Chief Justice Roger Taney

The Ghost of Roger Taney

In his 1857 ruling in the Dred Scott case, Chief Justice Roger Taney ruled that anyone of African descent, whether free or slave, could never be a citizen of the United States. It took the Civil War to create a sufficient majority in Congress and state legislatures to pass an amendment to overturn this decision. The Fourteenth Amendment established the legal right now known as birthright citizenship.

A century and a half later, Trump is observing Dia de los Muertos by resurrecting the ghost of Justice Taney to deny legal rights to immigrant families. He claims he has the right to issue an executive order to overturn established constitutional law. No doubt he expects his two appointees to the Supreme Court to join their conservative brethren to restore the Dred Scott decision. Perhaps this is what Justice Kavanaugh had in mind when he promised to respect Supreme Court precedent. While Dred Scott tops the list of worst U.S. Supreme Court decisions in history, there are plenty of decisions on the Federalist Society agenda.

Taney’s rationalization in Dred Scott sounds
much like modern right-wing legal experts who claim to interpret the Constitution as its framers would have interpreted it. Recognizing the Founding Fathers as slaveholders and slave traders, Taney noted:

We refer to these historical facts for the purpose of showing the fixed opinions concerning that race, upon which the statesmen of that day spoke and acted. It is necessary to do this, in order to determine whether the general terms used in the Constitution of the United States, as to the rights of man and the rights of the people, was intended to include them, or to give to them or their posterity the benefit of any of its provisions.

The language of the Declaration of Independence is equally conclusive: …

“We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them is life, liberty, and the pursuit of happiness; that to secure these rights, Governments are instituted, deriving their just powers from the consent of the governed.”

The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration … The unhappy black race were separated from the white by indelible marks, and laws long before established, and were never thought of or spoken of except as property, and when the claims of the owner or the profit of the trader were supposed to need protection.

For the present, the Fourteenth Amendment has
overruled Dred Scott. But a lesser-known earlier ruling from Taney remains. As the Court’s expert on state property in living beings, Taney ruled in Martin v. Waddell’s Lessee that wildlife is state property, to be disposed of as a state sees fit. This remains the legal foundation for the public trust doctrine, followed today by state game departments.

For the past few decades activists have looked to
the courts when laws and administrative regulations fail to protect people, wildlife and their environment. But the days of successful lawsuits are rapidly coming to an end, as all three branches of the U.S. government have come under the control of the Trump-Pence Administration. Where do we go from here? We’ll address this next week after the results of the midterm elections.