Gerber on Finkelman, 'Supreme Injustice: Slavery in the Nation’s Highest Court'

Author: 
Paul Finkelman
Reviewer: 
Scott Gerber

Paul Finkelman. Supreme Injustice: Slavery in the Nation’s Highest Court. Cambridge: Harvard University Press, 2018. 304 pp. $35.00 (paper), ISBN 978-0-674-05121-8.

Reviewed by Scott Gerber (Brown University & Ohio Northern University) Published on H-Early-America (June, 2019) Commissioned by Joshua J. Jeffers (California State University-Dominguez Hills)

Printable Version: http://www.h-net.org/reviews/showpdf.php?id=53895

A Historian’s Blistering Indictment of Three Titans of the US Supreme Court

Paul Finkelman, currently the president of Gratz College, is one of the leading historians of the law of American slavery. His latest book, Supreme Injustice: Slavery in the Nation’s Highest Court, provides a devastating critique of three of the most significant justices to ever serve on the US Supreme Court: John Marshall, Joseph Story, and Roger Taney. Finkelman concludes his book by insisting that their slavery jurisprudence "encouraged southerners to attempt to create their own nation, based on the proposition that all men are not entitled to life, liberty, and the pursuit of happiness" (p. 224).

Finkelman’s harsh treatment of Taney is not surprising. Taney, who served as chief justice from 1836 to 1864, has been vilified and ridiculed more than any Supreme Court justice, and deservedly so. Frankly, it is difficult to find anything good to say about the author of the most infamous decision in Supreme Court history, Dred Scott v. Sandford, especially when Taney’s unconscionable opinion for the Court that the US Constitution was not meant to include American citizenship for black people, regardless of whether they were enslaved or free, was littered with shockingly offensive lines such as that current or former slaves and their descendants had "no rights which the white man was bound to respect." And Finkelman demonstrates that Taney’s Dred Scott’s opinion was merely the most well-known of many opinions in which Taney "aggressively protected slavery, made war on free blacks, and never sought to offer compromises for both sections" (p. 191).

If most readers are likely to be familiar with what Finkelman has to say about Taney, what he documents about Marshall should open more than a few eyes. As Finkelman proves beyond any reasonable doubt, Marshall—the so-called great Chief Justice—owned hundreds of slaves and trafficked in the slave trade. He was also, according to Finkelman, so corrupted by his personal financial stake in the perpetuation of human bondage that he "never wrote an opinion supporting a claim to liberty brought by a slave" and he never wrote an opinion "punishing someone for illegal participation in the African slave trade" (p. 5). Suffice it to say that Finkelman’s lengthy discussion of Marshall’s abysmal treatment of slaves as chief justice confirms the admittedly minority position that the contributors to a book I edited twenty years ago about the Supreme Court before Marshall proffered—namely, that Marshall was not as great as he had been made out to be (see Seriatim: The Supreme Court before John Marshall, 1998).

Finkelman’s assessment of Joseph Story is more difficult to accept. He acknowledges that Story never owned a slave and found slavery abhorrent but insists that Story’s opinion for the Court in the 1822 case Prigg v. Pennsylvania, which held that the federal Fugitive Slave Act (1793) precluded a Pennsylvania state law that prohibited blacks from being taken out of the free state of Pennsylvania into slavery, "was as proslavery as anything Chief Justice Taney would conjure up in the Dred Scott case" (p. 4). Finkelman’s twenty-eight page disquisition on Prigg is interesting, and his conclusion that the antislavery Story wrote a proslavery opinion in Prigg in order to strengthen the national government—an agenda that Story shared with Marshall but not with Taney—is provocative. But, in my view, it is unconvincing. As Story’s son famously explained, Story made clear in Prigg that the states were free to decide whether to cooperate directly with the enforcement of federal law, which meant that Prigg undercut the federal Fugitive Slave Act—and, hence, national power—because the national government lacked the resources to enforce the law unaided by state officials.

In summary, Paul Finkelman has written an interesting book on a significant topic. Originally presented as a series of lectures, the book is sometimes more polemical than I think it should be, and the fact that Finkelman is not a lawyer makes me somewhat uneasy that so much of the book is a reinterpretation of judicial opinions. But Finkelman knows a lot about the law of American slavery and he brings that knowledge to his reading of the cases. That said, what struck me most when I finished reading Finkelman’s book was how unlike Abraham Lincoln John Marshall, Joseph Story, and Roger Taney apparently were. As Lincoln put in his celebrated June 26, 1857 Speech on the Dred Scott Decision:

Chief Justice Taney, in his opinion in the Dred Scott case, admits that the language of the Declaration is broad enough to include the whole human family, but he and Judge Douglas argue that the authors of that instrument did not intend to include negroes, by the fact that they did not at once, actually place them on an equality with the whites. Now this grave argument comes to just nothing at all, by the other fact, that they did not at once, or ever afterwards, actually place all white people on an equality with one or another. And this is the staple argument of both the Chief Justice and the Senator, for doing this obvious violence to the plain unmistakable language of the Declaration. I think the authors of that notable instrument intended to include all men, but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color, size, intellect, moral developments, or social capacity. They defined with tolerable distinctness, in what respects they did consider all men created equal—equal in "certain inalienable rights, among which are life, liberty, and the pursuit of happiness." This they said, and this meant. They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere.[1]

Note

[1]. Abraham Lincoln, "Speech on the Dred Scott Decision," June 26, 1857, available at https://teachingamericanhistory.org/library/document/speech-on-the-dred-scott-decision/.

Citation: Scott Gerber. Review of Finkelman, Paul, Supreme Injustice: Slavery in the Nation’s Highest Court. H-Early-America, H-Net Reviews. June, 2019. URL: http://www.h-net.org/reviews/showrev.php?id=53895

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