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Remarks by Chief Justice William H. Rehnquist
Rededication of the Roger Brooke Taney House and Museum

April 7, 2004

Thank you Senator Mathias. I am happy to be here today to celebrate the rededication of the Roger Brooke Taney House and Museum.

Roger Brooke Taney was born in Calvert County, Maryland, on March 17, 1777. After attending Dickinson College in Carlisle, Pennsylvania, he moved to Annapolis to study law under a Maryland judge, Jeremiah Chase. It was in Annapolis that Taney met Francis Scott Key, who of course wrote the words to "The Star Spangled Banner." Taney later married Key's sister, Anne Phoebe Carlton Key.

Taney was admitted to the bar in 1799 and, after serving for a year in the Maryland House of Delegates, moved to Frederick, Maryland, where he had a successful private law practice for more than twenty years. He served a five-year term in the Maryland Senate, and in 1827 was elected attorney general of Maryland. In 1831, after leading Andrew Jackson's presidential campaign in Maryland, Taney was named Attorney General of the United States. During his stint as Attorney General, Taney for a time also served as the Secretary of War.

During this time, President Jackson was battling the Senate over whether the national Bank of the United States should be rechartered or whether its charter should be allowed to expire. Jackson was staunchly opposed to the national Bank and at one point ordered his Treasury Secretary, William J. Duane, to withdraw all federal funds from it. When Duane refused, President Jackson fired him and named Taney Secretary of the Treasury. After serving in the latter position for nine months, the Senate refused to confirm Taney and he returned to private law practice in Baltimore. He was the first cabinet nominee to be rejected by the Senate.

In 1835, President Jackson nominated Taney as an Associate Justice on the Supreme Court to replace Gabriel Duvall. The Senate once again refused to confirm him. But ten months later, in 1836, Taney, at the age of 59, was nominated to succeed Chief Justice John Marshall and was confirmed by a vote of 29 to 15.

Taney was the fifth Chief Justice of the United States, and the first Roman Catholic to sit on the Court. Following Chief Justice John Marshall -- who is often referred to as "the great Chief Justice" -- Taney had big shoes to fill. But he had a first-rate legal mind and was a clear, forceful writer. He did not believe in legal learning for its own sake, and he realized that constitutional law required not only legal analysis, but also vision and common sense.

Chief Justice Taney instituted both small and large changes in the functioning of the Court. During Chief Justice Marshall's tenure, Marshall wrote the vast majority of the Court's constitutional decisions himself. Taney changed that tradition and began the practice of assigning important opinions to Associate Justices to write. Taney was also the first member of the Court to wear long trousers under his robe, rather than knee breeches.

The Taney Court over which he presided for twenty-eight years was less nationalist in its orientation than was the Marshall Court. The principal doctrines of the Marshall Court remained in place, but they were tempered by a greater willingness to uphold state authority. In the Charles River Bridge case, for instance, decided in 1838, the Court in an opinion by Taney limited the scope of the earlier Marshall Court decision in the Dartmouth College case, saying that implied covenants would not be read into state contracts for purposes of the impairment of Contracts Clause. In Cooley v. The Board of Wardens, the Court held that some activities, even though within the scope of congressional authority over commerce, could nonetheless be regulated by the States until Congress had acted. There were dissents on both ends of this case. Justice McLean of Ohio would accord no such power to the States, and Justice Daniel of Virginia -- surely one of the most extreme champions of states' rights ever to sit on the Court -- would have allowed the state regulation even though it was contrary to an act of Congress.

Although known as a states' rights advocate, Chief Justice Taney also recognized the need for common sense in the law's application, even if it meant giving the federal government more authority. In The Genesee Chief v. Fitzhugh, Taney wrote the opinion for the Court overruling The Steamboat Thomas Jefferson, a Marshall Court decision limiting the jurisdiction of the federal courts. In Thomas Jefferson, the Court had adopted the British rule confining admiralty jurisdiction to those navigable waters affected by tidal flow. This rule excluded the Great Lakes from the admiralty jurisdiction of the federal courts.

The Genesee Chief involved a collision on Lake Ontario between the Genesee Chief and a schooner called the Cuba. Taney's opinion noted that the tidal flow test was reasonable for England, where "there was no navigable stream in the country beyond the ebb and flow of the tide," and even for the United States when the Constitution was adopted, and most of the navigable waters were tide-waters. But with the advent of steamboats and the growth of the United States, the tidal flow rule no longer made sense. In overruling the Marshall Court's decision, Taney explained:

We have thousands of miles of public navigable water, including lakes and rivers in which there is no tide. And certainly there can be no reason for admiralty power over a public tide-water which does not apply with equal force to any other public water used for commercial purposes and foreign trade.

Chief Justice Taney also wrote the opinion for the Court in Ableman v. Booth, decided in 1859. Ableman involved two consolidated cases that challenged the fugitive slave law of 1850, but the real issue in both cases was the authority of state courts versus the federal government. Booth had been arrested and charged with violating the fugitive slave law, and later convicted by a jury in the U.S. District Court in Wisconsin, and sentenced to serve one month in prison and pay a fine of $1,000. Booth sought a writ of habeas corpus from the Wisconsin Supreme Court after his arrest and after his conviction, arguing that the fugitive slave law was unconstitutional. The Wisconsin Supreme Court agreed, issued a writ of habeas corpus to the U.S. marshal, and ordered Booth released.

The Attorney General promptly sought relief from the U.S. Supreme Court, which issued a writ of error to the Wisconsin Supreme Court, asking for a certified copy of the record below. The Wisconsin court ignored the writ of error and refused to recognize the Supreme Court's jurisdiction to hear the case.

In a unanimous opinion written by Taney, the Supreme Court reversed the judgment of the Wisconsin court. Taney explained that, "for the first time," a state court had declared its supremacy "over the Courts of the United States, in cases arising under the Constitution and laws of the United States." Firmly rejecting this rather extraordinary proposition, the Court reaffirmed the supremacy of the federal government and the power of the Supreme Court of the United States. Near the very end of the opinion, Taney summed up the reasoning behind the Court's decision: "And if any argument was needed to show the wisdom and necessity of [this Court's] appellate power, the cases before us sufficiently prove it, and at the same time emphatically call for its exercise." Taney was nearly 82 years old when he wrote Ableman, yet it has been called one of his most powerful opinions.

Taney’s long and otherwise admirable career is, unfortunately, marred by his opinion in the ill-starred Dred Scott case, in which he opined that even free blacks could not be citizens for purposes of diversity jurisdiction, and that Congress lacked the constitutional authority to ban slavery in territories that had not yet been admitted as states. Charles Evans Hughes rightly described the Dred Scott decision as a "self-inflicted wound" from which it took the Court at least a generation to recover. Ironically, more than 30 years before he wrote the opinion in Dred Scott, Taney himself had freed the slaves he owned.

Because of his role in the Dred Scott case, history has judged Taney harshly. Taney was gaunt and suffered from ill health much of his life; in portraits, he looks rather severe and unlikable. But he must have been a kind man. Samuel F. Miller, who was appointed to the Court by President Lincoln and whose opinions had little in common with those of Taney, left this memento of his feeling for Chief Justice Taney:

When I came to Washington, I had never looked upon the face of Judge Taney, but I knew of him. I remembered that he had attempted to throttle the Bank of the United States, and I hated him for it. I remembered that he took his seat upon the Bench, as I believed, in reward for what he had done in that connection, and I hated him for that. He had been the chief spokesman of the Court in the Dred Scott case, and I hated him for that. But from my first acquaintance with him I realized that these feelings toward him were but the suggestions of the worse elements of our nature; for before the first term of my service in the Court had passed I more than liked him; I loved him. And after all that has been said of that great, good man, I stand always ready to say that conscience was his guide and sense of duty his principle.

Taney was in his mid-eighties, and feeble looking, when he swore in Abraham Lincoln as President in 1861. But he continued to serve as Chief Justice until his death in 1864, partly because he needed the income to support himself; at that time, no provision was made for pensions for federal judges. His long tenure prompted Ben Wade, an abolitionist Senator from Ohio, to remark that no man had prayed harder than he that Taney would outlive the administration of James Buchanan, but now he was afraid that he had overdone it.

Today, when historians and legal scholars speak of the greatest Justices ever to have served on the Supreme Court of the United States, Chief Justice Taney usually makes the list. I think I would have to agree with that assessment. The Roger Brooke Taney House and Museum provides an opportunity for more people to learn about his legacy.

Thank you.



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