Cancelling John Marshall?

Will the Great Chief Justice be given the Roger Taney Treatment?

|The Volokh Conspiracy |

In 2015, I asked whether we would "one day see a movement to remove the bust of Chief Justice Taney from the Supreme Court?" The following year, I told the New York Times that if Taney's tribute was removed, then Chief Justice Marshall would be next. I blogged that I was "waiting for the movement to dismantle John Marshall's statue for his discussion of Native Americans in Johnson v. M'Intosh." In that case, Marshall referred to Native Americans as "fierce savages."

Over the past few years, as the movement against Taney has grown, I've kept the Marshall statue in mind. Indeed, the Marshall statue played an important role in my SCOTUSBlog post on Vance and the Burr trial.

We know that the great Chief Justice Marshall held hundreds of slaves. So far, Marshall has stayed out of the limelight. No longer.

Gerard Magliocca asks if John Marshall is next:

The Supreme Court will at some point confront this question about John Marshall. When you tour the Court, a statute of the Chief Justice dominates the exhibit hall downstairs. When new Justices are formally given their place on the Court, they sit in John Marshall's chair during the ceremony.

The problem is that John Marshall owned people. In fact, he owned hundreds of enslaved people. Paul Finkelman's recent book on that fact (called Supreme Injustice) is well worth reading (at least for the portion about Marshall). In writing my biography of Bushrod Washington, I was struck by Marshall's terrible record on slavery and on race (including various comments that he made in letters). Much of this record was not known until recently, which partly explains why the Chief Justice has escaped the criticism that the other Founders from Virginia now justly receive.

Does this change my opinion of Marbury or McCulloch? Not at all. But do I think that Marshall should be singled out for special recognition within the Supreme Court building? Not anymore.

Taney's opinion in Dred Scott is universally reviled. But he did emancipate his slaves. Marshall owned slaves, and engaged in awful jurisprudence in Johnson, and in other cases.

Will the Marshall statue stand forever? I bet Chief Justice Roberts would rather resign than see the Marshall statue go. Or maybe if the Marshall statue goes, Roberts can no longer remain the Chief. Hmmmm.

If Marshall is cancelled, who is next? Earlier this spring, I started a spreadsheet that listed all of the justices, and noted possible grounds of cancellation. As a threshold matter, there were personal concerns.

  1. Did the Justice own slaves, fail to emancipate slaves, engage in business or legal transactions involving slaves?
  2. Did the Justice engage in other forms of personal bigotry? (Justice McReynold's antisemitism comes to mind).
  3. Did the Justice personally support eugenics? (Holmes, etc.)
  4. Did the Justice personally advocate for gender inequality? (Justice Brandeis's famous brief in Muller v. Oregon would fit the bill)
  5. And so on.

Then, I considered whether the Justice voted the wrong way in cases that involved a host of hot-button issues:

  1. Slavery (PriggDred Scott, and others).
  2. Native American rights (Johnson v. McIntosh, and others)
  3. Jim Crow (CruikshankPlessy, and others)
  4. Racism against other groups (the Insular Cases, the Chinese Exclusion Cases, Justice Harlan's Plessy dissent).
  5. Bias against women (Bradwell v. IllinoisMuller v. OregonAdkins v. Children's Hospital, and others.)
  6. Eugenics (Buck v. Bell).
  7. Discrimination against gays and lesbians (Bowers v. HardwickBaker v. Nelson, and others).

I abandoned the project because I'm not sure any Justice could survive the cull. On the current Court, the Roberts five are cancelled many times over. Shelby CountyTrump v. Hawaii. Espinoza. And so on.

What about the Court's current four progressives? Even the saintly RBG has some difficulties. For example, Justice Ginsburg wrote the majority opinion in United States v. Virginia. Her opinion stated that the Virginia Military Institute could separate students based on their "physiological differences." She wrote, that VMI "would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex in living arrangements, and to adjust aspects of the physical training programs." I'm not sure if those statements would be deemed transphobic. Justice Breyer joined that opinion.

What about Justice Kagan? Her moderation in some religious liberty cases, such as Little Sisters of the Poor and Our Lady of Guadalupe, could be grounds for cancellation. I think Justice Sotomayor could possibly make the cut, but she has declined to dissent from some death penalty cases that involved racist prosecutions.

I do not envy a Biden administration that would have to select a new Supreme Court justice. I'm not sure if there is any nominee who could satisfy every single interest.

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  1. “Will the Marshall statute stand forever? I bet Chief Justice Roberts would rather resign than see the Marshall statute go.”

    What are the provisions of the “Marshall statute” and why can’t Congress just repeal it?

    1. Thanks for fixing it. I was worried that Professor Volokh would be compelled to argue that “statue” and “statute” had become interchangeable usages.

  2. “Or maybe if the Marshall statue goes, Roberts can no longer remain the Chief. Hmmmm.”

    The elder Conspirators owe this man an intervention.

    1. Seriously.

    2. “Maybe if Justice Alito steps down, the voices in my brain will stop screaming. Hmmmmmm.”

      Some Conspirators use this platform to convince. Others use it to inform on areas within their expertise, with little attempt to proselytize. Others tend to bang one particular drum, and do it often. The fact that Josh is using his posts as therapy is not against any VC rules that I’ve seen. And if doing this helps him exorcise some personal demons . . . then more power to him.

      Well, Josh, have the lambs stopped screaming?

      1. And some, I need not say his name, use it to hawk their books.

        1. Quite a few do. Nothing wrong with that…in some moderation.

          1. With “moderation” being the critical term here.

            Nothing wrong with announcing publication, and putting up a post or two discussing the theme. Endless advertising with no significant content is another matter.

  3. I will leave it to future historians and generations how to deal with today’s figures.

    Having said that, I don’t think you can compare very many of today’s issues to slavery. Raping numerous women who you held in captivity, and whipping and injuring those of both genders, and stealing and selling their children, is simply on a different level than a few words in a judicial opinion. There’s no reason we should be honoring anyone who did that.

    1. It shifts the error when you consider that they did not think non-whites were fully human. Is animal cruelty worse than slavery? How about animal rape?

      I have a real hard time wrapping my head around the concept of slavery. I can sort of understand war prisoners being forced into labor for their sin of losing; we do, or did, that with chain gangs and 10-cents an hour license plate makers. But that’s the closest I get to finding anything close to a proper rationale.

      The idea of literally owning people requires thinking they are not really people, just animals. It then follows that you own their offspring too, get to control their breeding. But I don’t think very many societies condone raping barnyard animals, and the fact that raping slaves was condoned means they were not thought of a just barnyard animals.

      Nope, beyond my ken.

      1. How is human barbarism difficult to understand?

      2. Well, many of the black slaves bought in Africa and sold in America were in fact prisoners of war.
        Just like many of the slaves owned by what the left refers to as “native americans” were prisoners of war.
        It is easier to understand slavery from an economic perspective than a racial one. Because slavery was never a racial construct.

        1. Once the slavers began importing black slaves by the bushel, it was definitely a racist thing. Look at the Confederate speeches — constantly banging the drum of black inferiority.

          1. slavery was never a racial construct.

            The Confederates enslaved Black prisoners of war but not white ones, not to mention free Northern Blacks they captured.

            Having a racial component is useful for another reason. It’s important to be able to identify slaves who are trying to escape.

        2. slavery was never a racial construct.

          Yet the Confederates enslaved Black prisoners of war but not white ones, not to mention free Northern Blacks they captured.

          Having a racial component is useful, even if not necessary, for another reason. It’s important to be able to identify slaves who are trying to escape.

        3. “A Black man has no rights a white man is bound to respect.”

      3. “It shifts the error when you consider that they did not think non-whites were fully human. Is animal cruelty worse than slavery? How about animal rape?”

        Stop raping animals. That sheep was NOT “just asking for it” by parading around naked.

  4. Perhaps the busts of Taney and Marshall should merely be moved — perhaps to rest rooms — much as the Trump administration recently moved the official portraits of former Presidents Clinton and Bush at the White House (for the crimes, one could readily conclude, of not being Trump-style bigots or Trump-flattering sycophants).

    1. perhaps moving the clinton portrait was appropriate considering his multiple rape of women along with his trips with epstien on the lolita express

      1. If Clinton’s portrait were to be moved, you figure Trump was an appropriate guy to do it?

        1. There is no evidence or suggestion that Trump raped underage girls.

          Whereas, it is common knowledge that clinton traveled on epsteins lolita express.

          1. What’s your explanation for Trump removing Bush’s portrait, you bigoted clinger?

            1. That is not relevant to the appropriateness of removing the clinton portrait based on your original question.

          2. “There is no evidence or suggestion that Trump raped underage girls.”

            Not from Trump’s team of apologists anyway.

    2. Hmm, did you support Obama removing the bust of Churchill?

      1. You are adopting the ‘‘part-Kenyan hater of western civilization’ line of argument about the black guy, mad_kalak?

        Do you get a special limited edition Trump mug for that?

        1. Whatever the origin of the move of the bust, it was big enough that it was a campaign issue in 2012 and the Brits disrespected Obama because of it. Recall that they gave him a wood carving….wood from a Royal Navy ship that was used to patrol to prevent the slave trade. That’s some epic trolling. Obama…he gave a copy of his speeches to the queen. That’s some epic ego stupid shit right there.

          1. Pretty sure you can see giving a black President something commemorating the struggle against slavery as just a gift.

            You gonna go on about Obama’s tan suit next?

  5. I don’t immediately see an unfollow button. Is there an unfollow option to hide a particular Conspirator’s posts? I grow weary of Josh’s…..well, idiocy (exemplified most readily by all the stupid talk of Roberts resigning).

    And, Eugene, please consider not giving him this platform anymore. He simply is not on the level of you, Orin, Illya, Will, or even Paul Cassell and Bernstein (as one-note as he can sometimes be). His work is inferior and he posts a lot, making this blog much worse, much less serious, and reflects poorly on the company he is allowed to keep.

    1. Your post would be more credible if you had sent it by private email instead of grandstanding in public.

      1. I will state publicly that I like Prof. Blackman’s posts.

        This appears to be the future of right-wing legal academia.

        I am content.

      2. An anonymous commenter on a fairly low-traffic blog “grandstanding in public”. Sure. People write open letters for a reason…..maybe other people agree. Maybe they don’t. My voice alone is worth what you and Eugene paid for it.

        1. The better point was the decision to use “grandstanding in public” as a swipe while attempting to defend Prof. Blackman.

          1. You too can’t read. I did not defend Prof Blackman.

            (OT — I am surprised you have lashed out at “Blackman Lies Matter”)

            1. Arrrggghhh! HAVEN’T lashed out ….

          2. You are absolute correct, Rev. That is the better point.

            1. Not even close — it’s false.

              1. It’s true that Blackman is grandstanding in the most unbecoming way. And using the reflected credibility of the Volokh Conspirators to do so. And you use the same term, entirely inaccurately, to describe my comment? It’s rich, regardless of whether you see it as defending Blackman. It’s also telling that you are now reduced merely to saying you aren’t defending Blackman.

                He is grandstanding though, right? And his demand that Roberts resign if he doesn’t go full blown Encyclopedia Brown is ridiculous grandstanding, right? And his speculating about whether Roberts should resign if a bust of Marshall is removed is just weird, right? But, yeah, me pointing out that Blackman’s is detracting rather than contributing to this blog….that’s the problem.

                1. ??? I was responding to, and referring to, the Rev’s comment.

    2. There is no need for a button.
      The literate here can read the authors byline and decide to click, or not, as they see fit.

      1. You are at least one apostrophe short of qualification to speak on behalf of the literate, Longtobefree.

    3. ” Is there an unfollow option to hide a particular Conspirator’s posts?”

      Indirectly. Flip the switch on your computing device firmly to the “off” position. You never have to read another opinion you’ll be motivated to belittle.

  6. Josh just blogged that the current Chief Justice ought to act how Josh wants, or else resign. Now he’s lamenting the “cancellation” of a previous Chief Justice and wondering who will be next.

    You never know where the Josh Blackman Experience is going to take you next!

  7. Surely FDR should be cancelled for putting people in concentration camps.

    1. Please; internment facilities. To save the life of one child.
      (from raging mobs somehow upset at a sneak attack)

      1. It was for their own good? LOL

    2. “Surely FDR should be cancelled for putting people in concentration camps.”

      Sure. Tear down that statue of him on the National Mall.
      He successfully led our country in the fight against the Great Depression and the second world war, but what’s he done lately?

  8. We have to deal with the legacy and the personal lives of men like CJ Marshal, and here is one way in which to do so.

    We need to consider why we remember and venerate a person. Is it because of what they did in their personal lives or what they did as public figures? Why does history remember them?

    In the case of the founding fathers, we don’t revere them because they were slave holders, bigots and in some cases practiced genuine evil. No it is their accomplishments, their public deeds, their putting forth ideas and ideals. So with that standard we keep the statues and the monuments to Jefferson, Washington, etc. We also owe it to current and future generations to educate them about the evils that these people perpetrated and remind them that great men and women are not and usually are not good people. This applies to almost all, read the Lincoln racist comments in the debates with Douglas if you doubt.

    So with respect to the Conferates for example, we do not remember them because of their public service or contributions to civilization? We remember Lee and Davis and Stonewall and Strom Thurmond and the like because of their roles in rebelling against the nation and/or their roles and ambitions in subjugating a people based on race. Absent that, they would never be mentioned in history books and have no monuments. So it is only proper and fitting that we remove them from veneration; they did not deserve it and deserve comdenation instead.

    Really its not that hard to separate those who made a positive difference despite their horrific private lives, and those who made no contribution to the nation and no suppor for the idea that all men and women are created free and equal.

    1. We remember Lee, Davis, and Stonewall Jackson because regardless of the side they were fighting for, they did it honorable and with great skill (as to for the men under them), and likewise, in regard to that honor, they laid down their arms and made sincere peace, uniting the nation again. They shouldn’t be venerated, per se, but respected. This spirit of consolation between North and South, that we respected each others soldiers, has greatly contributed to the peace we have had.

      (Also, they didn’t rebel against a nation to ambitiously subjugate a race, said race was already subjugated by the nation they were rebelling against)

      1. We remember Lee, Davis, and Stonewall Jackson because regardless of the side they were fighting for, they did it honorable and with great skill

        Skill, maybe. Honor, no.

        they didn’t rebel against a nation to ambitiously subjugate a race, said race was already subjugated by the nation they were rebelling against

        They rebelled to make sure they could continue the subjugation. The excuses are ridiculous.

        1. No, they rebelled because they supported their homeland in a time when people thought of their states first.

          That said, I think you and I have a different concept of honor. They engaged the enemy in face to fact battle, using respectable tactics to the standards of the day. If anything, it was the North that went low, with Sherman’s march to the sea. The South never engaged in Clauswitzian “total war” except, perhaps, for their prisoner of war camps, but the North was as bad in that respect. And the South was starving at the time that they were starving Northern POWs.

          1. Being a skillful tactician makes you honorable, regardless of the cause it was in service of?
            Like Rommel is thought of as a genius, but not honorable. We don’t have statues of Rommel up in the US.

            Look up Andersonville Prison Camp. The Civil War was monstrous on all sides.
            Plus, you know, the South was fighting to preserve a crime against humanity, so some civilian casualties ain’t gonna make me weep. (Though I’d note Sherman is not held up as a paragon of honor either).

            1. Rommel was a German. Why would we have statues of him in the US? That said, the Germans thought he was honorable enough that they let him commit suicide after he tried to kill Hitler, rather than publicly hang him with piano wire.

              Did you ignore what I wrote? The South didn’t engage in total war tactics of targeting civilians, the North did. That was honorable by the standards of the day, and to an extent, today as well. Skilled tactics on the battlefield, rather than things like poison gas (which we always shame the Germans for using first) or killing innocent civilians as a reprisal, or raping like crazy like the Soviets did as they moved west in WWII. Sneak attacks like Pearl Harbor…these are part of war, but are not considered “honorable”. So yes, the South (a few examples otherwise) fought honorably.

              I also referenced POW camps…and that both sides did poorly in that regard, but I noted that the South was starving at the time, in that they didn’t have resources to take care of their own troops, much less POWs.

              1. ONY if you don’t consider slaves as civilians.

                There was nothing honorable about defending slavery, not as practiced in the early 1800s, and certainly not by 1861.

                1. You’re using your 21st century morality in regards to slavery and allowing it to color your perception of Lee’s strategy and tactics. Even if you think he fought for the wrong reason, I certainly do, the WAY he fought was honorable. As was the way he surrendered and made peace. Respect that.

                  1. I’m not for 100% presentism, but using it to let slavers completely off the hook is also morally blind.

                    1. When did I ever let slavers completely off the hook? You’re, once again, making someone’s argument what you want it to be rather than what it actually is.

                      I’m saying, quite simply, we should respect certain Southern military leaders for fighting honorably, say, by not targeting civilians, and by laying down their arms peacefully.

                      Respecting that is not “letting them completely off the hook.”

                    2. mad_kalak,

                      When did I ever let slavers completely off the hook?

                      Well, here:

                      Also, they didn’t rebel against a nation to ambitiously subjugate a race, said race was already subjugated by the nation they were rebelling against.

                      And here:

                      No, they rebelled because they supported their homeland in a time when people thought of their states first.

                      And here:

                      You’re using your 21st century morality in regards to slavery.

                      Slavery was well known to be evil in 1861. People of your ilk even try to defend General Lee because he said it was evil (albeit, he tried to say the true victims were slave owners like him, but he certainly acknowledged it was evil). It is not presentism to point out that Lee, Davis, and Jackson were fighting for an evil cause. They were. And they knew it was evil. And they and everyone else knew then, as now, that “states’ rights” meant slaveowners’ right to own other humans. They were agitating about other rights. That was the right with which they were concerned. And you pretending otherwise is completely letting them off the hook.

                      They were fighting for slavery. (Read any declaration of secession.) Slavery was evil. They knew slavery was evil. They fought for it anyway. There is nothing honorable about that. At all.

                      Re Rommel: I would gladly have let Lee kill himself rather than be hanged. Unfortunately, he did not have sufficient honor to do that, but used his position of power and authority to undermine Reconstruction and continue to promote an ideology and practice of white supremacy. I am pleased he died without citizenship. It’s literally the least justice that could be done to him.

                    3. *they weren’t agitating for other rights….typo

                  2. He’s using 21st century morality.

                    You’re defending bigots with remarkable enthusiasm. As usual.

              2. Not sure Rommel was all that active in the attempt on hilter’s life. My recollection was that he know about the plan and probably better characterized as complacent vs active in the attempt.

            2. “Like Rommel is thought of as a genius, but not honorable.”

              That is just not true.

              “Churchill wrote about him in 1950: “[Rommel] (…) deserves our respect because, although a loyal German soldier, he came to hate Hitler and all his works and took part in the conspiracy of 1944 to rescue Germany by displacing the maniac and tyrant.”

              “We don’t have statues of Rommel up in the US.”

              He was a German. Germany, which does not allow Nazi memorials, has several monuments.

              Here is one:

              “Visit Erwin Rommel Suicide Memorial in Blaustein, Germany
              You can find the Rommel Memorial Stone located along the Helfensteinweg about halfway. The path is not accessible by car, so you’ll have to travel by bike or foot. Aug 26, 2017:

              and

              “The German Army’s largest military base, the Field Marshal Rommel Barracks, Augustdorf, is named in his honour.” wiki

              1. I don’t think the Rommel wasn’t a real Nazi narrative holds up much today, but I take your point.

                Which only proves my own – the defenses or Rommel are defenses of his cause, not just saying his tactics were great.

            3. You need to learn more about Sherman. He was the North’s greatest, and most effective, general…yes, more so than Grant. His taking of Atlanta effectively won re-election for Lincoln and, during his March To the Sea, he freed more slaves and ripped up more of the South’s economic base, than any other general in any other campaign.

              1. I’ve read Grant’s autobiography, and the Biography by Chernow, with the requisite grain of salt. And Sherman’s autobiography as well.

                He was effective, but his brilliance was in his ruthlessness, which doesn’t generally age well.
                Proper or not, he’s not perceived as a tactical genius. Maybe he should be; history is not great at accuracy in these assessment. E.g. Lee is so thought of, having been blessed by weak foe after weak foe until he crumbled before Grant.

                1. He didn’t crumble before Grant. He almost annihilated Grant in their first meeting at the Wilderness, fought evenly at Spotsylvania, decimated Union troops at Cold Harbor, and held out against superior forces for nine months at Petersburg. But Grant had too many men and he was willing to expend them, take the losses. In a war of attrition Grant prevailed.

                  1. “In a war of attrition Grant prevailed.”

                    Re-spinning your narrative. Grant realized that he could win a war of attrition, and set about to do. Lee either didn’t realize he was going to lose, or didn’t think of any way to avoid being ground up in a war of attrition he couldn’t win.
                    Either way, the result is the same. Grant won, and Lee did not. Can’t argue with that.
                    When the U.S. Civil War broke out, the U.S. armies were used to fighting Indians. All of their tactics, and the officers who earned promotion to higher ranks, were developed by fighting Indians. It took time to adjust to fighting against an enemy who could return artillery fire.

              2. Now, Sheridan…I’ll stan for that guy any day.

                (I don’t deny the innovation, justifiably, and necessity of the Bloody March to the Sea, btw. It is badass. But I’m not speaking about my personal opinion)

          2. they rebelled because they supported their homeland in a time when people thought of their states first.

            And the issue they supported their homeland on was slavery. You can’t take that out of the picture. Were Nazi generals honorable because they supported their homeland? Lee, in particular, was himself not just a slaveholder but an exceptionally nasty one.

            They engaged the enemy in face to fact battle, using respectable tactics to the standards of the day.

            Is enslaving prisoners honorable? Was the Fort Pillow massacre an example of respectable tactics?

            the South was starving at the time that they were starving Northern POWs.

            Whose fault was that? They could have surrendered, you know. What you’re saying is that inhumane treatment of POW’s was justified because they wanted to keep on fighting.

        2. Lee and Jackson were A-list generals, among the greatest of all time for those who have interest in studying that sort of thing. Jackson I think was originally a college professor, Lee was a US officer who resigned his commission. Both fought for the right of their native state to secede from the Union. The sole reason that Virginia wanted to secede from the Union was so that it could continue the moral abomination of slavery. That reality should remain crystal clear to everyone.

      2. I guess we have a different definition of honor. Lee et. al. took an oath to support and defend the Constitution, but when it came to preserving slavery they abandoned that oath.

        And yes, the African Americans were already subjugated and enslaved, but these people fought to preserve that subjugation and slavery when said nation was attempting to correct that evil. Fighting to preserve evil against forces trying to end evil is evil.

        1. George Washington was a British Colonial officer who violated his oath to Great Britain, and led troops that killed many British soldiers.

          Lee resigned his commission, which freed him from his oath.

          1. I’d differ with Sidney a bit – being forsworn is not a big deal in this day and age.

            Trying to wreck the country where I live to preserve America’s uniquely awful institution of slavery remains kind of a big deal.

            1. You know, they just wanted to leave. That didn’t “wreck the country” if they were allowed to go.

              Sometimes you’re so ignorant it hurts, and I don’t say that lightly. American slavery was neither unique, nor particularly awful in practice compared to historical comparable. Slavery has existed since the dawn of humanity. You know, there were just as many Africans taken east for the Eastern slave trade….you ever wonder why there are no black populations in Muslim countries?

              1. You know, they just wanted to leave.

                Oh stop it. They wanted to preserve slavery. Had they not feared they wouldn’t be allowed to they wouldn’t have wanted to leave.

                And that slavery was, or is, widespread is really a pathetic excuse.

                1. Oh stop it. They wanted to preserve slavery…by leaving. I note that when I cited the Texas cause of secession in this very thread below.

                  You’re so pathetic. Slavery was practiced since the dawn of man, and is practiced today. If you were born and raised in that era, you think you’d be a fire eating abolitionist? Naw. Odds are, you’d be raping the pretty ones, making more mulattoes and octoroons.

                  1. No need for odds in identifying your spot, mad_kalak.

                2. Slavery has existed since the dawn of humanity.

                  So what? Talk about pathetic. Do you admire all those other slavers?

              2. Leaving the Union is wrecking the Union.

                Insulting people for not buying your Lost Cause narrative is vintage Lost Cause narrativism.

                One thing I can tell you are quite ignorant about is the institution of American Slavery. It was vastly worse than slavery elsewhere and across history.

                American slavery was unique because of how profoundly slaves outnumbered slaveholders, and how much the slaveholders’ way of life depended on their slaves.

                This lead to a fear of revolt that created a system of terrorism and dehumanization. Black people were not just enslaved, they were broken, their names stripped from them, their language, their faith, their family. That was not something even visited on the slavs or any system in Islam. Teaching a slave to read was a crime, because keeping blacks in dehumanized ignorance was a requirement of the system.

                Ad that doesn’t mention the forced breeding, often via forced rape. Another uniquely monstrous aspect of the American institution.

                Fear of revolt lead to an affirmative policy of breaking up families and keeping black people terrorized.

                And all of this in a country that considered itself a beacon of liberty among all mankind, a blindness and hypocrisy that must also be factored into American slavery’s towering awfulness throughout history.

        2. When you can’t support an oath any more, you resign. That’s what Lee did. That’s the honorable thing to do.

          The nation, when the south seceded, actually wasn’t going to do anything about slavery in the immediate future. The South saw that they would soon be demographically overwhelmed by new free states, etc. and reacted pre-emtively.

          You see, when the war started, it was about preserving the Union. Only later did Lincoln decide to take the opportunity to free the slaves. He had no intention of doing so right away. You see how your entire premise is faulty?

          1. “You see how your entire premise is faulty?”

            Its the most empty virtual signaling imaginable. Grant et al. who actually fought these guys treated them with respect.

            1. Good point. The men who risked their very lives against Southerners, treated them with respect.

              1. Wave that Confederate flag with pride, then!

                1. I’m no confederate. My dad’s side had a man who died fighting for the North at Antietam. My wife’s side freed all their slaves even before the Civil War and lost everything because of it.

                  You’re such a fool.

                  1. “My wife’s side freed all their slaves even before the Civil War and lost everything because of it.”

                    I hope your wife has overcome having such lousy people as ancestors. If she does not find them reprehensible, though . . . she did not overcome any of it.

                  2. You sure as hell are pro-Confederate.

                  3. “I’m no confederate. My dad’s side had a man who died fighting for the North at Antietam. My wife’s side freed all their slaves even before the Civil War and lost everything because of it. ”

                    If this is true, then your wife and parents must be so disappointed at your visible support for the disloyal side of the war.

          2. Wait, wait wait. The South reacted pre-emptively to…what? To the threat that once they were “demographically overwhelmed” that slavery would become illegal.

            Sure, maybe the North was fighting a war primarily focused on preserving the union. But the South was undeniably fighting a war primarily to preserve the institution of slavery.

            1. The South knew that they were going to be outvoted. Here is the declaration on secession from Texas on this topic: The controlling majority of the Federal Government, under various pretences and disguises, has so administered the same as to exclude the citizens of the Southern States, unless under odious and unconstitutional restrictions, from all the immense territory owned in common by all the States on the Pacific Ocean, for the avowed purpose of acquiring sufficient power in the common government to use it as a means of destroying the institutions of Texas and her sister slave-holding States

              1. exclude the citizens of the Southern States, unless under odious and unconstitutional restrictions,

                What were these terrible restrictions?

                destroying the institutions of Texas and her sister slave-holding States

                Said “institutions” being slavery. While you accuse others of ignorance, you yourself willingly close your eyes to basic facts.

                It’s bizarre. On the one hand you argue that the North wasn’t trying to eliminate slavery. On the other you claim that the South was justified in seceding to preserve slavery.

                Put some mustard on that pretzel.

                1. Do you try to overwhelm someone by responding, late in a thread, to like 4 different places where they were corresponding with other people? Worse, you don’t even read the thread that you’re responding to, because the things you say have already been covered.

                  Manners benard, manners.

                  (psst) read the comment from me at 3:45 pm. I already covered what you wrote above here.

                  1. Sorry if my response are misplaced.

                    I read the thread. Sometimes it’s hard to get to the right place in the comments.

                    Your 3:45 comment doesn’t address any of the points I raised. Instead you continue to rationalize the behavior of the Confederates by pointing to what Lincoln said one time, or what Illinois did, or whatever.

                    You simply refuse to evaluate the behavior of Lee and the others directly. Simple facts:

                    The southern states seceded to defend slavery – they said so.

                    Lee chose to fight for the Confederacy – whose reason for existence was the preservation of slavery. Hence he chose to fight for that preservation. This was unsurprising in view of his own slaveholdings.

                    The Confederate army was not exceptionally, or even particularly, honorable. Enslaving prisoners. Refusing to exchange captured Black prisoners. Massacring Black union soldiers, fighting on when defeat was inevitable, etc.

                    Squirm and wiggle all you want. These things don’t change.

            2. The point I’m making, that slipped past you, was the North was not, and Lincoln was not, going to free the slaves *right away*. Lincoln wanted to send them back to Africa, and the South still held significant power in the Senate. There was going to be debate, and maybe a British style “buy out” would happen, and maybe nothing. We don’t know, but a gradual or sudden emancipation was eventually in the offing. And the war, from the Northern perspective, was about preserving the Union.

              Most white men in 1861 were going to lay down their lives to liberate by force what most of them thought was an inferior people. States like IL had passed Black Codes to keep free blacks out of the state. Just because they didn’t like slavery didn’t mean they like black people.

              There is such historical ignorance here it hurts.

          3. Whatever their personal merits, the statues were put up as racist statements long after the civil war. When you can’t support a statue anymore, you take it down. That’s the honorable thing to do.

            1. Not all statues were put up as reminders to blacks of who’s their boss.

              It depends on how you take them down how honorable it is.

          4. The South was not going to be demographically overwhelmed. The new states were going to be demographically similar to the rest of the US.

            1. There was a slave state/free state balance in the Senate that was a big deal at the time, not to mention the House and the Electoral College. I’m including that when I say “demographically overwhelmed”…it would be akin to Texas turning blue.

              1. “…it would be akin to Texas turning blue.”

                so . . . the situation Americans will experience in four to six years?

          5. “You see, when the war started, it was about preserving the Union.”

            When the war ended, too. And they succeeded. The other side, on the other hand, was about preserving human slavery. And they didn’t succeed. Slavery was abolished in large part because the victorious Union was able to install their own Representatives from the rebel states and those Representatives didn’t fight the Reconstruction amendments that ended slavery in the United States, and established black people as citizens, who had rights to vote. Had they not rebelled, the confederate states could have voted against those amendments, and they would have failed. They brought about the result they wanted to avoid.

      3. “We remember Lee, Davis, and Stonewall Jackson because regardless of the side they were fighting for, they did it honorable and with great skill (as to for the men under them), and likewise, in regard to that honor, they laid down their arms and made sincere peace, uniting the nation again. They shouldn’t be venerated, per se, but respected.”

        You are free to respect violent bigots, mad_kalak, those of the 1800s and those of today. You are free to laud the Confederates for being ‘graceful losers’ and the south for being so peaceful and agreeable. You should expect modern, decent people to regard you as a bigoted, stale-thinking jerk, though.

        1. You’re such a fake.

          Anyway, I don’t respect you, so there is at least one bigot right there, eh?

          1. Where “fake” = inconvenience to clingers.

            If figures you defend the Confederates . . . you share their experience of losing the war and being on the wrong side of history.

      4. I always like how the last best defense for honoring Confederate military leaders is essentially that they were really good at planning and carrying out mass violence.

      5. We remember Lee, Davis, and Stonewall Jackson because regardless of the side they were fighting for, they did it honorable and with great skill (as to for the men under them),

        No. There’s nothing honorable about treason in defense of slavery. Nor would that be a reason to remember them anyway, any more than it would be a reason for Americans to remember Benedict Arnold, Erwin Rommel, or Mohammed Atta. We don’t honor people who fought against the country.

        These monuments were not put up in the wake of the civil war to contribute to peace. They were put up in the wake of civil rights movements to say fuck you to blacks.

      6. ” they didn’t rebel against a nation to ambitiously subjugate a race, said race was already subjugated by the nation they were rebelling against”

        Specifically, by the PARTS of the nation that they were rallying to.

        The main complaint of the confederate states was that the U.S. was admitting new states in the West that prohibited slaveholding in their state Constitutions.

    2. This is correct, IMO.

    3. We remember Lee and Davis and Stonewall and Strom Thurmond and the like because of their roles in rebelling against the nation and/or their roles and ambitions in subjugating a people based on race. Absent that, they would never be mentioned in history books and have no monuments.

      Really? They removed Matthew Fontaine Maury’s statue from Monument Avenue in Richmond, even though what he’s remembered for (charting wind and ocean currents, for which he has been called “Pathfinder of the Seas”) was done as an U.S. Navy officer, working at the Naval Observatory in Washington, yet he has been canceled because, in the twilight of his career, he served in the Confederate navy.

  9. Let’s cut the crap and cut to the chase.
    Demolish the Washington monument.

    1. And the Jefferson Memorial. And the WWII memorial while we are at it, because the nation was still segregated at the time. Oh, and Lincoln is next, he wasn’t progressive enough in his view of black people by today’s standards.

      1. Right. Suspension of habeus corpus, I think.

      2. Maybe they can all be replaced by a mirror? It’s the only way any SJW will see somebody who’s blameless being memorialized.

        1. Boy, are you guys going to hate the next half-century of American progress.

          Probably as much as your have hated the most recent half-century of American progress.

    2. But such a fitting memorial for the “father of our country”.

      1. father…that term itself is so patriarchal and hetero-normative

      2. Father, indeed.
        So we have a giant phallus as a monument

  10. I just realized that I have been canceled. There’s no statue of me at the Supreme Court.

  11. A lot of times, my wife will see the way someone is dressed, and say, “Oh. Doesn’t [that person] have any friends? Someone to tell them?”

    I read these posts by Josh. And I keep thinking …. “Doesn’t he have any friends? Someone to tell him?”

  12. Interesting that Paul Finkelman got mentioned.

    When I took American History to 1864 with him (UT Austin, 1980 or 1981, class with 300 students, he was still an Assistant Professor), he taught us that:

    1. No city called Atlanta existed at the time of the civil war, and that both it’s existence and the burning of it were stories created by Southern apologists to gain sympathy.

    2. That the ratio “16:1” in the gold-silver debate meant that a dollar worth of gold was worth sixteen dollars of silver.

    Somehow he went on to become a prominent scholar.

  13. I figured the “notorious” RBG would be cancelled for her words on eugenics, but since it was in the cause of abortion, I suppose not, though even Planned Parenthood is moving away from Sanger these days.

    1. A dead baby is a dead baby, whether they acknowledge Sanger or not.

    2. The right does enjoy the game of what strawman leftists will cancel next.

      No one denies the eugenics movement was a thing and that abortion was part of it, m_k.

      The right tries to argue that means all abortion is eugenics, because they are getting pretty dumb in their pro-life arguments lately.

      1. To change some lines on the ubiquitous signs (at least ubiquitous in my neighborhood)
        Life Matters
        Fetal rights are Human Rights
        Science is a System of Knowledge not Belief
        Kindness is the Next Best Thing

        1. Feel free to argue such. Maybe you’ll hit a sexy slogan that will go viral.
          Though it’s not really a thing amenable to argument at this point IMO.

          Pro-Choice does not generally cite science, that’s the Pro Life’s silly line.

      2. Until recently, Progressive era eugenics have been getting a pass from the left. The right has used it as ammo, and rightly so, to point out hypocrisy. Can you blame them. Sanger is particularly odious.

        That’s not saying “all abortion is eugenics” but rather that the abortion movement was eugenicist in origin.

        The divide is, and always has been, about personhood and when it begins. Everything else is just some extra fuel to the fire.

        BTW, the right should be glad that 400,000 future one SD lower in average IQ future democrats are killed by one SD lower in average IQ current democrats.

        1. I learned about eugenics and the progressive connection my high school, so maybe your convenient narrative is once again your worldview writing your history for you.

          The right argues ad nauseam that abortion has been polluted as an institution because Sanger was pro-eugenics. Glad you don’t go that dumb rout.

          Your last paragraph appears to be dipping your toe into eugenics. Loathsome.

  14. Interesting trivia about Taney; Seems he inherited his slaves, and not only emancipated them shortly after, but provided the older ones with pensions. I had not known that, makes him more of a complex figure than the cardboard cutout racist I’d thought he was.

    1. Not that that makes the Dred Scot ruling any more defensible, of course, either as a matter of law or morality. If anything, it makes it even more likely he knew it to be indefensible.

    2. Always do your own research.
      It turns out those 20 slaves brought to Virginia in 1619 were actually indentured servants paying their passage with future labor.
      I stumbled across that gem researching a legal matter. And, oh by the way, one of those indentured servants owned a slave later, after he had paid out his indenture.

      https://en.wikipedia.org/wiki/John_Casor

      1. Well, sure, but the difference between indentured servitude and slavery was sometimes more theoretical than real, it often happened that you’d continue to be forced to serve past the period of your indenture. It was a risky business being indentured at that time.

    3. In other words, he was like Mario Cuomo on abortion. That is, personally opposed but unwilling to impose his moral beliefs on others.

  15. There are gazillions of justices that could pass unscathed in a Biden administration. They merely need be woke today. Look at the governor of VA. Or Trudeau in Canada. Or the fact that Sen. Byrd STILL hasn’t been cancelled despite possibly being the worst offender. Being a member of the left cures all bigotry (until you simply aren’t useful but then who cares anyway? You ready did your work for the party).

    1. “Look at the governor of VA.”

      Very easy to remove statutes of people dead 190 years. Letting a GOPer succeed a living racist and his rapist lt. gov. is hard.

  16. Marshall should have his statute removed because he invented the curse of judicial review.

    1. lol.

      However, if he hadn’t done it, someone else would’ve, considering the structure of the then new Constitution.

    2. Do you actually believe he did that? Incredible.

  17. If you add Korematsu to the objectionable decisions (as surely is warranted), that would eliminate Stone, Frankfurter, Black, and Douglas as well. It makes me wonder if Stone’s vote for the majority in Korematsu has been referenced in connection with the famous Harlan Fiske Stone awards at Columbia Law School.

  18. William and Mary has the Marshall- Wythe school of law. George Wythe…signer of the Declaration of Independence, the nation’s first law professor, planter, slaveholder. How long can the name of that law school survive?

  19. Surely there are questionable things in the biographies of King William III and Queen Mary.

    1. Certainly there are if you ask an Irishman. (“Up the long ladder and down the short rope/To hell with King Billy and God bless the Pope!”)

  20. Andrew Jackson would make a much better target for removal over the Indian issue than Marshall. Marshall wrote a majority opinion striking down the Indian Removal Act. Jackson defied him and moved them anyway, and — outrageously! — got away with it scot-free.

  21. “I’m not sure if there is any nominee who could satisfy every single interest.”

    Has there EVER been such a candidate?

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