IT IS RIGHT AND INEVITABLE that the foremost figure in the reaction to the Dred Scott decision and its consequence, the Civil War, should close out Louis Boudin's proof against the Supreme Court usurpation that allows it to nullify, with anything less than a unanimous decision, duly enacted laws adopted by the democratically chosen branches, the Congress and the President and to, in fact, by undemocratically selected Court fiat, amend the Constitution without the democratic branches or the super-majority of the state legislatures required to do that IN THE CONSTITUTION. Abraham Lincoln, a respected and seasoned lawyer and one at the top of any list of the undoubtedly great presidents in our history explicitly condemned that very aspect of the decision of the Taney Court which has survived to be used for all manner of evil by later courts.
It is important enough and detailed enough that I'll give it to you in two or three posts instead of another really long one.
In the first instance, it was in the famous debates between him and Stephen Douglas, about which little more than the name would be familiar to most people, so paltry is the education about the most important parts of our history. It should be remembered that this was part of Lincoln's campaign to be named a Senator from Illinois, a political campaign so he was, no doubt, tailoring what he said to appeal to those who would make that decision. I will speculate that was, at that time, the state politicians and not the voters at large, though I will confess I have not researched that. I would appreciate anyone who knows how Illinois chose its Senators at that time telling me if I'm wrong or right in that assumption because I'd really like to better understand the context of how Lincoln crafted his arguments. I don't think I'm wrong to read something more radically abolitionist behind his well crafted debate speeches, perhaps others did too because Lincoln didn't get to be a Senator but he did get to be President, the only office chosen by voters in the entire country.
Lincoln stated his views on the subject [the Dred Scott decision and the judicial power it created] very clearly. In his famous Chicago address, delivered on July 10th 1858, during his canvass for the Senatorship against Stephen A. Douglas, he said:
"I have expressed heretofore, and I now repeat, my opposition to the Dred Scott decision; but I should be allowed to state the nature of that opposition, and I ask our indulgence while I do so. What is fairly implied by the term Judge Douglas has used, 'resistance to the decision'? I do not resist it. If I wanted to take Dred Scott from his master, I would be interfering with property, and that terrible difficulty that Judge Douglas speaks of, of interfering with property, would arise. But I am doing no such thing as that; all that I am doing is refusing to obey it as a political rule. If I were in Congress, and a vote should come up on a question whether slavery should be prohibited in a new Territory, in spite of the Dred Scott decision, I would vote that it should."
" That is what I would do. Judge Douglas said last night that before the decision he might advance his opinion, and it might be contrary to the decision when it was made; but after it was made he would abide by it until it was reversed.. Just so! We let this property abide by the decision, but we will try to reverse that decision. We will try to put it where Judge Douglas would not object, for he says he will obey it until it is reversed. Somebody has to reverse that decision, since it is made, and we mean to reverse it, and we mean to do it peaceably."
"The sacredness that Judge Douglas throws around this decision is a degree of sacredness that has never been before thrown around any other decision. I have never heard of such a thing. Why, decisions apparently contrary to that decision, or that good lawyers thought were contrary to that decision, have been made by that very court before. It is the first of its kind: it is an astonisher in legal history. It is a new wonder of the world. It is based upon falsehood in the main as to the facts, - allegations of facts upon which it stands are not facts at all in many instances, - and no decision made on any question - the first instance of a decision made under so many unfavorable circumstances - thus placed, has ever been held by the profession as law, and it has always needed confirmation before the lawyers regarded it as settled law. But Judge Douglas will have it that all hands must take this extraordinary decision, made under these extraordinary circumstances, and give their vote in Congress in accordance with it, yield to it and obey it in every possible sense. Circumstances alter cases."
"Do not gentlemen remember the case of that same Supreme Court, some twenty-five or thirty years ago, deciding that a national bank was constitutional? I ask if somebody does not remember that a national bank was declared to be constitutional? Such is the truth, whether it be remembered or not. The bank charter ran out, and a recharter was granted by Congress. That recharter was laid before General Jackson. It was urged upon him, when he denied the constitutionality of the bank, that the Supreme Court had decided that it was constitutional; and General Jackson then said that the Supreme Court had no right to lay down a rule to govern a coordinate branch of the government, the members of which had sworn to support the Constitution - that each member had sworn to support that Constitution as he understood it.
"I will venture here to say that I have heard Judge Douglas say that he approved of General Jackson for that act. What has now become of all his tirade against 'resistance to the Supreme Court'?"
First, this proves, beyond any doubt, that it was general knowledge that what the Supreme Court did in its nullification of the Missouri Compromise Act was an "an astonisher in legal history," that it was "a new wonder of the world," to someone who would certainly have been aware of Marbury v Madison, which our falsified history of the Court Power tells us was its origin, cleansing it of its actual origin in one of the filthiest decisions the Supreme Court has laid down in its dodgy history.
Certainly a lawyer as experienced and brilliant as Abraham Lincoln was, he knew the territory of his time, the status of the law, the history of it probably better than today's hagiographic network court reporters, the scribblers of later fiction and fictitious journalism and probably even the present members of the Supreme Court, those who peddle the Supreme Court's usurped powers to a passively receptive audience when the truth is those powers were usurped in one of the most evil decisions the Court has foisted on the country, that is before the abominations that the Roberts Court has put out and has in store.
He clearly rejected the Court's power-grab in its nullification of the Missouri Compromise and in his debate speech he certainly indicates he suspected what I have concluded were the plans of the slave-power on the Court, to overthrow other democratically adopted laws that restricted or abolished slavery. He craftily noted that the hero of Douglas's party, Jackson, rejected an earlier, far more modest, assertion of Court power in a positive decision that a national bank was Constitutional. A decision that was far less of an extension of Court power than the nullification of a duly enacted federal law.
Lincoln certainly rejected the new Court power that Taney and his associates who concurred in the Dred Scott decision created for themselves because he said if he were to be a member of Congress (which we should remember Senators are) that he would have no hesitation to support legislation that went against the dictates of the Dred Scott decision, a level of Congressional assertion of authority that is lost today, so passive have we all been made through the habituation to that still outrageous usurpation of power by the Supreme Court, lulled by the rare benevolent uses of it by the atypical Warren Court.
So we can see that someone as expert, someone who had the confidence of so many of the Voters, someone who is rightly considered one of our greatest presidents and among the foremost figures in the struggle for equal rights rejected not only the substance of what the Taney Court did but its creation of the power of the Court to overturn duly enacted laws, even laws of long standing. The Roberts Court is doing as much as they dare to do of what the Taney Court did. They are doing so on as political a basis as Lincoln critisized the Taney Court for doing and they are doing so on an even more obviously raw partisan political basis. They are making strides to reimposing Jim Crow conditions to prevent Black People and other People of Color from voting, NOT ONLY IN THE FORMER CONFEDERATE STATES BUT IN ANY STATE WHERE REPUBLICANS CONTROL THE STATE GOVERNMENT but they are also reimposing the subjugation of Women depriving them of their most intimate rights in even more intimate ways, effectively nationalizing their bodies in ways that are more outrageous than I hope Women will tolerate.
There has never been a better time to definitively reject what the Roberts Court is doing and to once and for all cut the Court down to a size where it cannot either by intention or by lack of experience and wisdom endanger the hard won struggles against the worst aspects of the slavery-enabling, democracy-hampering and hardly perfect, not even "more perfect" Constitution. I'll have more to say about that in the next post in this series.
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