Question: As he lay dying at age 87 in 1864, I wonder if Chief Justice Roger B Taney had it to do all over again, would he have had any regrets about his decision in the Dred Scott v Sanford case in 1857? It certainly didn’t turn out as he’d planned.
You can look Taney up and see that he was not just a run-of-the-mill Chief Justice of United States Supreme Court. He oversaw several major court decisions in America’s first 80 years, and had been Chief Justice for over 28 years of them, the second longest tenure at that time, after John Marshall.
And Taney died in office, in 1864, just months before he would have seen the Civil War ended…a war many have said he caused to happen prematurely.
Now, how the Civil War played on the communities whose husbands and sons fought that war was not the same as how it played among the political class around Washington. And Taney, who had been there in some capacity or another since 1827, to a great degree reflects that, for he carried on a running legal and territorial battle with President Lincoln over Lincoln’s suspension of the Writ of Habeas Corpus, declaring martial law all over the place and jailing southern sympathizers without probable cause in free states. Taney stood on the principle that merely having southern sympathies alone was not a crime.
And he was largely right, in law.
But the Posse Comitatus Act (which prohibits the use of federal troops against civilians) would not be enacted until 1879. So the issue between Lincoln and Taney during the Civil War was largely one about Natural Law and the relative legal power of the use of the military by the President versus the Courts.
I’ll jump to the bottom line and just say, when national survival or collective national morality (which the Founders fully understood to be in play at the time of the Declaration of Independence and Constitutional) Natural Law always…always…prevails, for good or ill.
If you don’t believe me, just do a little reading on the French Revolution and its various radical-chic elite committees, and their fates, or their successor Napoleon Bonaparte. Or fast forward to the Soviet Union (who I have outlived, 1917-1992) but who are still wandering around, armed to the teeth, only with no sense of national purpose…not even life, liberty and the pursuit of happiness. They are lost, only don’t know they are lost, and worse, are not seeking to be found (h/t to Blaise Pascal). And China is not far behind along this same path. This type of death is from a type of vanity and greed of their “king class”, which has tempted mankind since the Sumerians in the third millennium BC.
The dark side of Natural Law has always been easy for the masses to discern.
And our Founders (not on their own, mind you) figured the solution out…transfer power to the bottom 80%.
America’s survival mechanism was always meant to serve as a model, keeping within the framework of “survival-enhancing” behavior known to animal behavioralists since the Greeks.
Back to Taney and Lincoln, several of those federal arrests were appealed to the Supreme Court, and Taney’s Court ruled in the citizens’ favor, only to have Lincoln ignore them, and keep those men locked up anyway. Lincoln figured he could get away with the “possession is 9/10th of the law” basis of power. Each time Taney would rule against the President, Lincoln would invoke “nonacquiescence”, essentially telling the Court they’ll stay in jail until Taney could figure out a way to send federal marshals over to release those men from jail. That’s called holding the “power card”. And Taney knew it.
So, like Stalin asking “How many divisions does the Pope have?” in 1943, there was a Natural Law of physical power involved, and Taney, wisely understanding this, did nothing to try to interfere with Lincoln carrying out his war plans.
(About Natural Law and the Constitution, about which I’ve written plenty, listed here, in 2016 I wrote about “nullification”, “The Last Word to Nullification is that there is never a Last Word” having to do with the “Article V Convention of States movement”, which I believed at that time to be in the grip of a group more concerned with money and political power than rescuing the Nation. Much like Twitter in the Dorsey era, they gave their true purpose away in their refusal to allow open debate, even from constitutional scholars. Money is usually at the bottom of this sort of stage management of public events.
That essay lists cases where nullification worked and where it didn’t work, all based on the willingness of states to accept or reject the federal government’s intervention with the Court’s authority, and of course, the effect Natural Law played in staying the federal government’s hand.)
It would take a Taney biographer to correct me, but I doubt that Taney delved too deeply into the deeper philosophical and moral aspects of the Dred Scott case as it rubbed elbows with the basic precepts of our Founding such as found in the Declaration of Independence, choosing instead to fish in the shallower waters of the contemporary slavery political issues of the 1920s-1850s, which had defined much of election politics. I think Taney viewed Dred Scott from a political lens, in part because, like all the Protestant Churches the past 70 years, his own Catholic Church also was all over the map in this period, so he likely believed he was not putting his soul at great risk with the Church.
But at least it gave a tug. By contrast, in modern America one’s soul is not even a consideration in these sorts of deliberations among 75% of the political class, and (more dangerously) close to 50%..and climbing…among the general population, who are the people the Constitution was written for in the first place. An important consideration, in considering the paths still open to us as a nation… for remember, when the USSR collapsed, now after three-four generations, it wasn’t just the government that was lost in space, but also the people. (That’s how the dark side of Nature works.)
Having personally rejected slavery, liberating his own slaves, Taney still held onto the morally-contradictory “legal institution of slavery” to be a key element to how America was defined, and which by 1824 was even seen as a pathway to political power and profit, having become a (cynical) hook-for-profit for the newly-formed-Democratic Party, founded by Martin Van Buren and Andrew Jackson.
Having made his choice, in 1857 Roger B Taney sealed his place in history by stating: Dred Scott was not a citizen of the United States, never could be, and therefore had no right to bring suit in the federal courts on any matter.
You can read his entire decision here, if you like.
Arguably Taney brought this dishonor on himself for originally the Dred Scott case was to have a more narrow impact dealing only with facts of this single case. But one of the two dissenting justices, Benjamin Curtis, a Boston native and Whig, and probably of irritating Puritan descent, wrote a long and scolding dissent, (shown here) possibly touching a vanity or nerve with Taney, (Puritans, even without God, are especially irritating on that account, the forerunners of the modern Woke-generations) thus causing him to broaden the Court’s ruling into his much broader decision, cited above.
History could record his 1857 decree as having been one of those “De Lawd, He sho do work in mysterious ways” moments, using a “pride goeth before the fall” inducement just itching to break forth, for this was where Taney etched his place in history as having sped the pace and direction to a civil war, in the firm belief that he had prevented one. (Note: Maybe in disgust, Benjamin Curtis quit the Court that same year and returned to Boston to private practice, and would later successfully defend President Andrew Johnson at his impeachment trial in 1868, after Taney had passed away.)
This is where Natural Law enters the picture.
You see, at some level America always knew a civil war of some kind would break out over that one issue, slavery. (Consider that as you now consider the fundamentals underlying modern views on God, Liberty, all the way down to Voting Rights.) The moral wrongness of slavery, in the eyes of founder Martin Van Buren, and the “satisfactory-ness” of it in the eyes of co-founder, Andrew Jackson, added to the eventual collision course, all with no deeper purpose than make a little profit along the way. Thus the Democrat(ic) Party was born, and continues for almost 200 years. With that sort of shallow, cynical world view you can’t help but morph into just what both parties have now become…and only one with the wherewithal to heal itself.
For sure enough, today many think “civil war” is again back among the chips being played in the national poker game, and the stakes include whether we will have 50 sovereign states sheltered by a national government with only limited powers, as set out in the Constitution, or a top-down “corporate” arrangement, were all power is vested in the federal government, or de facto or de jure, two antagonistic nations, which most historians would agree, could last no more that 50 years.
And then what would our map look like?
Clearly, we seem to be edging our way toward that collision again.
Of course the Taney majority believed they had clarified the Constitutional basis over slavery and had prevented an armed conflict which had been bubbling for years…when in truth, as history has shown, they sped it up…
…only via an unplanned path…which Nature often manages to provide when Man tries to toy with Natural Law using man-made set pieces. For you see, Taney was a Democrat, and Democrats had been mostly in charge for over 30 years, since Andy Jackson became president. And the Republican Party was only formed in 1854, earning not even a second thought in the thinking of the Court, or among voters in 1856. (The Republicans fielded their first presidential candidate in 1856 (Zebulon Pike), a year before Dred Scott.) Then Shazaam!, in 1860 they suddenly succeeded with their second offering, Abraham Lincoln who wasn’t even half as good-looking or well-spoken as Pike.
What changed their minds?
From a non-existent party in 1854 to the White House and a civil war within 6 years? “De Lawd, He sho do work in mysterious ways!” Was it with Roger Taney’s help that a back-country rube from Illinois he’d never heard of would become president?
For you see, it wasn’t anything Lincoln did that caused that war. His anti-slavery rhetoric on the stump was just that, rhetoric; he offered no plan, no post-election promise. But his election alone caused the intemperate southern states to jump the gun and secede, then start the shooting war at Ft Sumpter. The Civil War was on months before Lincoln could even be sworn in!
I’m sure historians have scoured notes and letters to see what Taney and his concurring justices had to say about this turn of events. Mea culpas? But Sen Charles Sumner of Massachusetts didn’t hold back:
I speak what cannot be denied when I declare that the opinion of the Chief Justice in the case of Dred Scott was more thoroughly abominable than anything of the kind in the history of courts. Judicial baseness reached its lowest point on that occasion. You have not forgotten that terrible decision where a most unrighteous judgment was sustained by a falsification of history. Of course, the Constitution of the United States and every principle of Liberty was falsified, but historical truth was falsified also.”
Now it’s 2022 and once again Natural Law, even more than Man-made Law, is being tested.
Fast forward to our current period of 2020-2022, and our Supreme Court as they’ve watched two national elections, in several “swing” states”, rattle the public consciousness of what once were called “fair elections” turn into embarrassing nightmares no one with the apparent power to insure that the voters, collectively and individually, were counted. For you see, almost half the voting population is quite fine with stealing votes, and I suggest you think of this like on the same level as “slavery”) there has been a reluctance for the courts or The Court to jump in, especially since there is no Abe Lincoln to jump start a shooting war.
Today we are looking at a class war, not a political war per se. But also a religious war, only where “anti-religion” is now nearly an equal player. You can check several historic events in the past century, the entire USSR, China, where morality was redefined and see how they’ve made out.
Just know Natural Law has already decided about what happens to the losers here. What has not yet been determined is who those losers will be if only a few members of the political class can determine who wins, thinking themselves to be the beneficiaries of the elections. Everyone else gets table scraps.
As I said, Nature decides who loses. China is a nation of 1.4 billion losers, 90% of whom it’s not their fault or their choice. But for most their rice bowl is secure so they are not ripe to rise up against their keepers. Still, we all know where these situations end up and they will rise up.
America, much to the joy of the world’s ruling class, is nearing the time when we might be the first nation to actually “vote itself into servitude”.
And what easier way than to allow states to deprive individual citizens of their right to have their votes counted in such a way that their votes can be checked and cross-checked and counted. That used to be easy and I still consider that to be a citizen’s basic right.
The US Supreme Court is in the position now to declare the national federal election system, as spelled out in the 12th Amendment and Art I, Section 4, to be broken, and declare both the 2020 and 2022 elections to be invalid. It can then give the states an certain amount of time to audit those elections and submit for review, placing them under the Court’s authority, and even hold new elections if necessary. This can be done over the Winter.
(In this interim the Court can set up a review system under its supervision, as mentioned in the lead-in essay, The Need for a Voter’s Bill of Rights from November 30, to provide the states a platform to restore the citizens’ expected rights in voting.)
It would surprise you how many “safe” states and districts have been routinely stolen for years, not just the critical districts and counties that decided the “swing states”.
Even in the uncontested states, not one judge can rely on any vote tally being true, within even 70% accuracy. Chalkboard math would prove this is true.
Only the Hand of the Court can put an end to this, and actually in short order for a needed near fix, as well as laying out a long-term fix. For instance, the 2022 midterms can simply be revoted and counted in a matter of 60 days, the winners still ready to take their seats in January. (And yes, the 2020 election can still be undone, and new vote set also for early Spring…maybe even with Ft Sumpter being fired on again.)
We do not need a Supreme Court who will simply allow itself to melt into a Supreme Soviet Plenum in order to continue to sail smoothly into what Natural Law has already dictated, and History confirms, will be treacherous, troublesome waters within about three generations.
Our Constitution was unambiguous about who it prefers to stand behind as the principal protectors of the Natural Law of Survival. The People, and in 1860 the people chose a backcounty, rail-splitting rube from Illinois instead of following the dictates of a highly cultured lawyer-judge in the Supreme Court.
(Note: Those same people sent their sons to go to war not just to reunite the Union, but to end slavery. And at the loss of 600,000 of those young men the Union was restored and the slaves freed. Never forget…this was the first time in the history of the world this sort of volunteerism had ever occurred, that young men would risk their lives to free a people none of them had every seen in real life.
Paraphrasing Sen Sumner (above) about Dred Scott:
I speak what cannot be denied when I declare that the refusal of the Supreme Court in the many cases of vote tampering is more thoroughly abominable than anything of the kind in the history of courts.
Five months ago, the U S Supreme Court, this current Supreme Court, reversed Roe v Wade, and stated in its opinion that the original 1973 opinion was simply “bad law”. Regardless of the visceral blow-backs from a very identifiable group of Americans, the Court essentially returned the decision about abortion back to the states, which is a process still being worked out, state-by-state.
The Court retained only the power to review cases should states step beyond the original limitations set by the original Roe court in matters of late-term, or post-birth “abortions” if there is such a thing. This Court knows, just as it did in 1973, there will always be a New York, or Mexico, or med students wishing to sharpen their skills in a motel room for a price, which they have no power to stop.
The Court cannot stop young people being taught that the June, 2022 Dobbs decision said things it did not say, and meant things it did not mean. But it has placed the eventual solution of these issues in the hands of the people of the respective states, by way of civil actions and the ballot box. This is as it should be.
So, whether it likes it or not, the Court cannot escape the impact fraudulent elections had on the 2020 elections, and are having on the 2022 elections, and may have on the 2024 election unless fixed, for short of an all out firestorm (civil war), or an out-and-out takeover by virtue of those fraudulent elections, once rigged elections paved the way for the end of the Posse Comitatus Act prohibition of using federal troops, the power of the Court, as well as the People, is rendered impotent.
Think about it.