Commentary

A Movable History: Remembering Taney Doesn’t Mean Keeping Him on State House Display

Roger Taney won’t have a statue for much longer at the Maryland State House. After years of discussion, Gov. Larry Hogan has asked the State House Trust to seek a new home for the Civil War-era chief justice.

Taney did many things in an illustrious legal career but is remembered for only one: the disastrous Dred Scott decision, which served to entrench slavery.

Taney was not a Confederate, and his monuments were probably not erected at the time in any wish to glorify his great error. In a long career as chief justice, he administered the oath of office to Abraham Lincoln as well as six other presidents. Legal historians remember him for many actions, including the great case of Ex parte Merryman, in which he defended the ancient writ of habeas corpus, vital to civil liberty, against the Lincoln administration’s suspension of it.

Change in the display of public memorials is natural and inevitable.

Taney was also the first Roman Catholic chief justice at a time when Catholics were not generally found in positions of such eminence in America’s national government. But times change, and those seeking Catholic role models in American law now have many others to choose from.

Change in the display of public memorials is natural and inevitable. Cemeteries may aspire to present an unaltered face over centuries. Both cemeteries and battlefield sites appropriately look backward rather than forward. But much-used public places are meant for the living and are ordinarily under tougher scarcity constraints.

A hundred and fifty years later, Taney’s only significance beyond specialized law circles is for the one thing in a distinguished career he got tragically and disastrously wrong. By entrenching slavery, deepening the complicity in it of non-slave states, and blocking any path toward its eventual removal, the decision set the nation — at least so many historians contend — on a path to calamitous Civil War.

In the city of Frederick, where Taney practiced law, Taney’s bust was recently removed from its place in front of City Hall following civil discussion and the development of a public consensus. He remains a subject of historical interest, and his former house is open to visitors. No one has erased him from the history books — the Dred Scott case itself makes sure of that.

The city of Frederick is looking for a taker for its Taney bust, such as a historical or war memorial society, but has not found one yet. That it hasn’t is a clue to how slender a constituency still feels a real historical tie to the man.

Some conservatives now cry that we are on a slippery slope. What next — take Jefferson off the nickel, rename the city and state of Washington?

But each and every modern society chooses to live partway down the slippery slope of “not remembering history.” (Unless you believe that Warsaw, Prague and Budapest should have left their statues of Lenin in place.) Like Europe, America can take advantage of big, comfortable stopping points short of tearing down and renaming everyone and everything. For example, few if any memorials to Jefferson honor him for being a slaveholder. On the other hand, most statues of Confederate leaders do honor their service to that specific cause. Writes libertarian law professor Ilya Somin: “government should not honor people whose principal claim to fame was fighting a war in defense of the evil institution of slavery.”

On one big point, conservatives are very right: Mob actions and vandalism seldom end well. A crowd in Durham, North Carolina, has already pulled down one statue unlawfully, and similar actions have been taken elsewhere. Unless civil society is undergoing an outright revolution, as did the former Soviet bloc in 1990, we should leave the decisions to public deliberations in accordance with law.

Yes, we should resist making unwise changes just because a noisy crowd of the moment demands them. But we should also not dig in to positions that make no particular sense just to show our ability to resist crowd sentiment.

In the end, under our system, the majority tends to get its way, and a majority of citizens in Maryland, as elsewhere, can tell the difference between a Confederate general and George Washington.

Instead of crying that there’s no stopping point short of universal takedown, conservatives should propose a few lines to draw that would serve as principled stopping points.

That, and propose new subjects and people to memorialize. We need that too.

Walter Olson is a senior fellow at the Cato Institute and a Frederick County resident.