And a week later he returned to the attack in his speech at Springfield, where he said:
" Now as to the Dred Scott decision; for upon that he makes his last point at me. He boldly takes ground in favor of that decision. This is one half the onslaught, and one third of the entire plan of the campaign. I am opposed to that decision in a certain sense, but not in the sense which he puts on it. I say that in so far as it decided in favor of Dred Scott's master, and against Dred Scott and his family, I do not propose to disturb or resist the decision."
Of course, as President, Lincoln disturbed it more than any other person in the history of the United States, remember this was how he made his argument during a Senatorial campaign where he would have had to win over a majority of the Illinois legislature which chose Douglas over Lincoln. Apparently I was right that that was the system they used to select their Senators then. So it was to those politicians that Lincoln framed his debate arguments to. I have no doubt that he did that up to the point where he issued the Emancipation Proclamation, which was probably absolutely essential to winning the war against legal slavery in the end. Someday I might go into what Lincoln said about wage-slavery which he also opposed.
"I never have proposed to do any such thing. I think that in respect for judicial authority, my humble history would not suffer in comparison with that of Judge Douglas. He would have the citizen conform his vote to that decision; the member of Congress, his; the President, his use of the veto power. He would make it a rule of political action for the people and all of the departments of the government. I would not. By resisting it as a political rule, I disturb no right of property, create no disorder, excite no mobs."
Lincoln then proceeds further to elaborate his position, and to defend General Jackson's view of the subject, by quoting Thomas Jefferson. He refers to a letter of Jefferson's written in 1820 from which he quotes the following passages:
" You seem, in pages 84 and 148, to consider the judges as the ultimate arbiters of all constitutional questions - a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power and the privilege of their corps. Their maxim is, 'Boni judicis est ampliare jurisdictionem'; [roughly translated, good judgment extends its jurisdiction. according to most of the lawyerly claims you can find online, allegedly to fit the requirements of justice, allegedly without overstepping the bounds. To which I give a skeptical, uh, huh. I see.] and their power is the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that, to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-soverigne within themselves." *
And after thus quoting Jefferson, Lincoln proceeds as follows:
" Thus we see the power claimed for the Supreme Court by Judge Douglas, Mr. Jefferson holds, would reduce us to the despotism of an oligarchy."
"Now, I have said no more than this - in fact never quite so much as this - at least I am sustained by Mr. Jefferson."
"Let us go a little further . . . . The declaration that Congress does not possess this constitutional power to charter a bank, has gone into the Democratic platform, at their national conventions, and was brought forward and reaffirmed in their last convention in Cincinnati. They have contended for that declaration in the very teeth of the Supreme Court, for more than a quarter of a century. In fact, they have reduced the decision to an absolute nullity. That decision, I repeat, is repudiated in the Cincinnati platform; and still, as if to show that effrontery can go no farther, Judge Douglas vaunts, in the very speeches in which he denounces me for opposing the Dred Scott decision, that he stands on the Cincinnati platform. . . .
"The plain truth is simply this: Judge Douglas is for Supreme Court decisions when he likes, and against them when he does not like them."
Lincoln's last remark is as applicable today as it was at the time it was made, as the discussion of later decisions will show. With this difference, however: Much as statesmen and constitutional lawyers may rail against a decision, and denounce it as unwarranted by the Constitution and as an invasion of constitutional rights, very few will nowadays take the position that Congress or the Executive Department may disregard a decision of the United States Supreme Court, no matter how unwarranted by the Constitution. This latter attitude is, however, due to the fundamental change of the position of the Judicial Power in our scheme of government, the foundations of which were laid, and the future course whereof was foreshadowed, in the momentous decision in the fateful Dred Scott Case.
In Louis Boudin's next chapter in which he discusses these issues during Lincoln's presidency and the Civil War which the Dred Scott decision facilitated even as those pudding-heads on the Supreme Court believed they were restoring "national peace and harmony" through it. He demonstrates that Lincoln, repeatedly, proved himself as good as his word. He had no problem ignoring or disregarding or rejecting the Taney Court's opinions in conducting the Civil War.
It is an absolute certainty that if he had dared to rule on the Emancipation Proclamation, Taney and his associates would have nullified it, no doubt emboldening the Confederacy and causing havoc in several of the border states that weren't in rebellion against the United States. He would have cited the Constitution on the matter of depriving slavers of their "property." He sourly complained that emancipation was an act of military over civil power not long before, finally, he left the bench because he finally died, remaining as one of the most rightfully infamous names in American history.
Lincoln's administration was what should have been a definitive rejection of the Supreme Court power which has, in fact, become one of the most destructive parts of subsequent American History, as Boudin has pointed out in the rest of his book. It is an American tragedy that Lincoln's rejection of that power didn't become the precedent for how subsequent American history should have considered the limits of Supreme Court power.
And, in fact, as soon as Taney, no doubt with extreme reluctance, had to administer the Presidential Oath to Lincoln, during his First Inaugural Address Lincoln paraphrased Thomas Jefferson's rejection of even the milder form of Judicial Power he was commenting on in his letter, letting Taney and his associates know that he would not be following their declaration of their "new wonder of the world," their claim to have the power to nullify duly adopted and long enacted laws.
I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that 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. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.
As Louis Boudin pointed out, such open rejection of the judicial power that the Taney Court invented so it could nullify the Missouri Compromise Act and, with that, all subsequent efforts to forbid the further extension of slavery or its possible, eventual prohibition, faded as the Supreme Court further exercised that power after the Civil War and the Civil War Amendments ended at least the legal form of slavery, even as it continued and was revived in the Jim Crow period on a de facto basis. I have not extensively looked into it, but actual slavery persisted in the former Confederate states well into the 20th century despite the Emancipation Proclamation.
No doubt, as with Senator Sheldon Whitehouses' analysis of the motives of the elite lawyers and law school members of the abortive Biden Supreme Court Commission, top-flight lawyers and law scholars found it in their professional interest to go along with it instead of continuing the opposition of such earlier lawyers as Thomas H. Benton and Abraham Lincoln. The ignorant, foolish acquiescence to an extra-constitutional power of the Supreme Court to overturn much of the hardest won legislation extending equality, rights and even the right to vote that my generation and later ones grew up in, was built on such knowing going along to get along with the imperial Supreme Court which, like all anti-democratically constituted governing bodies, will protect and extend its prerogatives as much as any monarch or dictator or other gangster with power will do. The analysis of the dangers of having life-time appointed Supreme Court "justices" unanswerable to The People through a vote, approval after a term of office has expired and the other possible, though too little used, means of voters turning bad politicians out of office is certainly as valid today as when Jefferson wrote his letter. The same year, by the way that the Missouri Compromise Act came into power, the law that was the first one that the Supreme Court overturned in exactly the way Jefferson and Lincoln warned about and which Lincoln was in a position to reject.
The law is, by habit, by self-interest and by custom a conservative tending, elite profession, its billing habits alone and the willingness of judges to allow the wealth of one side or another to enter into the process is a guarantee that any such power will support wealth and, so, the kind of power that is gained by wealth. It is an anti-egalitarian profession which practices its craft under what is typically an anti-democratic branch of government.
The idea that the Congress and President are bound by such law nullification and Constitution amending by a 5-4 or even a unanimous Supreme Court in carrying out the enumerated duties of their office is ever more dangerous because of the number of lawyers educated and habituated to accept that Supreme Court usurpation on the way they conduct their supposedly co-equal powers, powers handed to them directly by the Voters for the Congress and indirectly to the President through the abomination of the Electoral College.
It is especially repulsive that the Congress should feel so inhibited because while the Court claims that power for itself to restrict the actions of the Congress, the Court rejects that the Congress has any power to impose binding ethics rules on the lawless Supreme Court, the most openly corrupt branch in terms of taking benefits and socializing and meeting with and taking their instruction from dark money sources, many of whom have business before the Court.
The Supreme Court, especially in the years of the Rehnquist and now the worst of recent ones, the Roberts Court is out of hand, it is time for the warnings of Jefferson and Lincoln to be taken seriously because what they predicted has already come to pass.
* In his letter of September 28, 1820, after a lengthy discussion of how the Marshall Court extended its power beyond where the Constitution set its limits, Jefferson concluded with this warning:
Pardon me, Sir, for this difference of opinion. my personal interest in such questions is entirely extinct; but not my wishes for the longest possible continuance of our government on it’s pure principles. if the three powers maintain their mutual independance on each other, it may last long: but not so if either can assume the authoritie’s of the other. I ask your candid reconsideration of this subject, and am sufficiently sure you will form a candid conclusion. Accept the assurance of my great respect.
In the rote and absurd reverence that Jefferson has been held in, it's remarkable that these serious warnings about the Supreme Court when it overstepped the enumerated powers granted it in the Constitution are unknown, uncited, taken as of no value, especially when Lincoln, either the greatest or second greatest of our Presidents, the man who did more than any other president before Lyndon Johnson to make good on the promises Jefferson wrote in the Declaration of Independence, the very basis of American independence, took that danger so seriously and openly defied it while he was president.
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