Abraham Lincoln had a history with Roger B. Taney stretching well back from May 27, 1861, the Monday Taney rebuked him.
Taney, scion of a wealthy, slave-holding family in Maryland, was a lawyer and politician who served President Andrew Jackson as attorney general before Jackson made him chief justice of the Supreme Court, in 1835. Over the next two decades, Taney tried to strike a balance between federal authority and states’ rights but he also, in 1857, delivered the majority opinion in the case of Dred Scott, holding African Americans were property without citizenship or rights, and that Congress could not stop the expansion of slavery in the territories.
It was the court’s worst decision, and it was one of the burning issues in the 1859 U.S. Senate race in Illinois, when Lincoln, a small-time lawyer and operative for the new Republican Party, took on incumbent Stephen Douglas, a Democrat and a national figure. Douglas charged that Lincoln, in demurring from Dred Scott, was aiming to destroy the Constitution. “I have no purpose ... to interfere with the institution of slavery in the States where it exists,” Lincoln answered. But, he said, “there is no reason in the world why the Negro is not entitled to all the natural rights enumerated in the Declaration of Independence.”
Douglas won the Senate race, in the Illinois Legislature, but Dred Scott ultimately strengthened the anti-slavery Republicans, culminating in Lincoln’s victory in the presidential election two years later. He took office as Southern states were seceding, taking Taney’s sympathy with them.
Taney was obligated to swear Lincoln in on a bitterly cold day, March 4, 1861, and then listen to Lincoln’s address, when Lincoln said, “The candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court ... the people will have ceased to be their own rulers.”
In April, the Confederates began the Civil War with the attack on Fort Sumter. Privately, Taney blamed Lincoln. On April 27, Lincoln suspended the writ of habeus corpus, meaning military authorities could detain suspected rebels without bringing charges. On May 25, John Merryman, a Maryland politician and secessionist, was arrested at his home by Union troops and imprisoned in Baltimore’s Fort McHenry. A habeus petition to produce Merryman was heard in the federal circuit court, Taney presiding.
On May 27, Taney found the president did not have the ability to suspend habeus; only Congress did. Otherwise, he wrote, “the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of (an) army officer.” Congress was not in session at the time.
Lincoln ignored him.
“I have exercised all the power which the Constitution and laws confer on me, but that power has been resisted by a force too strong for me to overcome,” Taney said.
In a July Fourth message to Congress that year, Lincoln asked, “Are all the laws but one to go unexecuted, and the government itself go to pieces lest that one be violated? Even in such a case, would not the official oath be broken if the government should be overthrown when it was believed that disregarding the single law would tend to preserve it?”
Lincoln did moderate his policy of having the army arrest Southern sympathizers, but he never abandoned it. In 1863, Congress delegated to him the authority to suspend habeus. The charge of treason against Merryman was dropped – two years after the war. And the court has never endorsed or rejected Taney’s opinion.