Meaning and Memorial

I tend not to do too much on local politics, but this one is worth broader discussion. Frederick, Maryland was the home of the fifth Chief Justice of the Supreme Court of the United States (the first Roman Catholic to hold that position), a man who was also the former Attorney General of the United States under Andrew Jackson. A man who was the brother-in-law of fellow Frederick lawyer Francis Scott Key, author of the "Star Spangled Banner." Surely such a mark of distinction and historical importance, especially for a small community, warrants prominent display of a public statue, and so such a remembrance -- and so there is a bust in front of city hall.

Nothing particularly interesting there, except that this man just happens to be Roger Brooke Taney, author of the infamous Dred Scott decision that declared any attempt by the legislatures of free states to undermine the ownership of slaves by those in slave-owning states to be inherently unconstitutional.

Taney declared that slaves could not to be considered people under the Constitution, especially not citizens of the United States (even those who had been freed or who were born in states which had abolished slavery) with the infamous words,

In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show that neither the class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.

It is difficult at this day to realize the state of public opinion in relation to that unfortunate race which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken.

His argument is that there is such precedent in English, Colonial, and early American law (both federal and state) that considered inferior and unfit for political inclusion that the language of all laws must be read to exclude them. The framers of the Declaration of Independence did assert that

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 these are life, liberty and the pursuit of happiness,

but since this group of signatories included slave owners, this sentiment can only be interpreted such that

neither the class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.

In light of his place making sure that institutional racism would be indelibly ensconced in our legal and political systems, many take it to be undesirable to memorialize him in such a public fashion. The fight is brewing and will be fought out on two questions.

(1) Is Taney more than the Dred Scott decision? He was certainly a figure of his time and while we may be bothered by the injustices of our past, the fact is that having had a local son as the Chief Justice of the Supreme Court ought to be a mark of pride whether or not we are proud of his work. It is the office we are celebrating, not necessarily the results of the office. If there is something to learn from having overcome the problematic views of the past, we need to have them front and center and not whitewashed away. On the other hand, it is a celebration of the man and not just the office. Having been Chief Injustice of the Supreme Court ought to be a mark of embarrassment, not something to laud with one of the highest marks of civic pride. To overlook the decision of Scott v. Sandford is the equivalent of asking "Other than that Mrs. Lincoln, what did you think of the play?"

(2) It is a racial issue. Maryland is an odd state, neither wholly Union nor confederate during the Civil War, Frederick was a battleground. Its other historical claim to fame (beside John Greenleaf Whittier's poem of Frederick's clustered spires") is being the home of Barbara Fritchie, a resident who hung an American flag out her window as Stonewall Jackson's troops marched by and was shot to death for it. It is an area where racial tensions have never really abated. There are parts of Frederick county where you go in to buy sheets and they don't come in twin, queen or king, but 42 regular and the pillow cases come with eye holes in them. This is a case of celebrating or rejecting the areas racist history. The Dred Scott decision is a pivot point in American history for those who favor States' Rights and legal originalism. They argue that Taney was right to appeal to the framers' frame of mind and his defense of the Southern right to refuse northern intellectual aggression on its societal norms. These issues which have today been set out in much more abstract terms are not conceptual questions, but are inextricably linked to questions of liberation and equality, questions of who has the power. This move to remove Taney's bust is a power play by uppity local minority leaders to show that they now have power that local conservatives don't want them to have...and I say, more power to them.