The President Behind the U.S. Supreme Court’s Worst Decision

Ozy.com ^ | 10/16/2018 | Sean Braswell

[iowamark]

As a work of presidential prose, James Buchanan’s inaugural address on March 4, 1857, is widely considered one of the most forgettable ever given by an American leader. As The New York Times put it dryly at the time: “Little if any impression has been made by the inaugural.” Still, it would not take long for Buchanan’s unimpressive inauguration to become one of the most significant in history. For one thing, it was the first to be photographed. It was also the first inaugural given after the creation of the Republican Party, the last before secession and ultimately the last one that a Democrat would give for almost 30 years.

Buchanan’s oath of office was also administered by Supreme Court Chief Justice Roger Taney. Yes, that Justice Taney, the one who just two days later would hand down the Supreme Court’s landmark Dred Scott v. Sandford decision, in which the court held that Congress had no power to deprive slaveholders in U.S. territories of their property — because, as Taney put it, Blacks were “so far inferior that they had no rights which the White man was bound to respect.”

In his address, Buchanan anticipated that forthcoming decision, opining that the question of slavery in U.S. territories was “happily, a matter of but little practical importance” and saying he would “cheerfully submit” to the Supreme Court resolving it “speedily and finally.” But, in truth, Buchanan had not submitted to anything. Far from being the cheerful and passive chief executive deferring to judicial authority, Buchanan had for weeks been busy behind the scenes orchestrating the result in Dred Scott, lobbying for what is arguably the worst decision in U.S. Supreme Court history. Buchanan’s actions serve as a stark reminder of what can go wrong when a president meddles in the business of the separate, and ostensibly, apolitical judicial branch.

It’s hard to exaggerate the impact that the Dred Scott decision had on American history. The decision, in which a 7-2 majority of the court declared the Missouri Compromise (under which Congress allowed one slave state to be admitted to the Union alongside one free state) unconstitutional, helped put the country on the path to civil war. The court’s ruling had been postponed until after the inauguration — after pressure from Buchanan. And it turns out, the president-elect had been lobbying the court for much more than that. A long-serving diplomat, Buchanan hoped he could alleviate the tension over the expansion of slavery by convincing the American people to let the Supreme Court have the last word on the subject. But Buchanan knew that if the decision (from a court composed of five Southerners and four Northerners) came down along party lines, or was too narrow in scope, it would be far less impactful.

So Buchanan, who had close personal ties with many on the court — including the chief justice and Justice Robert Cooper Grier of Pennsylvania, both alumni of Dickinson College like the president-elect — set about twisting some judicial arms in the run-up to his inauguration. Thanks to Buchanan’s efforts, Taney, Grier and five other justices threw their weight behind a decision that would not only nullify the Missouri Compromise (only the second Supreme Court decision to invalidate an act of Congress) but also help legitimize the institution of slavery. In fact, right before Taney administered Buchanan’s oath of office at the inauguration, the two men briefly conversed on the Capitol stairs, according to witnesses, and it is believed that Buchanan updated his speech to reflect Taney’s confirmation that the court would issue a broader holding in Dred Scott in a matter of days.

Such extra-constitutional influence on the court by a president (or president-elect) was just as inappropriate in Buchanan’s day as it would be in ours. But the diplomat in Buchanan pressed forward anyway, treating the North and South almost as if they were separate countries whose interests needed to be resolved once and for all by an international tribunal. In the end, however, Buchanan’s diplomacy would prove deeply misguided. “He foolishly believed the Supreme Court could do what Congress and the presidency had not,” says Michael L. Carrafiello, a history professor at Miami University: “Provide a final solution to the slavery question.”

Far from imposing a final solution, Dred Scott, says Carrafiello, was the beginning of the end of the Union, pulling the rug out from under those hoping to find a “middle way,” emboldening Southern slaveholders and forcing abolitionists to redouble their efforts. Before long, war would become inevitable, and, as Carrafiello puts it, “Buchanan bears a large part of the blame because of his blunder in relying on the court.”

[dsc]

“Star of the West was an American civilian steamship that was launched in 1852 and scuttled by Confederate forces in 1863. In January 1861, the ship was hired by the government of the United States to transport military supplies and reinforcements to the U.S. military garrison of Fort Sumter. Cadets from The Citadel fired upon the ship...”

1. A ship was fired upon by military school boys. Yeah, that’s a valid casus belli.

2. Resupplying and reinforcing Sumpter was an act of war that precedes any action by the Confederacy.

“Cite a verifiable historical source for that statement.”

Verifiable? Really?

My great-grandparents were there, and they told my grandparents, who told my mother, who told me. Not good enough for you? Tough. That’s all the time I propose to spend on this.

[HandyDandy]

“Star of the West was an American civilian steamship that was launched in 1852 and scuttled by Confederate forces in 1863. In January 1861, the ship was hired by the government of the United States to transport military supplies and reinforcements to the U.S. military garrison of Fort Sumter. Cadets from The Citadel fired upon the ship...”

Seems kinda odd that you would snip off the salient point from your wiki quote. You know, where your copy and paste clipped off, “effectively the first shots fired in the American Civil War.[1][2]”

[dsc]

“Seems kinda odd that you would snip off the salient point from your wiki quote.”

Seems kinda odd that a statement qualified with “effectively” would be seen as the salient point.

Where are the goal posts? First it was Sumpter that saw the first shots, now it’s some military school boys popping away at a ship—from the shore, one supposes.

I wonder if any of their bullets actually struck the ship.

[HandyDandy]

I wonder if any of their bullets actually struck the ship.

Sure seems like you didn’t even read the very short wiki piece. Else you wouldn’t be wondering. Seems as like you just clipped what you thought would best support your notions and then followed it with your own personal editorializing.

[dsc]

“Sure seems like you didn’t even read the very short wiki piece.”

That’s right. Nor is there any reason I should have, Captain Smarmy.

“Seems as like you just clipped what you thought would best support your notions”

Mind-reading eh? You can discern my intentions. Must be nice to have superpowers.

To employ my own powers, I suspect your familiarity with that insult accrued from having it directed at you many times.

In this case, there is nothing in the article that threatens to rebut anything I’ve said, which rather deflates your accusation.

“and then followed it with your own personal editorializing.”

You say that like it’s a bad thing. Is it only I who am forbidden to “editorialize,” or does your proscription apply to the entire Internet?

If you’re done making it personal, do you have anything to say about the topic?

[Bull Snipe]

Confederate artillery, confederate powder, confederate shot, being fired under orders a confederate officer. Doesn’t matter who pulled the lanyards.

“My great-grandparents were there”. Sort like Elizabeth Warren being told she was of native American descent, got it.

[BroJoeK]

dscd: "That only became law at Appomattox.
Prior to that it was assumed that states entered the Union voluntarily, and could leave at their discretion."

"At their discretion" is a more modern term, the term of art our Founders used is "at pleasure", which we still sometimes hear today in, for example, "the FBI director serves at the pleasure of the President who may fire him at pleasure, meaning for any reason whatever, or indeed for no reason."

That term "at pleasure" was never applied by any Founder to the subject of unilateral disunion.
Instead, to justify unilateral disunion they used "necessity", "necessary" conditions as defined in their own Declaration of Independence.
Of course, at pleasure secession was still acceptable to the Founders, just as in 1788, but only if by mutual consent.

To repeat: for unilateral secession our Founders believed you needed serious material breeches of contract such as they experienced and listed in the 1776 Declaration of Independence.
For at pleasure secession you need mutual consent such as they had in "seceding" from the old Articles of Confederation in 1788.

In 1860 secessionists had neither mutual consent for at pleasure disunion nor material breeches of compact to justify secession from necessity.
So they declared secession at pleasure, something no Founder ever proposed or supported.

[dsc]

“So they declared secession at pleasure, something no Founder ever proposed or supported.”

Tell that to the person who changed my argument regarding “states” to one involving the Founders.

[dsc]

“fired under orders a confederate officer. Doesn’t matter who pulled the lanyards.”

Tell you what doesn’t matter: the truth, to you. The Confederacy did not yet exist at that time. Therefore, it was not Confederate artillery, Confederate powder, Confederate shot, or a Confederate officer.

What there was, was an act of war by Lincoln.

“My great-grandparents were there”. Sort like Elizabeth Warren being told she was of native American descent, got it.”

That’s your retort? Calling me a liar? All you “got” is “na-na-na-na boo-boo?”

Pathetic.

[dsc]

“In 1860 secessionists had neither mutual consent for at pleasure disunion nor material breeches of compact to justify secession from necessity.”

Historical perspective? Not on your side of the argument.

http://bonniebluepublishing.com/The%20Right%20of%20Secession.htm

[Bull Snipe]

Substitute South Carolina for Confederate, that fixes that problem. An unarmed ship is not a provocation in international law. Lincoln was not President at the time. President Buchanan ordered Star of the West to resupply Fort Sumter.
Based on DNA Elizabeth Warren didn’t lie either. Not calling you a liar. Oral family traditions are sometimes distorted over several generations of retelling and make for suspect history.

[dsc]

“An unarmed ship is not a provocation in international law.”

A ship carrying war materiel can be.

[Bull Snipe]

“Now it is some school boys popping away at a ship-from shore”.
The battery at Morris Island was equipped with 8 inch guns.
The “School Boys” fired under the orders of an officer of the South Carolina Militia.

“I wonder if the bullets actually struck the ship.”
8 inch artillery projectiles are not bullets. Star of the West was hit 3 times by the guns on Morris Island. But she was not seriously damaged and no crewman were injured.

[dsc]

“The “School Boys” fired under the orders of an officer of the South Carolina Militia.”

There’s no need to put the words “school boys” in danger quotes. That is exactly what they were. School boys, not trained artillery men.

[Bull Snipe]

The hit Star of the West three times. They were under the supervision of a trained SC militia officer. Still an act of war regardless.

[BroJoeK]

dsc: "Mencken was discussing self-determination.
He did not say that Lincoln’s war was “all about” that single issue."

Your words here suggest your Mencken quote may have mentioned other factors than "self-determination" or "right to govern themselves", but in this particular quote he didn't.
So "all about" is a fair summary.
"Lincoln's war" is not.

dsc: "Fake news, fake history.
Lincoln committed several acts of war prior to Sumpter, which the intellectually honest reader of history must accept."

Well.. first of all there's nothing "intellectually honest" in Lost Causer mythology, it's all a pack of lies.

But to your point, Confederates began waging war in December 1860 with seizures of dozens of major Union properties including forts, ships, arsenals & mints.
These seizures continued until only Forts Sumter, SC, & Pickens, FL, remained in Union hands.
In addition, Confederates threatened Union officials and fired on Union ships, all with no military response from President Buchanan.

Lincoln's only alleged "acts of war" before Fort Sumter were his sending of resupply missions to Union troops in Union forts, no more "acts of war" than any the US Navy might do today.

quoting BJK: "Further, what you like to call 'secede' or 'withdraw' is more accurately described as conquest and invasion..."

dsc: "Utter horseshit."

Only even possible because you left out the rest of my sentence:

"...of such states as Missouri, Kentucky, Maryland, West Virginia and even Kansas, plus US territories of Oklahoma, New Mexico & Arizona, not to mention Confederate army invasions or raids into Pennsylvania, Ohio & Indiana.

Can you name for us even one state where a single Japanese soldier (let alone army) invaded, or raided, for even one day?"

dsc: "By the same law and logic that leads me to reject “Palestinian” claims.
There *was* no West Virginia, no political or legal entity with a right to reject Virginia law, any more than eastern Oklahoma today has standing to set aside Oklahoma law."

So, unlike some Lost Causers, you don't subscribe to an unlimited "right to secede", but do admit to certain restrictions on it?

dsc: "Boy, you are really the king of the false moral equivalence, aren’t you?
Surely I don’t have to explain this."

Just so we're clear on it, according to dsc: when Virginians secede that's A-OK but when West Virginians secede, that's not OK because West Virginians are not allowed "self-determination" or "right to govern themselves" because... why?

dsc on Sherman's "war crimes": "Oh, yes, more so.
Much more so.
All the alleged Confederate atrocities together don’t approach what Sherman did on his march to the sea."

First, there's a long list of Confederate atrocities before Sherman's "march to the sea".
Second, when historians tried to find evidence for allegations of "atrocity" against Sherman, there wasn't any -- no contemporary news reports, no personal letters, no grave yards full of Sherman's alleged murdered civilians.

What Sherman did do was take food supplies & contraband, and he burned buildings in places that shot at his men.
In short, he did nothing different than any number of Confederate armies in Union regions.
And one thing Sherman never did was grab freed-blacks for sale in Confederate slave markets.

dsc: "You know, even though slavery is a moral evil, black slavery in America is not the worst thing that ever happened on the face of the earth.
Sherman’s murders of women and children were a worse crime than returning some blacks to slavery."

Well, the big difference is that those alleged murders are pure Lost Causer fantasy while Confederate army seizures of freedmen for return to slavery, those are historical facts.

quoting BJK: "So who, exactly, was guilty of 'war crimes'? ”

dsc: "Sherman.
And, after the fact, those who rewrite history."

But rewriting history is the very definition of Lost Cause mythology, it's what you people do, naturally, instinctively, you just can't help yourselves, can you?

The historical fact is Civil War was plenty brutal, but there's no evidence for exaggerated claims against Sherman and there is evidence of Confederates committing their own fair share of atrocities against Union civilians.

[BroJoeK]

rockrr: "There’s only one way out of the union - the same way they got in.
And that is by mutual accord."

jefferdondem: "That’s not what Abraham Lincoln said."

A very young Abe Lincoln did once argue for a seemingly unlimited "right of secession", but even then young Lincoln recognized the reality that secessionists must have the capabilities needed for success.

In office, so far as I know, Old Abraham Lincoln never argued against secession itself, but did resist Confederate military aggressions against the Union.
As the war dragged on, Lincoln's war-goals grew eventually including complete abolition and citizenship for freedmen.

[DoodleDawg]

H. L. Mencken wrote:

Yes when looking for the underlying truth of a matter then who better to get it from than a newspaper satirist?

[BroJoeK]

dsc: "2. Resupplying and reinforcing Sumpter was an act of war that precedes any action by the Confederacy."

But in order to "strain out a gnat" of Lincoln's resupply missions to Sumter & Pickens, we must first "swallow the camel" of Confederate seizures of dozens of Union forts, ships, arsenal, mints, etc., threats against Union officials and firings on Union ships.

Further, how do we ignore the fact that Jefferson Davis had already ordered (note the date) Forts Sumter & Pickens taken by force, if necessary?

"It is scarcely to be doubted that for political reasons the U.S. govt. will avoid making an attack so long as the hope of retaining the border states remains.
There would be to us an advantage in so placing them that an attack by them would be a necessity, but when we are ready to relieve our territory and jurisdiction of the presence of a foreign garrison that advantage is overbalanced by other considerations.

"The case of Pensacola [Fort Pickens] then is reduced [to] the more palpable elements of a military problem and your measures may without disturbing views be directed to the capture of Fort Pickens and the defence of the harbor.
You will soon have I hope a force sufficient to occupy all the points necessary for that end.
As many additional troops as may be required can be promptly furnished."
[Jefferson Davis to Braxton Bragg, 3 Apr 1861]"

[jeffersondem]

“A very young Abe Lincoln did once argue for a seemingly unlimited “right of secession” . . . “

The “very young” rail splitter was age 39 at the time. Under the constitution, he could have been elected president at age 35.

And Thomas Jefferson was 33 years old when he penned the Declaration of Independence.

What is your point?