opinion of chief justice taney and how it was shaped. the supreme court historical society hosted this event. it's a little under an hour. [ applause ] >> thank you very much, mr. goldman. i -- historians like me because, you know, every faculty, every respectable law faculty has a legal historian on it. but how important they are depends on how much you think the history behind the constitution or any other statute depends upon what was the understanding at the time. which is what historians can tell us. so i use his toirns more than more people. and they like me more than most

people, i think. well, i'm happy to welcome all of you to this -- i guess it's the third in our series of lectures named after the former president of the supreme court historical society. and this lecture is as you have heard on -- it's the third in a four-part series on the supreme court and the civil war revisited. the historical society has an educational outreach mission that includes these lectures. it includes training programs for teachers. and it includes the publication of such publications as court

watchers, eyewitness accounts in supreme court history which came out a few years ago which is a general interest history of the court with firsthand anecdotes. my colleagues on the court and i appreciate the society's wide and varied efforts to improve public understanding of the supreme court and of our nation's constitutional form of government. i could go on about other efforts that the supreme court historical society has made in that regard but you are here for a lecture on chief juice tis roger brook taney. tonight's lecture is being delivered by professor timothy s. huebner. professor huebner received his b.a. from the university of miami and his phd in history from the university of florida. he's the sternberg professor of history and chair of the department of history at rhodes

college in memphis where i was happy to tell him although he already knew it, my grandson has just me trick lated this year. name sake, actually. some of you may remember that rhodes college is known within these halls as theal ma mater as the late justice abe fortis. professor huebner is the author of two books "the sum and traditional justice." and "the taney court, justices rulings and legacy." he is co-editor with the late kermit hall of the 2nd edition of major problems in american constitutional history, currently he is completing a narrative history of the civil war and american

constitutionalism to be published by university press of kansas in early 2016. additionally, he serves -- i'm happy to say, as the associate editor of the supreme court historical society's journal of supreme court history. i could continue as professor huebner's accomplishment and publications are many, but that would leave us less time for his words. and so, i hope you will all join me in welcoming professor timothy s. huebner. [ applause ] >> thank you, justice scalia. thank you, jim goldman. and david pride and the society for the invitation. special thanks to jennifer lowe for making all this possible. it's an honor to be here.

on october 12th, 1864, 150 years ago this week, chief justice roger brook taney died in his rented home in washington, d.c. after 28 years as chief justice of the nation's highest court, the death of the 8-year-old maryland native prompted little grief or mourning on the part of the people of the northern states. while some northern democratic newspapers offered words of condolence and respect, taney's republican opponents who were much more numerous were quick to portray his death as a cause for celebration. as soon as word came to massachusetts senator sumner he

dashled off a letter to president lincoln and quoted, quote, providence has given us a victory in the death of chief justice taney. it is a victory for liberty and constitution. in the days following a philadelphia newspaper noted, quote, the nation can feel little regret at his removal from an office which in his hands has been so promiscuously used. five months later in a thorough article on the chief justice's legacy, the atlantic monthly concluded that taney was essentially a partisan judge and around that same time in early 1865, an anonymous 68-page pamphlet was pub lushed called "the unjust judge" that basically made the same point. roger taney was and is the most infamous chief justice in the history of the supreme court.

tonight i'd like to talk about the life and the death of chief juice tis taney and what his death meant in late 1864 and 1865, when the nation's was in the midst of concluding a long and bloody civil war. along the way i'd like to make various observations about taney particularly the rise and fall of his reputation. and ultimately, i want to show that the way in which taney's death was interpreted tells us a great deal about the meaning of emancipation in 1865, as well as about a transformation in the american understanding of rights. now, taney's poor reputation at the time of his passing stands in stark contrast to his own reputation ten years before. although taney had been a controversial nominee to the

court in 1836, viewed as someone likely to carry out the political agenda of his mentor and nominate or the president jackson taney soon earned a reputation as a moderate, fair and nondock tri their chief justice. under his leadership, the court issued landmark rulings in the areas of contracts, admiralty law and commerce clause. and in each of these decisions, taney sought to solve a legal and a social problem by putting forth a pragmatic solution. after nearly two decades on the court, taney's reputation peaked during the mid-1850s. in 1854, george van sanford's book sketches of the lives and judicial services of the justices described taney in glowing terms. taney according to van sanford

had, quote, a reputation beyond reproach. a purity of life that no man can assail. regarded as a judicial statesman, the epitome of fairness, taney earned bipartisan praise. even the most vocal opponent of his nomination in 1836 representative henry clay later publicly apologized for his criticism of taney and called him, quote, a worthy successor of chief justice john marshall. as historians newmeyer puts it, quote, had the taney court rested on its laurels in 1856, it would have surely gone down as one of the most popular and effective courts in our historyx

in 1857, taney's reputation changed dramatically because of his decision in one case, of course. dred scott versus sanford. in that case, the enslaved missouriian dred scott sued for his freedom after he lad been taken by his master into free territory and having lived there for two years before being brought back to missouri. the court ruled against scott holding that he was still a slave. now an enormous amount of ink is spilled on this case and i do not intend to discuss the constitutional and legal details. but a basic understanding of what taney did and wrote in this case is essential for understanding the rapid decline in his reputation. taney's opinion in dred scott contained two significant points

of law. first, taney held that african-americans whether slave or free had not been included in the political community at the time of the founding. therefore, he reasoned, neither they nor their descendants were citizens of a state within the meaning of the constitution. now, this ruling in and of itself at the time was not the most controversial part of the decision. as one scholar has noted, many state courts in the south and the north had already held the same thing. that african-americans were neither citizens of their states nor of the united states. but taney seemed to go further than just denying blacks citizenship. in reviewing the history of the writing of the declaration of independence and the constitution, taney held that the founders had not

acknowledged or included african-americans in the people of the united states. taney reasoned that the fact that so many of the founders held slaves proved that they had no intention of applying the all men are created equal language of the declaration to african-americans. it was too glaring of a contradiction. in laking this point, of course, taney wrote these memorable words. quote, it is difficult at this day to realize the state of public opinion in relation to that unfortunate race which preveiled in the civilized and enlightened portions of the world at the time of the declaration of independence. 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 inferior that they had no rights which the white man was bound to respect. and that the negro might justly and lawfully be reduced to slavery for his benefit. now, i will come back to these words. the second point of law decided by taney and more significant in the context of the political debates of the time was that congress had no power to prohibit slavery in federal territories. taney put it this way. quote, the right of property in a slave is distinctly and expressly affirmed in the constitution, unquote. for this reason, taney believed congress had no power to interfere with this right by banning slavery in federal

territories. this was at the time the most controversial part of the opinion. the big question of the 1850s was whether slavery would be allowed to spread into new territories and taney's answer to that question was a resounding yes. slaveholders had a right to take slaves into new territory and congress could not interfere with those rights. in other words, the more pressing rights issue at the time was not whether african-american slave or free possessed the rights of citizenship under the constitution. rather, rights in the context of the heated debates of the 1850s meant the rights of slaveholders. those were the lights that south carolinan john c. calhoun had championed in that southern successionists were beginning to

rally behind in the late 1850s. and those were the rights that taney had protected. strikingly absent from the mainstream national debate over slavery, in fact, was discussion of the rights of black people. white abolitionists seemed perfectly content to debate the constitutionality and the morality of slavery in an abstract way and republicans seemed focused on preventing the spread of slavery into new territories. but few abolitionists or republicans championed racial equality under the constitution or the law. abring hamlin con, in fact, stayed away from this issue as much as he could in his debates with steven douglas. and referred only to the basic right which he believed was in

the declaration of independence that one person could not be owned by another person. in their criticism of the dred scott decision,decision, northe republicans focused relentlessly on the slavery part of the decision rather than the black citizenship or rights aspect of the movement. african-americans had a different reading of this case. rather than focusing on the question of slave holders' rights, they zeroed in on the issue of black rights, their rights. taney's bold claim that blacks had no rights that the white man was found to respect became somewhat of a rallying point for the growing group of northern black activists who sought not only to end slavery but also to advance the aspirations of black people throughout the united

states. it may well have been the most offensive phrase and the one that had the most galvanizing effect on a segment of the population in the history of the supreme court. in 1858, a year after the issuing of tawney's opinion at the suffrage convention of the colored citizens of new york, african-american leaders made clear exactly what they thought of tawney's opinion. playing off tawney's language, they held that, quote, the dred scott decision is a foul and infamous lie which neither black men nor white men are bound to respect. the assembled delegates expressed particular outrage at tawney's interpretation of the declaration of independence, the idea that blacks had not been

included in the political community at the time of the founding and that, therefore, the government of the united states was a white man's government. the delegates announced, "we, therefore, call upon all who subscribe to the theory of human rights set forth in the declaration of american independence to trample in self-defense the dicta of judge tawney beneath their feet as of no binding authority." the emphasis that african-americans placed on the citizenship part of the decision rather than the slavery part stands out because it cut against the political grain during the late 1850s. the other striking element of the african-american critique of the decision was the way in which they personalized their

criticism, training their aim specifically on chief justice tawney. now, tawney was one of seven justices in the majority in this case, and each justice wrote an opinion. but it was tawney's opinion, with his infamous words, "they have no rights," that most offended african-americans. the events of 1861 and 1862 contributed even further to this close identification of chief justice kaun tauney with the court's dred scott decision. lincoln, of course, was elected president in 1860, and when white soreners feared that the right to hold slaves and territories would not be protected under the incoming president, they seceded from the federal union and the civil war

began. the northern war effort began as an attempt to simply restore the union, as an attempt to put down the southern rebellion. but by 1862, union policy changed largely because of pressure exerted by african-americans but also because of the republican belief that liberating slaves helped the union cause, e-anticipation started to become the policy of the union government in washington. in the span of several months, congress enacted legislation forbidding slavery in the territories in defiance of the dred scott ruling and ending slavery in washington, d.c. congress also passed a confiscation act which made

possible the emancipation of slaves owned by confederates. and then on january 1st, 1863, abraham lincoln issued the emancipation proclamation, which declared all slaves in nonunion-occupied areas of the confederacy forever free. with the emancipation proclamation came black military service in the union army. every one of these policies instituted by lincoln and the republicans constituted a gradual, methodical assault on the dred scott decision, particularly on the slavery part of the decision. by 1863, slavery was slowly losing its grip on the southern states in the midst of war. in the meantime, taney, still on the court, and the dred scott

decision still on the books, lurked in the background. by this time, the chief justice held a you peek position as the only southerner on the court who had been part of the dred scott majority who sympathized with the confederacy. five of the seven justices in the majority had been southerners. justice peter b. daniel of virginia had died in 1860 before the war started. john archibald campbell of alabama, another one of the justices in the majority in dred scott, because of his loyalty to his home state and the secessionist course that it took, resigned his seat on the high court in early 1861 and went back home to the south. he ended up serving as the assistant secretary of war for the confederacy.

justice john catron of tennessee, although a pro-slavery justice, became famous for his support of the federal union. in 1861, upon attempting to hold circuit court in his home state, catron encountered a group of confederates outside of nashville who informed him that if he entered the city to hold court that they could not guarantee his safety. catron left. but when federal forces occupied nashville in 1862, catron came back as somewhat of a hero to unionists in the city and he did, indeed, hold u.s. circuit sessions in the city in the summer of 1862. justice james wayne of georgia, another pro-slavery justice and part of the majority in dred scott, like catron, earned the

scorn of his fellow georgians for his faithful devotion to the union. so with daniel dead, campbell resigned, and catron and wayne thoroughly devoted to the union, that left taney. old, bitter, and increasingly partisan and angry. from his position as chief justice, taney did all he could to forge the lincoln administration and its prosecution of the war. he ruled against lincoln's suspension of the writ of habeas corp corpus, voted against the constitutionality of lincoln's blockade of southern ports, and he drafted a hypothetical opinion challenging the constitutionality of the federal draft law should it come before the court. which it didn't.

of course he stood over lincoln's emancipation proclamation which stood in contrast to his own ruling and dred scott. taney was so opposed to lincoln's policies and so sure that the straight hated him for it that he wondered aloud after the decision in the habeas corpus case, whether the president might even order his arrest. throughout 1863 and 1864, as the union army made greater inroads into the confederacy, taney's opinion and taney himself seemed more and more the relics of a bygone era and became more and more under criticism. although there were only six years between the issuing of the dred scott decision and the announcement of the emancipation proclamation, america was undergoing a radical

transformation. congress, lincoln, and the union military were enacting and implementing policies, making freedom possible. while african-americans were taking matters into their own hands by walking off southern plantations and toward federal military lines. many of those who moved out of slavery, the men, anyway, were moving into the union army. 200,000 black men ended up serving as union soldiers or sailors. for blacks during the civil war, military service offered a way to overcome the stamp of inferiority inherent in taney's opinion, as a way to assert that they were men and to claim -- a way to claim equal rights and an equal share of the american heritage. john rock, a free black man from

new jersey, who had become a leading lawyer and activist, insisted that the war presented just such an opportunity. learn to his words from a speech? january of 1862 in boston mocking taney. "75,000 free men capable of bearing arms and three-quarters of a million slaifs wild with the enthusiasm caused by the dawn of the glorious opportunity of being able to strike a genuine blow for freedom will be a power that white men will be bound to respect." with the nation swept up in revolutionary change, taney spent his last few years holed up in his rented home on indiana avenue in washington. sick, mostly homebound in the care of his daughters and his

enslaved house servants and disgusted by the policies of president lincoln and official washington, taney practically ceased to carry out his duties. he spent much of his time in bed reading newspapers and smoking cigars. although he held the title of chief justice of the united states, his sympathies clearly lay with the confederate government in richmond. his son-in-law, major richard t. allison, husband of his daughter maria, served in the confederate army. pictures of both of them hung on the wall in his house. with taney confined to his home, the chief justice's ill health and impressive longevity became a subject of some conversation and speculation in washington.

in 1863, republican senator benjamin wade of ohio quipped, "i prayed with earnestness for the life of taney to be prolonged throughout buchanan's administration, and by god i'm a little afraid i've overdone it." but taney's time did eventually come. hours before his death, taney was presented with an opportunity to take an oath of allegiance to the united states government, an oath proposed by president lincoln and provided for maryland's new state constitution. the chief justice stubbornly refused. roger taney died on the evening

of october 12th and the very next day voters in taney's home state of maryland approved an amendment to the state constitution abolishing slavery. it was a fitting event to cur the day after the death of the pro-slavery chief justice. a few days later, a group of family members, friends, dignitary, and onlookers who gathered attainey's residence to pay their last respects. president lincoln and three members were there, and afterward a train took taney's body and a small group of family members to frederick, maryland, where the funeral service actually took place. during the next three months, in late 1864 and early 1865, lincoln won re-election as president. union forces under the command

of general william t. sherman in georgia continued their march to the sea and eventually northward into south carolina. and congress debated and passed a 13th amendment to the constitution ending slavery and in effect overturning the slavery portion of the dred scott decision. meanwhile, the public debate over taney's legacy and the meaning of emancipation had begun. by this time, the emphasis that african-americans had always plalsed on the "they have no rights" aspect of the opinion became an important part of the national discussion. as the 13th amendment moved swiftly toward ratification by the states that year, the question of black citizenship and black rights moved to the forefront. now that blacks were free, what

rights would they have? in the midst of this, taney and dred scott, now more closely connected than ever, became a symbol of the old pro-slavery order, the pre-civil war slave power. on february 23rd, 1865, when senator lyman trumble of illinois introduced the bill providing for the placement of a marble bust of taney in the supreme court chamber, where busts of the previous chief justices were already displayed, senator charles sumner of massachusetts rose in opposition. "i object to that," he said, "that now an emancipated country should make a bust to the author of the dred scott decision. sumner continued, "the name of taney is to be hooted down the page of history," he said.

"judgment is beginning now, and an emancipated country will fasten upon him the stigma which he deserves." others joined sumner in their criticism. senator benjamin wade remarked that his constituents would, quote, pay $2,000 to hang this man in effigy rather than $1,000 for a bust to commemorate his merits. later that year, in a famous speech on the floor of the house in which he laid out his views on reconstruction policy, republican congressman thaddeus stevens of pennsylvania took an even stronger position against taney. referring to taney's dred scott decision, stevens argued that the notion that america was a white man's government only was,

"as atrocious as the infamous sentiment that damned the late chief justice to everlasting fame and, i fear, to everlasting fire." in a lengthy piece on taney's legacy published that year in the "atlantic monthly," the author, probably the boston lawyer charles ellis, made clear that none of taney's other work on the court would matter in comparison to his infamous decision in the case of dred scott. "the secession war and the triumph of liberty will be the theme of the world, and he of all who precipitated them will be most likely after the traitor leaders to be held in infamous remembrance, for he did more than any other individual to extend the slave power." ellis went on to discuss taney's

motives in the decision. and here el liles use ld similarly stark language, noting that, "the worst of motives is the disposition to serve the cause of evil," ellis argued that taney knew exactly what he was doing, that his decision attempted to snuff out all hope of rights and liberties for the nation's free and enslaved african-americans. ellis portrayed the te ceased chief justice as ignoring all the precepts of the christian religion, the declaration of independence, and the constitution. and finally, and finally, going through a long list of english judges with reputation for unfairness and infamy, including lord chief juice tis george jeffries of england, ellis

concluded that taney was the worst of all. the low point in taney's reputation came with the 1865 publication of an anonymous 68-page pamphlet entitled "the unjust judge: a memorial of roger brook taney." like the "atlantic" article, the pamphlet accused taney of the worst abuses of judicial power and asserted that the dred scott opinion alone would shape taney's reputation. much of the pamphlet argued that the framers had been anti-slavery in their outlook and that the constitution embodied the spirit of the declaration of independence, particularly its assertion that all men were created equal. the author of the unjust judge took particular satisfaction in

showing how early in his career taney viewed slavery as incompatible with the declaration, a position that he had later turned his back on in dred scott. and it is true that, as a young lawyer in frederick county, maryland, taney had defended jacob gruber, an anti-slavery methodist minister accused of disturbing the peace and inciting rebellion. and in the process, taney had cited the declaration of independence in support of his anti-slavery views and had actually called slavery "a blot on our national character." the author of "the unjust judge" made much of this type of change of heart, describing taney as failing to live up to his early ideals as well as those of the nation's founders.

in hid analysis, he said that african-americans, contrary to taney's assertion, had been included in the political community at the time of the founding. but more than an academic criticism of taney's reasoning in the dred scott came in t, "t unjust judge" constituted a rhetorical assault on the character of the nation's fifth chief justice. the author excoriated taney as a malevolent old man engaged in the most nefarious of purposes, a man has untrue to the principles of the christian religion as he was to the ideals of the constitution. in his perversion of the law and

of judgment among men." the evolution in the response from the republican republicans was cleared from being hooted down the page of history to being condemned to hell for the decision, to being worse than the worst judge in the history of the english-speaking world, to being next to pontius pilate, the worst to ever occupy the

seat of judgment among men. the rush of union victory and the triumph of emancipation made taney appear by comparison to be on the wrong side of history, to be an abuser of power, and even a force for evil. so what does this say about america at the end of 1864 and the early 1865? i think it tells us three things. first, it tells us that by the time of his death taney had come to embody the slave power, the

entrenched pro-slavery interests that the union was attempting to defeat. the "they have no rights" language of dred scott, the union's adoption of a policy of emancipation, and tan eye's attem attempts to ford the lincoln administration turned taney into a highly visible public enemy. by 1864, it was clear that tapey stood for the rights of slave holders, for no rights for black people, and he stood opposed to lincoln's efforts to prosecute the war. in the north there may have been no greater symbol of the south and all that it stood for than chief justice taney. second, it tells us that these really were revolutionary times.

it is striking that in a nation that had so valued its institutions, its founders, its constitution, and its court system for decades, that one of its most distinguished and longest serving justices, my experience so rapid a fall in the minds of the northern public. in 1864 and 1865, many northerners really did see themselves as bringing about a profound revolutionary break with their past, a past symbolized by the aging pro-slavery taney. it is not easy for 21st century americans who know that it would take a civil rights movement to bring about further change to understand the swift and revolutionary pace of events during the civil war.

it is often our tendency to read history backwards rather than forwards to say from our perspective that the war didn't really change much. but when we look closely at what contemporaries said at the time of taney's death, we can see that the rapid down first of all of the chief justice's reputation speaks to the depth of the revolutionary events and aspirations of the day. slavery, a 250-year-old institution on north american soil, went down to defeat on the battlefield of the civil war, and along wit its most prominent judicial defender. these were revolutionary times. third and finally, the story of taney's rapidly declining

reputation reveals something about black agency and activism, about the extent to which african-americans shaped the times. now, of course the fact of war was the driving force in bringing about emancipation, but it was african-americans themselves who were fleeing to federal military lines. it was african-americans who always focused on the rights portion of the dred scott decision, who always drew their inspiration from the "all men are created equal" language of the declaration of independence, and who always pushed the debate forward to emancipation, yes, but beyond to the rights of black people in the republic. the arguments of white, radical republicans like sumner, wade, ellis, and stevens owed a great deal to blacks' decades-long

attempts to push the declaration of independence to the forefront of american political discourse. thus, it was african-americans who helped to bring about a fundamental shift in american notion of rights, from the rights that taney had discussed in dred scott, the rights of slave holders, to the rights of enslaved persons. taney had relied on the fifth amendment of the constitution to emphasize the rights of property. but african-americans looked to the declaration of independence to champion the rights of all human beings. the passing of taney, the

revolutionary times was probably most evident in a truly historic event on february 1st, 1865, less than four months after taney's death, a month before lincoln's second inauguration, and 2 1/2 months before lee's surrender at appomattox. on that day sh, john s. rock of massachusetts, whom i mentioned earlier, became the first african-american to gain admission to the bar of the united states supreme court when he was admitted to practice by the new chief justice, sammon p. chase. new orleans tribune, a black newspaper, took note. with pride, the newspaper reported that rock would be practicing where previously -- and listen how they put it -- "the infamous taney sat

enthroned, decreeing that a colored man has no rights that the white man is bound to respect." it was indeed a new era. thank you. [ applause ] you've been watching c-span's american history tv. we want to hear from you. follow us on twitter @c-spanhistory, connect with us on facebook and facebook.com/c panhistory, or you can leave comments too. and check out our upcoming prams at our website, c-span.org/history.

and we'd like to tell you about some of our other american history tv programs. join us every saturday at 6:00 p.m. and 10:00 p.m. eastern for a special look at the civil war. we'll bring you to the battlefields. we'll let you hear from skol lars and reenactors and bring you the latest historical forums on the subject nap's programs on the civil war every saturday 6:00 p.m. and 10:00 p.m. eastern on american history tv on c-spa c-span3. oliver wendell holmes jr. served in the union army from 1861 to 1864, and he was wounded three times in battle. next a panel of scholars looks at the impact of the civil war on the life of the future supreme court justice, including how his time as a soldier shaped his law career. the supreme court historical society hosted this hour-long discussion.