Balkinization: Taney as Imperialist (and Racist)

Taney as Imperialist (and Racist)

Mark Graber

Jacksonians before the Civil War justified expansion by asserting the virtues an extended white republic. White persons who moved into the territories were fully protected by the Bill of Rights, in this view, partly because the whole point of expansion was to increase the land available for free white settlement and partly because Jacksonians had other doctrinal means for fencing out non-whites. Put differently, Taney's claim that the constitution follows the flag in Dred Scott was connected to American expansionism as well as American racism and American slavery, but American expansionism was closely connected to American racism and slavery. Putting African-Americans aside, Taney and others had few qualms about the number of native-Americans killed to expand the scope of white liberty. Whig anti-expansionism was often as racist. Expansion was bad, many argued, because expansion increased the number of nonwhites in the United States (and Whigs were not quite [emphasis on "not quite"] as comfortable as Jacksonians with the doctrinal moves necessary to fence persons of color out of citizenship rights).

While Taney’s thought was not all of on piece (whose thought is), his premises were not utterly disconnected. Taney was not simply a racist pro-slavery advocate, he was a Jacksonian racist pro-slavery advocate. How he understood race and slavery was in part structured byJacksonian commitments (Austin Allen's new book is very good on this). Taney was not simply a Jacksonian, but a Jacksonian pro-slavery advocate. His commitments to Jacksonian expansion were in part structured by his racism and proslavery attitudes. Perhaps as lawyers we are allowed to isolate one aspect of his thought from others. When we do so for legal reasons, however, we should realize that the voice is really ours and not that of Roger Taney or any other Jacksonians racist pro-slavery advocate

SIDE POINT. I will be speaking at the Harvard conference Sandy discusses in his post. My theme is going to be, regardless of whether you think Dred Scott was rightly or wrongly decided on the merits, the more important point is how much slavery the antebellum constitution protected. To this end, I think I am going to focus on just how much slavery and racism the celebrated dissents in those cases would protect. With some luck, the conference will not turn into a contest over who can denounce slavery the most.

Posted 8:51 PM by Mark Graber [link]