October 12, 1864: Death of Roger B. Taney

Sunday, October 12, AD 2014

Roger Taney

Death came for Chief Justice Roger B. Taney of the United States Supreme Court 150 years ago.  Nominated as Chief Justice by his friend President Andrew Jackson and had sat on the court for 28 years.  Although he had authored many important decisions, he is remembered today only for one:  Dred Scott.  87 years old at the time of his death, Taney, a slave owner, had mirrored the tragic trajectory of the views of the South in regard to slavery in his own life.  As a young man he regarded slavery as a blot on our national character, as he said in his opening argument in defense of a Methodist minister accused in 1819 of inciting slave insurrections.  He emancipated his own slaves.  However, by the time he authored the Dred Scott decision in 1857 he would write:

It is difficult at this day to realize the state of public opinion in regard to that unfortunate race which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted; but the public history of every European nation displays it in a manner too plain to be mistaken. 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 unfit that they had no rights which the white man was bound to respect.

Taney thought that the decision in Dred Scott would settle the slavery issue in regard to the territories and remove it from politics.  Instead the decision inflamed public opinion North and South and manifestly helped bring on the Civil War.  Taney lived to see his nation riven by Civil War and an administration in power dedicated to restoring the Union and abolishing slavery, and more than willing to ignore the paper edicts of Taney’s court when necessary.  Old and sick, Taney remained on the bench,  unwilling to have Lincoln name his successor, a living relic of a bygone era.  The best epitaph for Taney I have ever read was that given by Justice Antonin Scalia in his magnificent dissent in Planned Parenthood v. Casey:

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15 Responses to October 12, 1864: Death of Roger B. Taney

  • “It is difficult at this day to realize the state of public opinion in regard to that unfortunate race which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence…” Taney, CJ

    The learned judge might have learned the views of the “civilized and enlightened portions of the world” less than twenty years after the Declaration of Independence from the decree of 16 Pluviôse An II (4 February 1794) “The National Convention declares the slavery of Negros to be abolished in all the colonies; in consequence, it decerns that everyone, without distinction of colour, domiciled in the colonies are French citizens and shall enjoy all the rights assured by the Constitution.”

    Hilaire Belloc has described the conviction that animated the Convention, perhaps the most “civilised and enlightened” body ever assembled in Europe – “The scorn which was in those days universally felt for that pride which associates itself with things not inherent to a man (notably and most absurdly with capricious differences of wealth) never ran higher; and the passionate sense of justice which springs from this profound and fundamental social dogma of equality, as it moved France during the Revolution to frenzy, so also moved it to creation.
    Those who ask how it was that a group of men sustaining all the weight of civil conflict within and of universal war without, yet made time enough in twenty years to frame the codes which govern modern Europe, to lay down the foundations of universal education, of a strictly impersonal scheme of administration, and even in detail to remodel the material face of society—in a word, to make modern Europe—must be content for their reply to learn that the Republican Energy had for its flame and excitant this vision: a sense almost physical of the equality of man.”
    Nowhere was this better exemplified than in the Décret du 16 Pluviôse An II

  • Of course Napoleon reinstituted slavery:


    As a matter of historical fact, Abraham Lincoln was correct in his statement that Judge Taney was incorrect in his assumption that the view of the negro was more favorable in 1857 than in 1776 in America:

    “In these the Chief Justice does not directly assert, but plainly assumes, as a fact, that the public estimate of the black man is more favorable now than it was in the days of the Revolution. This assumption is a mistake. In some trifling particulars, the condition of that race has been ameliorated; but, as a whole, in this country, the change between then and now is decidedly the other way; and their ultimate destiny has never appeared so hopeless as in the last three or four years. In two of the five States-New Jersey and North Carolina-that then gave the free negro the right of voting, the right has since been taken away; and in a third-New York-it has been greatly abridged; while it has not been extended, so far as I know, to a single additional State, though the number of the States has more than doubled. In those days, as I understand, masters could, at their own pleasure, emancipate their slaves; but since then, such legal restraints have been made upon emancipation, as to amount almost to prohibition. In those days, Legislatures held the unquestioned power to abolish slavery in their respective States; but now it is becoming quite fashionable for State Constitutions to withhold that power from the Legislatures. In those days, by common consent, the spread of the black man’s bondage to new countries was prohibited; but now, Congress decides that it will not continue the prohibition, and the Supreme Court decides that it could not if it would. In those days, our Declaration of Independence was held sacred by all, and thought to include all; but now, to aid in making the bondage of the negro universal and eternal, it is assailed, and sneered at, and construed, and hawked at, and torn, till, if its framers could rise from their graves, they could not at all recognize it. All the powers of earth seem rapidly combining against him. Mammon is after him; ambition follows, and philosophy follows, and the Theology of the day is fast joining the cry. They have him in his prison house; they have searched his person, and left no prying instrument with him. One after another they have closed the heavy iron doors upon him, and now they have him, as it were, bolted in with a lock of a hundred keys, which can never be unlocked without the concurrence of every key; the keys in the hands of a hundred different men, and they scattered to a hundred different and distant places; and they stand musing as to what invention, in all the dominions of mind and matter, can be produced to make the impossibility of his escape more complete than it is.

    It is grossly incorrect to say or assume, that the public estimate of the negro is more favorable now than it was at the origin of the government.”

  • Donald R McClarey

    I can well believe American views in 1776 were much closer to those of France in 1792 than the opinions prevailing in America in 1857.

    The writingss of Darwin and Galton in Britain and Gobineau in France certainly exercised a malign influence on the racial question, by suggesting that cultural diferences were genetically determined.

    Even Napoléon never sought to re-enslave those actually emacipated by the Décret du 16 Pluviôse An II, or to deny the right of citizenship on the grounds of colour. After the revolt in Haiti, he retained slavery in those colonies where the Decree had never been enforced, largely, one suspects as a measure of police.

  • “Even Napoléon never sought to re-enslave those actually emacipated by the Décret du 16 Pluviôse An II, or to deny the right of citizenship on the grounds of colour.”

    Oh, I think Napoleon intended to reinstitute slavery in Haiti. Only military defeat, largely caused by Yellow Fever, thwarted his plan. As it was, the French would not recognize Haitian independence for several decades.

  • call[ing] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.”

    I think this was the intent of the majority in “Plessey v Ferguson.”

    A court by it’s nature is decides rather narrow questions of fact and law not bring end to national divisions with several contending sides. It often causes more harm than the original problem.

  • As I get it justice Taney saw the slave as property, not a person.
    In Omaha In 1879, Standing Bear, Ponca chief, was incarcerated at ft Crook for going home to the Ponca area in Nebraska from the forced move to Oklahoma (to bury his son who had died along with many others of sickness and hunger. He testified for himself very well. He had the support of local journalist Tom Tibbels and changing public opinion. Judge Elmer S. Dundy ruled that “an Indian is a person”

    Taney was the first Catholic to be in his position. I wonder now how well out current Catholic jurists will acquit themselves in history.

  • By the time Taney presided over and issued Dred Scott, the Holy See had issued numerous condemnations of slavery and the slave trade. Most notable among them was the 1839 apostolic letter of Pope Gregory XVI, “In Supremo Apostolatus”, which concludes: “We prohibit and strictly forbid any Ecclesiastic or lay person from presuming to defend as permissible this traffic in Blacks under no matter what pretext or excuse, or from publishing or teaching in any manner whatsoever, in public or privately, opinions contrary to what We have set forth in this Apostolic Letter.”

    However, the American bishops by and large interpreted (at least publicly) In Supremo as referring only to “unjust” slave TRADE, and not to the institution of slavery itself. They did this for a number of reasons which I won’t get into here. Still, I have to wonder if anyone, at the time, ever seriously suggested that Chief Justice Taney be excommunicated for his role in Dred Scott, the way some pro-life Catholics (IIRC) called for Justice William Brennan’s excommunication for his role in Roe v. Wade?

  • Taney could have recused himself.

  • “In those days, our Declaration of Independence was held sacred by all, and thought to include all; but now, to aid in making the bondage of the negro universal and eternal, it is assailed, and sneered at, and construed, and hawked at, and torn, till, if its framers could rise from their graves, they could not at all recognize it.”
    When “We, the people” were all beasts of burden to England, every person understood the meaning of slavery and The Declaration of Independence.
    Justice, as the office and title suggests is the personification of God’s perfect and absolute Justice and Truth. Anyone who differs from the absolute Truth differs from absolute Justice and loses his office and title of Justice, personally excommunicating him/herself. Recussing oneself is a petition for wisdom to be granted by God.
    “There is no heaven, there is no hell”, simply means that “The kingdom of heaven is at hand” “Do unto others as you would be done unto”.
    Taney’s epitaph reads: “Here lies a man who was only three quarters human.” Brennan and Blackmun have been aborted 60 million times. Hitler has been sent to the gas chamber 6 million times making Hitler’s eternal life a little better, except for the fallen soldiers who laid down their lives for freedom. The atheist spends his life pursuing the eradication of Truth and when the atheist dies he gets what he pursued, that is, nothing. How will souls recognize the Truth? Excommunication would have been a blessing.

  • Elaine Krewer

    Exodus 21:16 is quite explicit in its condemnation of the plagiarist or man-stealer: “Whoever kidnaps a person, whether he has sold him or whether the victim is still in his possession, is certainly to be put to death”

    By the Roman law, likewise, a person became a slave only through capture in war or birth from a slave mother (D 1. 5. 5. 1. & seq) A free person was “res extra commercium” and any sale of a free person was void (J 3.23.5), including foundlings. No one could sell himself into slavery, but the praetor might refuse an action to someone who agreed to let themselves be sold to an unwitting buyer (Dig. 40, 12, 7 pr); that, however, only affected the remedy, not the right and s/he was legally free.

    A slave legally emancipated became a Roman citizen. Servius Tullius, the 6th king of Rome is sad to have been a slave in the household of his predecessor, Tarquinius Priscus; true or false, the legend illustrates the Roman attitude to slavery and manumission.

    The numerous papal condemnations of the enslavement of native peoples and of the slave trade (which was simply organized plagium) would have been applauded by the Roman jurists and the prophets of Israel, none of whom rejected slavery in principle.

  • Anzlyne: “Taney was the first Catholic to be in his position. I wonder now how well out(sic) current Catholic jurists will acquit themselves in history.”
    Antonin Scalia has publicly called for all individuals (since a human being needs only to exist as a member of the human species: “Human existence is the criterion for the objective ordering of human rights. Suarez) to be tried under constitutional due process of law. Due process of law would require that the newly begotten individual human being be found guilty of causing the imminent death of his mother, the mother whom he endowed with motherhood and as a parent; as he has brought forth the fatherhood of his father.
    Roe v. Wade required that the “sovereign personhood” of the newly begotten individual human being be proved in a court of law to be granted constitutional protection and rights. Our Constitutional posterity are inscribed in the Preamble as recipients of due process of law. At the least, Roe v. Wade was to grant the benefit of a doubt. Therefore, it might be said that Brennan and Blackmun without a doubt are indeed in hell. 60 million souls, and counting, are waiting for Justice.

  • Michael Paterson-Seymour: “The numerous papal condemnations of the enslavement of native peoples and of the slave trade (which was simply organized plagium) would have been applauded by the Roman jurists and the prophets of Israel, none of whom rejected slavery in principle.”
    Applauding the freedom of free men, as always, rejects slavery in principle. It cannot be both ways at the same time. It is the law of non-contradiction, and I am late for Mass.

  • “it might be said that Brennan and Blackmun without a doubt are indeed in hell.”

    I hope you don’t mean that literally. The Church does not ever declare a particular soul to be damned (not even Judas Iscariot, Nero, or Hitler) with the same degree of certainty that she declares a soul to be saved (via the beatification/canonization process).

    In fact it’s always been my understanding that it is wrong for ANY Catholic to state definitively that any particular deceased individual is in hell, since we have no way of knowing for certain what went through their mind in their last moments, or what was going on in their mind or soul when they committed their sins. Yes, one can agree that their souls were in grave danger and that they very well COULD have been damned barring some kind of miracle or condition known only to God, but to state flatly “X is certainly in hell”, or worse yet, to hope or desire that “X is in hell” is wrong. This is not a new idea, by the way; I have seen this principle explained in books that predate Vatican II by quite a few years. So I prefer not to speculate in any way upon the eternal condition of Justices Taney, Brennan, etc.

The Second Amendment and Racism

Friday, February 1, AD 2013

Actor Danny Glover recently stepped outside of his role as an actor and assumed the roles of historian and constitutional scholar:

I don’t know if you know the genesis of the  right to bear arms,’ said Glover, well known for his roles in the ‘Lethal  Weapon’ franchise. ‘The Second Amendment  comes from the right to protect themselves from slave revolts, and from  uprisings by Native Americans,’ he said.

‘A revolt from people who were stolen from  their land or revolt from people whose land was stolen from, that’s what the  genesis of the second amendment is.’

Glover should stick to his day job.  The main concern of the Founding Fathers in regard to the Second Amendment was to provide the citizenry the ability to resist a tyrannical government.  As James Madison noted in Federalist 46:

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it.

Prior to the Civil War there were laws passed in many of the slave holding states attempting to restrict the right to keep and bear arms to whites.  Challenges to these laws by free blacks almost always asserted the second amendment.  A passage in the Dred Scott decision indicates what a preoccupation blacks carrying weapons was to slaveholders:

It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.

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4 Responses to The Second Amendment and Racism

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  • Would Mr Glover believe The Atlantic? Gov. Reagan and the NRA are the bad guys passing gun-control, oppressing Black Panthers exercising their Second Amendment rights.


  • Professors Robert Cottrol and Raymond Diamond explored this issue in a tour de force law review article in 1991:


  • Hitler denied the human soul and the sovereign personhood of the human being to the Jews, calling Jews subhuman. By denying Jews sovereign personhood, Hitler was able to deny the Jews membership in Homo Sapiens, the human species. Hitler was able to deny Jews life.
    The Supreme Court in Dredd Scott, the slaveholders too, denied the human being composed of human body and immortal soul, the sovereign personhood endowed by “their Creator”, because the man’s skin was colored black. Sometimes his skin was yellow or red or white, or any color. The state does not create men and certainly does not endowed men with unalienable rights. The state, being constituted by the sovereign personhood of man, is sovereign only in that the state may fulfill its mission inscribed in the Preamble to our U. S. Constitution for the United States of America.
    Denying the black man sovereign personhood enabled the ignorant to enslave and abuse his brothers and sisters in Christ. This is the crux of the matter. Once denied, any reason could be used to embarrass, insult and deprive the black man, of everything, and among everything was his right to be innocent until proved guilty, to self-defence, to share in the culture. The civil rights movement was about reestablishing, acknowledging and respecting the person. And the civil rights movement did overcome. The black man’s unalienable civil rights are acknowledged as self-evident truths, that all men are created equal and endowed by our Creator, as inscribed in our founding principles.
    The crux of the matter resurfaces now, because the Sovereign Person of the Supreme Sovereign Being has been expelled from our culture. God is exiled from the human race. The soul of man is in jeopardy of being preempted by the evil one, the devil. The devil has no soul and therefore, is perfect evil. Man has a soul and needs God to fulfill his personhood. The atheist says NO. You cannot have your soul fulfilled until I say so. Perfect tyranny.
    Once the human being’s sovereign personhood is acknowledged and afforded all unalienable rights as enumerated in the Preamble to the U.S. Constitution, the black man and all men will be able to enjoy responsible gun ownership and reasonable self-defence.
    Note: I use the spelling of self-defence from the Preamble. The civil rights movement was about restoring the acknowledgement of personhood to all persons. The gay’s movement has never been denied sovereign personhood and therefore, their civil rights are not being violated. They are gay persons. So, too with abortion’s right to choose. What “civil right” has been denied to the pregnant woman? Is she still not a sovereign person with the personhood of a pregnant woman and the sovereignty of a mother? Only our Loving God’s person is being denied fellowship, courtesy and respect in the public square. Civil rights for the Supreme Sovereign Being.

Were the Founders Hypocrites?

Monday, November 7, AD 2011

In the 19th century it became fashionable among pro-slavery advocates to deride the idea that the Declaration of Independence’s ringing assertion that “All men are created equal” applied to blacks.

In the Dred Scott decision the majority of the Supreme Court stated that it was a simple historical fact that blacks were not included:

The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration, for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted, and instead of the sympathy of mankind to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.

Yet the men who framed this declaration were great men — high in literary acquirements, high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting. They perfectly understood the meaning of the language they used, and how it would be understood by others, and they knew that it would not in any part of the civilized world be supposed to embrace the negro race, which, by common consent, had been excluded from civilized Governments and the family of nations, and doomed to slavery. They spoke and acted according to the then established doctrines and principles, and in the ordinary language of the day, and no one misunderstood them. The unhappy black race were separated from the white by indelible marks, and laws long before established, and were never thought of or spoken of except as property, and when the claims of the owner or the profit of the trader were supposed to need protection.

Interestingly enough, John C. Calhoun, statesman and chief political theorist in defense of slavery, disagreed with this line of pro-slavery argument.  While lamenting the inclusion of the “All men are created equal” phrase in the Declaration, he had no doubt that it was intended to apply to blacks:

They have been made vastly more so by the dangerous error I have attempted to expose, that all men are born free and equal, as if those high qualities belonged to man without effort to acquire them, and to all equally alike, regardless of their intellectual and moral condition. The attempt to carry into practice this, the most dangerous of all political error, and to bestow on all, without regard to their fitness either to acquire or maintain liberty, that unbounded and individual liberty supposed to belong to man in the hypothetical and misnamed state of nature, has done more to retard the cause of liberty and civilization, and is doing more at present, than all other causes combined. While it is powerful to pull down governments, it is still more powerful to prevent their construction on proper principles. It is the leading cause among those…which have been overthrown, threatening thereby the quarter of the globe most advanced in progress and civilization with hopeless anarchy, to be followed by military despotism. Nor are we exempt from its disorganizing effects. We now begin to experience the danger of admitting so great an error to have a place in the declaration of our independence. For a long time it lay dormant; but in the process of time it began to germinate, and produce its poisonous fruits. It had strong hold on the mind of Mr. Jefferson, the author of that document, which caused him to take an utterly false view of the subordinate relation of the black to the white race in the South; and to hold, in consequence, that the former, though utterly unqualified to possess liberty, were as fully entitled to both liberty and equality as the latter; and that to deprive them of it was unjust and immoral. To this error, his proposition to exclude slavery from the territory northwest of the Ohio may be traced, and to that of the ordinance of ’87, and through it the deep and dangerous agitation which now threatens to ingulf, and will certainly ingulf, if not speedily settled, our political institutions, and involve the country in countless woes.

Abraham Lincoln rose in defense of the Founders and the Declaration.  Lincoln has attained such a folksy image in American folklore that we lose sight of how incisive a mind he possessed.  It was on full display in this passage from a speech that he gave on June 26, 1857 on the Dred Scott decision:

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