Bench Memos

Taking Gratuitous Offense, Chapter Umpteen

John Marshall and the "Fierce Savages"

In yesterday’s New York Times, Sheryl Gay Stolberg reported on the uncertain future of a bust of Chief Justice Roger Taney that stands in his hometown of Frederick, Maryland.  Taney, of course, was the author of the Dred Scott ruling, which declared that African Americans had “no rights which the white man was bound to respect.”  I confess that I was taken aback by seeing a Taney statue in Annapolis on my first visit to that city.  And I really have no opinion on what the good people of Frederick should do with their Taney bust—keep it, get rid of it, move it indoors to a museum, or what.

But I was really struck by this rather bizarre passage in the Times story:

Taney, appointed in 1836 by President Andrew Jackson, for whom he had served as treasury secretary and attorney general, is hardly the court’s sole verbal offender; his predecessor as chief justice, John Marshall, once described Native Americans as “fierce savages.”  Scholars view Taney as an “originalist” in the mold of Antonin Scalia, said Josh Blackman, who teaches at Houston College of Law.

I saw some indications on Twitter that Josh Blackman had cause to complain of this direct comparison of Scalia to Taney being attributed to him.  No originalist admirers of Scalia would think his jurisprudence was at all like Taney’s—because it wasn’t.  Taney notoriously invented putatively originalist readings of the Constitution and of the founders’ views in order to bend the law in favor of his foreordained outcome in favor of slavery in the territories.  And Scalia famously excoriated Taney for his innovation of “substantive due process,” when the former dissented in Planned Parenthood v. Casey.

But what really caught my eye was the reference (and link) to a fairly obscure decision of Chief Justice John Marshall, in which he referred to the “fierce savages” of the Indian tribes.  The case was Johnson and Graham’s Lessee v. McIntosh, an 1823 decision concerning conflicting land titles in Illinois.  One party claimed title by grant directly from Indian occupants of the land, while the other claimed title under a grant from the federal government.  Marshall’s Court decided unanimously for the latter, and in the course of the ruling reviewed many of the governing legal principles that historically evolved regarding the relations between the colonies (later states and the United States) and the native American tribes.

It is in this context that Marshall referred to these natives as “fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest.”  For anyone who knows our history—including the spirit of the times in which Marshall wrote—this description will not be considered remotely pejorative, or a “verbal offense” against anyone.  To call them “fierce” was hardly an insult, and to Marshall’s mind, “savages” was an objective description of a less advanced civilization than his own. 

Indeed, Marshall quite thoughtfully considers the very different cultures of the white settlers of North America and the native Americans they found there when they arrived.  Ordinarily, he says, conquest of a territory often entails the maintenance of the original inhabitants in their property rights, and their incorporation into—perhaps even their citizenship in—the political order of the conqueror.  But the Indians, Marshall says, were people who lived in such a radically different way from the white colonials that their absorption into the conquering society seemed to the whites to be difficult to the point of being impossible.  “Frequent and bloody wars, in which the whites were not always the aggressors, unavoidably ensued,” he writes, in one of those nice sentences of which he was capable, quietly indicating that in fact the whites usually were the aggressors.

Of course it is distinctly out of fashion today to speak of some cultures being “savage” or “primitive.”  We prefer descriptions like “less advanced” or “less developed.”  But we can still profit from Marshall’s thoughtful cultural, historical, and legal analysis, and there is no need to regard his language about “fierce savages” as a negative judgment on the native Americans as “inferior” human beings.  This makes his remark quite different from the deliberate degradation of African Americans engineered into the law by Taney in Dred Scott.

And as long as the Times is looking for “verbal offenders” in Supreme Court history, it might try out one of its long-time heroes on the modern Supreme Court, Oliver Wendell Holmes, Jr., who wrote of a supposedly “feeble-minded” young girl being subjected to involuntary sterilization that “Three generations of imbeciles are enough.”  Indeed, as Adam Cohen writes in his recent book Imbeciles, the Times reported the 1927 decision in Buck v. Bell and “did not raise any concerns about the court’s decision or eugenic sterilization, or quote any critics.”

UPDATE: NR’s own Rick Brookhiser reminds me on Twitter that I could also have mentioned John Marshall’s effort to forestall the forced removal of the Cherokees from Georgia–a frustratingly ineffectual but noble attempt, as I noted in this essay on Marshall for the Heritage Foundation last winter.

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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