LINCOLN AND CHIEF JUSTICE TANEY

An examination of the differences over the Constitution’s meaning that separated Abraham Lincoln, most revered president, from Roger Taney, most reviled Chief Justice.

Honorable and gentlemanly, deeply religious (he freed his own slaves) and widely learned, Taney succeeded John Marshall as Chief Justice of the Supreme Court. His intense partisanship perfectly served Andrew Jackson, first as Attorney General in Old Hickory’s battle against the National Bank, and later on the Court, where Taney had no problem reading expansive presidential power into the Constitution in the service of Jackson’s political agenda. In the run-up to the Civil War, however, Taney’s southern, aristocratic, agrarian heritage conspired toward a cramped reading of the Constitution, culminating most infamously in Dred Scott, where he declared that blacks “had no rights which the white man was bound to respect.” Taney’s flawed moral reasoning and tragic miscalculation—he believed authoritative word from the Supreme Court would end the slavery debate—are well known. Less well known is how at every succeeding, important legal turn for the country—from the suppression of the writ of habeas corpus, to the blockading of domestic ports, to the expanded use of military commissions, to the Legal Tender Act, to the censoring of newspapers and mail—Taney fought virtually every controversial step taken by Lincoln, first to oppose secession and then to fight the rebellion. Simon (Constitutional Law/New York Law School; What Kind of Nation, 2002, etc.) skillfully charts the battles that pitted Taney’s acute legal mind against Lincoln’s transcendent one. Having landed on the wrong side of history, Taney would appear beyond rehabilitation, and Simon’s attempt to style him as a champion of civil liberties—ignoring as it does the Chief’s underlying political animus—is finally unpersuasive. Still, today’s opponents of enhanced Executive power might prick up their ears at Taney’s conviction that the Lincoln administration “abandoned the rule of law in favor of military domination.”

Though the pairing of Lincoln and Taney seems at first unpromising, this story is as timely as it is well-written.