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Zoyd Luce on The Supreme Court and President Lincoln
by Gary Yee

During the drafting of the Constitution, the concept of a Supreme Court met opposition from the
Southern states.  States rights advocates were livid during the constitutional convention. The idea of a
supreme court was accepted by the North by not by the South.  To the latter it was very frightening
to have a branch of government that could rule on the actions of the states on constitutional grounds.   
When the south seceded, its new constitution was very similar to the original but it did not have a
supreme court.  Alexander de Toqueville traveled throughout the states during the early Federal
period.   When asked what made America different from any other state (government), he
responded, “Supreme Court.”  Marbury v. Madison established the doctrine of judicial review.
Three monumental cases influenced this nation.  First was Dred Scott v. Sanford, the second was
Plessy v. Ferugson and the last was Brown v. Topeka, Kansas Board of Education.  Why? Article 3,
§1 of the Constitution states that the judicial power of the Supreme Court is vested in one supreme
court.  The decisions of the court are largely influenced by the life of the chief justice.

Roger Brooke Taney was the fifth Chief Justice and was almost personally responsible for starting
the Civil War.  He presided in the Dred Scott decision which led to Plessy v. Ferugson and ultimately
to Brown v. Topeka, Kansas Board of Education.  Taney was admitted to the Bar in 1793.  In 1816
he was elected to the Maryland State Senate for five years.  As a Jacksonian Democrat, he defended
states’ rights and became the attorney general for Maryland.  Awkwardly opposed to slavery, he
manumitted his own slaves.  He was a supporter of Jackson, who hated the Bank of the United
States, resented aristocrats and believed in the yeoman farmer.  Jackson believed that all powers in
the Constitution are derived from the states and that there was a Constitutional right to secede.  
However, he also believed that a civil war would be ruinous to both sides.   Because Taney
supported Jackson, Jackson appointed him as Chief Justice of the Supreme Court.

When Taney was a young man, he was a perfect southern gentleman who never spoke ill of anyone.  
But he was also an ideologist who believed in states’ rights at all costs.  In 1857, Taney’s belief came
out in the Dred Scott case.  Dred Scott was a slave with a wife and two children.  According to the
Missouri Compromise, if you took a person from a slave state to a free state, he was free.  Scott was
taken to Illinois, a free state (where in theory he was freed), and then returned to Missouri.  
Sophisticated abolitionists induced Scott to file a suit for his freedom from his master.  The suit to
establish his freedom was on the grounds of his residence in Illinois.  After all, Illinois made him and
his family free.  At trial, the Missouri State Court said he was slave then and now.  Scott appealed to
the Supreme Court.  The Supreme Court under Chief Justice Taney made a pressing, legal decision
that affected the entire nation.

Taney wanted to make a decision to solve the problem forever.   He decided that the Missouri
Compromise was illegal under the Constitution of the United States.  It boiled down to property
rights.  Remember, that governments are formed  to protect property.  The issue to Taney was: Can
a negro who was imported to this country become entitled to the rights and privilege of a citizen?      
Taney decided that the Founders never had it in their minds to give them those rights.  They’re just
chattel (property) and therefore not entitled to any rights.  The abolitionists went crazy.  Essentially
what Taney said was that negroes were not human beings.  According to Taney, negroes were not
intended to be individuals included as citizens under the Constitution.  They were considered a
subordinate being with no rights.  Later in the Twentieth century, Nazi Germany dehumanized the
Jews just like the Dred Scott decision did the African-Americans.   Since blacks were not human
beings but property, they had no rights.  Taney gave the South carte blanc to have slaves and another
state should not bar slavery since it affects the movement of property.  

Why did Taney do this?  He was a narrow minded, bigoted individual.  Taney became that way
during Jackson’s days and never changed.  Two justices dissented because it destroyed the Missouri
Compromise and this threatened the fragile peace between the North and South.  When Lincoln
heard of the decision, he hated it.  Not surprisingly, the South loved it.  

How did Taney affect the war?   Lincoln decided he could suspend the writ of habeus corpus as an
inherent power of the commander-in-chief during the war.  People acting out against the US
Government could and should be arrested.  The Constitution allows it and Article 1 says only
Congress may suspend the writ of habeus corpus.  Lincoln acted under the opposite principle.  In
Baltimore, the mob fired on federal soldiers.  Southern sympathizers also burned the bridges to deny
federal soldiers access to Washington, DC.  Lincoln instructed Winfield Scott to arrest the
dissenters.  Marylander John Merryman was suspected of burning the bridges and was arrested and
imprisoned at Fort McHenry.  

Back in those days, the Supreme Court traveled in circuits and Taney was in Maryland at the time.  
He issued a writ to Gen. John Cadwallader to appear in court the next day with Merryman and his
attorney.  Cadwallader sent a lt. col. who explained that Cadwallader was waiting for instructions
from Lincoln. Taney was besides himself and now gave Cadwallader an ultimatum to appear on the
morrow.  The next day, when Taney was going to the court, people lined the road and removed their
hats in a silent salute as he went by.  They respected his upholding of the Constitution and the writ of
habeus corpus.  Cadwallader didn’t show and Taney wanted him arrested, but had no power to.  

On April 19, 1861, Lincoln ordered a blockade and chartered numerous civilian ships into the navy.  
Among them was the 1,600 tons Quaker City with a 109 man crew. 95% of Southern cotton was
exported with 75% going to Europe and 20% to the North.  Confederate President Jefferson Davis
issue letters of marque for privateers.  Lincoln wanted to stop all ships and the Quaker City stopped
a ship by shooting across its bow.  It was loaded with cotton.  The boarding officers learned that it
was rented by the Confederate government to deliver coffee.  The ship was taken to Baltimore.  
Does the US Govt. have the right to keep it even if the ship is private property and the crew earn
prize money?  Yes, but Taney wrote a scathing decision.  It’s private property.  The Quaker City
captured another ship and this time sends her prize to New York City.  What happened to coffee?  It
can be sold, so the feds sell it. The crew gets to share $143,000.  The issue was not referred to the
court system until 1 ½ years later.  

Lincoln started to ignore the Supreme Court rulings.  He also wanted the rulings not to be published
because it was propaganda for the south.  Now, the issue of First Amendment right of free speech
and the freedom of the press arises.  In Ohio, former congressman and candidate for the governor’s
office Clement Vallandigham condemned every policy of the Lincoln Administration and called him a
failed commander-in-chief.  He criticized the Emancipation Proclamation, the repeated battlefield
defeats, and the breaking taxation.  General Ambrose Burnside warned Vallandigham to restrain
himself.  Instead Vallandigham attended a meeting where he addressed 25,000 people.  Burnside
interpreted that 25,000 being told not to support the government was treason and arrested him and
threw him in prison.  The press complained loudly.  Lincoln was very clever and pardoned
Vallandigham before exiling him to the Confederacy, which didn’t want him either.  That was one
place Vallandigham didn’t want to go and he finally found a ship that took him to Canada where he
announced that he was running for Ohio governor.

Suddenly, on October 13, 1864, Taney died.  How did this affect Lincoln?  Lincoln, who had been
at war with the court, had an obstacle removed.  How inept was the court?  Taney’s legacy gave us
Plessy v. Ferguson which allowed for separate but equal. How does history judge him?  Bush had
the war on terrorism.  Johnson had the Tonkin Gulf Resolution.   When we get into the legal issues,
there is nothing moral or ethical or reasonable about the law.  Taney was a real threat to the Lincoln
Administration and after Taney passed, Lincoln was asked what he was going to do.  Lincoln said he
was going to attend his funeral.  His cabinet was surprised.  Lincoln explained that while he did not
like the man, he respected the office.