Harry Blackmun, our own Roger Taney

by PAUL GREENBERG, The Houston Chronicle, April 9, 1994. This article is part of no violence period.

INDULGE me in a momentary historical fantasy. Suppose that Roger Brooke Taney had not gone down in American history as the principal author of what is now almost universally acknowledged as the worst decision in the history of American jurisprudence, Dred Scott vs. Sandford in 1857.

Suppose the country had been shaped in the image of Chief Justice Taney's decision, which decreed that slaves could be carried anywhere in the union, and that Negroes could not be citizens under the Constitution, for they were ""regarded as being of an inferior order and altogether unfit to associate with the white race ... and so far inferior that they had no rights which the white man was bound to respect. '' These were not persons, according to the high court, but property.

Stay with me, this may take some imagination. Now suppose that, instead of these words exciting contempt and derision, and moral horror, they were thought to represent a bulwark of American rights, a new birth of freedom.

In that case, there might still have been those Americans who did not approve of slavery, and perhaps even demonstrated against it, but suppose they were outnumbered by far? Not by fervent disciples of human slavery, but by the mass of citizens who felt uneasy when the subject came up, and who themselves would never own a slave, but who did not feel they should interfere with another's right to own one. Such a delicate question, they felt, should be left to individual conscience -- not dictated by the state.

And finally, suppose that Roger B. Taney, full of years and honors, were to announce that he would retire at the end of the Supreme Court's current term. What would some forgettable mediocrity of a president have said on that occasion? Would he have identified himself with the decision in Dred Scott? And would the departing chief justice have been hailed as the conscience of the court? Would the grand old man have explained at one point that, while not in favor of slavery personally, he had acted to protect the rights of others?

Too rich a fantasy?

Not if one listens to what is being said on the retirement of Justice Harry Blackmun, author of Roe vs. Wade, the Dred Scott decision of our time. Roe made it clear that the unborn child -- fetus, if that term is more comfortable -- has no rights that the state is bound to respect.

And like Dred Scott, Roe was handed down in the name of an individual right. Roger Taney's decision in Dred Scott was based on the Fifth Amendment's guarantee that no person shall be deprived of life, liberty or property without due process of law. Justice Blackmun based Roe on a vague right of privacy nowhere spelled out in the Constitution but ""broad enough to encompass a woman's decision whether or not to terminate her pregnancy. ''

Of course Roe does not condemn millions to a lifetime of slavery, but rather to no life at all -- or, if one prefers, termination. (Euphemism is the first sign that an advocate feels queasy about what he's really advocating.) At his press conference with Justice Blackmun this week, President Clinton repeated his support for Roe in his own forgettable way: ""I -- you know, of course, that I agree with the decision and I think it's an important one in a very difficult and complex area of our nation's life. ''

It might be noted that James Buchanan, the forgettable president in 1857, was all for the decision in Dred Scott, too, exulting that it would make Kansas ""as much a slave state as Georgia or South Carolina. '' At last the slavery question was resolved and the agitation over it would end -- just as Harry Blackmun's opinion in Roe was supposed to end any dispute about abortion.

Speaking of his decision in Roe, Justice Blackmun once explained: ""People misunderstand. I am not for abortion. I hope my family never has to face such a decision. '' Roger Taney's defenders in the more poisonous groves of academe explain that the chief justice wasn't ruling for slavery, but only interpreting the Constitution. People misunderstood.

By all reports, Mr. Justice Blackmun is a nice man, and a baseball fan to boot. Chief Justice Taney doubtless led an exemplary private life and had his hobbies, too. And both handed down other, better decisions besides the single one that history will indelibly link to their names. Perhaps that is the essence of this fantasy: In a society that has lost its moral bearings, strange and terrible decisions can be made, and can come to seem quite ordinary, even praiseworthy.

Greenberg is a Pulitzer Prize-winning syndicated columnist and editorial page editor of the Little Rock, Ark., Democrat-Gazette.

Suppose that Roger Brooke Taney had not gone down in American history as the principal author of what is now almost universally acknowledged as the worst decision in the history of American jurisprudence, Dred Scott vs. Sandford in 1857.

I found some stuff also.

"The New York Times described Taney's decision the next day as one that "can only be regarded as at once officious and improper."

-- from a website

"The majority of Congress approved of the President's course of action, partly due to the fact that the Southerners had either left Congress or been expelled. They were divided over the constitutional justification of his actions, but attached a validating clause to an act that called for an increase in privates' pay.

The President's acts were pronounced "in all respects legalized and made valid, to the same intent and with the same effect as if they had been issued and done under the previous express authority and direction of the Congress." The Supreme Court also, for the most part, approved the constitutionality of Lincoln's assumption of broad war powers. They justified this by saying that since the war was begun by insurrection, Lincoln was "bound to accept the challenge without waiting for any special legislative authority." Both the legislative and judicial branches of government came to a consensus of approval for the extra powers assumed by the executive branch. Lincoln left an enduring legacy for future generations of Americans. He gave slavery the death blow, and enacted federal intervention in banking and currency, transportation, the tariff, land grants to homesteaders and aid to higher education. He effected an enormous expansion of the economy during the birth of the Industrial Revolution in the United States. The presidential office has been completely shaped by its incumbents, and Lincoln has been an important one of these. Although his actions did lack precedent, it does not necessarily make them wrong.

Ironically, the greatest presidents did the most beneficial things for our nation without authorization from the Constitution. A perfect example of this is Jefferson and the Louisiana Purchase. Departures from the Constitution do not create constitutional precedents for future departures, so it must not be said that Lincoln's broad use of war powers made them constitutional, but it did demonstrate that extraordinary measures are sometimes needed to deal with extraordinary situations."

--From a website

"Not every historian today would credit it with saving Maryland for the Union, but that conclusion became almost a truism in Lincoln's day. Nathaniel Banks, who commanded the Department of Annapolis in 1861, was a poor general but an astute politician, and he thought the system worked. Indeed, Maryland provided Banks with a model for reconstruction in Louisiana later:

The secession leaders—the enemies of the people—were replaced and loyal men assigned to... their duties. This made Maryland a loyal State.... What happened there will occur in North Carolina, In South Carolina, in Georgia, in Alabama and Mississippi. If... those States shall be controlled by men that are loyal... we shall then have loyal populations and loyal governments.

The success of the Maryland policy became a political byword and was celebrated, beyond the borders of Maryland, throughout the war, Thus in 1863, a Loyal Publication Society pamphlet on the War Power of the President explained the necessity of military arrests rather than reliance on the courts by pointing to that familiar example:

When the traitors of the loyal state of Maryland were concocting their grand scheme to hurl the organized power of that state against the government, probably not a handful of them was known to be guilty of any act for which he could ever have been arrested by civil process. And whatever their offenses against the laws might have been, and whatever the fidelity of the courts in that lurisdictlon, the process of civil law would have been far too slow to prevent the consummation of the gigantic treason which would have added another state to the rebellion.... Courts could not have suppressed this unholy work, but the summary imprisonment of those few men saved the state of Maryland to the Union cause.

Republicans would later enjoy substantial bipartisan agreement on the necessity of the early arrests in Maryland.
-- "The Fate of Liberty; Abraham Lincoln and Civil Liberties", p. 31 by Mark Neely

From a review of Dr. Neely's later book:

At its heart, Southern Rights is about what Neely perceives as an overweening Confederate streak of hypocrisy; the very title of his book is a statement of irony. Neely is impatient with what he characterizes as the "strident" and "noisy" posturing of Confederates on matters of civil liberties and individual rights. He is also deeply distressed by a tendency among Confederate historians to take Southerners' declarations of libertarianism at face value. "Antebellum politicians exaggerated sensitivity about southern rights as a means of combating northern power," Neely wrote, "but historians should not exaggerate as well" (p. 79). There is merit in this argument, and in the book as a whole. Professor Neely should be commended for pursuing this subject matter in the first place. Many scholars of Confederate history, and certainly the lay public, would much prefer to discuss battlefields and generals. Even the admirable recent trend in the field towards studies of social and cultural topics tends to neglect matters of law and constitutionalism. There is also a real paucity of primary source materials available, and these are of a generally fragmentary nature.

Arrest records for Confederate political prisoners, for example, are scattered throughout various archive collections, often with no index or other finding aids. Confederate legal and constitutional history is a neglected topic for a very good reason, and Neely should be commended for exhibiting the patience and resourcefulness necessary to pursue this evidence.

In doing so, Neely shed light on some very dark and musty corners of Confederate history. He wrote a brilliant little chapter on the relationship between the prohibition of alcohol and martial law in the Confederacy. He introduced the reader to the almost completely unknown office of "habeas corpus commissioners," quasi-legal government officials who acted as "the War Department's shadow courts" (p. 80).

Neely also examined the careers of some obscure but fascinating individuals like Thomas C. Hindman, the irascible military governor of Arkansas who unabashedly proclaimed the need to take harsh measures against Southern dissenters, and North Carolina judge Richmond M. Pearson, who employed some very interesting legal arguments to block conscription in his state. It is also to Neely's credit that he does not shirk from pointing out what should have been obvious to any historian of the Confederacy, but which has been strangely overlooked: that the issue of civil liberties in the Confederacy should be seen as one involving black as well as white Americans. Neely points out that the vaunted Confederate concern for individual rights was a concern for white rights only. African- Americans didn't much enter the Confederate field of vision on this point. It is high time that Confederate history reconceptualize itself as a field involving black and white subjects alike, and Neely's work should help. These are all valuable contributions to the literature on the Confederacy. Nevertheless, Southern Rights does possess shortcomings. I suspect they are shortcomings produced by the book's close proximity to the methods and questions prevalent in The Fate of Liberty. Neely applied almost exactly the same questions to the Confederacy that he asked of Lincoln and the North, questions about martial law, suspension of the writ of habeas corpus, enforcement of conscription statutes, and arrest of civilian political prisoners. In doing so, however, he failed to examine some aspects of the Confederate experience that actually were quite different -- not better -- from those in the North. The widespread Confederate military practice of property impressment, for example, was a burning issue of personal rights vs. government power, yet Neely didn't address this subject. Neely also rarely mentions sequestration -- the confiscation of Yankee-owned property in the South -- a practice that took up the lion's share of the Confederate federal court system's time and resources throughout the war.

These issues were important because much of what constituted a Confederate conversation concerning personal rights and government interference involved matters like sequestration and impressment, matters which have no direct counterpart in the legal history of the North. This might also have caused Neely to moderate his conclusion that the South had no real conversation about civil liberties. In fact, impressment cases raised serious concerns about individual rights in the South. And the Confederacy may well have had its version of Ex parte Merryman in a sequestration case called James Louis Petigru vs. The Confederate States of America, in which a South Carolina Unionist challenged the Confederate national government's right to conduct sequestration investigations which impinged upon Confederates' personal rights.

Both impressment and sequestration involved property rights, and it is plausible to suggest that this question of property constituted a conversation about civil liberties which, while differing from the North's debate over habeas corpus and martial law, was in its way quite robust.

I also wondered if Professor Neely was quite fair in his analysis of Jefferson Davis. He is annoyed with invidious comparisons between Lincoln and Davis where civil liberties are concerned, taking special umbrage with the suggestion by many historians that Davis was more reluctant to suspend the writ and declare martial law because of "habitual and consistent constitutional principles" that Lincoln lacked. On the contrary, Neely argued, Davis was willing to repress political dissent when he thought circumstances warranted such action. "Lincoln was no 'dictator,'" Neely wrote, "and Jefferson Davis was no 'constitutionalist'" (p. 172). Perhaps unwittingly, Neely is actually rehabilitating Davis's reputation here, for the Confederate president has often been criticized for being so stiff and formal in his constitutional scruples that he lacked the necessary flexibility to meet Confederate war needs. Neely suggests that the opposite is true. But I think Neely presses this point a bit too far. He cuts Lincoln a great deal of slack, suggesting that, when Lincoln quickly moved to suspend the writ of habeas corpus in Kentucky and Maryland in 1861, he "recognized the realities of power." On the other hand, he suggests that Davis rather cynically "opted for a pose of dedication to civil liberty as a way of attracting these states to his side" (p. 154). Perhaps this made sense as good political strategy for Davis; but why should we assume it was a "pose"? Perhaps Davis pursued a policy here that was, at least to his mind, both pragmatic and principled. Maybe he really believed himself to be both a defender of constitutional liberty and a flexible political leader. Lincoln scholars -- Neely among them -- have long suggested (and rightly so) that it is wrong to draw too cynical a distinction between principle and practical politics where Lincoln is concerned. Should it be less so for Davis?

Neely is impatient with the hypocrisy, in Confederates themselves and in much of Confederate history, which suggests an unusual anxiety for civil liberties in a Confederate nation which he believes was in fact all too comfortable with wartime violations of those liberties. On the whole this is laudable; it encourages scholars of Confederate history to press beyond the well-worn shibboleths of Lost Cause mythology. If such an approach can also strike a blow at the abominable history perpetrated (often all too successfully) by modern neo-Confederates, so much the better. Yet I wonder if those of us who write Civil War history might be better served by a more balanced, charitable point of view, suggesting that each side was afflicted not with hypocrisy, but with unresolved internal contradictions and tensions on a whole host of issues, including the proper balance between liberty and order. To this end, Professor Neely's Southern Rights is a useful beginning, a starting point for a conversation we should be having about the intellectual underpinnings of the Confederacy, and the Union as well."

Lincoln's actions were widely approved at the time. It is much like the modern relativism that changed Chrstopher Columbus from "Admiral of the Ocean Deep" to a syphilitic oppressor of minorities. But Mr. Lincoln's reputation can stand the assault.

Walt