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Lincoln's take on judicial supremacy

The following is excerpted from a speech on Abraham Lincoln and judicial supremacy given at the Union League on Thursday for Lincoln's birthday.

The following is excerpted from a speech on Abraham Lincoln and judicial supremacy given at the Union League on Thursday for Lincoln's birthday.

For Abraham Lincoln, the evil of the Dred Scott decision was not merely the expansion of slavery. It was that the decision threatened to undermine the basic principles of republican government precisely by establishing judicial supremacy in matters of constitutional interpretation.

It was not merely that the court decided the suit in favor of the wrong party. It was that the court claimed authority to decide for the other branches once and for all what the Constitution required, thus placing them in a position of inferiority and subservience.

For the people to "resign their government into the hands of that eminent tribunal" would be, according to Lincoln, the abandonment of democratic self-government and the acquiescence in oligarchic despotism.

As president, Lincoln gave effect to his position against judicial supremacy by consistently refusing to treat the Dred Scott decision as creating a rule of law binding on the executive branch. His administration issued passports and other documents to free blacks, thus treating them as citizens of the United States despite the court's denial of their status as citizens. He signed legislation that plainly placed restrictions on slavery in the Western territories in defiance of Chief Justice Roger Taney's ruling.

For Lincoln's critics, these actions, combined particularly with his suspension of the writ of habeas corpus, revealed him to be a lawless and tyrannical ruler, one who had no regard for the constitutional limits of his own power. But none can say that he had not made his opposition to judicial supremacy clear before assuming office.

It is ironic that the declaration of judicial supremacy made by the Warren Court in Cooper v. Aaron in 1958, which held that states could not ignore Supreme Court decisions they disagreed with, came in the context of the court's efforts to enforce a ruling in the cause of racial equality and civil rights, Brown v. Board of Education. The occasion for Lincoln's declaration of implacable opposition to judicial supremacy had been a decision which, above all others, stained the court's reputation as an institution dedicated to, as it says above the entrance to the Marble Temple in Washington, "equal justice under law."

I find that my own students are more than merely surprised to learn about the views of the Great Emancipator. They, too, have drunk in the idea that courts, particularly the Supreme Court, are the ultimate protectors of rights and, as such, should have the ultimate say on constitutional questions. After all, they reason, somebody, or some institution, has to have the final word, or else nothing is ever settled.

And students, at least my students, want things to be settled. And the ultimate settler of things - when the things in question are politically ultimate things, constitutional things - should be a "nonpolitical" body. Politics, my students say, is too messy. Democratic institutions are too prone to passion, prejudice, and foolishness for us to entrust to them matters of constitutional significance.

We don't want to make our rights subject to voting, they say. There needs to be a higher institution to provide a check against the bigots and demagogues of politics - an institution where matters are resolved by calm and rational inquiry and judgment; an institution whose membership is drawn from a narrower, more refined, more highly educated circle; one that is not subject to political retaliation for unpopular decisions of principle. What would have happened, they ask, had the political branches felt themselves free to dispute Brown v. Board?

One imagines Lincoln in the classroom reminding the youngsters that the unchecked power to do good is unavoidably also the unchecked power to do evil. If we like what the justices did in Brown v. Board, let us not forget what they did in Dred Scott.

And there is more to the balance sheet. Was it not the court, after all, that during the period from 1905 to 1937 repeatedly invalidated both state and federal worker-protection laws and social-welfare legislation? Did the justices not read into the due process clause of the Fourteenth Amendment a "right to freedom of contract," in whose name they frustrated the legislative will and usurped the constitutional authority of the elected representatives of the people? This, in any event, is the conventional reading of the history by contemporary liberals and conservatives alike.

And then there is the issue of abortion, surely the most vexing, divisive, and morally charged issue of our own time. Does the Supreme Court's ruling striking down state prohibitions of abortion in the 1973 cases of Roe v. Wade and Doe v. Bolton belong on the plus side of the court's ledger with Brown v. Board or on the minus side with Dred Scott? Does that in turn depend on whether one happens to see abortion as a woman's right or as a violation of the rights of an unborn child? If so, should one's view of the proper scope of judicial power, and the legitimacy of judicial supremacy, depend upon the contingent fact that the court happened to come down the way it did on abortion?

After all, the court could have ruled, as the German Constitutional Court did in a 1975 decision interpreting Germany's Basic Law, in precisely the opposite way - invalidating a legislatively enacted liberalization of abortion. Supporters of the right to abortion who criticize the German decision make exactly the same argument - the same Lincolnian argument - against judicial supremacy that supporters of the right to life who criticize Roe v. Wade make. If five or more Supreme Court justices, in cases now pending, claim that laws defining marriage as the conjugal union of husband and wife violate the Constitution, the Lincolnian argument will be made again.

That argument is, to put it in Lincoln's language, "if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."