Monday, May 6, 2013 – Essay #56 – Speech on the Dred Scott Decision by Abraham Lincoln – Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

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Abraham Lincoln’s speech on the Dred Scott Case reveals the complex nature of his views on slavery and racial equality, complexity that reflected the divided national psyche. Many Americans in the broad middle rejected the Southern defense of slavery and believed that the “peculiar institution” violated basic human rights and the fundamental equality of life, liberty, and the pursuit of happiness promised to all in the Declaration of Independence. At the same time, they also rejected the radical abolitionist egalitarianism that Black Americans, free or slave, in fact were equal to Whites in their capacities.

As Lincoln declared, “Now I protest against that counterfeit logic which concludes that, because I do not want a black woman for a slave I must necessarily want her for a wife. I need not have her for either, I can just leave her alone. In some respects she certainly is not my equal; but in her natural right to eat the bread she earns with her own hands without asking leave of anyone else, she is my equal, and the equal of all others.”

The speech addresses three themes that Lincoln repeatedly revisited over the years, namely, the spread of slavery, his vision for the eventual emancipation of slaves, and the role of the Supreme Court in settling constitutional issues. As to the first, Lincoln categorically rejected Senator Stephen Douglas’s “popular sovereignty” policy in the Kansas-Nebraska Act of 1854, which would allow the settlers of a territory to decide whether the eventual state organized from the territory would be free or slave. To the Republicans and Lincoln, this was unacceptable as it permitted potential extension of slavery to new territories beyond the existing slave states. Worse, it did so in negation of the Missouri Compromise of 1820 that had prohibited the further organization of slave states north of the southern boundary line of Missouri. As a moderate of whom both Northern abolitionists and Southern slave-holders were suspicious, Lincoln was prepared to protect slavery in the existing states, even by a constitutional amendment as he later offered, but would go no further.As to the second, Lincoln’s speech here makes clear his opposition to “amalgamation” of the races. He accuses Douglas of raising the specter of racial intermarriage as a wedge to drive undecided voters and moderate opponents of slavery into supporting the continuation of the system. Lincoln spends the remaining portions of the speech (not included in the Hillsdale reader) emphatically opposing racial intermarriage. But he turns Douglas’s argument against itself. Citing extensive statistics, he argues that the number of mulattoes is higher, the more entrenched slavery is in the state. Therefore, he sees the institution of slavery itself, and the expansion of that institution into new states, as increasing the likelihood of racial mixing.

His solution to racial amalgamation is the re-colonization of emancipated slaves to Africa, as had been undertaken on a small scale during President Monroe’s tenure. Indeed, Lincoln laments the lack of will of both parties in pursuing such re-colonization and urges a new political commitment to that end:  “Will springs from the two elements of moral sense and self-interest. Let us be brought to believe it is morally right, and, at the same time, favorable to, or, at least, not against, our interest, to transfer the African to his native clime, and we shall find a way to do it, however great the task may be.”  Using his signature Biblical imagery, he adds, “The children of Israel, to such numbers as to include four hundred thousand fighting men, went out of Egyptian bondage in a body.” This gradual approach to eventual actual separation of the races was analogous to other of Lincoln’s positions regarding the eventual ending of slavery through gradual means, such as compensation to slave-holders. Left unsaid was to what extent, if any, the wishes of Black Americans themselves would matter.

As to the Dred Scott Case itself, Lincoln restates the dissenting Justice Curtis’s critique of the majority’s historical interpretation that Blacks, free or slave, were not deemed “citizens” of the United States under the Constitution or “men” protected by the principles of the Declaration of Independence. He also turns his considerable capacity for sarcasm to lampooning Douglas’s support for the decision. But, woven into the polemics of his message is a serious analysis of the jurisprudence of constitutional decisions. Specifically, Lincoln considers the binding nature of Supreme Court precedent within a system of separation of powers. He properly distinguishes between the decision itself, which is treated as final between the parties (Dred Scott and Sandford), and the precedential effect of the holding as a rule of constitutional law (the status of slavery as beyond the constitutional power of Congress to regulate). He accepts the former, but rejects the finality of the latter.

Lincoln sets forth the parameters for obedience to judicial precedent, two of which are particularly salient. If the decision regarding a constitutional matter is not solitary but is the latest in a line of similar decisions, its holding might be settled law. It has become part of the constitutional fabric through repeated judicial affirmance. In similar vein, the more the decision is in accordance with the practice of the other branches of government and with public expectations, the more respect it deserves. There, the decision simply confirms the understanding of the Constitution shaped by popular custom and reflected in acts of the political bodies accountable to the people. In turn, a holding that departs from these principles likely upsets settled constitutional understanding and is a mistake.

What to do about “errors” by a politically-unaccountable judiciary deeply troubled the opponents of the Constitution in the 1780s. Lincoln recalls Andrew Jackson’s famous message on the veto of the re-charter of the Second Bank of the United States in 1832. As part of that message, Old Hickory defiantly declared the power of each branch of government to have independent—and final—authority to decide constitutional matters within its domain:  “If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the executive and the court, must each for itself be guided by its own opinion of the Constitution. Each public officer, who takes an oath to support the Constitution, swears that he will support it as he understands it, and not as it is understood by others.” The Supreme Court is not the Constitution.

Popular perception today is that the Supreme Court’s decisions are final and binding on the other branches and all Americans. The Court has assiduously cultivated that notion. “We are not final because we are infallible, but infallible only because we are final,” said Justice Robert Jackson. “The Supreme Court is the ultimate interpreter of the Constitution,” wrote Justice William Brennan in Baker v. Carr. Similar sentiments have been voiced in many other opinions, though not before the middle of the 20th century.

No such declaration of judicial supremacy is as bold—or arrogant—as that in the opinion by Justices Sandra Day O’Connor, David Souter, and Anthony Kennedy in the 1992 abortion case Planned Parenthood v. Casey. Previous such assertions were addressed to other politicians. Not so in that case. There, the Court essentially tells the American people that any further challenge by them to the principles of Roe v. Wade as affirmed in Planned Parenthood would be illegitimate and call into question the rule of law, especially when “the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in [Supreme Court’s version of] the Constitution.”

The Planned Parenthood opinion’s anti-democratic elitism mirrors Douglas’s attack on those who opposed the Dred Scott decision. In each case, the Court sought to settle a divisive national controversy that had proved incapable of easy political compromise. In each, it failed. In each, the Court’s defenders sought to make opposition to the decision an attack on the rule of law. In each, it was claimed that maintaining the Court’s legitimacy required adherence to the result. In each, the contrary occurred, and the Court’s legitimacy took a hit.

Let Abraham Lincoln have the last word, when he revisited the theme during his First Inaugural Address:  “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 people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal.”

Read Abraham Lincoln’s Speech on the Dred Scott Decision here: http://constitutingamerica.org/?p=4303

 An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

2 replies
  1. Barb Zack
    Barb Zack says:

    Complex issues raised during Lincoln’s speech, and raised here in this essay. Lincoln saw that slaves were not equal and blacks being slaves, were also not equal. Maybe equal in the most generic sense, but certainly not where it mattered. And the Supreme Court continued its march towards legislating from the bench. Old habits and beliefs are indeed near impossible to break. Even back in 1860, although Lincoln loved this Nation and proved he would do anything to save the Union, there was still enough divisivness to carry through to present day.

    Reply
  2. Ron
    Ron says:

    Thanks for opening my own eyes on the finality of the Court’s decisions, Professor Knipprath. I had come to accept the common interpretation over the years as a consequence of hearing it repeated so often. Also, hearing Lincoln’s reasoning about the more proper approach to deciding if something is settled clearly shows that Roe v. Wade does not meet his criteria and is likely to be eventually overturned at some point in time. Hopefully, sooner than later. More people need to read this speech to better understand how to attack our many problems caused by progressive judicial activism over the past several decades.

    Reply

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