TANEY, ROGER BROOKE (1777–1864)

Roger B. Taney, chief justice of the United States from 1836 until his death in 1864, profoundly shaped American constitutional development in cases dealing with states' regulatory powers, corporations, slavery, and the jurisdiction of federal courts. His reputation long suffered from invidious and inappropriate comparisons with his predecessor Chief Justice john marshall and because of his disastrous opinion in dred scott v. sandford (1857). But his influence has been enduring and, on balance, beneficial.

Taney was born in 1777 in Calvert County, Maryland. His father, a well-to-do planter, destined him for a career in law. After graduation from Dickinson College (Pennsylvania), he was admitted to the bar in 1799 and began a thirty-six-year career of politics and law practice in Maryland. He served intermittently in both houses of the state legislature until 1821, at first as a Federalist. But finding that affiliation intolerable because of the conduct of New England Federalists during the War of 1812, he assumed leadership of a local faction known as Coodies and then after 1825 supported andrew jackson. Practicing first in Frederick, where he maintained his lifelong residence, and then in Baltimore, he became a preeminent member of the Maryland bar, state attorney general from 1827 to 1831, and then attorney general of the United States, a position he held until 1833, when he served for a year as secretary of the treasury.

Taney urged President Jackson to veto the bill to re-charter the Bank of the United States and contributed that part of jackson ' sveto of the bank bill in which the President denied that the Supreme Court's opinion on constitutional matters bound the President. As treasury secretary, Taney ordered removal of the federal deposits from the Bank and their distribution to certain "pet banks." In these bank matters, Taney was not the mere pliant tool of Jackson; rather, he acted in accord with his own deep suspicions of centralized and monopolistic economic power.

As attorney general, Taney also had occasion to explore issues involving slavery and free blacks. Upholding South Carolina's Negro Seamen's Act, which prohibited black seamen from disembarking from their vessels while in Carolina waters, Taney insisted that the state's sovereign right to control slaves and free blacks overrode any inconsistent exercise of federal treaty and commerce powers. Presaging his Dred Scott opinion, he maintained that blacks were "a separate and degraded people," incapable of being citizens. He also expressed doubt that a Supreme Court decision holding the statute unconstitutional would bind the states.

As Chief Justice of the United States after 1836, Taney left an enduring imprint on the American Constitution. Most of the landmark cases coming before the Court in the first decade of his tenure involved questions of the power of the states to regulate the economic behavior of persons or corporations within their jurisdictions. In charles river bridge v. warren bridge (1837) Taney employed a paradigmatic balance between investors' demands for autonomy and the states' insistence on public control of that new legal creature, the private corporation. Refusing to read into a bridge company's charter an implicit grant of a transportation monopoly, Taney held that "in charters, … no rights are taken from the public, or given to the corporation, beyond those which the words of the charter, by their natural and proper construction, purport to convey." (See reserved police powers.)

Subsequent decisions of the Taney Court confirmed the Charles River Bridgedoctrine : where the state had explicitly conveyed monopoly rights or otherwise conferred valuable privileges, a majority of the Court honored the grant and held the state to it under contract clause doctrines deriving from fletcher v. peck (1810). On the other hand, the Court refused to infer monopoly grants or other restrictions on state regulatory power if they were not explicitly conferred in a corporate charter. Thus in bank of augusta v. earle (1839) Taney held that states could regulate the activities of foreign corporations within their jurisdictions, or exclude them altogether, but that such regulations would have to be explicit. Absent express declarations of state policy, the taney court refused to hold that banking corporations could not enter into contracts outside the state that chartered them.

Yet Taney entertained an instinctive sympathy for states' efforts to control economic activity within their jurisdictions. In another case from his maiden term, briscoe v. bank of kentucky (1837), Taney supported the majority's holding that a state was not precluded from creating a bank wholly owned by it and exercising note-issuing powers, so long as the state did not pledge its credit to back the notes. Such notes would have been a subterfuge form of the state bills of credit that had been struck down in craig v. missouri (1830). In bronson v. kinzie (1843), however, Taney invalidated state statutes that restricted foreclosure sales and granted mortgagors rights to redeem foreclosed property. Even here, however, he emphasized that states could modify contractual remedies so long as they did not tamper with the substance of existing contracts.

Taney's opinions dealing with the jurisdiction of federal courts proved to be among his most significant. Some of these restricted the autonomy of the states in the interests of protecting the national market. Thus in swift v. tyson (1842) the Court unanimously supported an opinion by Justice joseph story holding that in commercial law matters, federal courts need not look to the forum state's common law for rules of decision, but instead might formulate commercial law doctrines out of "the general principles and doctrines of commercial jurisprudence," a principle that survived until Swift was overruled in erie railroad v. tompkins (1938). (See federal common law.) In propeller genesee chief v. fitzhugh (1851), Taney discarded the English tidewater rule of admiralty jurisdiction that Story had imported into American law, and held instead that the inland jurisdiction of federal courts in admiralty matters extended to all navigable waters, tidal or not, thus expanding the reach of federal admiralty jurisdiction to the Great Lakes and the interior rivers. But in luther v. borden (1849), he reasserted the political question doctrine, holding that a challenge to the legitimacy of Rhode Island's government after the Dorr Rebellion of 1842 was to be resolved only by the legislative and executive branches of the national government, not the judicial.

It might be expected that Taney would have been warmly sympathetic to the emerging doctrine of the police power, first fully articulated by Massachusetts Chief Justice lemuel shaw in Commonwealth v. Alger (1851). But Taney held unspoken reservations about the police power doctrine, fearing that if the states' regulatory powers were defined too explicitly or couched under a rubric, they might somehow be restricted by the federal Constitution. He thus preferred to avoid an explicit definition of the police power, and instead emphasized the states' inherent powers of sovereignty over persons and things within their jurisdiction, believing that if the issue were framed in terms of sovereignty rather than regulatory power, the states' autonomy from external interference might be more secure.

This issue of state regulatory power remained sensitive throughout Taney's tenure and was prominent in cases arising out of the attempt of Democratic majorities in the Ohio legislature to levy taxes on banks that had been exempted from certain forms of taxation by their charters. In Ohio Life Insurance & Trust Co. v. Debolt (1854) Taney held, in accordance with the Charles River Bridge paradigm, that the Court would not read into bank charters an implicit exemption from taxes. But in dodge v. woolsey (1856), Taney joined a majority in defending an explicit charter exemption against a state constitutional amendment empowering the state to tax exempted banks. Taney was not hostile to banks and corporations as such; he had an alert appreciation of the role that they would play in developing the national market.

Another issue—indeed, the critical one—that kept Taney and his colleagues sensitized to issues of state regulatory power was the protean matter of slavery and black people. This issue, deep in the background, skewed all but one of the Taney Court's commerce clause decisions. In his first term, the Court skirted slavery complications in a case, mayor of new york v. miln (1837), challenging the right of a state to impose some measure of control over the ingress of foreign passengers, by holding that the challenged authority was not a regulation of commerce but rather an exercise of the police power. But this evasion would not dispose of subsequent cases challenging the power of the state to control the importation of liquor or the immigration of persons. In the license cases (1847), the Court rendered six opinions, including one by Taney who was with the majority for the result, sustaining the efforts of three New England states to prohibit the importation and sale of liquor. But in the passenger cases (1849), raising issues similar to Miln, the court produced eight opinions, this time with Taney in the minority, striking down state laws regulating or taxing the influx of aliens. Taney was consistent throughout, insisting that no federal constitutional restraints existed on the power of the states to control persons or objects coming into their borders. His brush with the controversy over the Negro Seamen's Act as United States attorney general had left him hostile to any constitutional restraints that might inhibit the power of the slave states to control the ingress of free blacks, slaves, abolitionists, or antislavery propaganda.

The Taney Court did manage to filter slavery complications out of one major commerce clause case, thereby producing another paradigm of state regulatory power. In cooley v. board of wardens of philadelphia (1851) the Court, with Taney in the majority, held that the commerce clause did not restrain the states from regulating matters essentially local in nature (such as, in this case, pilotage fees or harbor regulations) even if they had some impact on interstate or foreign commerce.

Curiously, the Court was more successful, in the short run, in disposing of cases where the question of slavery was overt rather than implicit. Taney, deeply dedicated to the welfare of his state and region, and anxious above all to protect the slave states from external meddling that would threaten their control of the black population, free or slave, or that would promote widespread emancipation, adopted passionate and extremist postures in slavery cases. In groves v. slaughter (1841), which involved the validity of a contract for sale of a slave under a state constitution that prohibited the commercial importation of slaves, Taney was provoked to a sharp reiteration of his attorney general's opinion, insisting that the power of a state to control blacks within its borders was exclusive of all federal power, including that under the commerce clause.

In prigg v. pennsylvania (1842) Taney was again prodded into another concurrence. Though he agreed with most of Justice Joseph Story's opinion for the majority holding unconstitutional a Pennsylvania personal liberty law, he firmly disavowed Story's dic-1860tum that states need not participate in the recapture and rendition of fugitive slaves. Taney rejected Story's assertion that states could not enact legislation supplemental to the federal Fugitive Slave Act, and maintained that states must do so; his colleagues peter v. daniel and smith thompson merely asserted that a state could adopt such laws.

In strader v. graham (1851) Taney spoke for the Court in a case raising American variants of issues earlier canvassed in somerset ' scase (1772), a doctrinally seminal English decision that had passed into the mainstream of American constitutional thought. Appellant sought to have the Court overturn a Kentucky Court of Appeals decision that slaves permitted by their master to sojourn in a free state who then returned to their slave domicile did not become liberated because of their free-state sojourn. Taney held that the state court determination of the slaves' status was conclusive on federal courts (a point consistent with his emphasis on state control of blacks and a doctrinal opportunity for evading the issues of Dred Scott later). But Taney uttered obiter dicta disturbing to the free states. He suggested that the power of states over persons in their jurisdictions was unfettered "except in so far as the powers of the states in this respect are restrained … by the Constitution of the United States," thus hinting that there might be some federal constitutional impediment to the abolition statutes of the free states. He further insisted, needlessly, that the antislavery provisions of the north-west ordinance were defunct, no longer an effective prohibition of the introduction of slavery in the states that had been carved out of the Northwest Territory.

Dred Scott (1857) was Taney's definitive utterance on the slavery question. His opinion, though one of nine, was taken by contemporaries to be for the Court, and Taney himself so considered it. Taney first excluded blacks descended from slaves from the status of "Citizens" as that term was used both in the Article III diversity clause and the Article iv privileges and immunities clause. In order to support this conclusion, Taney asserted, incorrectly, that blacks in 1787 had been "considered as a subordinate and inferior class of beings, who … had no rights which the white man was bound to respect." Taney further insisted that the meaning of the Constitution does not change over time, so that the connotations of its words in 1787 remained rigid and static, unalterable except by formal amendment.

In the second half of his long opinion, Taney held that the federal government lacked power to exclude slavery from the territories, thus holding the missouri compromise unconstitutional (even though it had already been declared void by the kansas-nebraska act of 1854). He grounded this lack of federal power not in the territories clause of Article IV, but in its textual sibling, the new states clause, insisting that Congress could not impose conditions on the admission of new states that would put them in a position inferior to those already admitted. Taney also suggested in passing that the due process clause of the Fifth Amendment prohibited Congress from interfering with the property rights of slaveholders. But the significance of this utterance as a source of the later doctrine of substantive due process has been overrated. Taney was not a devotee of higher law doctrines, such as those enunciated by Justice samuel chase in calder v. bull (1798), by Justice Story in cases like terrett v. taylor (1815) and Wilkinson v. Leland (1829), and by numerous state court judges, most recently in the landmark case of wynehamer v. new york (1856).

In his Dred Scott opinion Taney also adopted three points of proslavery constitutional thought previously voiced in Southern legislatures and doctrinal writings: the federal government had no power over slavery except to protect the rights of slaveholders; the federal government was the "trustee" of the states for the territories, and as such must protect the interests of all of them there; and the territorial legislature could not exclude slavery during the territorial period. His performance in the Dred Scott case was widely condemned. Justice benjamin r. curtis effectively controverted it in his scholarly dissent in Dred Scott; northern legislators, political leaders, attorneys, and polemicists poured forth innumerable rebuttals; and the Vermont legislature and the Maine Supreme Judicial Court flatly rejected its doctrines. abraham lincoln insisted that Dred Scott 's doctrine must be overruled.

Taney remained unmoved by such criticism, insisting in private correspondence that his position would be validated in time. Though aged and in intermittent ill health, he continued his judicial labors unabated. In ableman v. booth (1859), a magisterial treatise on the role of the federal judiciary in the American federal system, Taney held that state courts could not interfere with the judgment of a federal court through use of the writ of habeas corpus. He adumbrated the doctrine of dual sovereignty: the federal and state governments "are yet separate and distinct sovereignties, acting separately and independently of each other." (See dual federalism.) But he insisted on the unfettered independence of federal courts in their execution of federal laws. In dictum, he asserted that the Fugitive Slave Act of 1850 was constitutional.

Taney produced significant published and unpublished opinions during the civil war. In private communications, he supported secession and condemned Lincoln's resort to force to save the Union. In keeping with such views, he drafted opinions, probably to be incorporated into conventional judicial opinions when the opportunity arose, condemning the emancipation proclamation, conscription, and the Legal Tender Acts. He also extended the first half of his Dred Scott opinion to exclude all blacks, not just those descended from slaves, from citizenship; and he reasserted the obligation of the free states to return fugitive slaves. In an official opinion on circuit he condemned Lincoln's suspension of the writ of habeas corpus in ex parte merryman (1861), an opinion Lincoln refused to honor. He also joined the dissenters in the prize cases (1863), who insisted that because only Congress can declare war, Lincoln's military response to secession and southern military actions was "private" and of no legal effect. His death in 1864 relieved him from the painful necessity of seeing his vision of the constitutional and social order destroyed by the victory of Union arms.

Taney's lasting contributions consisted of his reinforcement of the political question doctrine, his strong defense of the states' regulatory powers, and his vigorous aggrandizement of the jurisdiction of the federal courts. More than his colleagues, he keenly appreciated the role of technological change in American law, a sensitivity apparent in Charles River Bridge and Genesee Chief. His defense of regional autonomy and his hostility to the power of concentrated capital retain a perennial relevance. His instinct for dynamic balance in the formulation of enduring rules of law, as in the Charles River Bridge paradigm, evinced judicial statesmanship of the first rank.

Constitutional problems related to slavery combined with Taney's personal failings to blight his reputation and eclipse his real achievements. Dred Scott remains a monument to judicial hubris, and all the slavery cases that came before the Taney Court bear the impress of Taney's determination to bend the Constitution to the service of sectional interest. Though he manumitted nearly all his own slaves and was in his personal relations a kind and loving man, Taney as Chief Justice was immoderate and willful when the times called for judicial caution. His tolerance of multiple opinions permitted dissents and concurrences to proliferate, blurring the clarity of doctrine in commerce clause cases. In any case touched directly or indirectly by slavery, Taney's sure instincts for viable doctrine, as well as his nobler personal qualities, deserted him and gave way to a blind and vindictive sectionalism unworthy of the Chief Justice of the United States.

It is the tragic irony of Taney's career that his virtues were so closely linked to his faults, especially in their results. He fully merited felix frankfurter's warm appreciation of his role in shaping the American federal system: "the intellectual power of his opinions and their enduring contribution to a workable adjustment of the theoretical distribution of authority between two governments for a single people, place Taney second only to Marshall in the constitutional history of our country." Yet no other Justices have so gravely damaged the federal system because of sectional bias, and the real merits of Taney's defense of localist values have been obscured by his racial antipathies and sectional dogmatism.

William M. Wiecek
(1986)

Bibliography

Fehrenbacker, Don E. 1979 The Dred Scott Case: Its Significance in American Law and Politics. New York: Oxford University Press.

Harris, Robert J. 1957 (1966) Chief Justice Taney: Prophet of Reform and Reaction. Pages 93–118 in Leonard W. Levy, ed., American Constitutional Law: Historical Essays. New York: Harper & Row.

Lewis, Walker 1965 Without Fear or Favor: A Biography of Chief Justice Roger Brooke Taney. Boston: Houghton Mifflin.

Swisher, Carl B. 1935 Roger B. Taney. New York: Macmillan.

——1974 The Taney Period, 1835–64. Volume 5 of The Oliver Wendell Holmes Devise History of The Supreme Court of the United States. New York: Macmillan.