Last week, Congress passed legislation banishing from the Capitol the bust of Chief Justice Roger B. Taney, the author of the Supreme Court’s racist Dred Scott opinion in 1857 that set the nation on the path to the Civil War. Fittingly, it will be replaced by a bust of Thurgood Marshall, the first Black Supreme Court justice.
But is it better to exorcise the villains of American history like Taney and confine their likenesses to museums? Or should we use their presence in landmark government buildings to educate Americans, not just about our many achievements but also about our dreadful failures to form a more perfect union? I favor the latter through special “halls of infamy” that, using legends, brochures, graphics and lectures, explain the damage done by, and the lessons learned from, historical figures like Taney.
The exorcism approach makes it harder to educate the public on the dark side of American history and even risks the historical airbrushing advocated by the conservatives trying to bar teachers from providing “negative accounts” of American history or discussing topics that would cause “discomfort, guilt or anguish.” Sure, museums play an important educational role but most won’t reach as large an audience as, say, the Capitol, which attracts around 3 million visitors a year.
And unlike museums, halls of infamy can provide important context for history lessons. My candidates for a U.S. Senate Hall of Infamy are the 10 Southern senators whom the Senate expelled in 1861 for conspiring against the “peace and union of the United States” by supporting the Confederacy. No museum can replicate the power of seeing such a display on the site of the Jan. 6 insurrection.
Taney’s bust properly belongs in a Supreme Court Hall of Infamy. There are other infamous justices to keep him company, such as the justices in the majority in Korematsu v. United States, which upheld the internment of Japanese-Americans during World War II for no reason other than their ancestry.
But Taney’s career is a cautionary tale for Supreme Court justices, whether from right or left, bent on sweeping rulings that upend decades of settled law. Dred Scott v. Sandford, in which a Missouri slave sued for his freedom in federal court, is best remembered for Taney’s hateful assertion that enslaved Americans were “beings of an inferior order” who had “no rights which the white man was bound to respect.” Had he stopped there, Dred Scott would have been an historical footnote because that part of Taney’s ruling was jurisdictional, that is, Dred Scott had no right to file a lawsuit in federal court.
But Taney went further, much further, than was necessary to decide the case because he tried to end the slavery controversy with the stroke of his pen. For decades, starting with the Missouri Compromise of 1820, Congress had used its authority over the vast territories to reach compromises that saved the union by admitting some states as free and some as slave. Taney held that Congress had no such authority and that the Missouri Compromise was unconstitutional because it interfered with the constitutionally protected “property” rights of slaveholders.
By in effect nationalizing slavery, Taney lit a match in a tinderbox. His opinion infuriated the free states, made political compromise over slavery impossible and paved the way for Lincoln’s election three years later on a platform that criticized Dred Scott and promised to stop the spread of slavery in the territories (arguably Lincoln’s platform violated the Constitution as defined by Taney). The United States of America began tearing itself apart.
Self-confident nations acknowledge their failures and try to learn from them. That’s why we need halls of infamy.
Gregory J. Wallance, a former federal prosecutor and writer in New York City, is the author of the historical novel “Two Men Before the Storm: Arba Crane’s Recollection of Dred Scott and the Supreme Court Case That Started the Civil War.” He is working on a book about a 19th century American journalist who investigated the Siberian exile system. Follow him on Twitter at @gregorywallance.