For this edition of our “Ask the Author” series, we spoke with Professor James Simon about his new book, Lincoln and Chief Justice Taney: Slavery, Secession, and the President’s War Powers. Professor Simon is Martin Professor of Law and Dean Emeritus and at New York Law School.
The following is part 2 of the discussion; part 1, which ran yesterday, can be found here.
The second half of the book describes President Lincoln’s controversial decisions during the civil regarding civil liberties, and then what the judicial reaction to them was. Can you talk in some detail about these actions? Since this blog has followed quite closely the ongoing developments involving the habeas rights of those detained as part of the War on Terror, I’d be quite curious to know your take on what is going on right now in comparison to what happened during the Civil War.
As I wrote in my book, Lincoln first suspended the writ of habeas corpus shortly after the Civil War began. His original suspension was quite limited – between Philadelphia and the District of Columbia, and could be justified, it seems to me, because 1) Congress was not in session and 2) the nation’s capital, and perhaps, the very survival of the Union, was virtually under siege by secessionist forces, many of whom resided in Maryland and had overtly tried to sabotage the Union cause. Chief Justice Taney, however, wrote an opinion in the Merryman case, in which a suspect Maryland secessionist was imprisoned at Ft. McHenry, saying that Lincoln had exceeded his constitutional powers. I think Lincoln, under the circumstances, was probably justified in suspending the writ then but not later. As to comparing Lincoln’s actions during the Civil War to President Bush’s actions in the War of Terrorism, I make the point in my book that no one could deny that Lincoln faced the worst crisis in the nation’s history and an immediate threat to the nation’s survival. I argue in my book that Lincoln fought fiercely to preserve the Union so that our constitutional government, with all of its safeguards, could survive. Lincoln believed in the rule of law and was a student of the Constitution. I do not think the War on Terror threatens the survival of the U.S., as the Civil War did. Moreover, President Bush’s actions do no suggest that he has a comparable reverence for the rule of law.
It was fascinating to learn that Chief Justice Taney, essentially in his spare time, actually wrote unpublished opinions stating that he believed both the Legal Tender Act and the Enrollment Act were unconstitutional, yet cases touching on these subjects were never even brought to the Court during the war. Thus, given the difference in the speed with which each branch can act, what can the Supreme Court’s role during wartime be?
It is true that Taney wrote unpublished opinions on the Legal Tender Act and the Enrollment Act, but neither issue was ever decided by the Court. The question of the Court’s role during wartime is complex. Generally, the Court in our history has avoided challenging the political branches of government during wartime. That is why the recent decisions by the Court dealing with due process rights of enemy combatants have been unusual in that the majority has rebuked the President.
In the one dispute about civil liberties that did make it up to the Court during the war, the Prize Cases regarding the constitutionality of the naval blockades, Chief Justice Taney was in the minority in wanting to curtail the President’s authority. Was this a good thing from the point of view of assessing how we view the Chief Justice?
Chief Justice Taney did not write the opinion for the Court in the Prize Cases nor did he write the dissent, which he joined. I don’t think his dissenting vote in the Prize Cases had any effect on how we view Taney or other Chief Justices.
Finally, what is Chief Justice Taney’s ultimate legacy? How should we assess a man who freed his own slaves but who also wrote Dred Scott, and who did his best to stand up to the President in protecting civil liberties, likely to the point that if his views had become law, they may have severely hurt the chances of a Union victory?
I think Senator Charles Sumner of Massachusetts, the outspoken abolitionist, was correct is saying, after Taney’s death, that he would “be hooted in the pages of history.†Undoubtedly, Taney’s Dred Scott opinion, the most disastrous in the Court’s history, will forever be a prominent part of his judicial legacy. But there is another Taney legacy. Chief Justice Charles Evans Hughes, a half century after Taney’s death, surveyed Taney’s opinions in areas as diverse as federalism and civil liberties and concluded that he was a “great Chief Justice.†But for his Dred Scott opinion, I think Hughes would have been correct. The problem is that it is impossible to forget Dred Scott.
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