READERS RESPOND

Taney was no champion of civil liberties

George Liebmann thinks former Supreme Court Chief Justice Roger B. Taney’s statue should remain on public display (“Taney deserves his tribute” Feb. 17).

Maybe it should, maybe it shouldn’t. But the arguments Mr. Liebmann puts forward make a very poor defense for his position.

Mr. Liebmann tells us that Dred Scott was not the sum total of Taney’s judicial achievement. Instead, he asks us to focus on Taney’s opinion in Ex parte Merryman (1861). But Merryman does not help Mr. Liebmann’s or Taney’s cause, and this is not surprising because very few commentators understand the case – including Mr. Liebmann.

In 1861, after Fort Sumter fell, the U.S. Army seized John Merryman, a Maryland citizen and state militia officer, and detained him at Fort McHenry in Baltimore. Merryman’s lawyers sought a writ of habeas corpus.

After a hearing, Taney determined that the Army had violated the Constitution by seizing and detaining Merryman absent due process. Taney offered much flowing language – the sort that endears him to do-gooders and starry-eyed civil libertarians.

But that is all Taney did: He offered pieties in a judicial opinion. The reality is that Taney did not grant Merryman habeas corpus. In other words, Taney did not order the Army, or the commander at Fort McHenry, or the president or anyone else to release Merryman.

It’s possible the Army would not have obeyed such an order from the court in any case. But we will never know because Taney never issued one.

This reading of Merryman is not my idiosyncratic reading; rather, it is the position of several prominent modern commentators, including: Brian McGinty (2011); Bruce A. Ragsdale (2007); and Jack Stark (2002).

Likewise, during the Civil War itself, several courts refused to order the Army to release civilians detained by federal troops absent traditional due process.

For example, Judge Betts, for the United States District Court for the Southern District of New York (1861), and Chief Justice Dixon, for the Supreme Court of Wisconsin (1863), offered detained Americans only civil-libertarian pieties in gracefully written opinions, but these judges granted detainees no actual concrete relief. None. Moreover, in order to justify their inaction, Betts and Dixon relied upon Taney’s Merryman opinion! In short, Merryman was a precedent for leaving those detained by the Army in jail; it was not grounds for any relief.

The bottom line is that those who value civil liberties during wartime will find nothing of substance in Ex parte Merry-man. Taney lived a long life and held a variety of state and federal offices. Perhaps he is deserving of a statue, and perhaps that statue deserves a public venue. Perhaps. But it is difficult to see how Ex parte Merryman makes that case.

Seth Barrett Tillman, County Kildare, Ireland
The writer is an American national who teaches in the Maynooth University Department of Law.