I am truly amused by the crusade of those “progressive” elements in Frederick, Maryland to persuade the Board of Alderman of that fair city to remove a bust of former Chief Justice Roger Brooke Taney from its display in front of the city hall. This seems to me but the latest attempt by liberals to “cleanse” American history of any controversial symbol or figure. Taney takes his place as an historical persona non grata for his part in the infamous Dred Scott decision in 1857 which extended slavery, at least legally, into the territories and theoretically into the Northern free states as well. Practically, however, the ensuing Civil War nullified Dred Scott and extinguished the deplorable institution of chattel slavery.
Ironically, Taney’s home state of Maryland abolished slavery on the very same day that Chief Justice Taney died, October 12, 1864, some six months before the conclusion of that terrible War between the States. Even more irony is found in Taney’s personal career. Personally holding slavery to be a great moral evil he had freed all of his own slaves well before becoming the Supreme Court’s Chief Justice in 1836. Taney was himself a populist who, as Andrew Jackson’s Attorney General, had helped destroy the power of the National Bank. He was also the first Catholic ever appointed to the high court and the brother-in-law of none other than Francis Scott Key who penned our National Anthem. He later fought Abraham Lincoln’s illegal suspension of Habeas Corpus after the war had broken out, but Taney is remembered for none of these milestones but only as the detested author of Dred Scott. That is why hyperbolic civil rights activists have characterized the mere presence of Taney’s bust in front of city hall as “hate speech.”
In fact there is much good reason for the progressive left to embrace and honor the figure of Roger Taney rather than dissing the man. Why? Because Chief Justice Taney’s real contribution to modern jurisprudence falls on the “progressive” side of the ledger. I refer to Taney’s novel legal doctrine of “substantive due process” which he devised to rationalize the Dred Scott decision. That very same doctrine was later used to realize the progressive’s dream of unlimited abortion rights, gay rights, and a complete redefinition of marriage. In any case, modern Supreme Courts have made Taney’s “substantive due process” the bedrock of opinions ranging from Griswold v. Connecticut to Roe v. Wade the Scotus decision and Obergefell v. Hodges which legalized so-called gay marriage. By all rights Roger Taney ought to be held up by the progressive liberal wing of society as the visionary founder of expansive civil rights for, in truth, they could not have come so far without him.
Of course there remains that embarrassing twist of fate whereby Taney “discovered” the principle of “substantive due process” buried somewhere deep in the Constitution, not in order to extend civil rights but, quite the opposite, to restrict them! Such was clearly the original intent. But the principle once laid down, like Pandora’s Box, was free one day to unleash its mischief in any number of ways unforeseen by the wily and now dis-credited chief justice. What Roger Taney dis was to invent a unique way for judges to legislate from the bench while hiding that fact under the foil of “due process.”
Taney’s scheme has proved to be wildly successful over these past 50 years. And one would expect the author of such original thinking to be hailed in the same pantheon as political / legal luminaries Thomas Jefferson and James Madison (who incidentally also owned slaves at one time). Liberals, it seems, would rather throw their notable enabler under the bus, however. It does seem a bit unfair, after all, to be ignominiously removed from one’s pedestal in front of city hall in the town where one practiced law for over 20 years. It only shows how little respect modern-day liberals really have for one of the great legal minds which have shaped their brave new worldviews. And while we’re at it, why not expunge from any historical honor roll any former owners of slaves, a list including Washington, Madison, and Jefferson, and thereby complete a cleansing sweep of all history to suit current day tastes?
Liberalism has been called the philosophy of symbolism over substance and rightly so. Taney’s problem is that he is held up as a reprehensible symbol of oppression, a view with which I would hardly disagree. But Roger Taney is also an important historical figure who inadvertently championed the cause of radical liberalism a century after his death. For that reason alone it would appear that modern liberals are guilty of gross ingratitude when undertaking their misguided attempt to “cleanse” the historical record of a great liberal archetype. Posterity demands that he be given a full measure of credit for his invaluable services to modern progressive jurisprudence. But for this great legal mind Jeff would not be able to wed his partner Bob and Kim Davis would still be an obscure county clerk faithfully performing her duties in Rowan County, Kentucky instead of sitting in jail. And Planned Parenthood (Banned Parenthood?) would have no market for offloading their backlog of human body parts. Imagine a world such as that before spouting off about that “horrible Taney man,”
Progress is a lovely thing, even as it takes its own unpredictable twists and turns. That is why Roger Taney deserves to be honored by liberals everywhere, not relegated to some dusty basement, alone and forgotten. Instead he is vilified as some evil monster even in his native place. What a grave injustice! If I were the ghost of Chief Justice Roger Taney I might offer a word of advice to all those liberal progressives perched so smugly on their soap boxes. “Stop Judging me! (After all, nobody likes a judgmental liberal.) And remember, future generations are likely to judge you as harshly as you judge me today.”
Francis J. Pierson