- The Washington Times - Saturday, February 3, 2007

LINCOLN AND CHIEF JUSTICE TANEY: SLAVERY, SECESSION, AND THE PRESIDENT’S WAR POWERS

By James F. Simon

Simon and Schuster

REVIEWED BY MICHAEL P. RICCARDS

There are probably few men in 19th-century America more divergent than the subjects of this dual biography — Abraham Lincoln and Roger Taney.

Born nearly a generation before Lincoln, Taney came from a well established wealthy Maryland family, and was blessed with important connections and a good education. He was a highly successful lawyer and became attached to the candidacy of Andrew Jackson.

Jackson took him into the administration, and Taney was an able voice against the moneyed interests represented by the Bank of the United States. Jackson despised the bank, especially its president Nicholas Biddle, who masterminded Whig opposition to the aged, irascible president.

Led by Henry Clay and Daniel Webster, the friends of the bank in Congress mobilized to defeat Jackson, but he was re-elected. The bank had been declared constitutional by the revered John Marshall and his court, but Jackson’s new Attorney General Taney provided the legal ammunition to challenge the bank’s very legality. As a sign of gratitude, Jackson twice nominated Taney for the Supreme Court and the second time was successful.

In comparison to Taney’s connections and privileges, Lincoln was of course a self-made man, but eventually he became a highly successful railroad and corporation lawyer at the time of his election to the presidency. He was a speaker of compelling logic and deep dedication to the uniqueness of the Union, and his very sincerity led to his nomination in 1860 on the Republican ticket.

Like Taney, he opposed slavery, and he too did not favor abolitionism. They both advocated the illusion of colonizing the slaves somewhere beyond white America. But while Taney climbed the highest pinnacles of his profession and became chief justice, Lincoln practiced law on the circuit and dabbled, usually unsuccessfully, in politics.

But both came to loggerheads on the nature of curtailing slavery. Under Southern pressure, Democratic party leaders decided to revisit the old compromises meant to curtail the growth of black bondage in the new territories. Led by Illinois senator Stephen Douglas, Congress opened up fully the issue of slavery and its extension in the Kansas and Nebraska territories.

It was upon this issue that the old Whigs like Lincoln would choose to join the new more aggressive Republican party. The opponents of slavery thus could not look to the legislative branch, nor could they look to the pro-slavery Northern Democratic presidents.

As so often happens in American politics intractable issues become legal disputes. A series of lower court cases made their way up to the Supreme Court, and the tenor of their decisions reaffirmed the rights of slave-owners to hold slaves even if they ventured into free territories. Little wonder that Lincoln could make political hay by suggesting there was a conspiracy among President James Buchanan, Taney, and the Democrats in the Senate — led by his long time foe in Illinois, Stephen Douglas — to extend the limits where slavery was protected.

The most important court decision was, of course, the Dred Scott case in which Taney as chief justice asserted that slaves had no rights that white men had to respect. After that case, he was pilloried as a Maryland slave man who was simply biased in his decisions.

The author, James F. Simon, former dean of New York University Law School, is especially clear on the legal principles involved in Dred Scott and in a variety of other issues that came to the Taney Court. Mr. Simon is well versed in explaining Lincoln’s emergence as a wartime president and his controversial decisions as commander in chief.

It may be startling to say but our greatest president suspended the writ of habeas corpus on his own; raised up and paid troops without Congress’ authorization; approved of the suppression of agitator Clement Vallandigham in Ohio; jailed other seditious figures, controlled freedom of speech, and even gave his imprimatur to the arrest of one pro-South Federal judge.

Mail was opened by Union officials, the telegraph was supervised by Union officials, and Lincoln was unapologetic about his actions, claiming that sometimes one had to sever a part of the Constitution in order to preserve the Union and the government. As was said later in another context, the Constitution especially during wartimes is not a suicide pact.

Those who are so troubled — rightfully — by George Bush the younger’s cavalier disregard of civil liberties and constitutional processes have to be honest and admit that Lincoln himself looked the other also at some of the same problems. And those who are disturbed — rightfully — by the wholesale denial of rights at Guantanamo Bay prison can not overlook Franklin D. Roosevelt’s more egregious incarceration of 120,000 Japanese Americans and some German Americans and Italian Americans.

Mr. Simon is especially fair and judicious in examining Taney’s objections to violations of civil liberties and his obvious sympathies to the South and even avowed secessionists. He would have been more honorable if he had resigned his high position at the beginning of the Civil War.

Although the author tries to assure us that Lincoln and Taney had much in common, it is a dubious proposition. In the end, one issued the Emancipation Proclamation and the other the Dred Scott decision — and that set them forever in history as being in worlds apart.

Michael P. Riccards is the author of the two-volume history of the presidency, “The Ferocious Engine of Democracy.”

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