Political Atheism: Dred Scott, Roger Brooke Taney, and Orestes Brownson

 Dr. Patrick Carey

The Catholic Historical Review, vol.88, April, 2002

The Supreme Court’s Dred Scott decision in early March of 1857 inflamed the national debate over slavery and deepened the divide that led ultimately to the Civil War. The decision has been analyzed repeatedly by historians and legal scholars, and has created divergent opinions on what was legally decided and what was merely obiter dictum, and on whether the case was influenced more by politics than by law. Many historians claim that the decision destroyed the Chief Justice Roger Brooke Taney’s (1777-1864) reputation as a legal scholar and weakened the authority of the Supreme Court in its immediate aftermath. Little notice in the literature on the case is the debate that took place in the American Catholic community after the decision. Contemporaries and historians alike at times called attention to the fact that Taney was a Maryland Catholic, and some anti-Catholic religious newspaper editors in the North singled out his religious identification as one of the reasons for his ex cathedra decision in favor of slavery. On the whole, though, few contemporaries or historians paid any attention to the divergent American Catholic reactions to the decision, nor to the debate among Catholic journalists and newspaper editors on the wider issue of the relationship of religion and politics that the decision triggered in the Catholic community. This paper focuses upon the religious issue that some Catholics saw in Dred Scott.

In 1846 Dred Scott, a slave living in St. Louis, maintained in a Missouri state court that he, his wife, and his two children were legally entitled to their freedom because they had sojourned in a free state (Illinois) and in free territory (Minnesota). In 1854 Scott’s suit for freedom was brought before the United States Supreme Court asking for a reversal of a District Court’s decision declaring him still a slave. The case was argued and reargued before the Supreme Court in 1856, and, after the March, 1857, inauguration of Democrat James Buchanan as president of the United States, the Court announced its decision. Taney delivered the opinion of the Court in Dred Scott v. Sanford, arguing that Scott was not only a slave but that he was also not a citizen of the United States and therefore could not legitimately sue in a federal court of law, that no Negro (free or slave) could be a citizen of the United States, and that Congress had no power to prohibit slavery in the territories (and, thus, the Missouri Compromise of 1820 was unconstitutional). Two of the nine justices, Justices John McLean and Benjamin R. Curtis, offered extensive and vigorous dissenting opinions. The decision was well-received by the majority in the South, the pro-slavery part of the Democratic party, and a few editors of Democratic papers in the North. It was rejected and attacked by the newly organized Republican party, the abolitionists, a significant number of editors of religious newspapers in the North, and by anti-slavery Democrats.

The American Catholic community, too, was divided in reacting to the decision. The primary issues for those Catholics who expressed an opinion about the case revolved around the arguments and language Taney used to declare that the Constitution did not intend to include Negroes as citizens of the United States. He based his view upon an historical interpretation of attitudes toward Negroes, arguing that the original intent of the Declaration of Independence and the United States Constitution, when interpreted within the context of the times in which they were written, excluded Negroes from citizenship- they were not conceived of by the founding Fathers as part of the "people of the United States." Otherwise, there would be a complete disjunction between what they articulated in those documents and their practices of slavery.

Taney asserted that racial attitudes were almost universally present at the time the Constitution was formed. In forceful language he argued:

"We think they(Negroes) are not, and that they are not included, under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who had held the power and the Government might choose to grant them."

The Court’s duty, Taney continued, was to interpret the intent of the Constitution and not to decide the justice of this characterization of the founders’ attitudes. It was the role of the legislative, not the judicial, branch of the government "to decide upon the justice or injustice, the policy or impolicy" of the laws.

The language of the Declaration of Independence, furthermore, needed to be understood within this same historical context. That "memorable instrument" reflected the values of the times in which it was written, meaning that the authors had no intention of including Negroes "as part of the people." For Taney the history of late-eighteenth century attitudes was binding upon interpreters of the instruments that were produced then. 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, and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken.

Negroes, whether slave or free, were regarded as an inferior race, and, in fact, "so far inferior, that they had no rights which the white man was bound to respect." The Negro was regarded simply as "an ordinary article of merchandise and traffic." And these attitudes were axiomatic in morals as well as in politics. No one thought of disputing them, and they became a daily part of one’s private life as well as institutionalized in public life. These opinions, Taney asserted, were "at that time fixed and universal in the civilized portion of the white race."

Taney did not say whether he agreed with these attitudes or not. He was simply trying to interpret original intent. But in fact his decision supported the slavery party in the United States and reflected the tradition in which he had been born and raised as a Marylander and as a Catholic. His historical interpretation itself was conditioned by his background, religious as well as cultural and political.

Taney’s own background, though, contains something of a mixed message with regard to slavery. He grew to manhood on his father’s Maryland plantation; he was personally acquainted with the slaves of the plantation, and when he reached his maturity he inherited ten slaves from his father. He was raised a Catholic, and his Maryland Catholic religion offered no opposition to owning slaves. In fact, the Maryland Jesuits and various orders of women religious owned slaves until the mid 1830’s. Being a practicing Catholic, which he was throughout his life, did not in his experience contradict slave ownership.

There are some things in the young lawyer’s life prior to the 1830’s, though, that indicate some discomfort with the practice of slavery. His own personal attitudes towards Negro slaves could be described as benevolent paternalism. In an 1857 letter to Samuel Nott (1788-1869)- a Congregationalist minister in Wareham, Massachusetts, who after Dred Scott had sent Taney a pamphlet he wrote on slavery- Taney indicated that he had inherited ten slaves from his father and had emancipated seven in 1818 and one in 1821; two of remaining slaves were too old and sick to care for themselves. His elderly slaves he supported "in comfort" for the remainder of their lives. The others, once emancipated, used their freedom effectively to sustain themselves and live responsible and worthwhile lives. He may not have needed slaves as a lawyer, but he could have sold them instead of emancipating them.

Prior to the rise of Northern abolitionism, moreover, the lawyer Taney on different occasions defended a Negro, served as counsel for a slaveholder, and advocated the case of an abolitionist minister. In 1809, for example, Taney petitioned unsuccessfully the Maryland Court of Appeals to arrest the judgment of a lower Maryland county that a Negro (Burk) was guilty of raping a White girl. On the other hand, in 1827 he helped to defend an alleged slave-trader, John Gooding, before the United States Supreme Court. In both instances he may have been simply fulfilling his duties as a lawyer, and the case reveal little or nothing about his attitudes toward slavery. In 1819, however, he defended an abolitionist Methodist minister, Jacob Gruber, who had been accused of inciting slaves to rebellion. The Gruber case is significant because Taney revealed something of his own views of slavery in the course of the trial, unlike the other two cases in which his own personal views are hidden under a host of legal technicalities upon which the cases were tried.

Gruber, a Pennsylvania minister, had preached a revival camp meeting in Maryland at which slaves as well as their white masters and others were present. In the course of his preaching, he gave a rousing denunciation of slavery, after which he was indicted under a Maryland law for inciting slaves to riot. Taney was called upon to defend Gruber in the Frederick, Maryland County Court. He argued the case before the Court in March of 1819 on the grounds that there was no evidence to indicate that Gruber intended to incite a slave rebellion. He also upheld Gruber’s right on the grounds of the first amendment. But he went beyond the simple right of free speech in arguing the case. He also gave the reasons why Gruber opposed slavery and its many cruelties, and then asserted his own view, saying:

"We are prepared to maintain the same principles [as Gruber], and to use, if necessary, the same language here, in the temple of justice and in the presence of those who are the ministers of the law. A hard necessity, indeed, compels us to endure the evil of slavery for a time. It was imposed upon us by another nation while we were yet in a state of colonial vassalage. It cannot be easily or suddenly removed. Yet, while it continues, it is a blot on our national character, and every real lover of freedom confidently hopes that it will effectually, though it must be gradually, wiped away, and earnestly looks for the means by which this necessary object may be best attained."

Taney won the case. Gruber was acquitted.

The views Taney articulated here could be perceived as contrary to the sentiments that were expressed in Dred Scott. His personal views, however, were not attempts to interpret the law or the Constitution of the United States. In legal decisions, from the time he was Attorney General of the United States (1831) until Dred Scot he had supposed slavery as a municipal law of the land. One thing seems clear, though: there was a definite change in his public statements on slavery after the Gruber case of 1819. One could suggest that his post-1830 legal support for slavery after the Gruber case was probably a Southern reaction to the rise of abolitionism and the national conflict over the peculiar institution. His views hardened as he got older, not so much because of age as because changing circumstances in the nation called for a defense of the institution that came under increasing attack, and he could not, like many Southerners, figure out a way of gradually eliminating the system of destroying Southern culture. Once the evil system had become a part of the culture, it was difficult, if not impossible, to remove it without removing a way of life associated with it. In his 1857 letter to Nott he stressed the point by saying: "Every intelligent person whose life has been passed in a slaveholding state, and who has carefully observed the character and capacity of the African race, will see that a general and sudden emancipation would be absolute ruin to the Negroes, as well as to the white population."

Taney’s decision, and the language and arguments he used to support it, evoked differing American Catholic assessments of the role Taney’s religion should have played in the decision, and more generally created varying Catholic interpretations of the proper relationship between religion and politics in American society.

The first Catholic reaction to Dred Scott, as far as I am aware, was Orestes A. Brownson’s "The Slavery Question Once More."(April, 1857) In April of 1857, Brownson had read only newspaper reports of Taney’s decision, but he had read Justice John McLean’s dissenting opinion, which was published in the New York Herald. Brownson’s article articulated his long-standing agreement with many constitutional and legal elements in the decision and then took issue with Taney’s denial of citizenship to all Negroes. Brownson had consistently opposed slavery throughout his life, but since 1838 he had also supported the state rights section of the Democratic party. For Brownson that meant that slavery was protected under municipal law and the states alone had the right to retain or abolish the law. But, by 1857 he was becoming increasingly concerned about the growing influence of the slavery monopoly upon the federal government (the slavery interest, he asserted, was as dangerous to the operation of the federal government as was the bank interest of the 1830’s- and he had consistently opposed both monopolies). In a January, 1857, article, "Slavery and the Incoming Administration," he warned the Buchanan administration that if it buckled under to the slavery lobby, his administration would lose any opportunity to govern the bifurcated country effectively. Some in the South thought that that warning put Brownson on the side of the Black Republicans, that is, the anti-slavery party. But Brownson was not an abolitionist. Since 1838 he had turned against the abolitionist movement on legal, moral, economical, and political grounds.

Before Dred Scott, Brownson had opposed slavery on moral and religious grounds, rejected abolitionism on legal and constitutional grounds, supported legalized slavery on the basis of positive law, and disapproved the federal government’s involvement in the slavery issue on the grounds of state rights. In all of these issues he had hoped to support the Union of the states. He agreed with those elements of Dred Scott, therefore, that denied Congress the right to legislate on slavery. Like the Court, he also regarded the Missouri Compromise as unconstitutional. If Congress had the authority to legislate on slavery, it could allow as well as prohibit slavery, and Brownson saw in the Constitution no expressed articulation of Congress’s powers over slavery, with the exception of the fugitive slave law.

Brownson asserted, though, that slavery had no legal or constitutional status in the territories. It existed only by municipal (state) law, and such laws did not and could not exist in territories. He admitted the legal existence of slavery only in those states where municipal law supported the institution; it did not and could not exist in the territories because the federal government had no such jurisdiction over the territories. Slaves were property, therefore, only where municipal law defined them as such. In the free states and in the territories of the United States, no one could be considered as legal property of another person and no one could be treated as property. Natural law, the law prior to all positive or conventional law, prohibited property in slaves. Slaves, therefore, ceased to be property when transferred out of the jurisdiction of municipal law. Brownson was a states rights Democrat, but he did not understand slavery in the same way as did the ardent Southern state rights advocates. "They held and hold that slavery may go wherever it is not forbidden by municipal law; we, that it can go only where authorized by municipal law, or municipal usage having the force of law."

The crucial issue in Dred Scott for Brownson was the Court’s denial of citizenship to all Negroes. Taney rested the Court’s opinion, Brownson rightly asserted, upon his historical assessment of the founders’ attitudes toward Negroes at the time the Constitution was written. Even if Taney’s description of the historical attitudes toward Negroes was accurate, a fact Brownson was not willing to grant, those attitudes had nothing to do with the Constitution itself. The Constitution was silent on Negro citizenship, and did not manifest those attitudes Taney attributed to it; nor were those attitudes acknowledged by federal laws. As to the fact, Taney, as a Catholic, ought to have known that at the time of the Constitution there were indeed voices that supported the equal dignity of all human beings and protested against the enslavement of Africans. Popes since 1842, Brownson asserted, had outlawed "on pain of excommunication, the reduction of African Negroes to slavery." The arguments Taney made were faulty in fact as well as in reasoning. In developing arguments for the decision, moreover, he in fact contradicted fundamental Catholic teaching.

"We regret that in giving the opinion of the court the learned judge did not recollect what he is taught by his religion, namely, the unity of the race, that all men by the natural law are equal, and that Negroes are men, and therefore as to their rights must be regarded as standing on the same footing with white men, where there is no positive or municipal law that degrades them. Here is what we dare maintain is the error of the court…The opinion of the court belongs to an epoch prior to the introduction of Christianity, and is more in accordance with the teaching of Aristotle than with that of the Gospel… The court should lean to the side of the weak, and set its face against oppression. The Negro race is, no doubt, inferior to the white race, but is that a reason why they should be enslaved, or why the court should join the stronger against the weaker?"

Brownson regretted that Taney did not act according to a Catholic conscience. The implication here, made explicit later, was that Taney had separated his religious views from his political and constitutional views. He took his language and his arguments from the culture when he could have, and indeed should have, taken his language and arguments from the natural law and his religious tradition is such a fundamental question as the equality of all human beings. To interpret the Constitution, when the language of the Constitution itself was not explicit on the subject of Negro citizenship, one could legitimately use the language and arguments of the natural law and the religious tradition. Nothing in the Constitution itself prohibited such an interpretation. One need not, and indeed should not, base one’s interpretation upon the historical and cultural attitudes that violated the law of nature and revealed religion. In effect, Taney made the cultural mores binding upon his interpretation of the Constitution. Had his Catholic rather than his Southern conscience come to the fore in articulating the opinion of the court, his arguments would never have denied citizenship to free Negroes where municipal law did not prohibit such. Instead he chose arguments and evidence for his interpretation that came not directly from the Constitution but from his culturally conditioned past. His own religious tradition, as Brownson interpreted that tradition, had no influence on his interpretation.

The Court’s decision, Brownson predicted, would solve nothing in the country; in fact, it would only provide new fire to the anti-slavery agitation and bring on the conflagration of the nation. The dissent by the "ablest judges of the North," moreover, would deprive the decision of all moral force. He saw only trouble ahead.

Brownson predicted rightly, but he did not see his own reactions to Taney’s decisions as a part of the subsequent problem within the Catholic community. Even before Brownson wrote against Taney, he had received from John Carroll Walsh, a non-slaveholding Maryland Catholic gentleman, a letter protesting Brownson’s January, 1857, "Slavery and the Incoming Administration," an article that was bitterly resented in the South and that Walsh considered "erroneous," particularly in light of Dred Scott. Walsh wrote to Brownson shortly after the decision was released and asserted that Taney’s decision was now the law of the land and should settle the issue of slavery. Walsh complained, too, that Brownson’s article would be interpreted by non-Catholic Southerners as the Catholic opinion and thus identify the Catholic Church with the "Free Soil doctrines" and Northern abolitionists positions. Most Southerners did not understand Brownson’s "religious individualism," meaning by that phrase, I presume, that he had no official capacity to articulate the Catholic view of things. Brownson’s view, Walsh regretted, would reinforce charges that the Know-Nothings had recently brought against Southern Catholics, namely, "that the Catholic Church was inimical to the institution of Negro slavery, and that it was part of its Jesuitical policy to conceal its enmity for motives of expediency." What made Brownson’s article so disconcerting for Southern Catholics was the fact that they had repeatedly cited canons of the Church, decrees of its councils, and writings of theologians to show that Catholics did not oppose slavery. "Although not owning or even expecting to own a slave," Walsh went on, "I have yet to learn either from my church or any other source that slavery as it exists in this country is an evil or a curse." Experience, too, taught him that African Americans were inferior to Whites and should occupy the lower regions of society and "for the good of society be under the control of the superior race." Our laws in favor of slavery, furthermore, "do not violate any human or divine; the Church recognizes them to the fullest extent, considers them perfectly consistent with the decrees of the Almighty," and would not want its children to oppose the extension of slavery into the territories or new states because it does not see slavery itself as an evil or a curse. The Church rejected only slavery among equals. Although Walsh respected Brownson and his useful pen, he declared his position "wrong" and begged him to correct his error. Dred Scott had settled the issue of slavery in the territories, and Walsh expected Brownson to abide by the decision. He ended his long letter by imploring Brownson to refrain from discussing the whole issue of slavery in his Quarterly because the issue proved to be the "source of such bitter and angry feelings" between those who should be brothers in the Church. Walsh, like most other Southerners, must have been bitterly disappointed by Brownson’s criticisms of Taney’s decision.

After Brownson’s April article a host of Catholic newspapers came out against Brownson and in favor of Dred Scott and Taney. Many Catholic editors were particularly incensed by the opposition that Northern Protestant preachers had voiced from their pulpits and press against the decision. They saw such dissent as typical of the Protestant principle of private interpretation, applied to civil as well as religious affairs, and as anarchical in society as in religion. They argued, furthermore, that the Catholic position was to respect all constituted authorities, in state as in church. With respect to Taney, many editors believed, as the Baltimore Catholic Mirror put it, that although Taney was personally opposed to slavery, he had the duty to abide by his oath and interpret the Constitution "by its true letter and spirit."

The editor of the Baltimore Metropolitan came to Taney’s defense in reaction to Brownson’s criticisms. Brownson’s article, the editor wrote, tended to weaken law and order in society, and to diminish respect that was due a decision of the Court that had authoritatively settled a "vexed and unhappy question." Brownson undermined the authority of the Court by questioning the moral force of the decision. He not only set himself up as a "super-Supreme Court of Appeals" but as an ecclesiastical judge by interpreting Taney’s decision as a "rebellion against the authority of the Church." Requiring a judge to abide by Catholic doctrine, the editor maintained, was full of disastrous consequences. "If he[Brownson] is right in requiring a Catholic judge to regulate his decisions, not by the law which he has sworn to administer, but by something outside of it and above it, which his Church is supposed to teach- then the opponents of his Church may have the right to treat the errors of the judge as the errors of his religion, and to regard him as unfitted, by professing it, to occupy his judicial station." In fact, the editor argued, the Church does not dictate what a judge may or may not hold; she "neither legislates for the legislator, nor adjudicates for the judge. She consecrates the principle of inviolability within her own sphere, by leaving inviolate the functions and duties of the civil magistrate." The Catholic judge, as judge, is independent of the Church. The Church, too, "provides no loopholes by which a man may escape from the discharge of an official duty." The editor was saying in effect that the Catholic judge, like all judges, was to do his duty by following the directives and principles and methods of his own office, not by bringing his religion to bear upon his official duties. He ended his article by saying that Brownson was setting a bad example by arguing with the Court. If someone as generally conservative as Brownson could dissent from the Court’s decision, what could one expect from the abolitionists and radicals in the country? The times were bad indeed in even Catholics added to the divisions in the country by creating dissentions within the Catholic community.

James Mc Master, Catholic editor of the New York Freeman’s Journal and an old Brownson foe, saw almost any criticism of the Court as tantamount to treason. Under the heading of "More Protestant Treason," he criticized two New York Protestant abolitionist ministers, Henry Ward Beecher (1813-1887) and George Barrell Cheever (1807-1890), who had assailed the decision as a violation of divine law and sovereignty. Their attacks upon the Court put the Protestant pulpit in conflict "with the laws and tribunals of the country." He was not quite as harsh with Brownson as he was with the Protestant ministers, but he found Browson’s opposition to the decision "unconvincing." Although he, like Brownson, was not an advocate of slavery, he thought the Court was within the parameters of its constitutional obligation when it decided the way it did. The ground of right and justice which sustains our own laws is that the slaveholder has a claim to the service of his slave recognized by the law of God, and by the law of the land. He considered Brownson’s distinction between the natural right to property and the municipal right to property in human beings to be a pure abstraction. Brownson, moreover, had misapplied universal principles to this practical question of slavery and Negro citizenship. His articles on slavery were not calculated to do any good. McMaster ended by denying that Brownson’s interpretation should be taken "as the Catholic view of the Slavery Question, or as true deductions from Catholic principles. As such they will never be accepted."

In Philadelphia the editor of the Catholic Herald and Visitor likewise gave a brief notice to the Supreme Court decision in March of 1857, advising Catholics to "obey the decision" and consider the Supreme Court’s ruling the law of the land. He admonished his readers to accept the teaching of legitimate civil authority and to see its decision as "part of the Constitution of the country" superseding all opinions on the subject. After reading Brownson’s negative reaction to the arguments on citizenship, he told his readers that he regretted that Brownson referred to Taney’s religion. "Chief Justice Taney sits upon the bench of the Supreme Court to decide questions according to the Constitution and laws and ordinances of the United States, and not according to the rules of the Council of Trent." Taney’s religion, the editor implied, had nothing to do with his duties as judge.

The debate was on. In subsequent issues of his Quarterly, Brownson returned again and again to the Taney decision as one particular illustration of what he called "political atheism." That concept, although maybe not the term, he shared with other mid-nineteenth-century theologians. He saw political atheism as a general trend in the Western world since the time of Gallicanism and particularly since the eighteenth century; it was evident in American society and had invaded the American Catholic community as was especially apparent in many American Irish-Catholic politicians. Brownson used the term "political atheism" to describe the separation of religious principles from political and social questions, or, more broadly the segregation of religion and politics. The attitude was expressed particularly by the question, "what has my religion to do with my politics?" Irish Catholic politicians, in Brownson’s view, were the ones most apt to express the issue in this way. "My political opinions and conduct are my own, dictated by my own sense of justice and expediency, not by my church or my clergy, whose functions are purely spiritual, and who have no authority in the temporal order." (Works XI, 378) The fundamental separation, not just distinction, of the temporal and spiritual orders of existence was what constituted political atheism for Brownson. He saw the attitude as an unjustified interpretation of the first amendment but consistent with political Gallicanism in France and the secularizing philosophies of the eighteenth century. Brownson supported the first amendment, religious liberty, and the separation of Church and state, but that separation was a constitutional reality, not a theological one. He protested against a view that he believed made the political world itself autonomous: "The separation of church and state in our age means not merely the separation of church and state as corporations or governments, which the popes have always insisted on, but the separation of political principles from theological principles, and the subjection of the church and ecclesiastical affairs to the state."

Even prior to his radical "Laboring Classes" essay in July of 1840,

Brownson had been protesting against the separation of political principles from economics, literature, and political thought and practice. After 1843, moreover, he had been trying to develop what he called a synthetic theology of life. Such a view was the foundation of his criticisms of the cultural tendency to separate religious principles from significant areas of human life. Political atheism was diametrically opposed to this synthetic philosophy. For him the "natural and supernatural, nature and grace, reason and faith, earth and heaven, are not antagonistic forces, to be reconciled only by the suppression of the one or the other, but really parts of one dialectical whole, which, to the eye that can take in the whole in all its parts, and all the parts in the whole, in which they are integrated, would appear perfectly consistent with each other, living the same life in God, and directed by him to one and the same end." Although these orders of life were distinguished, they were never separated in principle. They existed in synthetic harmony in the life of God, and union with God was their end. It was within such a philosophical and theological context that Brownson discussed with fellow Catholics Dred Scott.

One of Brownson’s most extensive treatments of the issue took place in "Conversations of our Club," an imaginary dialogue between various kinds of American Catholics. The conversation partners consisted of a priest, with no apparent ethnic identity, who led the discussions between various American Catholic laymen, an Irish-Catholic American patriot, an old-fashioned French Catholic legitimist, a German Catholic who tended towards mysticism, and a Yankee convert to Catholicism. Conversation eight was on the relationship between religion and politics, and it was within this context that Brownson discussed various Catholic reactions to Dred Scott.

In conversation eight, Winslow, the convert, asserted that some Catholics had missed the point of Browson’s critique of Dred Scott because they failed to understand Brownson’s claim that in the nature of things the temporal order, although distinguished from and independent of the spiritual order, was not separated from the spiritual. Each order was supreme and independent of the other with respect to its own ends, but the ultimate end of human life was spiritual and as such superior to all temporal ends. This was the basis of Brownson’s criticism of Taney’s failure to invoke his Catholic principles in writing the decision about Negro citizenship in the United States. Those who defended Taney responded: Brownson "would do well to remember that the chief justice occupies his seat to administer the law according to the constitution of the United States, not to execute the decrees of the Council of Trent." A Catholic judge’s role, like that of any judge, was to interpret the Constitution, not to express his own religious convictions.

Taney’s Catholic defenders maintained, according to Brownson, "that a Catholic judge is not bound in his official character to consult the teachings of his religion, and may administer the civil law although it conflicts with the doctrines and precepts of his church." It would, of course, Brownson argued, be absurd to require a Catholic judge to execute the decrees of Trent. That was not the point Brownson was trying to make. But, it was also fallacious to say that a Catholic office holder had no responsibility to his religious principles in the exercise of his office or that he or she could act against religion. Brownson believed:

"that no Catholic can hold an office that requires him to act against his religion; and if the Constitution and laws of the Union really do require the judge to go against his religion, the least he can do is to resign his seat, for under a constitution and laws that really do that no Catholic can hold office."(Works, XI, p. 381)

Brownson, of course, did not consider this to be the situation in the United States because there was nothing in the Constitution or laws, he believed, that a Catholic could not uphold on the basis of religious principle. He was speaking theoretically.

The Irish Catholic politician held that a Catholic judge was an officer of the civil and not the ecclesiastical court and it was his duty to interpret and apply the law to the case before him. If the law itself was unjust, "the legislative, not the judicial authority, is responsible." A judge, Brownson countered, must consider the justice of the law and must interpret it in accord "with natural right, so far as he can without violence to the text." The real issue with respect to Taney, according to Brownson, was that:

"he did not remember, in interpreting the language, or more properly the silence, of the constitution touching the Negro citizenship, what his religion teaches him, and what as a Catholic he holds and must hold, namely, that Negroes are men, that all men are equal before the law of nature, and therefore as men, Negroes and whites stand on the same footing of equality. The legal presumption, then, must be in favor of equality, and therefore in favor of Negro citizenship." (Works, XI, p. 382)

The clear implication here was that Taney filled the Constitution’s silence with an interpretation that reflected the attitudes and arguments of Southern culture and not the principles of his religion. If he had followed his religious principles, he would have given not only an interpretation in accord with the natural law and his religion but one that in no way did violence to the Constitution itself. He would have acted as a judge should act- in accord with a fundamental justice that is the foundation of all written constitutions and laws. Nowhere in the United States Constitution, furthermore, were Negroes explicitly denied citizenship. The Constitution itself left the judge free to acknowledge Negro citizenship, and natural law and his religion required that he do so.

To this argument the Irish Catholic politician responded that the judge was to interpret the Constitution in accord with the intentions of the sovereign that constructed it in the first place, and the sovereign in this case was the will of the people. Judges were not theoreticians on the unity of the race or interpreters of the abstract law of nature. Their role was not speculative but practical. Their role was to discover the meaning of the Constitution as intended by the sovereign will of the people who produced and ratified it. Taney’s decision, therefore, was correct because he rightly assessed the intent of the Constitution and therefore the presumption against Negro citizenship was valid, represented solid legal reasoning, and did not do violence to the text.

Brownson, in the voice of the Yankee convert, countered by claiming that Taney’s assessment of the historical facts of the case was wrong, or at least one-sided. Some in the civilized world at the time of the formation of the Constitution supported fundamental equality of the Negroes. The Catholic Church was only one example. But even given the facts, as Taney interpreted them, one could not simply identify the Constitution of a country with the will of the people. There was a kind of primitive constitution underneath and anterior to all written constitutions, and that unwritten constitution pointed to the fundamental purpose of the state, which was the realization of justice in society. Without this prior constitution, the written constitution had no right or authority. A judge was always responsible, therefore, to consult this unwritten constitution even more so than the written Constitution in making judicial decisions. The Supreme Court had to consult this primitive constitution, therefore, in determining the constitutionality of all laws, because neither the convention of the people, the legislature, nor the Supreme Court could act against the law of nature. That law limited the powers of all human sovereigns, whether kings or the people. Thus, a judge was not merely executor or instrument of the will of the political sovereign. A judge, in the American system of justice, had a power independent of the political sovereign and of the legislative and executive branches of government. If the judge preserved a rightful independence, he or she could act justly because he or she would act in accord with a higher law than that of the written constitution or the will of the people.

The higher-law theory that Brownson had just articulated, the Irish Catholic Democrat argued, had indeed been invoked before in American society. William H. Seward, Senator from New York, enunciated the theory in Congress in 1850 as a way of preventing the extension of slavery in the unsettled West. His position and that of the other higher-law advocates represented an antinomian tendency that was a fundamental threat to all law and unity in society. In fact, the higher-law theory was "incompatible with the very existence of government." What would indeed happen in the United States if everyone followed his or her own understanding of what constituted the higher law? Chaos would be the result.

Brownson did not deny such an argument; he had in fact previously argued against the antinomian consequences of the higher law. The higher-law advocates were wrong, not because of their principle, but because they had identified the higher law with individual conscience. If everyone followed his or her own individual conscience with no standard outside the self to determine the adequacy of one’s own understanding of the higher law, anarchy would result. It was right to object to Seward’s theory because it could lead to anarchy. In American civil society, the Supreme Court, not the individual conscience, was the best arbiter of the Constitution, and, as such, the Court preserved law, order, and constitutionality in civil society. The Constitution and the Supreme Court protected the society from anarchy.

But, the Irish politician rejoined, what happened when the Supreme Court was unjust or erred in judgment, as Brownson and a number of others contended with respect to Dred Scott? What security did the country have that the Supreme Court would maintain justice? The Court after all was not infallible. "If they do make unjust decisions, what is the remedy?" What recourse did the individual or the political power have against them and what could be done to reverse a bad decision?

It was one thing, Brownson responded, to acknowledge the false consequences of a right principle, and another thing to deny the principle itself. Seward and other patrons of the higher law were right in what they affirmed: that there is a law higher than the will of the people or the people’s convention. The Supreme Court was indeed the supreme tribunal in American society with respect to the civil order, Brownson answered, "but the civil order is not itself supreme." Its decisions were just inasmuch as they accorded with natural law and the spiritual order, and as such they were to followed by all in society. The faults of the Supreme Court justices did not arise, Brownson held, from their ignorance of the natural law (because it was clear to them) but from their "dependence on the political power, and failure to assert their rights and prerogatives." It was a culturally and politically conditioned Court. When the Supreme Court or any other part of the civil order was not in accord with natural justice, then, one had the condition Brownson called political atheism. This condition was necessarily hostile to true liberty and all human law. Catholics could not mean what they said when they asserted that their religion had nothing to do with their politics. Such an opinion would lead either to anarchy or social despotism; only by asserting the interdependence of the temporal and the spiritual, and the ultimate supremacy of the spiritual, could Catholics contribute to true liberty and law in the United States.

According to Brownson, the only sure way of avoiding injustice or anarchy in society was to follow the Church’s infallible interpretations of the natural law, protecting in the process the liberty and the dignity of the individual as well as law and order in society. Since the early 1850’s Brownson had argued that the Catholic Church was a constitutive part of, and had an essential role to play in, American society. The Church’s role was to remind Americans of the synthetic harmony of the spiritual and the temporal orders of existence and of the ultimate superiority of the spiritual. But, more than that, it was to be the visible medium of that harmony and a sign of the supremacy of the spiritual in society. Catholics had the religious and political responsibility, on the basis of their religious tradition, to protect liberty and authority in society by emphasizing the divine foundation of both in opposition to all forms of political atheism, higher-law antinomianism and anarchy, and cultural or social absolutism. Dred Scott and some Catholic reactions to it were illustrations of the failure of the Church and Catholics to live up to their responsibilities in American society. Not many Catholics, though, conceived of things the way Brownson did.

The Catholic debate over Dred Scott, especially over the issue of Negro citizenship, revealed certain tendencies in American Catholic thought at the time. Both sides of the debate considered the Negro to be socially and politically inferior to the White. That was part of the racist mentality that survived for generations within the Catholic community. Whether they supported slavery or not, the Catholics advocates of Dred Scott saw the decision as a solution to the long national debate over slavery; it was thought to put an end to the national discussion, to restore peace, and to preserve the Union. Those Catholics who supported the decision, moreover, did so because they acknowledged the Supreme Court as a legitimate authority within the nation and to resist its decision was to resist constitutional law and order, which would ultimately lead to anarchy and the destruction of the Union.

Although the Catholic opponents of Dred Scott accepted much of the judicial decision in the case, they considered the arguments and language used in the written opinion, especially in regard to Negro citizenship, to be merely obiter dicta, that is, opinion unnecessary to the legal decision. In this they agreed with the two major Supreme Court dissenters. But the primary reason for resistance to the obiter dicta was religious. The constitutional inferiority of the Negro or the language that accepted the Negro as mere chattel violated both natural and revealed law on the equality and dignity of all human beings. And, from that perspective, it was utterly inconceivable how a Catholic could write such a decision.

One could, with respect to Dred Scott, take a moralistic approach and condemn Taney and the Court for accommodating their decision to the unjust forces of Southern culture. Such a view would not help us to understand the weight of corporate and cultural forces on personal and social decision-making, and even upon a society’s ability to perceive what was wrong in a political culture. Dred Scott revealed the inveterate problem of realizing a transcendent justice in a society that is blinded by its historical practices, its cultural traditions and mores, its legalized injustices, its institutions that fed off the injustices, and its religious communities that accepted the cultural values. The decision reflected a social, cultural, moral, and legal problem that transcended society’s wisdom and imagination. A society can be wrong, and dead wrong, and not be able to right the wrong without decades, at times centuries, of moral, political, legal, and cultural adjustments. No one had a workable solution in 1857. Saying this does not justify the situation; it points only to the difficulties of moral and political transformations. Taney and the Court revealed the fact that the entire country was implicated in the decision that they came to. Given the culture in which they lived and the divided state of public opinion, the justices acted, with good intentions, to bring closure to a national debate and to restore unity to a nation that could not solve either by legislation and political agreement or by moral persuasion the problem of slavery.

On the other hand, one could interpret the decision from a perspective of historical relativism. Taney and the Court, in this view, were simply acting and deciding according to the moral and social norms of their culture. Their interpretations of the Constitution and the law reflected the tradition of the South. They were proceeding according to their best lights. Their best lights, however, were not the best; they violated a fundamental justice that transcends historical and cultural norms. Brownson and the Court’s opponents were right in this regard. Neither a moralistic nor an historical relativist perspective aids a society in coming to terms with issues of justice in the community.

The larger debate between the relationship between religion and politics divided the Catholic community into two very different schools of thought, even though both schools accepted the first amendment- the religious liberty and non-interference clauses. One school- represented, according to Brownson, by a large segment of the Catholic press and Irish Catholic politicians- stressed the autonomy and independence of religion and politics. Politics was concerned with temporal affairs and religion with spiritual. The two had completely different roles to play in an individual’s life and in the life of society. Spiritual affairs had little or nothing to do with political affairs. This view reflected the popular Catholic mind in the antebellum period.

The second school, represented by Brownson, emphasized the fundamental harmony between the spiritual and temporal orders. The two orders of religion and politics were a part of one dialectical whole, even though at the institutional level they were autonomous and independent of one another. They both had God as their cause and their end. Although distinguished and independent of one another with respect to their purposes, they shared the same ultimate destiny, union with God. The spiritual end of human existence included the temporal end, and therefore was ultimately superior to the temporal. That is, the temporal end did not exist for itself alone. The political order had its own autonomy, but it was ultimately never separated from the spiritual order of existence. There was an inherent religious or spiritual dimension to politics, as there was a spiritual or religious dimension to all areas of human living. Politics did not serve religious institutional ends, but it, like all areas of human living, was subject to religious principles and ultimately to spiritual ends.

Variations of these two schools of thought have come to characterize the debate in the American Catholic community ever since Dred Scott. The debate has not been an ongoing internal discussion; it arises only at certain periods of social conflict, as was clearly evident in the 1980’s in American Catholicism.

Most historians- whether historians of American Catholicism, of the slavery debates, or of American history in general- have neglected this internal Catholic debate over Dred Scott, one that mirrored to some extent the larger national debate, but one that also had specifically Catholic concerns. That oversight reflects the more general attitude that American Catholics existed in such a religious ghetto prior to the Second Vatican Council that they were not much engaged in American public issues. They were preoccupied, so the argument goes, with their own internal religious or spiritual affairs. Such a view cannot be entirely sustained by close historical analysis of the public record, especially as that record is available in Catholic newspapers and journals.