When Conservatives Cite Lincoln: From Dred Scott to Obergefell

by Corey Robin on October 9, 2015

Conservative scholar Robert George has issued a “call to action” to constitutional scholars and presidential candidates who are opposed to the Supreme Court’s gay marriage decision in Obergefell v. Hodges. George believes the decision was wrongly decided, that it is a gross usurpation of judicial power and misinterpretation of the Constitution.

But things take an interesting turn in the statement, when George invokes Lincoln on Dred Scott to argue that, despite the Court’s ruling, we—and more important, government officials, including future presidents—should not accept Obergefell as the law of the land. That is, we, and they, should not accept Obergefell as binding on our/their conduct.

Obergefell is not “the law of the land.” It has no more claim to that status than Dred Scott v. Sandford had when President Abraham Lincoln condemned that pro-slavery decision as an offense against the very Constitution that the Supreme Court justices responsible for that atrocious ruling purported to be upholding.

Lincoln warned that for the people and their elected leaders to treat unconstitutional decisions of the Supreme Court as creating a binding rule on anyone other than the parties to the particular case would be for “the people to cease to be their own rulers, having effectively abandoned their government into the hands of that eminent tribunal.”

Because we stand with President Lincoln against judicial despotism, we also stand with these distinguished legal scholars who are calling on officeholders to reject Obergefell as an unconstitutional effort to usurp the authority vested by the Constitution in the people and their representatives….

As the 2016 election season heats up, we call on all who aspire to be our next President to pledge to

  1. treat Obergefell, not as “the law of the land,” but rather (to once again quote Justice Alito) as “an abuse of judicial power”
  2. refuse to recognize Obergefell as creating a binding rule controlling other cases or their own conduct as President…

Like Lincoln, we will not accept judicial edicts that undermine the sovereignty of the people, the Rule of Law, and the supremacy of the Constitution. We will resist them by every peaceful and honorable means. We will not be bullied into acquiescence or silence. We will fight for the Constitution and our beloved Nation.

This move is interesting for two reasons.

First, it’s always interesting to me when conservatives depart from their customary role as the defenders of the law and lawfulness, and take up the more lawless elements of what I think is their true patrimony. Here’s how George finesses that issue:

We have great respect for judges. We have even greater respect for law. When judges behave lawlessly, it is the law that must be honored, not lawless judges.

The Supreme Court is supreme in the federal judicial system. But the justices are not supreme over the other branches of government. And they are certainly not supreme over the Constitution.

In Obergefell v. Hodges, five justices, without the slightest warrant in the text, logic, structure, or historical understanding of the Constitution presumed to declare unconstitutional the marriage laws of states that maintain the historic and sound understanding of marriage as the conjugal union of husband and wife.

But, second, and perhaps more interesting, is how George uses, or misuses, Lincoln.

It’s certainly true that Lincoln was opposed, strongly opposed, to the notorious Dred Scott decision. It’s also true that Lincoln refused to treat that decision as constitutional precedent. But Lincoln was equally of the mind that he and other officials could not resist the decision. Here’s Lincoln’s famous speech on the case in 1857:

We believe, as much as Judge [Stephen] Douglas, (perhaps more) in obedience to, and respect for the judicial department of government. We think its decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution. But we think the Dred Scott decision is erroneous. We know the court that made it, has often over-ruled its own decisions, and we shall do what we can to have it to over-rule this. We offer no resistance to it.

Lincoln is careful to say that in not treating Dred Scott as precedent he means that he will seek to overturn the decision by the Court itself, that he will not allow to be viewed as settled law. He will agitate for the wrongness of the decision, argue against its application in future rulings, and perhaps seek the appointment, if/when given the chance, of Supreme Court justices who agree with him. What he will not do is resist the decision.

Again, Lincoln:

He [Douglas] denounces all who question the correctness of that decision, as offering violent resistance to it. But who resists it? Who has, in spite of the decision, declared Dred Scott free, and resisted the authority of his master over him?

Lincoln draws a clear distinction between questioning the correctness of a decision and resisting that decision, acting in defiance of it. It’s true that he’s only referring to the specifics of the case (a qualification George makes much of: “a binding rule on anyone other than the parties to the particular case”), but in his First Inaugural, which George quotes (actually misquotes, albeit in a minor way*), Lincoln extends the distinction behind the specifics of the case.

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.

Again, while Lincoln insists that there is a role for the people and their representatives to engage in constitutional politics, to argue for their preferred interpretations of the Constitution and what it requires (to that extent, George is correct), perhaps to contest the ruling at its perimeter, and while he also insists that he will do all that he can to ensure that Dred Scott will not become precedent, there’s little in these statements on Dred Scott to suggest that Lincoln believes government officials have it within their rights to “refuse to recognize” a Court decision as “creating a binding rule controlling…their own conduct.”

Lincoln scholar John Burt provides a sensitive summation of Lincoln’s position on Dred Scott in a 2009 article from American Literary History

In his Springfield speech of 26 June 1857 on the Dred Scott decision, Lincoln did not adopt the common antislavery ways of countering the decision. He proposed no popular acts of resistance, he did not propose nullifying the decision through the acts of the other branches or the state legislatures, and he did not propose attacking the Court’s power by changing the number of justices. He not only submitted to the decision as regards Dred Scott himself, but also conceded that the case would govern other persons in Scott’s position. Yet he did not concede that he would have to treat the decision as prescribing a political rule for his future course. In other words, he did not feel that as a legislator he was obligated to support further laws that would seem to have been called for in Chief Justice Taney’s opinion, or to pass other laws that would be consistent with that opinion. And he felt that he could still support laws that would challenge the decision at the margins, testing its limits and providing occasions for the Court to rethink its views. Lincoln also proposed pushing a gradual change in the Court’s point of view which would follow from his having political control over the confirmation of new justices over the long term: a Republican Senate could put in motion the reversal of the decision one justice at a time, in a process which might have taken decades to complete.

In fact, Burt provides additional information of how Lincoln attempts to push the boundaries of opposition to their outermost limits without going where George goes in his statement on Obergefell.

In the 1858 Quincy debate with Douglas, Lincoln distinguished between accepting the Dred Scott decision as binding upon poor Scott and adopting that decision as a political rule. Lincoln did not propose to defy the Court in that case, or in any subsequent case similar to it. But he did propose to treat the question it had attempted to close as one that is still open, subject to further legal testing, capable of being eroded around the edges by political challenges, until finally Dred Scott loses its legitimacy, loses the background sense that its conclusions are not only reasonable but inevitable, a sense, it’s fair to say, that the Dred Scott decision never enjoyed in the first place. Lincoln specifies rather precisely what it means to oppose the Dred Scott decision:

We oppose the Dred Scott decision in a certain way, upon which I ought perhaps to address you a few words. We do not propose that when Dred Scott has been decided to be a slave by the court, we, as a mob, will decide him to be free. We do not propose that, when any other one, or one thousand, shall be decided by that court to be slaves, we will in any violent way disturb the rights of property thus settled, but we nevertheless do oppose that decision as a political rule, which shall be binding on the voter to vote for nobody who thinks it wrong, which shall be binding on the members of Congress or the President to favor no measure that does not actually concur with the principles of that decision. We do not propose to be bound by it as a political rule in that way, because we think it lays the foundation not merely of enlarging and spreading out what we consider an evil, but it lays the foundation for spreading that evil into the States themselves. We propose so resisting it as to have it reversed if we can, and a new judicial rule established upon this subject.

George is not terribly clear as to what he means when he writes that presidential candidates should pledge to “refuse to recognize Obergefell as creating a binding rule controlling other cases or their own conduct as President.”

What does seem clear is that Lincoln’s strongest phrasing of opposition—that he opposes the “decision as a political rule,” meaning among other things that he refuses to accept the notion that he must “favor no measure that does not actually concur with the principles of that decision”—is miles more modulated than “refuse to recognize Obergefell as creating a binding rule.” After all, one can support many laws that depart from the principles of a decision without violating that decision. Part of what Supreme Court decisions are often about, after all, is whether some law or act of government is in fact a violation of the principles the Court has enunciated. What is or is not in keeping with the principles of a decision is a contested question. And even then, a law or act of government could lie outside the principles enunciated by the Court and still not violate the Court’s decision.

But when George calls in his statement for candidates who “support the First Amendment Defense Act to protect the conscience and free speech rights of those who hold fast to the conjugal understanding of marriage as the union of husband and wife,” he is definitively saying that public officials should be allowed to defy the ruling outright.

That, again, is a step Lincoln never took.

*George quotes Lincoln as saying, “the people to cease to be their own rulers, having effectively abandoned their government into the hands of that eminent tribunal.” Lincoln’s actual statement is this: “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.” Again, a minor misquotation.

{ 28 comments }

1

Matt 10.09.15 at 6:09 pm

, we also stand with these distinguished legal scholars

I’m sorry to say it, but that’s not really a list of “distinguished legal scholars”. A few are fairly well known, but mostly for being “right wing” thinkers, not for their particular contributions to legal thought. Most of them are unknowns, and not distinguished at all. Of course, that doesn’t go to the (hardly existent) merits of the argument, but is worth noting on its own, I think.

2

Snarki, child of Loki 10.09.15 at 6:46 pm

I’ll see your Obergefell and raise you a Shelby County.

” five justices, without the slightest warrant in the text, logic, structure, or historical understanding of the Constitution ” indeed.

3

TheSophist 10.09.15 at 7:20 pm

Shelby County? How about Bush v Gore?

4

Bartleby the Commenter 10.09.15 at 7:24 pm

“Shelby County? How about Bush v Gore?”

Or we could mention Citizens United but I would prefer not to.

5

LFC 10.09.15 at 7:32 pm

Matt @1
I’m sorry to say it, but that’s not really a list of “distinguished legal scholars”.

I think they should at least have omitted the word “legal,” since some names on that list aren’t primarily legal scholars but other kinds of scholars. I could elaborate a bit, but it’s a side point so I won’t.
p.s. There’s also a disproportionate representation of certain institutions on the list.

6

LFC 10.09.15 at 7:37 pm

Also, not that many law professors on the list; active and emeriti together you cd probably count on two hands.

7

oldster 10.09.15 at 7:38 pm

Or Heller v. D.C. which proved that 5 justices either do not know how to read 18th c. English, or do and are happy to lie about it.

In any case: George is a hack, and he is traducing the good name of Lincoln.

8

Dr. Hilarius 10.09.15 at 8:30 pm

The usual incoherent blather trying to avoid the simple fact that the US Supreme Court gets the last word on federal constitutional questions. Time to re-read Marbury vs. Madison.

Conservatives want to do battle on high-minded abstract principles to avoid the problem that they can’t show how any particular individual is harmed by Obergefell. Nobody’s marriage in invalidated, straight couples lose no rights. The comparison to Dred Scott couldn’t be more odious.

9

William Berry 10.09.15 at 10:22 pm

Bah, humbug, balderdash, and poppycock!

Talk about legal scholars: Brett Bellmore will be here any sec to teach all youse guys a thing or two about the above-mentioned constitutional issues.

10

Alan White 10.10.15 at 12:04 am

Dr. H–

So well said. What gets me is that this same bunch is so bloody fearful of Sharia law, and yet can’t see themselves in that carnival’s fun house mirrors.

11

Alan White 10.10.15 at 12:23 am

BTW I counted 64 signatories on the “distinguished scholars” list and 7 women among them (judging as I can by nom de fume). Seems like a male thing. And scanning the list, “distinguished” is apparently a highly flexible ascription indeed.

12

Colin Danby 10.10.15 at 1:26 am

Merely appearing on that list distinguishes you, at least in certain respects.

13

ZM 10.10.15 at 2:58 am

Corey Robin,

“What does seem clear is that Lincoln’s strongest phrasing of opposition—that he opposes the “decision as a political rule,” meaning among other things that he refuses to accept the notion that he must ”favor no measure that does not actually concur with the principles of that decision”—is miles more modulated than “refuse to recognize Obergefell as creating a binding rule.” After all, one can support many laws that depart from the principles of a decision without violating that decision. Part of what Supreme Court decisions are often about, after all, is whether some law or act of government is in fact a violation of the principles the Court has enunciated. What is or is not in keeping with the principles of a decision is a contested question. And even then, a law or act of government could lie outside the principles enunciated by the Court and still not violate the Court’s decision.”

I think you raise two separate issues in this passage here 1. that Lincoln’s words are “miles more modulated”; and 2. whether statutory laws are bound to be in coherence with case law precedent

1. Lincoln’s words are more modulated because politicians spoke and wrote in a lengthier more detailed way in the past. I read somewhere an author say they thought this was the case not merely due to the changing abilities of politicians, but due to how in the past people went to Church regularly and also went to more town hall meetings and various other occasions when people listened to lengthy speeches in daily life, so people were better at following and making very long speeches with a great deal of detail. People even practiced special voices for elocution so as to be heard by a crowd. Then with mass media people got used to short excerpts of speeches (except for special occasions like the State of the Nation speech in America) with pictures and summed up quickly with opinions by news announcers and commentators. Lincoln’s more modulated long speech or article would be severely cut by television news editors or newspaper editors today.

2. I do not think Lincoln was arguing that the principles of the Dred case were valid, but new statutes should not have to take the judicial decision into consideration. Lincoln was surely arguing the Dred decision was wrong, but the proper way to challenge such a decision was in more court cases wherein the decision could be overruled as a precedent, as many rulings in the past were subsequently found to be wrong and then overruled as precedents.

In terms of whether statutory law and case law should be coherent, the principle of coherence says that they should be coherent.

I went to a talk about the interaction of statutory laws with “unwritten law” (such as judge made case law) by the Chief Justice of the High Court in Australia (our version of the federal Supreme Court) earlier this year, and also have been reading an article on the topic “Statute and Common Law: Interaction and Influence in Light of the Principle of Coherence”. The author, Elise Bant, states “rules and doctrines must be applied in such a way that supports or promotes coherence in the law, in particular by producing outcomes consistent with any overriding prohibition or principle. Determing what those overriding prohibitions or principles might be is no small task”

I think the strongest argument that Robert George is wrong in quoting Lincoln on the Dred judgement is that the decision in Obergefell v. Hodges was made using the Fourteenth Amendment, which was a Constitutional Amendment adopted in the Reconstruction era with specific clauses including one on Citizenship which overrruled the Dred Scott v. Sandford decision.

So if George was going to follow the path of the people who thought the Dred judgement was wrong, then, as well as being on the wrong path, he would have to seek a Constitutional Amendment to overrule the Obergefell v. Hodges judgement. Seeking this sort of amendment would likely fail on two grounds 1. unpopularity; and 2. coherence — since other constitutional laws are supportive of the principle of equality.

14

bad Jim 10.10.15 at 5:55 am

Dred Scott and Roe v. Wade are also frequently linked in the fevered imagination of the latter’s opponents. There ought to be a Godwin’s rule for judicial arguments.

A black man has no rights which a white man is bound to respect. Likewise an embryo. Contrarywise, women have no rights men are bound to respect?

Who was harmed by Loving v. Virginia? We’ve always had mixed-sex marriage. I’m 4% neandertal; apparently we used to have mixed-species coupling. The court was ahead of public opinion in that decision, and behind it in Obergefell.

15

Barry 10.10.15 at 1:18 pm

Seconding, thirding and fourthing the other commenters here – This is just another example where ‘conservative scholar’ is more of a contradiction than a likelihood, and a further example that ‘conservative constitutional scholar’ is semantically equivalent to ‘unicorn’.

16

K.R. 10.10.15 at 5:31 pm

I too have my reservations ask to the wisdom of Obergefell, but let’s not forget what Lincoln said in his speech to the young men’s lyceum of Springfield, Illinois.

When I so pressingly urge a strict observance of all the laws, let me not be understood as saying there are no bad laws, nor that grievances may not arise, for the redress of which, no legal provisions have been made.–I mean to say no such thing. But I do mean to say, that, although bad laws, if they exist, should be repealed as soon as possible, still while they continue in force, for the sake of example, they should be religiously observed. So also in unprovided cases. If such arise, let proper legal provisions be made for them with the least possible delay; but, till then, let them, if not too intolerable, be borne with.

I mean, he has this entire speech where he’s imploring Americans to bear with the law instead of unilaterally nullifying them in the name of “patriotism.”

17

yastreblyansky 10.10.15 at 5:50 pm

In the 1858 Quincy debate with Douglas, Lincoln distinguished between accepting the Dred Scott decision as binding upon poor Scott and adopting that decision as a political rule. Lincoln did not propose to defy the Court in that case, or in any subsequent case similar to it. But he did propose to treat the question it had attempted to close as one that is still open

It’s also the case that the legal reasoning on which Lincoln made the decision was completely sound (I did some reading on George’s hypothesis when it was mentioned favorably in a David Brooks column back in June): Taney’s decision was simply that Scott had no standing to sue, as a non-citizen, and Taney’s opinion that the ban on slavery in the territories of the Missouri Compromise was unconstitutional was not part of the decision proper, but mere obiter dicta, remarks in passing, without legal force. Taney himself seems to have thought he had made the case, but subsequent legal scholarship has determined that he was wrong and Lincoln was right.

In Obergefell, of course, no such distinction is possible, since the decision itself throws out laws banning same-sex marriage directly.

18

yastreblyansky 10.10.15 at 5:52 pm

I mean “on which Lincoln made the distinction”, dammit.

19

Eric Titus 10.10.15 at 7:37 pm

Even if there was a valid comparison to Lincoln, it’s almost an apples and oranges situation. It’s one thing to resist or consciously object to a law that has real, immediate consequences. (arguably abortion access falls into this category for both the pro- and ant-choice crowds). It’s another to ignore the Supreme Court because you think a law may end up eroding the fabric of society.

I am giving this “call to action” more attention than it deserves. It boggles the mind that it could have been written by someone who understands how the constitution works…

20

Pat 10.11.15 at 6:11 am

Four years ago I made a casual bet—I forget with whom—about the first Republican politician to invoke Dred Scott v. Sandfor to oppose a Supreme Court decision after having gone on the record as opposing birthright citizenship. I had thought (a) it would be Michelle Bachmann and (b) it would be in criticizing Roe. I haven’t lost the bet yet, officially, but it’s looking like a worse one every day.

21

Glen Tomkins 10.11.15 at 4:37 pm

George is absolutely right that the power of judicial review, if categorical and unlimited, turns SCOTUS into an ennearchy.

He’s wrong, of course, about both the result in Obergefell and, more to the point, the appropriateness of SCOTUS accepting jurisdiction over such a case. The case involved the claim that the rights of individuals were being infringed by the govt. Of course this is legitimately the jurisdiction of the courts, and it was necessary for the courts to accept the suit.

The appropriate remedy when you believe SCOTUS got a case wrong, but that the case was within its proper jurisdiction, is to win the next election and make sure the folks who decided the case wrongly are replaced with justices who will get it right. This, of course, is the path Lincoln followed in responding to the Dred Scott decision.

Sure, if the decision was egregiously and willfully wrong, and if you need the wrong decision reversed quickly, alternatives to just waiting out the malefactors include impeachment of the offending justices, or expansion of SCOTUS membership to allow new justices who will outvote the malefactors.

The appropriate response to the courts taking cases beyond their legitimate jurisdiction is to limit their jurisdiction by statute, as the Constitution explicitly allows. Both Bush V Gore and the CU decision are examples of SCOTUS asserting jurisdiction where that is unnecessary and inappropriate. Congress is the judge of all federal elections, not the courts. Congress should assert itself by passing a statute that removes the courts from all disputes concerning federal election law.

To take this topic out to its furthest extreme, it is appropriate to simply ignore SCOTUS rulings when its assertion of jurisdiction and the power of judicial review becomes a direct attempt to establish an ennearchy. If, for example, one or more SCOTUS justices who wrongly decided Bush v Gore or CU were impeached and removed form office for that, and these justices sought relief from the courts and their suit was accepted, and SCOTUS issued an order keeping the convicted justices on the bench — then it would be appropriate to just ignore this decision and simply remove the convicted justices by any means necessary. That’s a long series of “ifs”, and we haven’t gotten close to such a situation where just ignoring a ruling is appropriate.

22

John 10.12.15 at 9:26 am

Robert George is of course the mover and shaker that created the Manhattan Declaration which is effectively a manifesto for Christian fascism. He is also either a member of, or closely associated with the deeply misogynist outfit opus dei.
There are numerous sites on the internet that describe the machinations of the opus dei octopus. One of the best is The Open Tabernacle which has featured well researched copiously footnoted essays on its power-and-control seeking activities.
Matthew Fox wrote an informative boo titled The Popes War describing how Ratzinger and pope JPII facilitated the rise of opus dei and similar outfits to positions of power and influence.
The moral of the stories of both the Open Tabernacle and The Popes War is that it is all about money honey – and very worldly even totalitarian power.
Meanwhile the “catholic” church operates the worlds largest and most powerful propaganda vehicle, the tentacles of which reach into almost every village on the planet.

23

Dave Maier 10.12.15 at 3:46 pm

“Ennearchy”, that’s a good one. Did you coin that yourself, Glen, or whom should I credit when I steal it?

24

Glen Tomkins 10.12.15 at 6:15 pm

Decarchy is used even by normal people, so clearly ennearchy is allowed. I don’t believe in intellectual property, so you don’t need to credit anyone.

25

Scott Rose 10.12.15 at 7:59 pm

Cooper v. Aaron, 358 U.S. 1 (1958), was a landmark decision of the Supreme Court of the United States, which held that the states were bound by the Court’s decisions and had to enforce them even if the states disagreed with them.

26

LFC 10.12.15 at 10:00 pm

John @22
Meanwhile the “catholic” church operates the worlds largest and most powerful propaganda vehicle

Catholicism is more centralized than other major religions, I suppose, but it’s well known that there are different currents of opinion within Catholicism. An issue of Commonweal is probably not going to sound too much like the latest publication of Opus Dei. For that matter, the current Pope’s encyclicals are different from those of his predecessors in certain respects. I doubt it’s any more acceptable to put “catholic” in quotation marks (and lower case) than it would be to do that for the words Muslim, Protestant, Jewish, Hindu, Buddhist, etc.

27

JanieM 10.12.15 at 10:42 pm

I doubt it’s any more acceptable to put “catholic” in quotation marks (and lower case) than it would be to do that for the words Muslim, Protestant, Jewish, Hindu, Buddhist, etc.

Oh, I don’t know:

catholic

[kath-uh-lik, kath-lik]

adjective

1.

broad or wide-ranging in tastes, interests, or the like; having

sympathies with all; broad-minded; liberal.

28

LFC 10.13.15 at 4:55 am

@JanieM
I’m aware of that definition of the word, but in the context of John @22’s comment, I took the quotation marks to be a somewhat unwarranted way of furthering his implications about octopi, tentacles, propaganda vehicles, etc. However, I will retract the last sentence of my comment @26.

I’m not a Catholic (or Christian, for that matter) and hold no particular brief (to put it mildly) for some of the Church’s positions, but it does strike me as a bit odd that someone can put up the sort of comment that John did @22 and get no reaction, whereas if he’d written something roughly comparable about Islam or Judaism in their ‘official’or organized manifestations (which are admittedly less monolithic), there’d have likely been an outcry.

Comments on this entry are closed.