OPINION:
Only by ignoring the pervasive presence of slavery in 18th century America is there a cohesive founding narrative for the United States as a bulwark against tyranny and a place where government is based on the concept that “all men are created equal.”
The eminent constitutional historian Paul Finkelman has devoted much of his prodigious scholarly efforts over the past 20+ years to spotlighting the truth about how the institution of slavery profoundly affected the laws and legal interpretations that governed the land.
It is not so much a case of rewriting history as it is of making more complete — and more honest — the history upon we base our sense of who we are as Americans.
Mr. Finkelman as early as his 1996 book “Slavery and the Founders” has already spotlighted the extent to which the Constitution was in many ways a pro-slavery document: the provisions that in determining how many members of the House of representatives each state should get each slave should count as three-fifths of a person, that there be a moratorium on limiting slave trade, and that states that had outlawed must nonetheless return South escaped slaves.
The Constitution, of course, is only a template for a nation’s legal system. The task of applying it to individuals and individual disputes is left to the courts. That is the subject Mr. Finkelman tackles in his newest book, “Supreme Injustice.” He looks at the record — on the court and in their private lives — of the men he calls “the three most important justices of the antebellum Supreme Court — Chief Justice John Marshall, Associate Justice Joseph Story, and Chief Justice Roger Brooke Taney.” All of them he finds profoundly pro-slavery.
Their decisions, of course, are of public record. But this seems to be the first analysis to take them as a whole — and to lay them side-by-side with the facts of Justices’ personal involvement with slavery.
Taney and his wife both grew up on plantations served by slaves, and Taney himself owned slaves. As Andrew Jackson’s attorney general he advised the president that even free blacks were a “degraded class” with no inherent rights. After becoming Chief Justice in 1836, he demonstrated his hostility to African-Americans in a number of decisions before he authored the now infamous Dred Scott decision 20 years later — a decision that in recent months has made him the subject of heated public debate.
In Dred Scott, he went beyond the issue of whether a slave taken into a free state thereby became free; he asserted that blacks could never be U.S. citizens because they were “so far inferior, that they had no rights which the white man was bound to respect.” So odious do we now find such sentiments that in August a statue of Taney was removed from the grounds of the Maryland state house, where it had stood for 145 years.
There has been no similar public outcry about the statue of Story at the entrance of the Harvard Law School library or the one of Marshall in front of the U.S. Supreme Court building. But Finkelman makes a persuasive case that their slavery jurisprudence is equally objectionable.
A Massachusetts native, Story in his early years in public life denounced slavery as fundamentally immoral. But on the high court he acquiesced in pro-slavery opinions written by other justices. He earns his place in Mr. Finkelman’s trilogy of injustice primarily as the author of the 1842 decision in Prigg v. Pennsylvania.
His ruling opened the way for those engaged in hunting down fugitive slaves to seize blacks in free states and return them to the South without a chance to show in court that they were not slaves. That ruling put in jeopardy the 170,000 free blacks living in the North, and was arrived at, Mr. Finkelman notes, only by misstating legal precedents and constitutional history.
Taney and Story were important justices, making major contributions in areas far from their slavery cases. But there has been no more towering figure in U.S. legal history than Marshall, author of the landmark decisions establishing that the Supreme Court’s power and that supremacy of congressional actions over those of the states. Mr. Finkelman shows, however, that Marshall’s image would be far less luminous had most of his biographers not ignored his relationship with slavery.
Carefully poring over early census records and varying drafts of Marshall’s will, Mr. Finkelman establishes that Marshall had bought slaves throughout his life and had at one time owned nearly 200. And on the high court his interpretations of the law showed him, in Mr. Finkelman’s words, “as deeply committed to slavery as he was in his personal life … shaping a jurisdiction that was hostile to free blacks and surprisingly lenient to people who violated the federal law banning the African slave trade.”
Marshall, Story and Taney all truly believed that steps to outlaw slavery in the United States could enrage Southern states to the point of secession. But, as an able lawyer, Mr. Finkelman lays out rationales that all three of the justices could have been used to provide litigants the same outcomes in these key cases without making the decisions sweeping pro-slavery mandates.
Mr. Finkelman is a scholar, not an activist. “Supreme Injustice” contains no call to topple monuments or to rewrite history books. He simply lays out a convincing case that we must in thinking about our national heritage grapple with the unsettling truths about the humanity we denied slaves and the legal protections we gave their owners.
• Daniel B. Moskowitz, a journalist based in Washington, worked alongside Linda Greenhouse for many years when he covered the U.S. Supreme Court for BusinessWeek magazine.
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SUPREME INJUSTICE: SLAVERY IN THE NATION’S HIGHEST COURT
By Paul Finkelman
Harvard University Press, $35, 287 pages
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