citizen depends upon their faithful preservation” (Taney 1837, 539). There were two

dissenters on the court — Thompson and Story — (Haines 1957, 35) and the latter was not

enthused over Taney’s supposed judicial self -restraint writing to his wife “a case of grosser

justice or more oppressive legislative never existed” (Story 1851, 268). Did Story have a valid

grievance over this Jacksonian cou’d tat’ or was his opinion tainted by the majesty of Marshall’s

court where state legislation was swept away by congressional impositions? Story ignored the

economic implications of this case by failing to realize that such a vague charter — granting

monopolistic powers — could thwart economic development for the entire nation. This was a

period of expansive growth in roads, bridges, industry, railroads and to be at the mercy of one

corporation — at the expense of the general welfare — was regressive for the nation. Story and his

Whig cohorts were also guilty of overstating how Taney ushered in an unchecked power of

states’ rights against the existence and growth of corporations (Stanley 1989). State power “was

far from being inherently hostile to corporate enterprise. “Corporations, after all, were artificial

entities created and nurtured by state law; and state economic legislation was as often

promotional as it was regulatory in purpose” (Fehrenbacher, 2001, 2703). Fundamentally, Taney

applied judicial self-restraint by giving states the liberty to adapt to new economic realities.

The Supreme Court under Taney would undergo another shift in their law-making

attitudes and rulings through the court justice’s interpretation of the commerce clause; Taney’s

strict constructionism would serve as a counterbalance to Justice Marshall’s dogmatic reliance of

judicial review which diminished the state’s authority. Justice Frankfurter-- an apologist of

Taney’s lawmaking doctrines-- contrasted the two justice’s views in a Harvard Law Review



article and unpacked their core differences: “Taney's chief difference with Marshall was in his

challenge of the latter's central doctrine, that the " dormant " commerce clause operated to

impose restrictions upon state authority which it was the duty of the Court to define and enforce”

(Frankfurter 1936, 1288). A litmus test soon developed under the Taney Court whose

responsibility was to now secure the interests of the North and the South; the former because of

their push for anti-slavery legislation and the latter due to the protection of the “peculiar

institution.” New York v. Miln (1837) was the first of such commerce deliberations and centered

upon a 1824 New York law that regulated all foreign vessels (including Union members)

entering the Port of New York so as to document each passenger’s name, age, occupations, and

ensure they could never become wards of the city (VanBurkleo, 2005 ). The rationale for such

state regulation fell on the state’s police powers which had the authority to protect the health and

welfare of its citizens from being inundated by foreigners. A precursor to the case’s legal

dispute — whether the states retained a concurrent power of commerce with the federal

government-- was presented to Roger Taney serving as President Jackson’s Attorney General

(Lightner 2006, 69). Taney defended the legality of the South Carolina Negro Seaman’s Act

arguing “South Carolina or any other slave holding state has a right to guard itself from the

danger to be apprehended from the introduction of free people of color among their slaves — and

have not by the Constitution of the United States surrendered the right to pass the laws necessary

for that purpose” (Lightner 2006, 70). Would the court recognize the state attorneys invocation

of the 1808 Clause of the Constitution, where it states “of “such Persons as any of the States now

existing shall think proper to admit,” or reject the notion that states held concurrent powers with

the federal government to deny or allow the entry of people?



In its ruling, the Court refrained from determining whether the commerce clause gave the

federal government an exclusive power to regulate migration or importation (according to the

defense lawyers, the state power to regulate this area of commerce ended with the 1808 clause).

Justice Barbour ruled that the New York law was constitutional; in a majority opinion, he cited

the state’s use of police powers which he defined as a state authority to legislate for the safety,

happiness, and general welfare of the people within its jurisdiction (Lightner 2006, 75).

However, he stretched his interpretation of police power with words like “unqualif ied and

exclusive” ignoring Marshall’s opinion in Gibbons (Barbour, 103). We can deduce from this

case that Justice Taney — not writing an opinion in this case but later echoing Barbour in the

Passenger Cases —concurred with Barbour’s notion that persons were not subject to commerce.

Taney later drew the line from Marshall’s elastic interpretation of the Commerce Clause in

asserting that the state was not to operate as a feeble, acquiescent entity to the federal

government; the sole purpose of the judiciary (in regulating Commerce) was to determine if a

particular state statute violated an act of Congress.

The Passenger cases were based off the taxation and regulation polices of two cities —

Boston and New York. Taney would give a clear but rejected argument on what role the

judiciary should play in deciding cases dealing with the Commerce clause- an argument giving

the states interstate and foreign commerce powers, but powers enumerated in the constitution

restricting the states were to be uniformly enforced (Neuman 1996). The case arose when

officials of Boston exacted a law taxing the ship’s captain — but directed at incoming passengers

(all were aliens) on board the ship and/or entering the state, while New York officials taxed

every passenger arriving from a foreign port (Swisher 1961). The rational for such laws — in

respect to New York and Boston mitigating the costly influx of those aliens deemed paupers--



was lost on Daniel Webster who was a council member for the plaintiffs and proffered that the

legislature were committing dangerous acts; averring, the court ought to brush aside

constitutional questions. Webster’s remark in the New York Tribune (1847) that “it [the court]

wants a strong and leading mind” attested to the centralized thinking still lingering after

Marshall. Both cases were argued and decided together with Webster on the winning side by a

margin of one vote; the state laws were deemed unconstitutional by five of the nine judges

(Neuman 1996). The nine justices failed to construct a meaningful and/or authoritative opinion

concerning the commerce clause with the five dissenters of the law (McLean, Wayne, Catron,

McKinley, and Grier) offering their concurrent opinions (Clinton 1994). But Taney’s opinion

provided an effective medium from (justices and statesmen) those holding incorrigible state

rights’ doctrines and the others par roting the great judicial centralizer Marshall. He surmised that

since states have the power to remove unwanted persons from its borders, the state had the power

to outright reject them. Based from the outcome of the License case, Taney assumed that the

justices recognized the state’s power to control ports and harbors (under the assistance of trade

and the surety of health), so long as these regulations did not clash with an act of Congress

(Swisher 1961). The arguments of the majority were further weakened when Taney noted that

persons were “not subjects of commerce” ( New York v. Miln). But Justice Wayne retorted that

Barbour’s supposition was irrelevant— despite the latter writing the majority opinion — because

the court did not reach the concurrence of a majority. Since Barbour’s contention (on persons

being subject to commerce) “was not intended to enter into any examination of the question,

whether the power to regulate commerce be or be not exclusive of the States-- and especially the

declaration that persons were not the subjects of commerce,” (Wayne 1849, 430), his opinion

was not established law and thus inapplicable for the current case. Ultimately, Taney was unable



to deter the court’s elastic interpretation of the commerce clause and warned the court that the

curtailment of the state’s taxation powers (directed the vehicle or instruments of commerce)

could be “carried out in respect to ship owners and merchandise in a way seriously to impair the

powers of taxation which have heretofore been exercised by the states” (Taney 1849, 482). In his

thirty years as Chief Justice, Taney rejected the notion that the commerce clause allowed the

federal government to invoke implied restrictions upon the state; if the clause was construed in

such a manner then a hardline doctrine would form turning judicial rulings into political decrees.

Before 1851, Taney fought for the total repudiation of Marshall’s Commerce doctrines but soon

realized in Cooley v. Board of Wardens that a compromise was needed to bring stability to the

court.

With the death of Justice Woodbury in 1851, the court’s vacancy was open and Benjamin

Curtis of Massachusetts forged his legacy with an authoritative analysis on the Commerce

Clause — his majority opinion would remain intact for nearly a century (Currie 1983). The

revaluation of the Commerce Clause occurred due to Cooley v. Board of Warden, a case

originating from an 1803 Pennsylvania pilotage law aimed at the Port of Philadelphia. All ships

that entered or left the port were instructed to employ pilots or else pay half the typical fee sent

to a relief fund for distressed pilots. Cooley ignored the fee insisting that the state law

contravened upon the federal government’s exclusive power to regulate interstate commerce

(Currie 1983). At stake here was whether the Court would adopt an exclusive or concurrent

judgment — in the former case, the power to regulate commerce would remain null and void for

the states and completely confined to Congress while the latter outcome would recognize the

state’s power to regulate commerce but any state laws in defiance of Congressional legislation

were to be struck down (Allen 1951). In a 6-2 ruling (the majority consisted of Curtis, writing



the majority opinion, followed by Taney, Catron, Grier, and Nelson with a concurrence by

Daniel), the Court ruled that state pilotage laws were valid acts of the state’s police power s —

reasoning that a precedent was established beginning with Gibbons and extending to the

Passenger Cases sustaining state pilotage laws (Allen 1951). Even though Curtis recognized that

pilotage laws were a regulation of commerce -- the pilot’s job was navigation which was a matter

of commerce — he sidestepped previous decisions and proffered a radical conception of the

Commerce clause that was never sanctioned by the Court. A middle ground was struck: the crux

of commerce regulation depended upon the subject matter of the case; if the state’s regulation

impinged on an imperative federal manner, than the law needed an exclusive approach; a “single

uniform rule, operating equally on the commerce of the United States in every port” (Curtis

1852, 399). Newmayer astutely observed that Cooley’s significance “was not the formulation of

a definitive doctrine but the court’s tacit agreement to stop looking for one (Newmayer 1968,

107). Cooley set a precedent whereby the Court would prudently match the rule of law with the

facts on the ground; Marshall’s rigid interpretation of the commerce clause was now obsolete.

But one may ask why Taney did not impose his view of constitutional jurisprudence in Cooley;

why he conceded to Curtis’ the majority opinion and didn’t assert his brand of strict

constructionism. Perhaps we can chalk his acquiescence to his peculiar judicial method; a

method that refrained from imposing Marshal like doctrines and uniform decision-making to the

court, a non-confrontational approach that was done away with in Dred Scott v Sanford.

The contention that the ruling in Dred Scott v. Sanford outranks all the Supreme Court

decisions as the most flawed and fallacious is easy to justify: Taney’s extra-judicial ruling in

Dred Scott v Stanford reinterpreted what was thought to be established conceptions of the 1787

ordinance, the Fifth Amendment, and definition of a citizen. At bottom, the constitutional issues



presented to the Court lay in establishing the separation of state and federal power but also as to

what role the Court should play: to serve as interpreters of the law or be lawmakers? The

background of the case lay in the travel of Dred Scott — a slave — who was taken into free

territory and returned to his home state of Missouri. Scott, believing that he was free once he

entered into non-slave territory, sued in federal court. He won the fight in the lower court but the

top Missouri court reversed the former ruling (Gutzman 2007). The case was complicated by the

fact that Scott tested his appeal under the federal court’s diversity of citizenship jurisdiction;

Scott’s lawyers presupposed the slave was already a citizen of one state and since Scott’s owner

was a citizen of New York, the federal courts were forced to mediate the dispute between them

(Feurenbacher 2001). But in Taney’s majority opinion, the Court ruled that the slave’s claim to

citizenship was illusory and stoked the fire by asserting that from the inception of the United

States, blacks were “considered as a subordinate and inferior class of beings, who had been

subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their

authority, and had no rights or privileges but such as those who held the power and the

Government might choose to grant them” (Taney 1856, 405). With this raw power of judicial

activism, Taney saw fit to act as a political legislator in our country’s most foreboding period:

various scholars attribute this about-face to the irrepressible need for action and authority that

was devoid in the legislative and executive branches; the virulent pro-slavery and anti-slavery

forces — left to their own devices — needed to be checked with an authoritative ruling (Newmeyer

1968 and Swisher 1961). But barring the contextual considerations thrown in by the defenders of

Taney, how are scholars to analyze the case under the guise of judicial restraint? If we are to

assign Taney the legacy as our country’s best proponent of strict constructionism and judicial

prudency, than that legacy flew away when he decided the case had full jurisdiction (it did not



simply because the Court still asserted that former slaves could not be citizens) and proceeded to

argue that Congress had no authority to ban slavery from federal territory. “Slaves were property

protected by the constitution, and to prohibit citizens from taking them into federal territory was

a violation of the Fifth Amendment’s prohibition of de privation of property without due process

of law”(Gutzman 2007, 119). Thus, Taney saw fit to act in a judicial power grab deeming the

Missouri Compromise unconstitutional. This was an unprecedented act of judicial review that

destroyed any vestiges of constitutional jurisprudence, but it is foolish to deduce a cause and

effect method for why the Civil War occurred.

It is possible to separate the Dred Scott Taney and the cases preceding the 1856 ruling. If

we take the line of thought that all Supreme Court appointments are political in nature and

embody the ideological currents of the country, than Taney certainly didn’t deviate from the

Court’s beaten path of political preferentialism. However, critics of Taney maintain that his pro-

south tendencies were more consequential and grievous than any other ideology for the nation —

Federalist, Whig, etc. There are those like Jamal Greene — writing in the Harvard Law Review —

that place Dred Scott v. Sanford in the anti-canon of Supreme Court decisions but make no

mention of Justice Marshall’s extra-judicial rulings (Greene 2011). But it is a mistake to omit the

moderating role Taney served from 1836-1864; freeing ourselves from an ideological prism

gives us a better understanding that the country Hamilton and Justice Marshall envisioned would

have destroyed any credence given to dual federalism and strict constructionism. At the very

least, Taney attempted to evince a non-ideological court, a stand that was necessary after the

doctrines of Marshall.

Chief Justice Taney: A Pro-Slavery Radical?

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