On winter mornings since 2013, the bronze statue of Melville Fuller in front of the Kennebec County Superior Court sometimes features a crown of snow. In an artful touch, he sometimes sports a toque, or stocking cap, that modifies without erasing his judicial mien.
It’s there because Fuller, who grew up in Augusta, is the only native Mainer to have served as chief justice of the United States. The statue is a tribute from his descendants, marking Fuller’s Augusta roots; after graduating from Bowdoin, he sought his legal fortune in Chicago.
Fuller was more notable for his longevity – serving from 1888 until his death in 1910 – than his opinions, but he presided over some of the U.S. Supreme Court’s most consequential rulings.
More recently, the Fuller statue has been subjected to intense scrutiny, thanks to an extraordinary letter from the Maine Supreme Judicial Court, which asks the Kennebec County Commissioners, who have jurisdiction, to take it away.
The stated reason is that Fuller served when the court decided Plessy v. Ferguson in 1896, ratifying one of many “Jim Crow” laws southern states used to create legal segregation under the cruel “separate, but equal” doctrine. It defrauded black men of rights most thought they had won through the ratification of the great post-Civil War amendments, abolishing slavery and establishing universal male suffrage.
Plessy was undoubtedly a landmark, but its stature depends on two unrelated factors: a stirring dissent by John Harlan to the 7-1 ruling – the court’s lone liberal on racial matters – plus the Brown v. Board of Education decision of 1954 that finally overruled it, six decades later.
So it’s odd the Maine justices would find this a compelling reason to remove Fuller’s statue “to a different location” as “one option,” or, they unhelpfully add, “there may be others.”
The high court has minimal ties to the Augusta courthouse. Other than an occasional hearing, the court meets in Portland, and sometimes in Bangor – the only state supreme court not based in the capital.
Its principal concern is that the statue is “the only monument to Maine’s justice system at one of our flagship courthouses,” and that its “presence . . . is not consistent with our values” because “the association . . . with the Plessy decision is so profound.”
If we consider only the current Black Lives Matter moment, this makes sense, but monuments are created because they represent history, which evolves over time. Melville Fuller’s life and career should be considered as a whole, and not because he signed one decision that was unremarkable in its day – it was Brown that upended precedent, not Plessy.
This isn’t a case of a Confederate general or a prominent slave owner, whose monuments are, quite rightly, being reconsidered, and removed.
Iconoclasm can get out of hand, as it did in June in San Francisco, where a crowd tore down a statue of Ulysses S. Grant. The allegation: For less than a year, Grant briefly held title to a slave, then freed him.
As with those who denounce Thomas Jefferson, author of the Declaration of Independence and the Virginia Statute of Religious Freedom, because he owned slaves, the impulse was one-dimensional. Without Gen. Grant at the head of the Union armies, the Civil War might well have been lost and slavery preserved.
Melville Fuller never did anything so dramatic, but – ironically – there’s one decision for which he is chiefly responsible that should be as well-remembered as Plessy. In 1895, writing for a 5-4 court in the Pollock case, he struck down an income tax a Democratic Congress had passed.
The Democratic president who’d appointed Fuller, Grover Cleveland, could not have been pleased. Congress was trying to protect farmers, then suffering under the plutocracy of the day, with Republicans – then as now – serving Wall Street.
Only a few years earlier, the court had upheld a Civil War income tax still on the books; the new one, Fuller decided, had to go. It wasn’t until the 16th Amendment was ratified in 1913, overturning Pollock, that Congress could again tax income proportionally.
The legal doctrine of segregation is dead but, alas, the idea that rich individuals and corporations should continually have their taxes lowered is all too alive. If there’s a Democratic Congress next year, in addition to taking new strides toward racial justice, one hopes that the concept of fair taxation also rises to the top.
As for Justice Fuller, one would like more compelling evidence before banning him from the public square. In considering these questions, the county commissioners may need to be more judicious than was the high court in its letter.
Douglas Rooks, a Maine editor, reporter, opinion writer and author for 35 years, has published books about George Mitchell, and the Maine Democratic Party. He welcomes comment at drooks@tds.net
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