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LASTING OPINION

The Baltimore Sun

FREDERICK-- --A bronze plaque identifies the red-brick rowhouse on South Bentz Street in Frederick as once having belonged to Roger Brooke Taney and his wife, Anne. Plain and simple.

The larger, more-detailed wooden sign that used to hang out front has been banished to the attic; the sign that made note of the slave quarters in the backyard and the fact that Taney served as chief justice of the United States from 1836 to 1864, during which time he "delivered the opinion in the Dred Scott case."

"There were some decisions made by the historical society to kind of step back a little from the Dred Scott case because it created such controversy," says Ron Marvin, site manager of the Taney House (whose research indicates Taney may have never actually lived here).

Today marks the 150th anniversary of that decision, considered among the most infamous in legal annals and, some Taney critics contend, so inflammatory it propelled a country into civil war.

Not a highlight most people would want on their life's resume. However, "one opinion does not make a man," cautions Marvin, who, in his three years on the job with the Historical Society of Frederick County, has become an admirer of Taney's character - and lends his voice to a small chorus that believes Taney has been miscast as the villain in a bad history movie.

"He was an exceptionally bright and, I think, fair-minded lawyer and judge, till he came to the slavery issue in the heat of battle," says New York Law School professor James F. Simon, author of a new dual biography on Taney and Abraham Lincoln.

Dred Scott was a Missouri slave who had traveled with his master into the free state of Illinois and free territory of Wisconsin. Having temporarily enjoyed de facto freedom, he filed suit to make his status permanent. On March 6, 1857, the Supreme Court ruled against him 7-2.

Taney (pronounced "Taw-nee"), then a frail 79 years old, wrote the majority opinion in Dred Scott v. Sanford - lapsing into uncharacteristically raw language that still stings.

He based his argument on a strict interpretation of constitutional law and federal jurisdiction. He could have stopped there.

Instead, Taney put his own spin on the Founding Fathers' intent, declaring they regarded blacks as "beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect."

Thus, with the eyes of an anxious nation on him, Taney managed to fall to the occasion.

"If not for the Dred Scott case," says Marvin, "he'd be considered the greatest chief justice, if not the second greatest to [John] Marshall."

Super-sized IF.

Those sympathetic to the Southern cause praised Taney. In the north he was widely vilified. The New York Tribune labeled the decision "wicked."

Lincoln pounded unmercifully on the Taney court in his epic 1858 Illinois Senate-campaign debates with Stephen Douglas. Lincoln lost the election but found the political voice that would carry him to the presidency two years later.

Taney died in October 1864, six months before the Civil War ground to its bloody end; at the very time his native state of Maryland abolished slavery.

Traditionally, a bust of a deceased chief justice is quickly cast and put on display in the Supreme Court. But emotions ran so high that it wasn't until 1874 that Congress appropriated money to memorialize Taney.

That drama came as news to Marvin, a 38-year-old self-described "history geek" with a master's degree in museum studies, when he arrived at the Taney House in 2003. He knew about Dred Scott, but almost nothing of Roger Taney.

He was working in Kulpsville, Pa., at the Morgan Log House - built circa 1700 by Daniel Boone's grandparents and hardly a magnet for controversy - when the Historical Society of Frederick County asked him to come help revive interest in the Taney House.

It has been a historic site since 1929. There were as many as 4,000 visitors a year in the 1940s. But Taney's star gradually dimmed even in his own state. By the time Marvin was handed the keys to the front door, the number of visitors was down to 400.

A tarnished name

Taney's name already had been taken off an elementary school in Prince George's County. Statues of him in Frederick and Baltimore's Mount Vernon Square draw occasional complaints. The one outside the State House in Annapolis so rankled some legislators in the early 1990s that a resolution was proposed to have it removed. Interest faded after a complementary monument to civil-rights pioneer (and Supreme Court justice) Thurgood Marshall was erected nearby.

A good compromise, says state Sen. Brian E. Frosh of Montgomery County, a sponsor of the dump-Taney resolution. Still, "it's irritating," he says, to see that statue in so prominent a location. "I can't imagine how some of my African-American colleagues must feel."

Glenn Ivey, state's attorney for Prince George's County, is black and a Harvard Law School grad. Intellectually, he can appreciate Taney's tenure on the Supreme Court. Emotionally, the Dred Scott opinion rings loudly in his ears.

"There's not a lot of court language I can recite by memory," says. "But that's one."

There were no continuing education or research programs at the Taney House before Marvin became site manager. He has reached out to school groups and trained volunteer docents. The number of visitors has climbed to 1,000 annually. Meanwhile, he sifts through collections of business papers and private correspondence "trying to find the humanity of Roger Taney."

Long before he became chief justice, Taney freed his slaves (he had between eight and 10). By all accounts, he was a benevolent master.

He also refused to cash in on his political connections: Financially strapped, he worked until he died.

"We get this picture of a racist, bigoted slave owner, which is quite a bit different from the actual person," says Marvin.

How difficult can it be to draw a bead on the real Roger Taney? Consider Justice Samuel Miller, a Lincoln appointee to the Supreme Court. He had never met Taney before coming to Washington and admittedly "hated him" for the Dred Scott decision.

Later, however, Miller felt compelled to write, "Before the first term of my service in the Court had passed I more than liked him; I loved him. ... I stand always ready to say that conscience was his guide and sense of duty his principle."

Last June, the Historical Society of Frederick County held an extended-family reunion to commemorate the 200th wedding anniversary of Roger Taney and Anne Key, sister of Francis Scott Key, the Maryland-born lawyer who gained fame by simply scribbling the lyrics that became "The Star-Spangled Banner."

Most contemporary Taneys have a split-decision reaction to their notorious ancestor: proud but puzzled. Chris Taney, a 49-year-old carpenter from Boonsboro, stopped by the Taney House recently and was taken aback by his resemblance to a young Roger Taney in a painting. Identical long, chiseled nose. Identical shock of wavy, dark hair.

"It's amazing," he says. "The genetic code is still there somewhere."

Taney wonders how the "wheels turned" inside his great-great-great-uncle's head. What compels someone to take quill pen in hand and scrawl ... "no rights which the white man was bound to respect"?

The answer may be beyond our reach. Those sentiments sprang from another place and time.

"It's like trying to understand people who lived on the moon," says Taney. "That mindset, you're dealing with a totally different world."

The Taney family tree was planted in America by an indentured servant who emigrated from England in 1660. Roger Brooke Taney was born in March 1777, during the dawn's early light of the American republic.

Slave-owning roots

He was the second eldest son of a wealthy, slave-owning tobacco farmer in Calvert County. At 15, Taney enrolled in Dickinson College in Carlisle, Pa. He graduated first in his class and began to read law under the tutelage of an Annapolis judge.

Taney moved to Frederick and built his law practice, married, and served a term in the House of Delegates before upgrading to state senator. In 1819, he successfully defended an abolitionist preacher charged with inciting racial discontent. In open court during the trial, he denounced slavery as "a blot on our national character" and slaveholders as "reptiles."

Was he speaking from the heart? Or as a hired gun?

Taney never said. But there's intriguing circumstantial evidence: In 1832, he submitted an unpublished advisory opinion to President Andrew Jackson on the subject of black citizenship. It contains a white-supremacist riff that's basically a prequel to Dred Scott.

What's certain is that Taney was a states-rights-loving Democrat. He had played a prominent role in Jackson's 1828 run for the White House. And a victorious Jackson subsequently named him U.S. attorney general and, later, treasury secretary.

When Chief Justice Marshall died in 1835, Taney was tapped to replace him. Not a popular choice: He was presumed a lightweight, a Jacksonian toadie.

But in his book Lincoln and Chief Justice Taney: Slavery, Secession, and the President's War Powers, Simon gives the Taney court high marks for a series of landmark contract-law and commerce-law rulings. Collectively, they shaped the United States during its growing-pains period of industrialization and westward expansion.

Taney himself squared off with Lincoln over the limits of executive authority - a constitutional tug of war that continues today. The president circumvented Congress by ordering blockades of Confederate ports and having Southern sympathizers jailed without charge. Taney responded with a flurry of countervailing bench orders and nonbinding opinions - extolling balance of powers and civil liberties.

No question, Simon adds, Taney was "a racist," as were so many Americans then. His tragic mistake was venting those feelings in the purplest of prose.

"With Dred Scott, Taney felt - as did a majority of the court - that they would take the issue out of the national debate and do this country a great service," says Simon. "Where he went woefully wrong was going beyond the facts of the case."

James B. O'Hara, a retired professor of law at Loyola College and trustee of the Supreme Court Historical Society, is more forgiving. He puts Taney on his list of top-10 justices.

"When people think of Taney, they look through the prism of modern civil rights," says O'Hara. "The opinion is incendiary and deserves all the opprobrium it's gotten. Yet he was a creature of his times."

And an unapologetic one. In the wake of Dred Scott, Taney remarked in a letter to a friend, "I have an abiding confidence that this act of my judicial life will stand the test of time and the sober judgment of the country."

There are only four Taney biographies, the most recent published in the 1960s. Ron Marvin is gathering material for a fifth. It's tentatively titled Roger Brooke Taney: Privately Conflicted, Publicly Convicted.

Marvin has pored over yellowed papers at Dickinson College, the Maryland Historical Society and the National Archives. Anne Taney and her daughter Alice died on back-to-back days in September 1855. Marvin wants to know more about that ordeal, among other things. It's possible that double-barrel tragedy embittered the wizened chief justice months before he heard the case of his life.

"Was his thinking clouded at the time because of the heartbreak and sorrow?" Marvin asks.

He will need to unearth some miraculous revelations to salvage Roger Taney's reputation.

Perhaps Taney already has found his just place in history: outside the Maryland State House, on a hillock overlooking the harbor that once trafficked in human cargo. There Taney sits, alone on his marble perch, as if patiently awaiting the "sober judgment of the country."

He will wait forever. A free man enslaved by stubborn prejudices, forever shackled to his own strong words.

tom.dunkel@baltsun.com

Information

Roger Brooke Taney practiced law in Frederick from 1801 to 1823, before moving to Baltimore and then Washington. He also served as a Maryland legislator, as state attorney general, as a member of President Andrew Jackson's cabinet and as chief justice of the United States for 28 years.

The Taney House, at 121 S. Bentz St. in Frederick, is operated by the Historical Society of Frederick County. Taney's law books and other memorabilia are on display. Guided tours are available. The four-room rowhouse and detached kitchen/slave quarters are open weekends April through December. Admission is $3. Free for age 17 and younger. For more information: 301-663-7880 or hsfcinfo.org.

A symposium on the Dred Scott case will be held March 30 from 9 a.m. to noon in Whitaker Commons at Hood College. Call 301-663-1188 for more information. A Dred Scott exhibit opens the next day at the Taney House.

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