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- [00:00]
A
A list of sensitive themes and topics included in this episode can be found in the episode description. Welcome to this Guy Sucked, the show where we prove that it's never too late to have haters and you can't libel the dead. I'm your host, Claire Aubin, and I'm a historian, writer, and most importantly, certified hater. On this show we talk about people from throughout history with legacies that need a little updating. Whether it's because of their politics, their behavior, or their impact on society and culture, these guys actually kind of sucked. And we bring in a new scholar every week to tell us why. With me today is Melissa Murray, who is the Frederick I. And Grace Stokes professor of Law at nyu. If I'm getting that right. Great. She's got a brand new book out in May that's available for pre order right now called the US A Comprehensive and Annotated Guide for the Modern Reader, which she is holding up right now, but you can't see that. And she is also the host of the wonderful Supreme Court podcast Strict Scrutiny, which is about to kick off its west coast tour. There are still tickets available for their San Francisco and LA dates on the 6th and 7th of March. So go get em. Thank you so much for coming on and listening to that spiel, and welcome to the show. Thank you.
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B
Thanks so much for having me. I am a big fan, certified hater and certified lover of haters. So I'm happy to be here.
- [01:35]
A
Welcome. This is the place for you. I always start the show with a question, and normally the question I ask is something like, where's your favorite place to conduct research? Or what would you study if not your current body of work? But today I have an unconventional question. The backstory is that I'm part of a group chat of young women, slash historians slash academics. And when I told them I was recording with you you today, they demanded that I ask you a question from them.
- [02:03]
B
Okay.
- [02:04]
A
Which is, what is your skincare routine?
- [02:09]
B
Oh, thanks, ladies. First of all, I'm 50, so this makes me so happy because I'm feeling every bit of 50 these days. But I use true botanicals. We talk about it all the time on our podcast when we talk about things that we like or we think people should use. And I actually love true botanicals. Somehow they keep getting Brooke Shields and all these fancy celebrities to rep their stuff. And I'm right here, I'm right here just waiting to get free stuff sent to me. And I love it.
- [02:39]
A
There are two pods you can sponsor true botanicals right Here, Right.
- [02:43]
B
Right here. You can do that, reach a whole new audience. But thank you, lady historians. I will say, if I were going to study something, I would do history, not just law. I do a lot of history in my legal work. But I was an history major in college. I loved history. I worked at Monticello, the home of Thomas Jefferson. Whoa. Tour guide. I mean, I was deep into it. So I long to be with you all in the faculty lounge.
- [03:12]
A
This is so funny, because I started out as a law person and became a historian. So I did an LLM in human rights law, and I was working on my thesis for that, and my supervisor for my thesis was like, look, the law part is fine. Your legal history part is much stronger. And she's like, I might have done that, too.
- [03:33]
B
Yeah. I think if I hadn't become a law professor, would have just gone back to school and gotten a PhD.
- [03:38]
A
Yeah. I mean, it's a pipeline that a lot of people don't expect because usually it's the other way around. Right. Like, a lot of academics want to be an academic, and then they say, maybe I should go to law school instead. But I did the reverse and was like, this isn't for me. I should be a historian.
- [03:52]
B
Either way, there are a lot of overlaps. We do a lot of the same things, and we are all fellow travelers.
- [03:57]
A
Speaking of law and history, what a wonderful segue into what we're talking about today. Who do you slash we hate?
- [04:07]
B
For today's episode, it is Roger Brooke Taney, who is perhaps one of the most infamous Chief Justices in the history of the United States. Not because he is, by himself, a bad guy doing bad things in his private life, but he is the author of one of the worst decisions, maybe the worst decision in the history of the United States Supreme Court. And that decision is 1857's Dred Scott v. Sanford.
- [04:35]
A
In order to get to Dred Scott v. Sanford, maybe we have to start with being like, how did we get there?
- [04:44]
B
Sure.
- [04:44]
A
What? Can we talk for just a minute about his early life and his early political career and how that then turns into him becoming. I think he's appointed straight into the Chief justice position rather than being a justice and then being promoted to it. So he is born in 1777 in Calvert County, Maryland, importantly, to a family of slaveholders or people who own, in quotations, a bunch of enslaved people. And this is sort of foreshadowing the bad opinions he's going to have for the rest of his life.
- [05:21]
B
There's a lot going on Here he's born into a very prominent Catholic family in Maryland. Maryland is famously, you know, the Catholic colony when the United States is founded. And the Taneys are part of that sort of upright. They are very wealthy tobacco farmers. They have a very prominent plantation. Roger Taney, though, is never set to inherit it. His brother is the one. His older brother is the one who's likely to inherit everything. And so Roger, the second brother, is encouraged to go into the law, which he does. He matriculates at Dickinson College when he's 15 years old, and upon graduating from Dickinson, he reads law under a local judge in Annapolis, and he's admitted to the Maryland Bar in 1799. Fun fact. He marries Anne Phoebe Charlton Key, who happens to be the sister of Frances Scott Key, who wrote and composed the Star Spangled Banner. You know, looking out at Fort McHenry. And this just sort of emphasizes he's a huge deal. The family is a huge deal in Maryland. He's a very successful lawyer. He's a Federalist, which is interesting because he has an about face. The Federalist Party does not support the War of 1812 because they believe that it is a war that's going to decimate New England shipping interests. But Roger Taney's actually all for the War of 1812. So he breaks with the Federalist Party and starts flirting with what's known as the Democratic Republican Party. This is the party of Thomas Jefferson, for example. But his political ambitions and his political realignment really doesn't come into full flower until the mid-1820s, when Taney becomes a very ardent supporter of Andrew Jackson, who is a rising star in the Democratic Party. After his success as a general in the Battle of New Orleans, Taney supports Jackson's bid in 1824 to be president. Jackson doesn't win. He wins later in 1828, and Taney is right there with him. He is running the Taney campaign in Maryland at the time. He's also the Attorney General of Maryland. So he's moving up. But as a Jacksonian Democrat, Taney really finds favor in the eyes of Andrew Jackson. And ironically, his rise in the Jackson White House is due in large part to some true Regina George mean girl bs. I mean, like, I. I don't know how else to say it. There's this scandal that engulfs the Jackson White House. It's called the Petticoat Affair. And it coincides with all of this stuff around the Tariff of Abominations and the Nullification crisis. Jackson's vice president is John C. Calhoun, who had his own political ambitions and they were often not aligned with the President. He pur. So Calhoun doesn't want to just be vp, he wants the top job. He may remind us of someone that we know right now.
- [08:21]
A
Sure.
- [08:22]
B
Is the vp. More on that in a minute. He had a very socially prominent wife, Floride Calhoun, the second lady. Floride Calhoun did not like this woman, Margaret Peggy Eaton, who is the wife of the Secretary of War, John Eaton. Now why doesn't she like her? Well, according to some, Peggy had a bit of a rude girl past. So some people said that she worked in her family's boarding house and tavern and there she had contact with unsavory men.
- [08:52]
A
Perish the thought. Perish the thought.
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B
Working in your family business. But others just argue like the real problem with Peggy Eaton was that she was very well educated, very forthright with her opinions, and was just a mouthy broad. And Floride Calhoun was like, we'll have none of that here. So Floride Calhoun, who is a leader of Washington society, not surprisingly, basically blanks Peggy Eaton. She refuses to call on Peggy Eaton at home and she refuses to receive the Eatons in her home. And much of Washington society follows her lead. This incenses President Jackson, who is fond of Peggy and all of it reminds him of the just social brickbats his wife Rachel endured in the early part of their marriage. Because there had been a lot of talk that maybe she hadn't, you know, gotten rid of her first husband before getting together with Andrew J. Jackson truly believes that all of these innuendo and rumors around their relationship pushed his wife into an early grave. And so he sees the same kinds of things happening to Peggy Eaton. And he just thinks this, you know, Washington social circle is a pit of vipers. He doesn't need any reason to be mad at the Calhouns because he already knows that his Vice President is angling to be the next presidential nominee, which would effectively make Jackson a one term president. And he's having none of that. It all comes to a head with the nullification crisis of 18. Jackson is proposing a tariff that would again in his view, rebalance the trade deficits that exist between the United States and various parts of the country and the other places with which the US trades. Again, sounds very familiar. Calhoun, his vp, is opposed to this tariff and he is publicly opposed to it, which is not great for the President who's trying to drum up support in Congress for this because Calhoun is the most visible opponent of the administration and he's actually within the administration. Jackson thinks everything associated with him is designed to bring down his presidency. And that includes whatever floride Calhoun is doing to Peggy Eaton. He views all of this as just a sort of low level lady effort to gain political leverage. In this tug of war between the President and the Vice President. All of it gets resolved when Secretary of State Martin Van Buren says, like, you know what, this all seems a little controversial. Why don't I resign my post? This gives Jackson an opening to completely reorganize his Cabinet. He cleans house, including getting rid of the sitting Attorney General, John Berrian. And the door is now open for Roger Taney, the loyalist from Maryland, to come in and be the Attorney General of the United States. And Taney steps in and he is ready to go to work for his President.
- [11:40]
A
And before this, he's in the Maryland House of Delegates, he's in the Maryland State Senate. This is like a meteoric rise to all of a sudden be the Attorney General of the United States. Side note, Andrew Jackson, another guy who very much sucks. And if any Jackson historians are out there and want to come on the show, open invitation, I want to talk about him. I just need the right person to do it.
- [12:05]
B
There's a lot to talk about.
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A
Yeah, there's a lot. You know what's funny is we did a presidential episode of the show and both of the historians who came on were like, Jackson's too much of a gimme. Let's do someone else.
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B
Everyone knows he sucks.
- [12:18]
A
Yeah, they did. They chose Johnson, Johnson and Nixon. So it's like, okay, these are fine too. But even the association, the way that he rises to power as a lawyer or as someone who is a representative of the law in the United States is in conjunction with another horrible person, which I think is quite funny and fitting and again foreshadowing what is ultimately sort of to come here in his life.
- [12:43]
B
That's exactly right. As Attorney General, one of the things that, that Taney apparently prioritizes is being on board with Jackson's program. And one of the things that Jackson is really up in arms about is the Second bank of the United States. Jackson hates it. He doesn't like it. He prefers having these sort of pet banks that are chartered by the States. He doesn't want a national bank. This too becomes a big clash in his presidency. Trying to get rid of the Second bank of the United States, Taney provides him with the ammunition to do so. With Taney's backing, Jackson essentially vetoes a bill to renew the National Bank's charter. And he does it because Taney's basically told him that he doesn't think the national bank is constitutional, that Congress doesn't have the authority to charter it, and that Jackson is well within his rights to abolish it. The bank clash becomes this core issue in the 1832 election where Jackson defeats a challenge from a National bank supporter, Henry Clay. And Taney's unyielding loyalty to this position that the bank is unconstitutional, which essentially secures Jackson's political footing on this issue and allows him to win the election, makes him one of the favorites in the Cabinet at this point in time. And this all comes to a head because Jackson's Treasury Secretary, William Duane, is a little more iffy on the bank of the United States. And for example, even though Jackson is dismantling the bank, Dwayne refuses to authorize the removal of federal deposits from the National Bank. So the national bank still has all of these resources available to it, and Jackson hates that. He fires Dwayne and he appoints Taney as the Treasury Secretary in a recess appointment. And Taney hopes to be confirmed to the position permanently when the Senate comes back into session. But everyone seems to know that he's basically the President's lackey and the Senate rejects his nomination. It's the first time in the history of advice and consent that the Senate rejects someone that the President has appointed. So Taney now finds himself without any position in the Cabinet. But he's not without a patron. Jackson still really likes him and is deeply impressed by the loyalty that Tawny has shown. And soon a new post emerges. In 1835, Chief Justice John Marshall, who was an ardent Federalist, an architect of the Supreme Court's vision of broad federal power for Congress and the federal government. Arguably the most impactful Chief justice of the early court, Marshall dies and that creates a vacancy to which Jackson nominates Taney.
- [15:31]
A
How normal. If you know this, and I'm very certain you do, how normal is it for someone who is going to be nominated or appointed Chief justice of the Supreme Court to have previously served in the Cabinet of the President who is nominating them?
- [15:49]
B
It's not unusual, it's not unprecedented actually. Robert Jackson, for example, who is an Associate justice in the FDR era court, had been a solstar General. An Attorney General for fdr William Douglas, who's also a member of the FDR Court, had also been in the administration. That's not quite as untoward, although I will say historians of the period and even commentators of the period argued that the relationship between Roosevelt and the Court was just a little too cozy for this whole idea of judicial independence. And I think there's a lot of the same kind of talk surrounding Taney and the appointment by Jackson. But Jackson isn't the only president under whom Taney serves. He actually has a very long tenure at the Court, one of the longest serving Chief Justices. So he serves through, I think, seven presidents at some point.
- [16:40]
A
Point. So he is nominated straight into the Chief justice position, which, as we mentioned earlier, is. Is a thing that happens. It's not like a complete rarity. He takes office as Chief justice in March 1836. How would you characterize his overarching judicial philosophy when he's there?
- [17:02]
B
Yeah. So what's he doing as Chief Justice? What's the plan? Like, what's his goal? You know, I think he would say his goal is to do the law, do justice. But there are real questions about what the relationship between the federal government and the states are at this time. I mean, you shouldn't be surprised. It's the 1830s. We're going into this massive sectional crisis over the question of whether the United States will continue to be divided between free states and slave states. We have just acquired a crapload of new territories. And the admission of these territories into the body politic, the question of new being carved out of these new territories, raises this question about what will we do with regard to slavery. So that's a big kind of thing in the backdrop that Taney has to contend with. The other thing he has to contend with is the legacy of John Marshall, who again, is one of the most impactful jurists of the age. And one of the things that Marshall did during his long run on the Supreme Court is really interpreted the authority of the federal government to be broad. So he looks at the Constitution and he sees no stop signs for the federal government. Congress can do a lot of things so, you know, with regard to the commerce clause, which authorizes Congress to regulate, quote, unquote, commerce between the several states, he views that sweepingly. In his view, there's really no limit to what Congress can do with that authority. And at this moment, where there are real questions about what states can do do within their own borders and how the federal government might regulate the whole nation, including all of these different states, there's a real tension between this broad federal power that Marshall imagined and brought into being through his interpretation of the Constitution and the prerogatives of states who want to be able to regulate certain things, including slavery or not. For themselves. So there are real questions here, real tensions about how we ought to interpret the Constitution in view of broad federal power or the sovereignty of states. And Taney finds himself moving the court away from Marshall's vision of broad federal power to a vision that acknowledges, and indeed in some cases prioritizes the sovereignty of states and the power of states to regulate for themselves.
- [19:42]
A
Hi, it's Claire. Thank you for listening to the show you're currently hearing. The free version of this Guy sucked, so I'm here to tell you about our Patreon. In order to make the show sustainably and independently, episodes switch off between free weeks and Patreon weeks. So if you're a fan of good, accurate public history made by actual experts, consider supporting us and joining our honorary haters club. It's only one tier, which means everyone who subscribes gets access to the same perks across the board. For the price of a pastry at your local hip coffee shop, you'll get to listen to a new episode every week instead of just the bi weekly free ones, and they'll all be ad free for you. You'll also get access to the full episode archive, bonus content, early access to merch, and lots of other fun Patreon exclusives to sweeten the deal. Just head over to patreon.com thisguysucked or follow the link in the episode description to sign up. One of the things that I found interesting while researching Taney is that in some instances and we can talk about what those instances are, but in some instances he's all for states rights. And again, in this case he really is saying that in terms of like states rights to allow slavery. But in other instances he says no, no, the federal government is better. But again, it's only when he's saying the federal government can enforce slavery.
- [20:59]
B
Yeah, he's not super consistent on when the state or the federal government should take the one common denominator does seem to be slavery. We should note that he is from a family of very prominent slave owners. He inherits slaves from his father when his father dies and interestingly, he manumits those slaves that he inherits. And Kate Mazur, who is a brilliant legal historian, she's an historian, but a lot of her work touches on legal topics. She notes that that in addition to manumitting the slaves he inherited, there are a number of slaves who are too old to work and he basically pays them a pension for the rest of their lives. So it's not something that a lot of slave owners are doing so this is sort of unusual. He's a very complicated relationship to this peculiar institution, but he's no abolitionist. And he believes that slavery is not something that's good for the United States, but he also believes it's not something the federal government can regulate out of existence. He believes this is a problem to be solved gradually, intermittently, and by the states in which slavery is occurring. So he very much understands the interest in slavery as a states rights issue into which the federal government cannot just, like, drop themselves and make decisions. And he believes that the abolitionists and this abolitionist fervor that is really beginning to build in the 1840s, he believes that it is responsible for ripping the country apart. And more than anything, he wants to keep the nation together. Or at least that's how he understands his view on this and what he's doing.
- [22:46]
A
I wanted to talk for a second about the Fugitive Slave act, because this shows up in a lot of his work or is pretty important to a lot of the decisions he makes going forward from here. Can you talk to that a little bit or about that a little bit?
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B
Sure. So first we should start with the Constitution. Maybe an annotated guide for the modern reader.
- [23:10]
A
Yeah, I wish there was one that I could buy in, like May of this year, for example.
- [23:15]
B
I think I can help you out with that. I think a lot of people don't realize that there are actual passages in the Constitution that relate to the question of slavery and how to accommodate it in the United States States as we are building this country. So the framers of the Constitution are very explicitly grappling with this question as they're trying to figure out how to represent the people in Congress. They're also thinking about the question of the rights of property owners in the property they own, being these enslaved persons. So in Article 4 of the Constitution, which is dealing with this relationship between the states and the federal government, there are two clauses, one known as the extradition clause, the other known as the rendition clause. The extradition clause essentially says that under the Constitution, property owners have a right to be able to extradite their runaway property and whoever has helped them back into their possession. And the rendition clause requires those in states to which runaway enslaved persons have gone to return those runaways to their property owner. So literally built in to the Constitution are these protections for the property rights of slave holders. In 1793, Congress, under the auspices of these clauses in Article 4, passes a fugitive slave law that effectively says, if someone runs away to the north, you've got to bring them back and bring them back to their owners. In the South. This comes to a head because a number of northern states begin legislating for themselves. They pass their own state laws. Some, like Pennsylvania's, for example, are fueled by a kind of Quaker abolitionist that, you know, wants to respect the dignity of all people, including those who were formerly enslaved and have come north. And the laws essentially say that you don't have to comply with the Fugitive Slave Law. You're not obliged as a resident of Pennsylvania to do what the federal government says and, you know, render this enslaved person back to its owners. And it also says that state officials don't have to go and do this either. They don't have to assist with this. Again, there are lots of shades of contemporary issues that are we're currently dealing with now with regard to ICE enforcement, but this is sort of the conflict that arises. And there is a case called Prigg vs. Pennsylvania that is one of the first cases, one of the first really significant cases that the Tawny Court has to deal with. It's heard in 1842 in Prague. The Supreme Court is considering a slave catcher's challenge to a Pennsylvania state statute. It's a criminal law, and it prohibits taking, quote, unquote, any Negro or mulatto out of the Commonwealth of Pennsylvania with the intent of taking them to a state where they would be enslaved. The slave catcher has been convicted under the state law. Like, you know, he comes up north, he finds the person who has escaped, and he's taking him back, and suddenly he's catching a charge from a Pennsylvania court because he's violated this Pennsylvania law. He sues to challenge the law, says that the law is unconstitutional. It violates Article 4, which says that you've got to render these slaves back to their owners, yet they have this right to extradition. The court views this in a very cut and dried fashion. Taney doesn't actually write this decision. It's written by Joseph Story. And more on that in a minute. But effectively, the court says that the Pennsylvania law is inconsistent with Article 4 and federal supremacy, that Pennsylvania cannot criminalize conduct that Article 4 basically requires and that the Fugitive Slave Law that was passed pursuant to Article 44 also requires. So if Article 4 specifically requires returning the fugitive slaves, Pennsylvania can't stop you from doing that by criminalizing your actions. Now, to be clear, it's not a complete win for the federal government or federal interests. In his majority opinion, Story allows for the possibility that states don't have to participate in this project of federal slave catching. Right, so. So that is an important concession, and it's one that weakens the Fugitive slave Act of 1793, but it fuels the interests in tooth year fugitive slave laws. So Congress in 1850 gets right on the stick and passes something that is much more punitive, much more robust in its protection for slave owners. But the decision, I think, highlights the Taney Courts position right at the intersection of this question of federal power, states rights, and the way in which slavery is shaping the contours of that question going forward.
- [28:14]
A
Yeah. And there's a series before we even get to Dred Scott. Right. There's a series of these kinds of cases and also similar decisions. So in 1851, you have Strader Stratter v. Graham, which is about the idea that, like, slave status depends entirely on state law, even if you've lived in free territories. And then in Morvy, Illinois, you have states, which is 1852 states can criminalize harboring or aiding fugitive slaves. It's like, so there's a series of these. And consistently the ruling is pro slavery.
- [28:46]
B
Well, it's like consistently pro slave. And they all sort of feed on each other. Like, once the court starts licensing this, more and more states start doing it. So Southern states start building this apparatus up. And the building up of this apparatus of essentially accommodating slavery is essentially tearing the country apart. Kansas and Nebraska are in open warfare. I mean, this is the time of bleeding Kansas where they're trying to figure out, like, are we going to have slavery in the territories? They keep doing this piecemeal thing where we'll admit Missouri as a slave state, but you've got to have Maine be a free state. Like, the math isn't mathing because they have to basically bring these states in in pairs in order to keep it balanced. And it just seems like what is happening on the state level and on the federal level is going to tip over and there aren't enough new states to be able to balance the math. Like, this is becoming a sectional crisis, and the court's decisions are effectively laying the foundation for that crisis. And ultimately the court itself will light the match that kindles this flame.
- [29:51]
A
Yeah, absolutely. And this takes us to, you know what, five years after the More v. Illinois case, and there are others in between there. But that's just the last one I mentioned. We reached Dred Scott, and this is, as you've said, like, one of the most infamous and historically consequential Supreme Court decisions in the history of America. Like, that's not me exaggerating. This.
- [30:15]
B
That's not an overstatement at all.
- [30:17]
A
For emphasis, can we, before we talk about this decision, talk about what the case itself was and who Dred Scott was and what this sort of foundation for it is? And one of the things I think we have to talk about is we need to rewind time wise to 1820 and talk about the Missouri Compromise, because that is where this kind of starts or what the basis for this is, which is that in 1820 there's a deal that Congress makes to keep the peace between slave states and free states during the westward expansion of the United States states. And they say that slavery is banned in the rest of the Louisiana Territory north of latitude 3630, except for Missouri. And that's the Missouri Compromise, basically. And that's how you can tell.
- [31:03]
B
And Maine comes in as a free state to balance out Missouri being a slave state. And under Article 1 of the Constitution, Congress has the authority to regulate in federal territories. And this is one of the things that Congress, Congress is trying to do figure out like, okay, are we going to have slavery in the territories? Are there going to be free territories? How are we going to balance this out and keep the country basically evenly keeled on this slavery question? So in 1820, Congress strikes this balance. It passes a law, the Missouri Compromise, that prohibits slavery above the 3630 line. The exception, of course, is the Missouri Territory, which comes in as a slave state. Maine is admitted to balance it out as a free state. That's important. So everything above that 3630 line is a lot of territory. So this is Wisconsin, Illinois, parts of Minnesota, all of that comes in and it's supposed to be free territory. Why is this important? Well, Dred Scott, who was born into slavery in Virginia in 1799, over the course of his life, moves to Missouri. He has a number of different owners. The really critical Owner here is Dr. John Emerson, who is an army surgeon who purchases Dred Scott in Missouri. Emerson's military career means he has to move around a lot, and he often takes Scott with him. Eventually they wind up going to the state of Illinois and the territory of Wisconsin, which at the time are free territories, because Emerson has a posting at Fort Snelling, which is a federal military installation in the Wisconsin Territory. While he's at Fort Snelling, Dred Scott meets and marries Harriet Robinson, who is another enslaved person who is then subsequently also sold to Dr. Emerson. In 1838, Dr. Emerson gets married. He marries Eliza Sanford from St. Louis, and he goes back and forth between St. Louis. Sometimes he goes away to the Seminole Wars. He leaves Dred Scott and Harriet Robinson Scott at Fort Snelling, where they're kind of hired out to other people, which is a common practice at the time. But in 1843, Dr. Emerson dies after returning to his family from the Seminole War in Florida, and his wife Eliza inherits the slaves, including Dred Scott and Harriet Scott Sanford is her brother, and he becomes the executor of the state. And he's responsible for basically dealing with the corpus of the property that Dr. Emerson has left to his widow. In 1846, Dred Scott and Harriet Scott are in St. Louis and they each file a lawsuit to obtain their freedom. These freedom suits happen all the time during this period. Kate Maser talks about this a lot in her book about the antebellum period and these sort of justice civil rights suits that enslaved persons would bring. And the argument here is that because they had previously lived in a free state and territory, there is a rule, and it's a rule that's been acknowledged by the Missouri state courts and other jurisdictions, that if you were once free, I. E. Once in a free territory, then you are always free. So by simply moving to a free territory, your owner has manumitted you.
- [34:23]
A
How does this interact with the Fugitive Slave act, things that we've been talking about before, where people can be caught and removed?
- [34:31]
B
This is a real question like how does it interact? So, you know, so the two things obviously are in conflict. And, you know, although Scott prevails on his once free, always free theory in Missouri's lower state courts, he ultimately gets appealed by the Emerson estate to the Missouri Supreme Court. And that court taking a view of everything that's going on, including these conflicts with the Fugitive Slave Law, including the rising abolitionist tension, including what is happening in the territories. Like there's actual violence that's spilling over. And the Missouri Supreme Court refuses to apply the once free, always free precedent that earlier courts had applied with some regularity. And they say specifically that Missouri law is not going to be subject to these anti slavery arguments. So they're just very clear that they're animated and influenced by what is going on in the Zeitgeist. And they don't like it. So now Dred Scott is like, what do I do? I'm going to file another lawsuit. And this time instead of going to the Missouri state courts, I'm going to go to federal court. And so he goes to federal court in St. Louis and he presents himself. And in order to file a lawsuit in federal court, you have to have what's known as standing. Federal courts are courts of limited jurisdiction. You just can't go there and file anything. You have to show that you fall into one of these jurisdictional categories that the federal courts are authorized to hear cases from. One jurisdictional category is known as diversity jurisdiction. And it's available where the parties are from different states. So the idea is the state courts of one party is not going to be amenable to the interests of the other party. So you're not going to get a fair hearing if you're from Florida and the other person's from Georgia, and you go to Georgia state courts. So federal court is more likely to be neutral court ground for both of you. So when you have two citizens of different states and you have this conflict between them, you can bring it to federal court. And Dred Scott's like, yep, that's what they have here. I am a citizen of Illinois. That is where I was, where I became a free person. So I am a free person of Illinois. Dr. Emerson, Mr. Sanford, the executor of his estate, they are citizens of Missouri. We have complete diversity between these parties. We can bring this case in federal court. The question in federal court, and the question that ultimately goes up to the United States Supreme Court is, is that true? Is Dred Scott a citizen of Illinois such that there is jurisdiction here because there's diversity between the parties? And the broader question is, can an enslaved person be a citizen of the state? And Dr. Emerson's estate argues that that, in fact, Dred Scott can't be a citizen of Illinois because Dred Scott's not a citizen of the United States. And suddenly, that's the huge question before the court. That's the question that Roger Taney begins to apply his considerable talents toward addressing.
- [37:40]
A
I mean, it's so insane that this is still an argument that people are having, like, even today. Like, literally, as in today, January 30, there's announcements being made about the Supreme Court hearing on birthright citizenship and what it means to be a citizen and who gets to be a citizen. And this is in a sort of long lineage of Supreme Court cases around who gets to be a citizen and how we can treat citizens if someone is, in fact, a citizen or not. Like, I think of things like Korematsu, where I feel like this is also part of that. But it's so egregious, the decision that is ultimately made and reading through. So I read through the decision today earlier. Cause I was like, I want to get pull some quotes out of this and was just so floored by it. Oh, it's gross.
- [38:31]
B
It's gross.
- [38:31]
A
It's actually very appalling to read. And a lot of Supreme Court decisions are, to be fair, like this is not a singular thing, but it is just so egregious and so openly racist and so openly horrifying to read that like the fact that Taney has sort of a stain on his name forever is, I would argue, even just on the basis of this single court case alone, regardless of all of the other bad ones, this alone is enough for that to be warranted. I think personally, no, the Dred Scott
- [39:04]
B
decision is without a doubt the foundation of the constitutional anti canon like cases that ought not to have been decided in the ways that they were decided. And again, the questions that the Court took on here are questions that are live right now. It's really important for your listeners to understand that the debate that we're having over the meaning of the citizenship clause, the case that the Supreme Court will argue and decide this term, the language of the citizen clause is from the 14th amendment and it was written specifically to repudiate the Court's decision in Dred Scott at the time Dred Scott was litigated. There are questions, but they're not really firm questions because most people at the founding and during this period followed a sort of common law principle that you are a citizen of the place where you are born. And lots of people followed that. And there are lots of free African Americans at the time who are not born into slavery and they understand themselves to be citizens of the state where they are. Sometimes they have property rights, in some cases they may be able to vote, who knows, but they understand themselves to be citizens of those states. And then Roger Taney comes in and you know, some people argue that this is an originalist opinion. I don't know that it's originalist in the way that we think about originalism in a modern parlance and the way we think about originalism in sort of our discussions of the modern Supreme Court. But it is a decision in which the author Taney goes back to kind of inhabit the minds of those who were writing the Constitution, who were writing the Declaration of Independence. And Taney basically says there's no way that the founders of this country would have understood African slaves and their descendants to be citizens, to be members of the body politic. There is no right that the black man could have that the white man is obliged to respect. I mean, These are things that he actually says, and he takes a question that is an open question for some people, like this idea that free black people are citizens. Like, some people in the south may not believe that, but there are definitely people who think, like, yeah, they're born here, they're citizens. He forecloses that entirely. And he forecloses it for all black people in perpetuity, because he basically says the fact that you were enslaved or descended from enslaved Africans just forecloses the whole possibility. You will never be a citizen. You will never be one of us. You will always be someone that can be subjugated. And when he's writing this, Taney literally believes he's staving off a sectional crisis by once and for all settling this important question around the possibility of citizenship for enslaved people or the citizenship status of. Of free blacks. And he's actually doing more. He's inflaming the situation. And. And part of the accelerant that he's adding to this is that he doesn't stop there. That's the whole case. This jurisdictional question, should Dred Scott be in federal court? Taney says unequivocally, no, and he should stop there.
- [42:23]
A
Yeah. It's not just, is he a citizen of Illinois? He said, no. No. He's a citizen of no one.
- [42:29]
B
He is utterly stateless. And they're not people, right? They're not real people. They can't be citizens. They're not attached to anything. They are the paradigmatic example of chattel. They go where you take them because they don't belong to anything. They're not tethered to anything but their owners. So that's a lot. But it's not the only thing that Taney does. Like I said, the whole question here is a jurisdictional question. Should Dred Scott be in federal court? Tawny says, no, he should not be in federal court. And at that point, Tawny should have put down the pen. But he decides that he would like to go further and say a few more things.
- [43:14]
A
Hi, haters, It's Claire again with my regular shout out to tell you about other Multitude shows you might want to listen to. This week. I want to talk about Spirits, the first ever Multitude show to invite me to be a guest on on it. Which makes it basically the reason I have a podcast now. Spirits is a history and comedy podcast focused on everything. Folklore, mythology, and the occult. Sick. Told through the lens of feminism, queerness, and modern adulthood. Double sick. Every week, mythology buffs and childhood best friends Julia and Amanda get together to learn about a different story from mythology and folklore over drinks. That's everything from the mythological origins of major franchises like Lord of the Rings and Wonder Woman Women to modern urban legends to a roundup of werewolf stories from around the world. Like I said, they had me on the show a couple of years ago to talk about Nazi zombies and it was flipping delightful. So delightful in fact, that I assigned it to my students as extra credit last year. Sorry, if you're one of those students, stop listening to me and go do your readings. You can start listening to spirits with any of the nearly 500 episodes they've released. There's so much to enjoy, whether you're here for analyses of mental health and mythology or creepy mock modern ghost stories. You can dive in@spiritspodcast.com or search for spirits in the same app that you're using right now to listen to me yap at you. This episode is brought to you by Progressive Insurance. Do you ever find yourself playing the budgeting game? Well, with a name your price tool from Progressive, you can find options that fit your budget and potentially lower your bills. Try it@progressive.com Progressive Casualty Insurance Company and affiliates Price and coverage match limited by state law, not available in all states if there's anything this show proves again and again, it's that some historical figures could probably have done with a visit to a psychiatrist. Lucky for you, Talk Iatry exists now. If you've been stuck on a six month wait list for a psychiatrist or are bouncing between online mental health sites trying to find medication support, talkyatry was built for you. It's virtual psychiatry that actually fits your life and your insurance. Talkytry is a 100% online psychiatry practice that provides comprehensive evaluations, diagnoses and ongoing medication management for conditions like anxiety, depression, ptsd, insomnia, and more. Unlike therapy only apps, Talkiatry is psychiatry. That means you're seeing a medical provider who can diagnose mental health conditions and prescribe medication when it's appropriate. All of their 600 plus clinicians are in network with major insurers so you can use your existing insurance instead of paying monthly subscriptions or out of network fees. You'll meet with an experienced licensed psychiatrist who takes the time to understand what's going on, builds a personalized treatment plan, and can prescribe medication when it's right for you. Your care stays consistent and evidence based. Head to togs and complete the short assessment to get matched with an in network psychiatrist in just a few few minutes. That's tochiatry.com TGS or the link in our episode description to get matched in minutes.
- [46:15]
C
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- [47:07]
B
So one of the things he decides to start talking about is the substantive question of whether Congress is authorized to regulate slavery in the territories. He said that Scott had never been free because when Congress enacted the Missouri Compromise in 1820, it actually exceeded its authority. It had no power under the Constitution to forbid or abolish slavery in the territories. And so he basically invalidates the Missouri Compromise of 1820. And in doing so, it's only the second time in the history of the country that the Supreme Court has struck down a law that has been passed by Congress and signed into law by the President. The first time that the court did this was when they invalidated the Judiciary act in Marbury versus Madison.
- [47:58]
A
Yeah, I mean, I think there are also moments in this decision, and it's worth asking in just a second sort of how much we can lay this at his feet versus everyone else's feet if he's the majority opinion here. But there are moments that feel sort of overtly insulting, I would say, like not just stating the facts of a case or of an opinion, but like these unnecessary attacks on the person of Dred Scott and also on Congress. At one point, when he's talking about this idea of denying Congress the power to raise restrict slavery, he says an act of Congress which deprives a citizen of his liberty or property merely because he came himself or brought his property. Again, his property, meaning Dred Scott. Dred Scott, the property here. He's not the man in this situation, he's the property. Because he brought his property into a particular territory of the United States could hardly be dignified with the name of due process of Law.
- [48:50]
B
So this is a really important point because Article 1 of the Constitution says very clearly that Congress does have the authority to regulate questions in the territory, to regulate, make law for the territories. But the argument that Taney uses here is that there is a constitutional limit on that authority. And that limit is the due process clause of the Fifth Amendment, which says that the federal government cannot deprive you of your property without due process of law. And Taney essentially argues that in passing the Missouri Compromise, we. Which modified the status of property in certain states like Illinois, or in certain territories like Wisconsin, they effectively changed the status of this property, rendered it free, and in doing so, it was a taking by the federal government. It deprived property owners like John Emerson of their property because it made the property free. So he actually marshals the Constitution of on a number of different levels. So one, he marshals the Constitution and this reading of the history of the founding to say that there's no way that black people were thought of as citizens or that they could ever be thought of as citizens. And then he continues to draw on the Constitution to minimize Congress's authority to regulate in the federal territories by saying that in regulating, Congress is basically taking and depriving slave owners of their property. And now Congress is the bad guy. These are takings, the federal government coming and taking your stuff. And so it is resurrecting this interest in property rights. And this is kind of ironic because the prioritization of property rights was something that the Marshall Court was very much known for, but they did it with regard to federal power, like, so the contract contracts clause of the Constitution, which says that states cannot impair contracts by passing laws that, you know, impair the value of contracts or impair the status of contracts that was meant to prioritize the rights of contract holders using the force of federal law. Harry turns that on its ear and says, no, actually, what federal law protects is property law, but it's only this special kind of property. It's the slave, slave owning property, the slaveholding property. In a lot of other respects, he's fine with states running roughshod over property rights. There's a very famous case in the beginning of his tenure as chief justice called Charles River Bridge versus Warren Bridge. And the Charles River Bridge Company is given what they say is a monopoly by the state of Massachusetts to have a bridge that crosses a river between Boston and Charlestown town. And then a couple of years later, there's a new bridge, the Warren Bridge. And what's different about the Warren Bridge is that they don't charge a toll. So everyone starts using the Warren Bridge. No one's using the Charles River Bridge. The Charles River Bridge argues that by authorizing this new bridge, Massachusetts has violated the contract that they had, the charter that they had together, and it violates the contracts clause of the Constitution. Roger Taney's court says, nope, we've got to allow for innovation. States have to be able to do these things in the public interest. It's good for consumers to have lots of choices. And a free bridge sounds like a great idea. And we can trample on the property rights of the Charles River Bridge Company. But fast forward to Dred Scott. We are all about property rights when it's about slavery and property and enslaved persons.
- [52:22]
A
And to add to the sort of what you mentioned earlier about originalism, I think it's very interesting because what's happening here is he's sort of misusing this idea of originalism of, like, adhering directly to the Constitution and also what is meant in the Constitution and the secret arcane knowledge he has of the minds of the Founding Fathers in order that he can interpret to do this. But he's really misusing it in this really intellectually dishonest way to justify racism. He's saying things like, the founders never intend black people to be citizens, even though at this moment, free black people are citizens in several states already and vote in some states as well. And he's saying, no, no, no, they didn't mean that. But it's this. I find it this incredibly intellectually dishonest exercise.
- [53:05]
B
And it's sort of no sights. No sights, no.
- [53:08]
A
And on top of that, he's saying, this is actually going to save us from, for example, a civil war, which is wild.
- [53:16]
B
That's the Delulu part. Like, my good sir, what? Like, I mean, it's so interesting.
- [53:22]
A
And.
- [53:22]
B
And even how this case is decided has so many interesting things to it. So it was actually argued twice, once before the presidential election of 1856, and, you know, one of the justices is like, oh, this law, this is pretty complicated. I'm gonna need a minute. And Taney apparently was like, phew, don't wanna do this so close to an election. Like, you know, very John Roberts vibes. And so they argue it again after the 1856 election that sees James Buchanan come to the White House. But then after the case is argued, President Elect Buchanan is like, hanging out in Washington and you're writing to justices like, hey, how's that going with that Dred Scott case? Like, what's going on with that. How's that going? Because he knows that this case is hugely important. The country is about to be riven. Like, people are getting totally pissed off about slavery. Like, this is a powder keg, and Dred Scott could be the match that lights the flame. And so Buchanan's writing to members of the court about, you know, how. How's this going to work out? Totally unorthodox. Not supposed to happen at all. But that's what's going on.
- [54:31]
A
I mean, it's also like, obviously, I think the Civil War needed to happen in terms of, like, we should not have free and slave states in that sense. Yeah. So it's not like, I think, think it's bad that he lights the match or whatever for it in that sense only, but it's bad that he thought
- [54:46]
B
that he was, like, doing something. Yes. Like what?
- [54:49]
A
He makes compromise less possible. So, like, he actually works against whatever his aim is. And so it's not like he's saying the Missouri Compromise is bad because it allows slave states to continue existing, which would be a reasonable take on it. His issue is that he says it's bad because all states should basically just become slaves. Slave states.
- [55:08]
C
Right.
- [55:09]
A
Like, that's his issue with the compromise. It's horrible.
- [55:12]
B
Congress shouldn't be the one to decide it. Slaves should decide for themselves. And, like, we'll just like, see a whole bunch of people run from Georgia to Kentucky or whatever, new territories available and then. And they'll vote to make it a slave state. And that's popular sovereignty. And it's fine. The decision is so interesting. Just the way in which it fuels this dry drive toward war, and it makes compromise, like, just. It's out of the question. Like, Abraham Lincoln runs for president on a free soil platform, and he cites Dred Scott. And, like, to be clear, Lincoln is no abolitionist. I mean, he, like, Taney, wants to keep the Union together. He just doesn't see how Dred Scott does that. They both want the same thing. Taney thinks he's doing something. He's settling the question, and this will keep the Union together. And Lincoln's is like, my guy. Do you even see yourself? Like, this is not going to keep us together. This is driving us further and further apart. And, you know, the irony, of course, is that Lincoln is right. There will be a civil war. You know, Fort Sumter happens shortly after Lincoln is elected. Taney doesn't leave the court. He remains the Chief justice throughout Lincoln's tenure. And there are lots of questions during this period about the scope of executive authority about, you know, the role of, role of the federal government in the time of war and what it might mean for individual civil liberties. And there are moments where Taney writes and the Taney court issues decisions that are actually very protective of civil liberties that limit the executive's authority to do things like suspend the writ of habeas corpus. And Lincoln doesn't listen. And you sort of just wonder, is he just like, I already know about you, Roger Tani. Like I don't, I don't buy what you're selling. Or if he's just sort of like, I'm the President. And he has this very fulsome account of executive authority. But it's very clear that Dred Scott diminishes the court's legitimacy. And during that period in which the country is in open warfare, you have an executive who literally doesn't give an F about what Roger Taney has to say.
- [57:21]
A
Yeah. And we have this long term relationship now to the Supreme Court in the mid to late 19th century where we're like, ooh, that was a really bad time for the Supreme Court. Like this is a long term term legacy of that. And what's funny, I mean, I don't know if funny is the right word, but like in October 1864, he just dies. Like he dies and he, he basically set fire to America, ruined the lives of thousands of thousands of people who should have been citizens. And then peace is out. Yeah. And then here we are, you know, a little less than 200 years later saying that we still hate him to this day.
- [57:57]
B
So during the George Floyd protest in 2020, there was a bust of Roger Taney. I think it was in like in
- [58:04]
A
Maryland somewhere in Annapolis, the Maryland State House, there's one of those. And in Baltimore. Yeah.
- [58:09]
B
And people were like, you gotta take this down. And there is also a bust, I believe I'm actually, I think I've seen it of Roger Taney in the Supreme Court. Like there are busts of all of the Chief Justices and he's, he's there too. And you know, I think he has probably a pretty checkered reputation at this point in time. You know, one thing that was, I thought, kind of funny, but when the Chief justice, like in the wake of the court overruling Roe vs. Wade in the Dobbs decision in 2022, someone had a Twitter post and it was like, new photo of Chief Justice John Roberts just dropped. And it was the famous picture of Roger Taney.
- [58:45]
A
Uh huh. This is how he's remembered. And so it's interesting to have an episode where we're like, we're not really updating his legacy. We just want to make sure everyone knows how, how much this guy sucked and how like to this day we hate him and will continue to do so.
- [58:59]
B
I mean, this is like everyone has hard stuff in their job. I get it. But I mean, he really went out of his way to paint black people enslaved people with a really broad brush of some racism in Dred Scott. And I think no matter what he did later, no matter what he did before, it's good reason why he sucks.
- [59:19]
A
Yeah, and everyone has hard stuff in their jobs, but not all of us try to revoke, remove and forfend the citizenship of an entire race of people in our jobs.
- [59:30]
B
Congress doesn't have to pass three whole amendments to remedy the crap you did at work.
- [59:34]
A
If I do a bad podcast episode, I'm getting a mean review or two on Apple Podcast. That's.
- [59:41]
B
This is the thing, Claire, like with this birthright citizenship case that is now pending before the Supreme Court, the 14th Amendment Citizens citizenship clause is a repudiation, an overruling of the Dred Scott decision. And there are people in our government who are arguing that we should basically make Dred Scott great again.
- [59:59]
A
Yeah, 100%. They're like, let's get rid of the 14th. Bring this back.
- [60:04]
B
For some people, that's very bad.
- [60:07]
A
Like, that's very, very bad. So I hope people listening get that this is a great place for us to end here because I want to really end with people understanding that they should hate him. This is bad and it's affecting their lives currently at this exact moment. Thank you so, so very much for coming on to the show. Professor Murray can be found on Twitter Blue Sky Instagram threads at Profm Murray, you can get tickets to see her in San Francisco and LA as well
- [60:34]
B
as pretty just la. Now I think San Francisco might be sold out. I'm sorry, there may be tickets on StubHub.
- [60:40]
A
Well, sorry, San Francisco, you can get tickets this year in la. You can drive if you you want to as well as I'm saying this, someone who just moved here from Berkeley, you definitely cannot drive to la.
- [60:49]
B
You can take Southwest.
- [60:51]
A
Yeah, you could take Southwest. You can also pre order yourself a copy of her annotated version of the US Constitution at the link in our episode description. All of these things are linked below. Thank you again for being here.
- [61:03]
B
Thanks so much for having me.
- [61:07]
A
Thanks for tuning into this episode of this guy. I Sucked A member of the Multitude podcast collective this episode was Hosted by me, Dr. Claire Aubin, featuring special guest Melissa Murray, and edited by my son Moon, and stars Julia Sheffini. All of our theme music was written and produced by the man with the Magic Mind, Marshall Dean Williams. If you'd like to support the show and get access to all episodes, including two extra episodes per month, and access to our full archive of episodes, you can subscribe on Apple Podcasts or to our patreon@patreon.com thisguysucked See you next week.
- [61:54]
D
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B
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A
Can I make my site firmer?
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B
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