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tv   American History TV  CSPAN  December 26, 2014 10:32pm-11:22pm EST

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on the long standing battle on judicial restraint. and sunday at 10:00 p.m. eastern, book critic jonathan yardly who recently retired from the post. and on saturday at 6:00 p.m. eastern on the civil war, historians and authors discuss president lincolns 1864 re-election campaign. and sunday afternoon at 4:00 on real america, tried by fire. a 1965 film that chronicles the infantry during the battle of the bulge. find more at cspan.org and let us know the programs you are watching. call us at 202-626-3400. e-mail us at comment at cspan.org. join the cspan conversation. like us on facebook and follow us on twitter. roger taney served as chief justice of the supreme court
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from 1836 until his death in 1864 and delivered the majority opinion in the controversial dred scott case. next we discuss chief justice taney and how it affected the civil war. the supreme court historical society hosted this event. it is a little under an hour. [ applause ] thank you very much, mr. goldman. historians like me because,r,ñ know, every faculty, every respectful law faculty has a legalp5yx historian but how important they are depends on how much you think the history behind the constitution or any other statute depends upon what was the understanding at the time, which is what historians
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can tell us. so i use history ians more than most people and they like me more than most people, i think. [ laughter ] >> well, i'm happy to welcome all of you tor-&áju -- i guess t is the third in our series of lectures named after the former president of the supreme court historical society. and this lecture is, as you have heard, on -- it is -- it's the third in a four-part series on the supreme court and the civil war revisited. the historical society has a educational outreach mission that includes these lectures, it
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includes training programs for teachers, and it includes the publication of such -- publications as court watchers, eyewitness accounts in supreme court history which came out a few years ago, which is a general interest history of the court with first-hand anecdotes. mqyy colleagues on the court ani appreciate the society's wide and varied efforts to improve public understanding of the supreme court and of our nation's constitutional form of government. i could go on about others' # efforts that the supreme court historical society has made in that regard, but you are here for a lecture on chief justice roger brook taney. today's lecture is being delivered by professor timothy s. huebner. he received his b.a. from the
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university of miami and his ph.d he is the sternberg professor of history and chair of the college of history at rhodes college in memphis, where i was happy to know it, but he knew it, my grandson has just matriculated this year. nak-sa name, sa -- name-sake, actually. and some know that rhodes is known as the alma mater of the late justice forres. he is the author of two books, state judges and sectional distinctiveness, 1790 to 1890. and the taney court, justices rulings and legacy. he's co-editor with the late kermit hall of the second edition of major problems in
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american constitutional history, currently he is completing a narrative history of the civil war and american constitutionalism to be published by university president of kansas in early 2016. additionally he serves, i'm happy to say, as at sosh at editor of the editor of the supreme court history preservation. i could continue as his accomplishments are many but that would leave us less time for his words and so i will hope you will all join me in welcoming professor timothy s. huebner. [ applause ] >> thank you, justice scalia. thank you jim goldman and david pride and the society for the
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invitation. especially thanks to jennifer lowe for making all of this possible. it is an honor to be here. on october 12th, 1864, 150 years ago this week, chief justice roger brook taney, in his rented home in washington, d.c. died. after 28 years as chief justice of the nation's highest court4[ the death of the 87-year-old maryland native prompted little grief or mourning on the part of the people of the northern states. while some northern democratic newspapers offered words of condolence andfby respect, tane republican opponents who were much more numerous were quick to portray hisúzzuy death as a caur
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celebration. as soon as word came to massachusetts senator charles sumner, he dashed off a letter to president abraham lincoln in which he noted, providence has given us a victory in the death of chief justice taney. it is a victory for liberty and the constitution. in the days following a philadelphia newspaper quoted, the nation can feel little regret at his removal from an office which, in his hands, has yo so promiscuously used. and five months later in a thorough article on the chief just is's legacy, the atlanta monthly accused taney was a partisan judge and around that same time, in early 1865, an anonymous 68-page pamphlet was published called the unjust judge that basically made the
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same point. roger taney was and is the most infamous chief justice in the history of the supreme court. tonight i'd like to talk about the life and the death of chief justice taney and what his death meant in late 1864 and 1865 when the nation was in the midst of concluding a long and bloody civil war. along the way, i would like to make various observations about taney, particularly the rise and fall of his reputation. and ultimately, i want to show that the way in which his death was interest pretted tell -- interpreted tells us a great deal about the meaning of emancipation in 1865 as well as about a transformation in the american understanding of rights. ÷ taney's p the time of his passing stands
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in stark contrast to his own reputation ten years before. although taney had been a controversial nominee to the court in 1836, viewed as someone likely to carry out the political agenda of his mentor and nominator, president and rue jackson, taney soon earned a reputation as a moderate, fair and roñnondoctrine chief justic. under his leadership, the court issued land mark rulings in the areas of contracted, admiraltiy law and commerce clauses. and in each of these decisions, taney sought to solve a legal and a social problem by putting forth a pragmatic solution. after nearly two decades on the court, his reputation peaked during the mid 1850s. in 1854, george van zandt's book
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sketches the lives and judicial services of the chief justices, described taney in glowing terms. taney, according to van zandt, had, quote, a reputation beyond no man can assail. regarded as a judicial statesman, the epitome of fairness, he earned bipartisan praise. even the most vocal opponent of his nomination in 1836, representative henne clay, later apologized for his criticism of taney and called him, quote, a chief justice johny3uoñmarshall. as historian new meyer puts it, quote, had the taney court rested on its laurels in 1856, it would have surely gone down as one of the most popular and
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effective courts in our history. in 1857, taney's reputation changedxp his decision in one case, of course. dred scott versus sanford. in that case, the enslaved missouri resident dred scott sued for his freedom after he was taken by his master into free territory and having lived there for two years before being brought back to missouri. but the court ruled against scott, holding that he was still a slave. now an enormous amount of ink has been spilled on this case and i do not intend to discuss the constitutional and legal details, but a basic understanding of what he did and wrote in this case is essential for understanding the rapid
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decline in his reputation. taney's opinion in dred scott contained two significant points of law. first, taney held that african-americans, whether slave or free, had not been included the time of the founding. therefore, he reasoned, neither they nor their descendants were citizens of a state within the meaning of the constitution. now, this ruling in and of itself at the time was not the most controversial part of the decision. as one scholar has noted, many state courts in the south .k9aoo the north had already held the same thing, that african-americans were neither citizens of the states nor of the united states. but taney seemed to go further than just denyingv]ñ blackswz&t
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citizenship. in reviewing the history of the writing of the declaration of in dependenceml68f and the constit, taney held that the founders had not acknowledged or included african-americans in the people of the united states. taney reasoned that the fact that so many founders held slaves proved they had no intention of apply the all men are created equal language of the declaration to african-americans. it was too glaring of a contradiction. and in making this point, of course, taney wrote these memorable words. quote, it is difficult at this day to realize the state of public opinion in relation to that unfortunate race which prevailed in the civilized and enlightened portions of the world at the time of the declaration of independence. they had, for more than a century before, been regarded as
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beings of an inferior order and altogether unfit to associate with the white race, either in social or political relations. and so far inferior that they had no rights which theright man was found to respect. and that the negro might justly and lawfully be reduced to slavey for his benefit. now, i will come back to these words. the second point of law decided by taney and more significant in the context of the political debates of the time was that congress had no power to prohibit slavery in federal territories. taney put it this way. quote, the right of property in a slave is distinctly and compressly affirmed in the constitution, unquote. for this reason, taney believed,
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congress had no power to interfere with this right by banning slavery in federal territories. this was, at the time, the most controversial part of the opinion. the big question of the 1850s was whether slavery would be allowed to spread into new territories and taney's anspjz up to that question was a resounding yes. slave holders had a right to take slaves into new territory and congress could not interfere with those rights. in other words, the more pressing rights issue at the time wasiiy not whether african-americ african-americans slave or free possessed the rights of citizenship under the constitution, but rather writes in the context of the heated debates of the 1850s meant the rights of slave holders. those were the rights that john
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c. calhoun had champed -- cham pee ones who had rallied against and those were the rights that taney had protected.[á3ezuhp &h% strikingly missing over the debate over slavey was the discussion of the rights of black people. white abolitionists seemed perfectly content to debate the constitutionality and the morality of slavery in an abstract way and republicans seemed focused on preventing the spread of slavery into new territories. but few ab ollists -- ab ollistics or republicans obtained it under law. abraham lincoln stay add way from this issue as much --
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stayed away from this issue as much as he could in the debates with steven douglas and referred only to the basic right which he believed was in the declaration of in dependence, that one person could not be owned by another person. in their criticism of the dred scott decision, northern white republicans focused relentlessly on the slavery part of the decision rather than the black citizenship or rights aspect of the ruling. african-americans, however, had a different reading]5 of this case. rather than focusing on the question of slave holder's rights, they zeroed in on the issue of black rights. their rights. taney's bold claim that blacks had no rights that the white man was found to respect became somewhat of a rallying point for the growing group of northern
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black activists who sought not only to end slavey, but also to advance the aspirations of black people throughout the united states. it well have been the most offensive phrase and the one that had the most galvanizing effect on a segment of the population in the history of the supreme court. in 1858, a year after the issuing of the opinion at the suffrage convention of the colored citizens of new york, african-american leaders made clear exactly what they thought of the opinion. playing off taney's language, they held, "the dred scott decision is a foul and infamous lie which neither black men nor white men are bound to respect."
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the assembled delegates expressed particular outrage at of the the idea that blacks had not been included in the political community at the time of the founding, and that, therefore, the government of the united states was a white man's government. the delegates announced "we, therefore, call upon all who subscribe to the theory of human rights set forth in the declaration of american independence to trample in self-defense, the dicta of judge taney beneath their feet as of no binding authoriti." the emphasis that african-americans placed on the citizenship part of the decision rather than the slavery part stands outfñtt$because it cut against the political grain during the late 1850s.
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the other striking element of the african-american critique of the decision was the way in which faye they personalized their criticism.wn9wa training their aim specifically on chief justice taney. now, taney was one of seven justices in the majority in this case, and each justice wrote an opinion. but it was taney's opinion with his infamous words, "the they have no rights," the that most offended african-americans. the events of 1861 and 1862 identified even closer with chief taney with the decision. lincoln, of course, was elected president in 1960. and when white southerners
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feared the right to hold slaves in territories would not be protected under the incoming president, they seceded from the federal union, and the civil war began. jupci northern war effort begans an attempt simply to restore the union as an attempt to put down the southern rebellion. but by 1862, union policy changed. largely because of pressure exerted by african-americans, but also because of the republican belief that liberating slaves helped the union cause emancipation started to become the policy of the union government in washington. in a span of several months, congress enacted legislation forbidding slavery in the territories in defiance of the
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dred scott ruling, and ending slavery in washington, d.c. congress passed an act which made possiblepbf$ the emancipa of slaves owned by confederates. then on january 1st, 1863, abraham linnrae issued the declared all slaves in nonunion occupied areas of the confederacy forever free. with the emancipation proclamation came black military service in the union army. every one of these policies instituted by lincoln and the republicans constituted a gradual methodical assault on the decision, including the slavery part of the decision. by 1863, slavery was slowly losing its grip on the southern states in the midst of war.wb8
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in the meantime, taney still on the court, and the dred scott decision still on the books, lurked in the background. by this time, the chief justice held a unique position as the only southerner on the court who had been part of the dred scott majority who sympathized with the confederacy. five of the seven justices in the majority had been southerners. justice peter d. daniel of virginia had died in 1860 before the war started. john archibald campbell of alabama, anotherx7qxí one of th justices in the majority in dred scott, because of his loyalty tx his home state and the secessionist course that it took, resigned his seat on the high court in early 1861 and
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went back home to the south. he ended up serving as the assistant secretary of war for the confederacy. justice john catron of tennessee, although a pro-slavery justice, became famous for his support of the federal union. circuit -- circuit court in his home state, catron encountered a group of confederates outside of nashville who informed him that if he entered the city to hold court, that they could not guarantee his safety. catron left. but when federal forces occupied national in early 1862, catron conquering hero to unionyists in the city and did, indeed, hold circuit sessions in the city in the summer of 1862. justice james wayne of georgia,
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another pro-slavery justice and part of the majority and dred scott, like catron, earned the scorn of his fellow georgians for his faithful devotion to the union. so with daniel dead, campbell resigned and catron and wayne thoroughly devoted to the union, that left taney. old, bitter, and increasingly partisan and angry. from his position as chief justice, taney did all that he could to thwart the lincoln administration and its prosecution of the war. he ruled against lincoln's suspension of the writ of habeas corpus. he voted against the constitutionality of lincoln's blockade of southern ports, and he drafted a hypothetical opinion challenging the
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constitutionality of the federal draft law should it come before the court, which it didn't. of course, he seethed over lincoln's emancipation proclamation which stood in stark contrast to his own ruling in dred scott. taney was so opposed to lincoln's policies and so sure that the administration hated him for it, that he wondered aloud after the decision in the habeas corpus case whether the president might even order his arrest. throughout 1863 and 186 as t4 a into the confederacy, taney's opinion and taney himself seemed more and more the relics of a bygone era and skam mocame more more under criticism. although there were only six
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years between the issuing of the dred scott decision and the announcement of the emancipation proclamation, america was undergoing a radical transformation. congre congress, lincoln, and the union military were y)renacting, implementing policies making freedom possible. while african-americans were taking matters into their own hands by walking off southern plantations and toward federal military lines. many of those who moved out of slavery, the men anyway, were moving into the union army. 200,000 black men ended up $h÷,000 black men ended up sailors. for blacks during the civil war, military service offered a way to overcome the stamp of inferiority inherent in taney's opinion to assert they were men and a way to claim equal rights
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in an equal share of the john rock, a free black man from new jersey, who had become a leading lawyer and activist, insisted that the war presented just such an opportunity. listen to his words from -- from a speech in january of 1862 in boston in mocking paraphrase of taney. quote, "75,000 free men capable of bearing arms and 3/4 of a million slaves wilded with the enthusiasm caused by the dawn of the glorious opportunity of being able to strike a genuine blow for freedom will be a power that white men will be bound to respect." with the nation swept up in revolutionary change, taney spent his last few years holed up in his rented home on indiana
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avenue in washington. sick, mostly home bound in the care of his daughters and his enslaved house servants and disgusted by the policies of president lincoln and official washington, taney practically ceased to carry out his duties. he spent much ofv(ññ his time id reading newspapers and smoking cigars. although we held the title of chief justice of the united stat states, his sympathies clearly lay with the confederate government in richmond. his son-in-law, major richard t. allison, husband of his daughter, maria, served in the confederate army. pictures of both of them hung on the wall in his house.
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"t with taney confined to his house, the chief justice's ill health and impressive longevity became a subject of some conversation and speculation in washington. in 1863, republican senator benjamin wade of ohio eququippe "i prayed with earnest not for the life of taney to be prolo prolonged throughout cannon's administration. by god, i'm a little afraid i've overdone it. kwt" " "-- overdone it." but qvtaney's time did eventual come. hours before his death, taney of presented with an opportunity to take an oath of allegiance to the united states government, an oath proposed by president lincoln and provided for maryland's new state
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constitution. the chief justice stubbornly refused. roger taney died on the evening of october 12th. and the very next day voters in taney's home state of maryland approved an amendment to the state constitution abolishing slavery. it was a fitting event to occur the day after the death of the pro-slavery chief justice. a few days later, a group of family members, friends, dignitaries, and onlookers gathered at taney's residence to pay their last respects. cabinet members were there. afterward, a train took taney's body and family members to maryland where the funeral service actually took place. during the next three months in
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late 1864, in early 1865, lincoln won re-election as president. the union forces under the command of general william t. sherman in georgia continued their march to the sea and eventually northward into south carolina. and congress debated and passed a 13th amendment to the constitution, ending slavery and, in effect, overturning the slavery portion of the dred scott decision.tek&z meanwhile, the public debate over taney's legacy and the meaning of emancipation had begun. by this time the emphasis that african-americans had always placed on the they27nñ have no rights aspect of the opinion became an important part of the national discussion. as the 13th amendment moved swiftly toward ratification by
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the states that year, the question of black citizenship and black rights moved to the forefront. now that blacks were free, what rights would they have? in the midst of this, taney and dred scott, now more closely connected than ever, became a symbol of the old pro-slavery order, the pre-civil war slave power. on february 23rd, 1865, when senator trumbull of illinois introduced a bill providing for the placement of a marble bust of taney in the supreme court chamber where busts of the previous chief justices werekal already displayed, senator charles sumner of massachusetts rose in opposition, "i object to that," the he said. "that now an emancipated country should make a bust to the author
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of the dred scott decision." he continued, "the name of taney is to be hooted down the page of histor history," he said. "judgment is beginning now, and an emancipated country will 6÷ stigma which he deserves." others joined sumner in their criticism. senator benjamin wade remarked that his constituents would "pay $2,000 to hang this man in effigy rather than $1,000 for a bus to commemorate his merits. later that year, in a famous speech on the floor of the house in which he laid out his views on reconstruction policy, republican congressman thadeus
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steven of virginia took anxg$ e red scott decision, stevens argued that the notion that america was a white man's government only was "as atrocious us as the infamous sentiment that damned the late chief justice to everlasting fame. and i fear to everlasting fire. on the court would matter in comparison to his infamous decision in the case of dred scott. "the secession war and the triumph of liberty will be the theme of the world, and he of all who precipitated them will be most likely after the traitor leaders to be held in infamous
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remembrance, for he did more than any other individual to extend the slave power." ellis went on to discuss taney's motives in the decision. and here el liles use ld similarly stark language, noting that, "the worst of motives is the disposition to serve the cause of evil," ellis argued that taney knew exactly what he was doing, that his decision attempted to snuff out all hope of rights and liberties for the nation's free and enslaved african-americans. ellis portrayed the te ceased chief justice as ignoring all the precepts of the christian religion, the declaration of independence, and the constitution. and finally, and finally, going through a long list of english
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judges with reputation for unfairness and infamy, including lord chief juice tis george jeffries of england, ellis concluded that taney was the worst of all. the low point in taney's reputation came with the 1865 publication of an anonymous 68-page pamphlet entitled "the unjust judge: a memorial of roger brook taney." like the "atlantic" article, the pamphlet accused taney of the worst abuses of judicial power and asserted that the dred scott opinion alone would shape taney's reputation. much of the pamphlet argued that the framers had been anti-slavery in their outlook and that the constitution embodied the spirit of the declaration of independence,
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particularly its assertion that all men were created equal. the author of the unjust judge took particular satisfaction in showing how early in his career taney viewed slavery as incompatible with the declaration, a position that he had later turned his back on in dred scott. and it is true that, as a young lawyer in frederick county, maryland, taney had defended jacob gruber, an anti-slavery methodist minister accused of disturbing the peace and inciting rebellion. and in the process, taney had cited the declaration of independence in support of his anti-slavery views and had actually called slavery "a blot on our national character." the author of "the unjust judge" made much of this type of change
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of heart, describing taney as failing to live up to his early ideals as well as those of the nation's founders. in hid analysis, he said that african-americans, contrary to taney's assertion, had been included in the political community at the time of the founding. but more than an academic criticism of taney's reasoning in the dred scott came in t, "t unjust judge" constituted a rhetorical assault on the character of the nation's fifth chief justice. the author excoriated taney as a malevolent old man engaged in the most nefarious of purposes, a man has untrue to the principles of the christian religion as he was to the ideals of the constitution.
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in his perversion of the law and he was next to pontius pilot, perhaps the worst in the sea of judgment among men. the evolution in the response to republicans was clear from being hooted down the page of history to being condemned to hell for
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the decision, to being worse than the worst judge in the history of the english speaking world, to being next to pontius pilot, the worst in the seat of judgment among men. the rush of union victory and triumph of emancipation made taney appear, by comparison, to be on the wrong side of history, to be an abuser of power, and so what does this interpretation of taney's death mean? what does it tell us about chief justice taney and about america at the end of 1864 and early 1865? i think it tells us three things. first, it tells us that by the
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time of hisñ,f death, tan ey ha come to embody the slave power upon the . -- the entrench ed rights they were trying to defeat. they have no rights language of dred scott. the union's adoption of emancipation and taney's attempt to thwart the lincoln administration turned taney into a highly visible public enemy. by 1864, it was clear that taney stood for the rights of slaveholders, for no rights for black people, and he stood abused to lincolnabuse ed to -- stood opposed to lincoln's efforts to stop the war. in the north, there may have been no greater symbol of the south and all it stood for than
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chief justice taney. second, it really were revolutionary times. it is striking that in a nation dwo institutions, its founders, its bvibdlñ system for decades, that one of its most distinguisheded and longest serving justices mate experience so rapid a fall in the minds of the northern public. in 1864 and 1865, many northerners really did see themselves as bringing about a$ profound revolutionary break with their past. a past symbolized by the aging pro-slavery taney. it is not ease for 21st century american who know that it would take a civil rights movement to
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bring about further change, to not the swift and revolutionary pace of events during the civil war. it is often our tendency to read history backward rather than forward,ñe to say from our perspective that the war didn't really change much. but whether we look closely at the what -- but when we look closely at what contemporary said at the time of taney's death, we can see the downfall of the reputation speaks to the depth of the revolutionary events and aspirations of the day. slavery, a 250-year-old institution on north american soil went down to defeat on the battlefields of the civil war. along with it, its most prominent judicial defender.
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these were revolutionary times. third and finally, the story of taney's rapidly declining reputation reveals something about black agency and activism, about the extent to which african-americans shaped the times. now of course the fact of war was the driving force in bringing about emancipation. but it was african-americans themselves who were fleeing to it was african-americans who always focused on the rights portion of the dred scott decision, who always drew their inspiration from the "all men are created equal" language from the declaration of independent and who pushed the debate forward to epancepation, yes. but beyond -- emancipation, yes, but beyond to the rights of black people in the public.
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the arguments of white radical republican like sumner, wade, +% ellis, and stevens owed a great deal to blacks' decades' long attempts to push the declaration of independence to the %h!ñforet of american political discoursep thus it was african-americans who helped to bring about a fundamental shift in american notion of rights. from the rights that tawny had discussedzr@1y in dred scott, t rights of slaveholders, to the rights of enslaved persons. tawny had relied on the fifth amendment of the constitution to emphasize the rights of property. but african-americans looked to the declaration of independence to champion the rights of all human beings.
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the passing of taney, the revolutionary nature of the times and the role of african-americans in bringing about the revolution was probably most evident in a truly historic event on february 1st,er 1865. less than four months less than taney's death. a month before lincoln's second inauguration and 2 opini.5 mont before lee's surrender at appomattox. on that day, john s. rock of massachusetts -- whom i mentioned earlier -- bap the first african-american to gain admission to the elbaradbar of united states supreme court when he was admitted to practice by the new chief justice, solomon p. chase. the "new orleans tribune," a black newspaper, took note.
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with pride, the newspaper reported that rock would be practicing where previously -- and listen how they put0r)÷ it "the infamous taney sat coloreddx59 has no rights that the white man is bound to respect." it was, indeed, a new era. thank you. [ applause ] >> you've been watching c-span's american history tv. follow us on twitter at c-span history, connect with us on
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too. check out our upcoming programs at our website, c-span.org/history. we'll like to tell you about this of our other american history tv programs. join us every saturday at :p.m. and 10:00 p.m. eastern for a special look at the civil war. we'll bring you to the battlefields. we'll let you hear from scholars and re-enactors. that's programs on the civil war every saturday at 6:00 and 10:00 p.m. eastern here on american history tv on c-span3. oliver wendell holm, jr., l 61 to 1864 -- 1861 to 1864 and was wounded three times in battle. abz future of the supreme court justice including how his time

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