Last week I posted about Alan Dershowitz’s misrepresentation about the use of witnesses at previous impeachment trials. Dershowitz implied that previous impeachment trials had not had witnesses testify. I pointed out that 41 witnesses had testified during the Johnson impeachment trial. Yesterday he was called out for some more bad history.
Steven Lubet, the Williams Memorial Professor at Northwestern University Pritzker School of Law, writes:
As a lifelong liberal Democrat, Alan Dershowitz defends his unlikely representation of President Trump by comparing himself to former Supreme Court Justice Benjamin R. Curtis, who defended President Andrew Johnson before the U.S. Senate in his 1868 impeachment trial. According to Dershowitz, Curtis “thoroughly disagreed” with Johnson’s politics, but defended him nonetheless on the principle that the Constitution allows impeachment only for “criminal-type behavior.” Whatever else one might say about Dershowitz’s understanding of the impeachment clause, he seriously misapprehends Justice Curtis’s political views, which were well aligned with Johnson’s on the critical issue of slavery.
Although he opposed secession, Andrew Johnson was a pro-slavery Democrat from Tennessee…
Curtis’s history was likewise pro-slavery. To his credit, he was one of only two dissenters in the Supreme Court’s disgraceful Dred Scott decision, in part on procedural grounds, but his earlier career as a Boston lawyer had been closely identified with slaveholding business interests.
As a so-called “Cotton Whig,” Curtis had many clients whose fortunes were built on enslaved labor in the South. He represented the losing slaveholder in the landmark Aves case, in which the Massachusetts Supreme Judicial Court held that slaves brought voluntarily into the Commonwealth (as opposed to fugitives) were immediately entitled to freedom.
As a staunch admirer of Daniel Webster, Curtis praised the latter’s infamous Seventh of March speech, in which the then-senator implored Congress to accept the Compromise of 1850, including the deeply offensive Fugitive Slave Act. Webster called upon the Northern states to do “all that is necessary for the recapture of fugitive slaves and for their restoration to those who claim them,” arguing that “the South has been injured in this respect, and has a right to complain.” Curtis celebrated the Seventh of March address by sponsoring a reception in Webster’s honor. When Webster was later appointed secretary of state by President Millard Fillmore, he returned the favor by urging Curtis’s nomination to the U.S. Supreme Court.
Curtis himself was an ardent supporter of the Fugitive Slave Act of 1850, which empowered the federal government to assist in the recapture of runaway slaves. When the law generated mass protests across the North, Curtis organized a rally in support of the statute, which essentially deprived African Americans of the right to defend themselves against slave-catchers. Fugitives “have no right to be here,” he declared, speaking at Boston’s iconic Faneuil Hall. “Massachusetts has nothing to do” with their rights, he added. He condemned Boston’s abolitionists for their commitment to rescue captured runaways, fearing that they would interfere with the city’s commercial interests. “This is our soil, sacred to our peace, on which we intend to perform our promises,” meaning the swift return of fugitives to the Southern states.
Curtis’s Brahmin family members, known collectively as the Curtii, were also deeply involved in defending slaveholders’ “property rights.” His brother George Ticknor Curtis, serving as a federal commissioner under the Fugitive Slave Act, issued arrest warrants for the Georgia fugitives William and Ellen Craft, who nonetheless managed to escape to London thanks to the armed resistance of Boston’s African American community. That did not stop another relative, Edward Loring, from presiding over the rendition trial of the famous fugitive Anthony Burns, whom he sent in chains back to Virginia.
Following his Senate acquittal, President Johnson offered Curtis an appointment as attorney general of the United States. Although Curtis declined, he finished his political career by becoming a Democrat and unsuccessfully seeking a Massachusetts Senate seat. If the two men had ever “thoroughly disagreed,” it was not about slavery. Johnson was a blatant racist and Curtis was more nuanced and refined, but they had certainly come to terms by the time of Johnson’s impeachment trial.
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