John McLean, Associate Supreme Court Justice

John McLean was a member of the Supreme Court from 1829 through 1861.[1]  John McLean was one of two Justices who dissented to the Dred Scott decision of 1857.[2]  Arguably the Dred Scott decision was the spark that lit the fuse that exploded the American Civil War.[3]  Whether John McLean showed courage or just political adroitness is a matter of conjecture.[4]

John McLean was born in Morris County, N.J., on March 11, 1785, to Fergus McLean, a Scotch-Irish Presbyterian weaver turned farmer, and Sophia Blackford McLean.  The family moved several times with stops in western Virginia and Kentucky before settling in Warren County, Ohio, about forty miles from Cincinnati, in 1797.  In this frontier atmosphere McLean managed to get an irregular but sound education.  His legal education was gained, starting in 1804, by simultaneously serving as apprentice to the clerk of the Hamilton County Court of Common Pleas and reading law with Arthur St. Clair, Jr., for a two-year period.  In 1807 he founded a Jeffersonian weekly, Western Star, at Lebanon and married Rebecca Edwards.  They had four daughters and three sons.[5]

McLean began a political career in 1812.  Voters in Cincinnati elected McLean to the United States House of Representatives.  In 1814, they reelected him to his seat without opposition.  Before the end of his second term, the Ohio legislature appointed McLean as a justice of the Ohio Supreme Court.[6]  In a preview of his opinion about slavery in his US Supreme Court opinion, McLean’s Ohio Supreme Court decision in the case The State of Ohio v. Thomas D. Carneal (1817) (full citation not available).  Richard Lunsford was an African slave who brought a habeas corpus action through the state to secure his freedom from slavery from the administrator of the estate of his former owner, Thomas Carneal.  The Ohio Constitution of 1802 forbade slavery in the state, and at issue was whether slaves owned by a man traveling in Ohio became free once they traveled to Ohio and whether a slave who resided in Kentucky could be sent to work in Ohio without gaining his freedom.  The Court ruled that since the estate administrator sold Lunsford to James Riddle, who had him work in Cincinnati as a slave for eight to ten days at a time, his slave owner forfeited his right to ownership.  McLean, writing the majority opinion, expressed his personal distaste for slavery:

“Some important questions have been raised in the discussion of this cause, which are not necessarily involved in this decision.  The abstract principle of slavery is not presented for deliberation in this case.  Were it proper to consider it, the Court, as well as from the principles recognized by our Constitution and Laws, could not hesitate in declaring that SLAVERY (emphasis in original), except for the punishment of crimes, is an infringement upon the sacred rights of man: Rights, which he derives from his Creator, and which are inalienable.”[7]

McLean was an Ohio Supreme Court Justice from 1816 until 1822, when President James Monroe appointed him as a commissioner of the Federal Land Office.  A year later, Monroe selected McLean as Postmaster General to replace another Ohioan named Return Jonathan Meigs.  President Andrew Jackson appointed McLean to the United States Supreme Court on March 7, 1829.[8]

The behind the scenes story is most interesting.  Early in his career, McLean was a loyal Democrat.  In return for his support, President James Monroe appointed McLean postmaster general.  At the time, this was the largest executive agency [and a place for political supporters to find jobs, Post Office leases and lucrative vendor contracts].  He continued his service under President John Quincy Adams.  President Andrew Jackson appointed McLean to the Supreme Court, perhaps hoping to quell his political ambition.  But the Court is not a monastery, and McLean repeatedly sought a presidential nod from his Supreme Court perch [from just about every national political party].[9]

Francis P.  Weisenburger, in his book The Life of John McLean: A Politician on the United States Supreme Court (1937), makes the case that McLean was a political opportunist and it was only by chance that Dred Scott forced his hand in writing an abolitionist dissent in the case.[10]

A review of the US Supreme Court Cases from the time of McLean’s appointment until the Dred Scott decision proves most uneventful.[11]  During his thirty-one years on the Supreme Court, McLean proved to be a nationalist on most questions of federalism.  He subscribed to John Marshall’s national-supremacy mandates in the Cherokee cases in 1831 and 1832,[12] while consistently championing the exclusive commercial power of the central government.  He did favor state banking, however.[13]

McLean’s greatest judicial impact came in cases concerning slavery, an institution he abhorred, as evidenced by his antebellum politics.  From the 1840s onward, he aligned himself with the antislavery wing of the Whig Party, the Free Soilers, and the Republicans – all of whom sought to arrest the expansion of slavery.  Not surprisingly, an antislavery ethos animated McLean’s jurisprudence.  He filed a dissent in Prigg v.  Pennsylvania, 41 U.S.  539 (1842), in which the Court’s majority struck down a state personal liberty law as repugnant to the fugitive slave provisions of the Constitution.  McLean upheld the anti-kidnapping statute, asserting the right of the free   states to protect alleged runaways from arbitrary and unwarranted seizure.[14]

Yet McLean did not place personal sentiments ahead of constitutional fidelity.  In Jones v.  Van Zandt, 46 U.S.  5 (1847), antislavery attorneys William H.  Seward and Salmon P.  Chase argued that their client committed no offense in harboring runaway slaves because a “higher law than the Constitution” condemned slavery and all ordinances recognizing property in humans, and acknowledged slavery as on of the “sacred compromises” embedded in the Constitution.[15]  Justice Levi Woodbury for the Court spurned these arguments and McLean sided with the majority.  Woodbury stated that the legitimacy of slavery was a political question for the states to resolve, and that the Fugitive Slave Clause was “one of [the] sacred compromises” of the Constitution (p.  231).  Whatever a judge’s views of the morality or policy of slavery, Woodbury went on, he was bound to uphold the Constitution and statutes as he found them and could not refuse to enforce them because of their conflict with moral obligation.  As Justice Joseph Story had before him in Prigg v.  Pennsylvania (1842), Woodbury upheld the constitutionality of the 1793 statute.  Jones therefore was one in an unbroken line of proslavery decisions of the antebellum Court.[16]

McLean’s most significant opinion was his dissent in the aforementioned Scott v. Sandford, 60 U.S.  393 (1857), which concerned both Dred Scott’s, a Missouri slave’s, claim to freedom based upon prolonged residence in free territory, as well as the thorny issue of congressional interference with slavery in the territories.  Initially, the Court majority of five slave-state justices and two northern Democrats elected to dismiss the case on narrow jurisdictional grounds.  But the two Republican (and antislavery) justices – McLean and Benjamin R.  Curtis – [were] determined to draft opinions touching the constitutional merits of the suit.  This prompted Chief Justice Roger B.  Taney to issue the Court’s infamous proslavery ruling, which declared that congress had no power to regulate slavery in the territories, that temporary residence in free territory did not abrogate slave status, and that African slaves could not sue in federal court because they were not citizens within the meaning of the Constitution.[17]

McLean’s dissent refuted Tanney’s decision point by point.  Citing an impressive array of state and federal precedents, McLean wrote that slavery existed only where sanctioned by positive law, so that when a slaveholder carried a slave into free territory, an entitlement to freedom ensued.  He also adduced evidence showing that free blacks were considered citizens in several non-slave-holding states.  Most important, McLean insisted that Congress possessed full constitutional authority to exclude slavery from the territories.[18]  McLean also noted the hypocrisy of Tanney’s decision when he wrote:

On the question of citizenship, it must be admitted that we have not been very fastidious. Under the late treaty with Mexico, we have made citizens of all grades, combinations, and colors.  The same was done in the admission of Louisiana and Florida.  No one ever doubted, and no court ever held, that the people of these Territories did not become citizens under the treaty.  They have exercised all the rights of citizens, without

being naturalized under the acts of Congress.  The argument of Chief Justice Taney that a colored citizen would not be an agreeable member of society was more a matter of taste than law.[19]

McLean wrote about 240 majority opinions and about sixty separate concurring and dissenting opinions.[20]  Briefly, some additional cases where McLean wrote the majority Supreme Court opinions are Wheaton v.  Peters, 33 U.S.  591(1834),  Briscoe v.  Bank of Kentucky, 36 U.S.  257 (1837), The Passenger Cases, 48 U.S.  283 (1849) and Pennsylvania v.  Wheeling Bridge Co., 54 U.S.  518 (1852).  Theses cases are relatively insignificant.  These cases are notable for political, economic, and constitutional issues that brought them to the Court, but not for the jurisprudence or the reasoning of their majority opinions.[21]

Wheaton v.  Peters, 33 U.S.  591 (1834), was the first copyright decision of the U.S.  Supreme Court and a landmark case in the field.  While the case is best known for its rejection of common law copyright in the United States, its significance is also attributable to other factors.  The commentary briefly discusses five significant aspects of the litigation and of the Supreme Court’s decision.  First, the case established the principle that there existed no post-publication common law copyright in the United States, and that post-publication protection could only be attained within the statutory framework.  Second, the case reopened the theoretical debate over literary property more than fifty years after it was officially settled in Britain.  The parties’ arguments, the Justices’ opinions and the public debate surrounding the case contained competing constructions of copyright as a limited state-granted entitlement or as a pre-political natural property right.  While rehearsing the British literary property debate, the American version took place in a somewhat different ideological, economic and political context and thus produced new variants of the conceptual structure underlying copyright thought.  Third, the factual background of the case–revolving around a dispute between two reporters of the Supreme Court over a condensed version of the Court’s reports–involved the question of the propriety and extent of copyright protection in official state-related materials such as laws and case-law reports.  The discussion surrounding the case laid the foundations for future law and thought about this topic.  Fourth the dispute and the actions of the parties illuminates the changing status and character of the Supreme Court reporter during the early nineteenth century.  Finally, the litigation exposed an intriguing and complex array of personal relationships between the various protagonists involved, including judges, litigants and lawyers.[22]

In Briscoe v.  Bank of Kentucky, 36 U.S.  257 (1837), The Bank of Kentucky, a corporation owned and controlled bythe state, issued a negotiable instrument payable to the bearer in exchange for Briscoe’s promissory note.  When the Bank sued to collect on the note, Briscoe defended on grounds of illegal consideration, arguing that the instrument issued bythe bank had offended the provision of Article I, Section 10,that “[n]o State shall.  .  .  emit Bills of Credit.”  The state courts rejected this argument, and the Supreme Court affirmed.  Responding for the majority, Justice McLean acknowledged that the bills to which the framers of the Constitution objected had included those payable on demand, chargeable to a fund, or not made legal tender, and that a state could not issue bills of credit indirectly through a corporation.  However, he concludedthe bank in Briscoe had issued the instrument on its own credit, not on that of the state.  Unlike the state itself, the bank could be sued without its consent, and thus all its assets could be seized to satisfy the obligation.[23]

The so-called Passenger Cases, Smith v.  Turner; Norris v.  Boston, 48 U.S. 283 (1849), were two similar cases, argued together before the United States Supreme Court, in which it was adjudged (5:4) that States did not have the right to impose a tax determined by the number of passengers of a designated category on board a ship and/or disembarking into the State.  Justice McLean, the most senior member of the Court at the time, began his opinion by weighing in on the debate concerning the nature of the Commerce Clause.  McLean asserted the Commerce Clause “is exclusively vested in Congress.”  Under this view, if the federal government does not regulate a particular area of foreign or interstate commerce, such omission is not an invitation to the States to provide interim regulation, but rather is an expression of federal policy that such area should remain unregulated.  McLean derives this interpretation of the Commerce Clause from a fundamental rejection of the concept of concurrent power.  To McLean only one authority can exercise any given power, and the judicial task is to determine whether a particular subject falls within a power delegated to the federal government or within a power reserved to the States.  McLean denies that a power may be exercised by the States unless and until the federal government chooses to exercise the same power, at which point the Sate regulation is trumped by the federal action.  Although McLean recognizes that both Congress and the States may impose a tax on the same object, he insists these respective taxations result from the exercise of distinct powers, and do not represent any concurrent exercise of the same power.  It is unclear what role the Supremacy Clause has in McLean’s constitutional theory, since he seems to view each level of government as supreme within its own legitimate and distinct sphere of operations.[24]

In Pennsylvania v.  Wheeling Bridge Co., 54 U.S.  518 (1852), the Supreme Court held that because the tallest steamboats licensed under federal law to navigate the Ohio River were unable to pass under the bridge at Wheeling during high floods, the bridge interfered with interstate commerce.  The Court ordered that the bridge over the Ohio River at Wheeling be raised to accommodate those steamboats, or else it must be demolished.  The bridge company turned to Congress and asked that the bridge be legalized through federal legislation.  Rather than defer to the Court, Congress wasted no time taking up the issue and debating its own power to save the bridge.  Congressional opponents made numerous arguments that Congress did not have the power to undertake “internal improvements,” that authorization of the bridge would benefit Virginia at the expense of Pennsylvania, and that Congress did not have the authority to override the Court decision (p.193).  Nonetheless, later in 1852, Congress saved the bridge as part of a “postal appropriation law,” writing into the statute that the bridge was an “established post-road for the passage of the mails of the United   States” (as quoted in Currie 2005, p.192).  Rather than debate its commerce power, members of Congress viewed authorization of the bridge as a clear exercise of Congress’s power “To establish Post Offices and Post Roads,” under Article I, Section 8 of the Constitution.  Pennsylvania challenged the congressional enactment, but the Supreme Court upheld the statue in a 6-3 decision.  Importantly, the justices “repeated” the constitutional arguments made in Congress in both the majority and dissenting opinions (p.193); thus, it was members of Congress who led the constitutional debate over federal power, and the Court followed.[25]

My view of the foregoing is in concurrence with those commentators who viewed Justice McLean as A Politician on the United States Supreme Court.  In matters dear to him and his political aspirations, like the abolitionist movement, McLean is progressive arguing for the natural rights of Dred Scott.  In matters dealing with interstate commerce, taxation, supremacy of federal law over conflicting state law, McLean is a strict constructionist who looks at the four corners of the statute before him for the proper interpretation of state and federal statutes.  To compare McLean to a modern-day justice, he reminds me of Justices Roberts and Kennedy who appear to decide cases based often on how political winds are blowing.[26]

From a cursory review of McLean’s majority opinions, I don’t believe that specific issues of criminal procedure were decided.  Since this Justice served before the Civil War, the states still controlled matters of criminal jurisprudence.  Federal law dealt with federal cases, but state law was supreme involving matters of criminal procedure in each of the states.[27]

I would speculate that were Justice McLean an Associate Justice during Warren and Burger Supreme Courts, he would have been in the activist category vis-à-vis civil rights and the constitutional rights of the individual versus the states.  However, I believe McLean would lean toward “states rights” in matters of statutory law that did not conflict with federal law.  McLean’s dissent in Dred Scott was that he put the rights of the individual under the Constitution over those demands made by the states or the federal government.[28]  With emphasis placed on his opinions in great cases in which his reasoning was based largely on nonlegal factors, McLean emerges as a nationalist who was well aware of the needs of the business community.  He was, however, able to adjust his nationalism as circumstances provided.  He also usually practiced judicial activism – considering questions that were not essential to the decision at hand, just as he had done on the state bench.  The slavery questions illustrate well his values.  In Groves v. Slaughter, 40 U.S. 449 (1841), he upheld the right of Mississippi to restrict the introduction of slaves from other states.  But even though it was “not necessary” to the decision, McLean restated his nationalism by holding that the power to regulate commerce rested exclusively with Congress.[29]

[Justice John McLane’s] lifelong battle against the nationalization of slavery by the Court was often futile, but he remained a voice for freedom, however lonely, on a Court dominated by judges who never knew the meaning of their own title—Justice— when it came to slavery and race.  To his great credit, McLean knew the meaning of this term and tried, within the limits of his office and the Constitution, to implement justice for all Americans, even those who might be called slaves in some states.  For that, he should be better appreciated.[30]

McLean became ill while on circuit in Cincinnati and died April 4, 1861.  The Reverends J.T. Mitchess and D.W. Clark conducted the funeral services and McLean is buried in SpringGroveCemetery in Cincinnati.[31]  U.S. Attorney General Edward Bates eulogized McLean to the U.S.  Supreme Court on Dec.  3, 1861.  He said:

“I had not the honor of his intimacy, but I have known him personally for more than thirty years, and under circumstances which attracted and enforced my observation.  I did not consider him a man of brilliant genius, but a man of great talents, with a mind able to comprehend the greatest subject, and not afraid to encounter the minutest analysis.  He was eminently practical, always in pursuit of the truth, and always able to control and utilize any idea that he had once fully conceived.  In short, he was a sincere, earnest, diligent man.”[32]

In conclusion, I agree with Attorney General Bates and Paul Finkelman, and I think Justice McLean would be a hero for many today were he on a modern Supreme Court.  I believe he would push the Court to “do what is right – because it is right” in cases where Congress has abdicated its Constitutional role.  With respect to matters of Criminal Procedure, he would side with the accused and his/her rights under the US Constitution except in cases where state law was not expressly in conflict with the Constitution or federal law, on such matters, he would side with the states.

I enjoyed writing about this obscure Justice who penned his most famous words four short years before the American Civil War began.  Justice McLean tried to right a fundamental wrong within the bounds of his Constitutional authority.  Alas, only a great national struggle was able to start that process and only another one hundred plus years of legal and political struggle through the Civil Rights legislation of the 1960’s, finally set things right.[33]



  • SUPREME COURT OF THE UNITED STATES, 1789–1980: AN      INDEX TO OPINIONS ARRANGED BY JUSTICE 75–84 (Linda A.  Blandford & Patricia Russell Evans      eds., 1983).

[2] The official name of the case is Scott vs. Sandford, 60 U.S.  393 (1857), the respondent’s surname was “Sanford.” A clerk misspelled the name, and the court never corrected the error.  Vishneski, John (1988).  “What the Court Decided in Dred Scott v.  Sandford.” The American Journal of Legal History (TempleUniversity) 32 (4): 373–390.

[3] The Dred Scott case was a major event on the road to the Civil War.  The Supreme Court’s provocative opinion—which stated flatly that blacks had “no rights which the white man was bound to respect” and rejected the right of any territory to ban slavery within its own borders—inflamed public opinion in the North, leading to a hardening of antislavery attitudes and a surge in popularity for the new antislavery Republican Party.

[4] Opinion of the author.

[10] Francis P.  Weisenburger, The Life of John McLean: A Politician on the United States Supreme Court (1937),

[11] Author.

[12] The Court issued decisions in two cases that are commonly known as the Cherokee Cases: Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L. Ed. 25 (1831), and Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L. Ed. 483 (1832).

[13] Encyclopedia of the American Civil War – A Political, Social, and Military History, David Stephen Heidler, Jeanne T.  Heidler, David J.  Coles, W.  W.  Norton & Company, 2002, p.  1290.

[14] Ibid.

[15] Ibid, 1291.

[17] Ibid.

[18] Ibid.

[19] Dred Scott, 60 U.S. at 533 (McLean, J., dissenting), as noted in Finkelman – Justice McLean, 62 Vand.  L.  Rev.  519 (2009)

[20] SUPREME COURT OF THE UNITED STATES, 1789–1980: AN INDEX TO OPINIONS ARRANGED BY JUSTICE 75–84 (Linda A.  Blandford & Patricia Russell Evans eds., 1983).

[21] Finkelman – Justice McLean, 62 Vand.  L.  Rev.  519 (2009).

[23] Duke Law Journal, Vol.  1983:471, p.  477.

[26] Author

[27] See Comparative Law Without Leaving Home: What Civil Procedure Can Teach Criminal Procedure, and Vice Versa, David A. Sklansky and Stephen C. Yeazell (2005), 688-689

[28] Author

[30] Finkelman, 565.

[32] Ibid.

[33] Author.


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2 Responses to John McLean, Associate Supreme Court Justice

  1. Descendent of Rebecca says:

    The references to answer dot com go to a weird website.

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