There have been noises made recently about removing busts of Roger Brooke Taney, former US Attorney General under Jackson, Maryland resident, brother-in-law of Francis Scott Key, and fifth Chief Justice of the United States from in front of prominent state and local buildings in Maryland. Being the home of the author of the majority opinion in the Dred Scott case is perhaps not exactly the sort of legacy one would want to overtly embrace.
My opinion piece on the matter appears in today's Washington Post. The longer pre-edit version appears below:
A Symbol of Bigotry That Should Be Removed
Frederick city aldermen proposed removing a bust of Roger Brooke Taney, a Frederick resident, who, as Chief Justice of the Supreme Court, authored the infamous Dred Scott decision, ensconcing the most institutional form of racism into the fabric of our legal system. His likeness should be removed, not merely for his defense of slavery, but for how he defended it.
Taney is vilified for deciding not only that escaped slaves must return to bondage, but that "neither the class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were then acknowledged as a part of the people...It is difficult at this day to realize the state of public opinion in relation to that unfortunate race which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence and when the Constitution of the United States was framed and adopted." Based on precedent in British, Colonial, and Early American law, and because signatories of the Declaration of Independence owned slaves, equality was deemed not self-evident for those with dark skin. They were not to be considered people under the Constitution as it then stood.
Defenders reject Taney's blemished image, pointing to empathy in word and deed: his use of the phrase "unfortunate race," freeing his own slaves, and giving pensions to those too old to labor.
But the question is not about Taney the man, but Taney the symbol, the social meaning of Roger Brooke Taney. Thus, the bust is no different from Confederate battle flags atop government buildings in Southern States.
Those discussions hinge upon concepts like "heritage" and "states' rights," deliberately employing sanitized abstractions to remove from the conversation all mention of the violence, inequity, and immorality of the romanticized past.
Taney's decision is a touchstone for those, including current Supreme Court Justices, who champion the doctrine of "originalism" wherein laws are to be interpreted according the framers' meanings, even if we come to realize they are based in error. Like the rhetorical use of sanitized abstractions, originalism deliberately seeks to cage off from discussion the biased and scientifically inaccurate view of the world that formed the context for those original meanings. Just as Taney argued that the law must remain as bigoted as those who created it, despite facts that undermine their prejudice, contemporary originalism cleverly maintains the injustices of the past, even when they have been debunked and purged from the rest of society.
What ought to worry us is not just Taney's conclusion, but his means of reasoning. Taney's bust celebrates the view that old falsehoods used to justify discrimination should remain entrenched in our laws even when, as Taney admits, we find it "difficult at this day to realize the [flawed] state of public opinion" in those past eras. To cite "original intent" or "heritage," while ignoring the scientifically untenable bigotry that forms their social context, is to employ a dastardly red herring to reinforce injustice. For that reason, Taney's bust should be removed.
Cross-posted at ePluribus Media