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

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: "My great-grandparents were there, and they told my grandparents, who told my mother, who told me."

Historians have long searched for physical evidence or contemporary reports to support the wildest of claims about Sherman's (or other Union commanders) alleged "atrocities".
So far, no success.

Here is a listing of the US Civil War's "top ten" atrocities, of which two POW camps are #1 & #2 worst.
Sherman's "march to the sea" is down the list at #7, and it does claim significant numbers of civilians died, but also points out that Sherman ordered his men to leave unharmed anyone who didn't resist.
We must first suspect then that those who did die were in fact resisting.
And the salient fact here is that physical or documentary evidence for Sherman's alleged massive atrocities has never been found.

dsc: "The Confederacy did not yet exist at that time.
Therefore, it was not Confederate artillery, Confederate powder, Confederate shot, or a Confederate officer."

The Confederacy officially formed on February 4, 1861.
Prior to that date secessionists operating in concert had seized 19 Federal forts, 5 arsenals, 5 US ships and 1 mint across seven states.
After February 4 but before Fort Sumter, Confederates operating in concert seized another 15 Federal forts, 3 arsenals and two US ships, for a total of 50.
After Fort Sumter but before formally declaring war on the United States, May 6, 1861, Confederates seized 11 more forts, 4 more arsenals, 2 more ships and 2 more mints.

Roughly half of all Federal properties seized by secessionists & Confederates were seized before that particular state declared secession.

None of these will dsc admit are "acts of war", and yet somehow Lincoln's resupply mission to Fort Sumter was?

Go figure.

dsc: "That’s your retort?
Calling me a liar?
All you “got” is “na-na-na-na boo-boo?”
Pathetic."

It does indeed seem that Elizabeth Warren might have a tiny smidgen of Native American blood, so her own family's tall tale is not necessarily 100% false.
And I'd say the same of any exaggerated tales of Sherman's "atrocities" -- no doubt there's some truth in them, but the question is: how much?

To truly say "how much" we have to research physical evidence and documents and, sadly for Lost Causers, there are none which support any of their wildest exaggerations.

dsc: "Historical perspective? Not on your side of the argument."

Your link makes a lengthy case for a "right of secession", beginning by claiming Union states broke the Constitution's compact by enacting "Personal Liberty Laws" restricting returns of fugitive slaves.

Well, the first thing we should notice is that this does make secession, Lost Causers' frequent denials notwithstanding, "all about slavery".

The second is that Personal Liberty Laws were not a secession-worthy issue in 1850, after the Compromise of 1850 became law, because that Compromise shifted responsibility for Fugitive Slave enforcement from states to Federal government.
And the Supreme Court had already declared such laws unconstitutional.
So the Compromise of 1850 put Deep South Fire Eaters out of business for the next 10 years.

Third, those Deep South states which used Personal Liberty Laws as their excuse for secession had the least standing to complain because virtually none of their own slaves could escape through gauntlets of their own slave catchers into Upper South states, then through Border South States and even Border North states like Illinois, Indiana & New Jersey -- all of which had active slave-catcher patrols -- before reaching sanctuary in PLL states like Massachusetts or Michigan.
In fact, those Southern states which could lose the most fugitive slaves from Northern Personal Liberty Laws -- Border South states -- were least interested in using secession to stop it.

So claims that Personal Liberty Laws somehow justified secession in 1860 when they did not in the previous 10 years are simply specious.

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.

Are you referring to Lincoln's 1848 speech on the War In Mexico? There are a couple of problems with using that as representative of his views on secession. First, "seemingly unlimited" is incorrect. I can find no reference to any such notion. Second, context is king. Lincoln was offering an opinion on the politics of a different country, with a different government, and different issues facing its citizens.

Third, and probably more importantly, he conditioned his assertion with the caveat:

"Any people anywhere, being inclined and having the power, have the right to rise up and shake off the existing government and form a new one that suits them better ... Any portion of such people that can, may revolutionize, and make their own of so much of the territory as they inhabit. More than this, a majority of any portion of such people may revolutionize, putting down a minority, intermingled with, or near about them, who may oppose their movement."

Lincoln accepted the inherent right to self-determination, but recognized the realities and legitimacy of competing factional interests. There is plenty of room for criticism of Lincoln the Politician in that speech, but it is logically consistent with his views on secession, namely that he was agin it.

rockrr quoting young AL: "Any people anywhere, being inclined and having the power, have the right to rise up and shake off..."

Agreed, with "having the power" being the only limiting principle I see expressed here.
However, in his First Inaugural Lincoln does make a case against unilateral unapproved declarations of secession at pleasure

"I hold, that in contemplation of universal law, and of the Constitution, the Union of these States is perpetual.
Perpetuity is implied, if not expressed, in the fundamental law of all national governments.
It is safe to assert that no government proper, ever had a provision in its organic law for its own termination.
Continue to execute all the express provisions of our national Constitution, and the Union will endure forever -- it being impossible to destroy it, except by some action not provided for in the instrument itself.

Again, if the United States be not a government proper, but an association of States in the nature of contract merely, can it, as a contract, be peaceably unmade, by less than all the parties who made it?
One party to a contract may violate it -- break it, so to speak; but does it not require all to lawfully rescind it?"

Still, Lincoln did not call secession, by itself, "rebellion" or "insurrection", but instead offered to maintain friendly relations and government services until:

"In your hands, my dissatisfied fellow countrymen, and not in mine, is the momentous issue of civil war.
The government will not assail you.
You can have no conflict without being yourselves the aggressors."

So Lincoln did not go to war over secession, but over rebellion, beginning at Fort Sumter.

“I’d call 39 “very young”.”

Lincoln lived in a time where life expectancy was - maybe 70.

At 39 Lincoln was over half-way through his life; your statement that he was “very young” at 39 is not credible.

Your statement (”A very young Abe Lincoln did once argue for a seemingly unlimited “right of secession . . .”) was simply an obscurant released into the debate space to cover the fact Mr. Lincoln was once an advocate of secession.

Your use of the word “seemingly” reveals you can’t quite bring yourself to accept the clear meaning of Lincoln’s own words.

“There is plenty of room for criticism of Lincoln the Politician in that speech, but it is logically consistent with his views on secession, namely that he was agin it.”

He was for it before he was against it.

Your side doesn’t lose much of the moral high ground you claim by accepting Lincoln’s pro-secession words at face value.

Your side can - and ultimately always do - claim that Lincoln had the moral authority to use the military to violently overthrow the pro-slavery constitution of the United States and to kill economic and political rivals.

“The word “enshirine” imparts a quasi-religious connotation—in this Constitutional case, an enshrinement would be with great patriotic feeling or certainty of its rightness, even righteousness."(sic)

Let's set aside for a moment that the writers and adopters may very well have intended for the words and concepts in the constitution to impart great patriotic feelings and certainty of its rightness.

I ask you: if I write that Article I of the constitution enshrines the concept that all legislative powers given to the federal government are vested in Congress, would the use of the word “enshrines” be inappropriate?

Or, if I write that Amendment I enshrines freedom of speech, and the right of the people peaceably to assemble, would the use of the word “enshrines” be inappropriate?

If I write that Amendment II enshrines the right of the people to keep and bear arms, did I do wrong?

I am no expert on the subject, but I doubt if one could argue successfully for a right to private ownership of heavy ordnance.

What do you think a Letter of Marque is? They were issued to what were essentially privately owned warships to protect them from the charge of 'piracy'.

It was not as uncommon as you might believe for private individuals to own cannon. What the hell else is that but 'heavy ordinance'?

“I am no expert on the subject, but I doubt if one could argue successfully for a right to private ownership of heavy ordnance.”

You don’t have to argue the point. In 2018, a U.S. citizen can just pay the $200 federal tax stamp and own a tank with a live tube. I believe there is an additional $5.00 tax for each live round.

And get this: a person can own a working WWII flame thrower and not pay a tax - and not “register” it with the federal government. Yes, it is probably banned in California but in the states where it is legal you almost never read of a drive-by flame thrower attack.

Please don’t tell anyone else.

jeffersondem: "Lincoln lived in a time where life expectancy was - maybe 70.
At 39 Lincoln was over half-way through his life; your statement that he was “very young” at 39 is not credible."

In 1848 Lincoln had been in Congress less than one year and had 17 years yet to live.
In those remaining 17 years Lincoln learned orders of magnitude more about the political world than he knew as a, ahem, "young man" with less than a year in Congress.

As for whether Lincoln was a "young man" or "very young" I'll put it this way: when I see old photos of myself at that age, I see a very young man.

As for young vs. old Lincoln, you be the judge:

jeffersondem: "Your statement (”A very young Abe Lincoln did once argue for a seemingly unlimited “right of secession . . .”) was simply an obscurant released into the debate space to cover the fact Mr. Lincoln was once an advocate of secession."

Noooo… the real problem is you people lie so much you start to believe your own lies.
I'd say rather, if anything, Lincoln's actions in 1861 were in fact consistent with his words of 1848.
The truth is Lincoln did not start war over secession, but in his First Inaugural offered what we today would call "peaceful coexistence" with Confederates -- basically he said: "if Confederates allow me to keep my oath of office, there will be no war, unless Confederates start it."

So war came not because Lincoln "opposed secession", but because Jefferson Davis started it, at Fort Sumter.

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