Roger Taney, Memory Entrepreneur

Roger Taney’s infamous “opinion of the court” in Dred Scott v. Sandford (1857), which rejected the possibility that Black Americans could ever be citizens of the United States, was rooted in the authority of the past. But Taney’s account of that past has been a source of criticism ever since the decision was rendered. To be sure, there was plenty to complain about. Many, though certainly not all, have taken issue with Taney’s narrative of the making of the United States Constitution and its attendant meaning, critiquing both Taney’s understanding of the Union and his insistence that the Constitution was, at its heart, a pro-slavery and white supremacist document that foreclosed Black citizenship. Still more have derided Taney’s account of the rights Black Americans enjoyed—or, rather, in Taney’s telling, didn’t enjoy—in the centuries leading up to Dred. Both his contemporaries and subsequent scholars alike have, in particular, lambasted Taney for downplaying and diminishing both the explicit recognition of Black citizenship in some state constitutions as well as the broader exercise of Black citizenship rights—including the right to vote in a number of states and the right to own property or enter into contracts—throughout the nation. With Memory and Authority: The Uses of History in Constitutional Interpretation, however, Jack Balkin has given us new tools with which to analyze Taney’s shoddy history.