You are talking about the Jacob Gruber case. It is of course a case in which Taney is defending a white man, and is not about *black* rights, as is Dred Scott. It is also very early in his career, when he was a Federalist and had some idealism. Finally, of course, he was arguing a case. Lawyers say lots of things to juries that they might not agree with or believe. Lawyes are hired to represent their client's interest, not their own! Certainly, this view of the founders contrasts with his more accurate view of them as being proslavery, which he sets out in Dred Scott v. Sandford.
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David T. Hardy wrote:
First, I found a case where, as a young attorney, the future Justice Taney defended a minister charged under Maryland's slave codes, for having delivered a sermon on the evils of slavery and the need for abolition. Taney gave a stirring argument, to the effect that the evils of slavery were common knowledge to the framers, quoting Jefferson and others on the question, saying that what the minister had said was mild by comparison to the position of Jefferson, etc., and asking whether the jury could convict the founding fathers of the country for having dared say what they did. He won. Does give a rather different picture of Taney. Amar does point out that Dred Scott does stake a very aggressive claim (esp. for the time) as to what the BoR means (*if* a person is a citizen).... political meetings on any subject, carry arms wherever you go, etc.
Second, 'way back I found another Justice McReynolds opinion (I think same term... I was researching the cases of that term) in which the curmudgeon staked out a position on the 4th amendment which would have been right out there with Douglas, and today might well be beyond the liberal wing of the court. Guy with a reputation for bootlegging (I seem to recall three arrests, but no convictions) was driving down a highway in Michigan, said highway being a major trafficking route for liquor. Feds stopped him and found booze. He argued 4th amendment as to the stop, and of course lost. Just as he'd lose today, maybe 9-0, if we substitute drugs for booze and a highway in the southwest for a highway in Michigan. McReynolds dissented. Arrests without convictions prove nothing. Every highway in Michigan can be described as a major trafficking route. So the court is now saying that once a Michigan resident gets arrested for bootlegging, or gets a "reputation" for bootlegging, he is subject to stop anytime he drives on a highway? The court might as well be honest and declare the Fourth Amendment a nullity. --
