The Volokh Conspiracy

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Cancelling Chief Justice Melville Fuller

The Maine Supreme Judicial Court asked whether to remove statue of Chief Justice who joined Plessy majority


Chief Justice Melville Fuller

Outside the Kennebec County, Maine courthouse is a statue of Chief Justice Melville Fuller. Most people have no idea who Melville Fuller is. The Cleveland nominee served as Chief from 1888-1910. Perhaps his most famous decision is Pollock v. Farmers' Loan & Trust Co., which declared the federal income tax unconstitutional. He also wrote the majority opinion in U.S. v. E.C. Knight, which found that the federal Sherman Antitrust Act could not be applied to the local manufacture of sugar.

The statue of the Mainer was installed in 2013, 125 years after he was appointed Chief Justice. Now, the Maine Supreme Judicial Court has asked the county to consider removing the statue. Why? Fuller was one of seven Justices who joined the majority in Plessy v. Ferguson.

Pop quiz! Do you know who wrote the majority opinion? Everyone knows Chief Justice Roger Taney wrote Dred Scott. Some people know that Justice Story wrote Prigg v. Pennsylvania. But most people do not know that Justice Henry Billings Brown wrote Plessy. He was a fairly insignificant justice. Also in the majority were Justices Stephen Field, Horace Gray, George Shiras, Edward Douglass White, and Rufus Wheeler Peckham. In due time, all of these Justices will be subject to cancellation.

The only dissenter in Plessy was Justice John Marshall Harlan. But he may too be subject to cancellation. Consider his slander of Chinese people:

There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But

Also, Harlan's discussion of a "color-blind" Constitution is anti-anti-racist.

But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.

There was one recusal in Plessy. Fortunately, Justice David Brewer did not participate. He had to suddenly leave for his home in Kansas after his daughter unexpectedly died. He may be safe for now. But he wrote the majority opinion in Muller v. Oregon, which was also unanimous.

It's only a matter of time for the Great Chief Justice. John Marshall has a statue of limitations problem.

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  1. Put all the statutes in a meteorite and march around the meteorite every year, throwing stones at it.

    Why let these guys off easy?

  2. I hope this guy never wants a statue of himself:

    "The simplest way to understand why the Nyansapo festival has elements that aren’t open to white people (the festival is split into three areas, one specifically for black women, another for black people, and a third for everyone) is to acknowledge the racism we suffer in western society."

  3. The irony of this happening while Herr Mills continues her fascist Massachusetts ban is apparently being lost on these idiots.

    The backstory: Republican Governor Paul LePage -- 2011-2019
    Democrat Governor Janet Mills -- 2019 -2023
    Hopefully: Republican Governor Paul LePage -- 2023-2031

    1. As offensive as we find it today, wasn't the primary issue in _Brown v. Board_ the fact that the "but equal" wasn't being met? That the "separate" would have been OK had the schools actually *been* "equal."

      Remember that this was when one room schoolhouses had two doors, one for the boys and one for the girls -- with larger schools often segregated by sex. All colleges were in 1892.

      And _Plessy_ involved railroad cars, which actually could be "equal" as they likely were identical rolling stock.

      I'm not justifying _Plessy_ -- that'd be a thoughtcrime -- but was written by judges who couldn't have conceived of M, F, *and* X being the choices for sex on a driver's license, nor giving people the choice of which they wished to have listed.

      1. Plessy was actually about a Louisiana Law that required railroads to provide separate cars for blacks and whites. The railroads helped bring the case, not for any higher purpose but because hauling around extra half empty cars cost them a lot of money.

        Plessy also ruled that blacks were entitled to the same benefits as whites, at a time when black children were often not allowed to go to public schools. I have read that the Supreme Court never ruled in any case that separate but equal schools were actually provided.

        I can remember a time when New Orleans street cars had movable signs on the seat backs designating where the "color line" was. The driver would move the sign around depending on the load on that particular route and car. The seats also were (and still are) reversible so when a car gets to the end of the line the driver reverses the seats and heads back down the tracks.

      2. No, it was not. In fact, the Topeka school system was chosen by the NAACP as the case to push forward because it was a school system that did in fact have good schools for African American students. They explicitly wanted to avoid a ruling that segregation was OK as long as the facilities provided were of comparable quality.

    2. Isn't LePage regarded as a serious embarrassment to the state by many?

    3. Did LePage ever get a majority of votes for governor? Isn't he regarded as a serious embarrassment to the state by many?

  4. I sometimes wish that the people pushing cancel culture could go back in time a hundred years or so, and see how their ancestors stood on racism. Would the cancel their great-grandparents, or try to make excuses only for them, while canceling everyone else's.

    1. The people “pushing cancel culture” are Josh Blackman and any others who keep whining about “cancel culture.”

      1. The cancellation of Christmas was the door-opener.

  5. Many of us in Massachusetts call those folks in the former eastern counties MANIACS.

  6. My personal anecdote of the ludicrous garment-rending over “cancel culture”:

    A buddy of mine is very tore up over the removal of statues. “What about HISTORY” he asks. So I ask him “You have statues in the town you grew up in, yes?” He says yes. Then I ask him to tell me something about them. As expected, he had nothing to say because, like most folks, he knows almost nothing about the HISTORY he’s so concerned about losing.

    1. This nonsense will die down after a bit and we'll go back to the nonsense about Christians being persecuted.

      A resentful persecution narrative is basically the Trump GOP, and I don't think it goes away with Trump.

      But that kind of doomsaying is a fringe narrative. I don't think it's very stable in the long term.

      Nixon's similar politics gave way to Reagan's morning in America within the decade. Given the age demographics, I give this maybe 2 decades at the outside before the GOP realigns in a less despairing more optimistic direction.

      1. Do you think many state and local governments have treated Christian church gatherings the same way they have treated other large gatherings such as protests, riots, and casino gamblers?

    2. The problem is precedent. If it's okay to tear down a statue, what stops you from tearing down a painting? If it's okay to take down the painting, what about removing a picture from a book? Once you can remove the picture, what stops you from removing the text? Where is the bright line that distinguishes this from overt censorship?

      I don't much care about statutes (whether they're going up or down) because that's not how I consume my history. But I recognize that other people learn and remember differently. Statutes have been popular for millennia. Just because you and I (and maybe your friend) don't personally value them does not make the valueless. Removing them for the wrong reason, however, I do care about because there is no limiting principle that keeps that wrong reason from being extended to things I do care about.

      1. Removing the painting or picture or text from what? My wall, my personal copy of Huckleberry Finn? Preventing someone from publishing Huckleberry Finn with the unexpurgated N-word? Or even removing a statue of Jefferson Davis on my private property? I don't think anyone (well, there's always somebody, but you know what I mean) is suggesting that this should be done or would be legal if done.

        1. It would be entirely legal. Note that the anti-statue efforts are either private (the First Amendment only prohibits government censorship) or can be characterized as the government speaking in its own name. Legal, however, does not make it right. Huckleberry Finn has been effectively written out of American literature. It can no longer be taught in classes (maybe you could still get away with it in college but not at any lower level) and even many libraries have decided not to keep it on their shelves.

          Yes, I am simultaneously saying that it is their legal right to do so and that doing so is a bad idea.

          1. If I happened to have a statue of Jefferson Davis on my lawn, the government could not do anything about it (unless I violated some content-neutral zoning restriction), and if private parties did something about it without my consent, I could call upon the forces of government to prosecute the trespassers and vandals with reasonable hopes for success. If I, or some museum, had a painting someone objected to, neither the government nor a private party could make the owner tear it down. And if a private party tried, again, the painting's owner could call upon the forces of government to prosecute the vandals.
            As for Huckleberry Finn, the reports of its death are greatly exaggerated. And if they were not, literary fashion will always have its say regardless. Who reads the once highly-regarded Thomas Wolfe anymore? Does anyone but an English major specializing in 20th-century American literature or an historian of American culture in the 1930's read Dos Passos or Farrell anymore? Who but a specialist reads much of Twain besides Huckleberry Finn?

  7. When did conservatives become so hostile toward accountability and personal responsibility?

    Right-wing political correctness seems unlikely to prevail in America.

  8. There is a good lesson in this madness - we should not have any statue/idols. When people die, they can no longer defend themselves.

  9. Former Chief Justice Fuller seems an unworthy candidate for such commemoration. Most people seem to have agreed. The statue was envisioned and funded entirely by a relative a century after Fuller's death. Enabling that descendant to put a personal tribute in a public position was a mistake, especially with respect to someone with Fuller's record.

    Those who would object to the removal of such a sketchy vanity project seem to be straining to find a reason for outrage.

    1. Seems to me striking down federal income tax deserves a statue. After all, how many individuals precipitate the amending of the US Constitution? Who else could you name?

      1. What is wrong with federal income tax?

      2. Jefferson Davis comes to mind.

        Can't imagine that anyone object to a statue of him.

  10. What is the principle here? We (whoever "we" are) put up statues because we feel like commemorating someone or something. We are never obliged to put them up. What obligation do we have, and on what principle, to keep them up when we (it might be an identifiable different "we," which I suspect is the real issue) no longer feel like commemorating whatever the statue commemorates?
    That said, I would not, personally, bother about removing statues because I enjoy dilating on how deplorable the subject of the statue was, and why "we" put it up, which is hard to do when there's no statue. And I would heartily endorse a museum for removed statues, to keep a record about what we -- or some of us -- once chose to honor.

  11. He also wrote the majority opinion in U.S. v. E.C. Knight, which found that the federal Sherman Antitrust Act could not be applied to the local manufacture of sugar.

    Honestly, this is reason enough to hate Fuller. Knight is one of the dumbest SCOTUS decisions nobody knows about. It's the one that determined that manufacturing of goods (in this case, sugar) for sale in interstate commerce is not itself a part of interstate commerce.

    You literally had to be an idiot to believe this. (Fuller and his colleagues were not idiots. They were being intellectually dishonest.) And of course, this whole thing of manufacturing is not commerce led to Hammer v. Dagenhart, which held that Congress could not even prohibit the largest multistate and multinational corporations from using child labor in their factories, because their factories were not "interstate commerce".

    Knight has, thankfully, been discredited. You can argue- and I would- that one reason the commerce clause has gone too far in the other direction, such that growing a plant on your own windowsill is considered interstate commerce, is because the limit placed on the concept by Knight was so dumb and so mindlessly anti-government that when it got discredited, it had the effect of discrediting any notion of a judicially imposed limit on the scope of the Commerce Clause.

    1. Somewhat off-topic, one of my long-time crackpot theories is that the 13th Amendment emancipated not only the slaves, but the Commerce Clause. Under the modern understanding of the Commerce Clause, Congress could, if perhaps not eliminate slavery entirely, so hedge and limit it that it would no longer be a commercially significant institution. I suspect that those holding more restricted views wanted ensure that Congress could not interfere with the peculiar institution, but that once it disappeared, many of the objections to a broad Commerce Clause power became a "political" question of who would get what goodies, which could change over time and with the goodies in question, rather than a fundamental threat to a whole way of life.

  12. Let me know when some Leftist institution makes any sort of material sacrifice.

  13. Mr. Blackman, if you are so deeply troubled by the thought that, years after your death, people might think less of you because of your unethical actions today, perhaps you should just act more ethically?

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