Today’s post is simply a couple of long quotations that I thought may prove useful and enlightening, although it relates directly to this superb essay by Martha S. Jones at the Washington Post column Made By History. In it, Jones urges readers to look deeper at what, for many people, was a snap reaction to the Supreme Court’s ruling in Trump v. Hawai’i: looking for a suitably “egregious” example from the past, many compared the decision to Dred Scott v. Sandford. There is certainly something to that comparison, Jones argues, but “which lessons we draw from the past matters. The Dred Scott decision was a bad one, and yet it also exposed the limitations of the court’s power — and how lawyers and activists curbed its influence. Chief Justice Roger B. Taney overreached when he aimed to seal the fate of black Americans, and the resistance to his ruling is instructive for those who are seeking to do the same in the face of Trump v. Hawaii.”
One of the loudest voices urging Americans in 1857 not to accept Dred Scott as settled law was Abraham Lincoln. The first quotation I want to share comes from Lincoln’s June 26, 1857 speech in Springfield, Illinois.
And now as to the Dred Scott decision. That decision declares two propositions—first, that a negro cannot sue in the U.S. Courts; and secondly, that Congress cannot prohibit slavery in the Territories. It was made by a divided court—dividing differently on the different points. Judge [Stephen A.] Douglas does not discuss the merits of the decision; and, in that respect, I shall follow his example, believing I could no more improve on McLean and Curtis, than he could on Taney.
He 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?
Judicial decisions have two uses—first, to absolutely determine the case decided, and secondly, to indicate to the public how other similar cases will be decided when they arise. For the latter use, they are called “precedents’” and “authorities.”
We believe, as much as Judge 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.
Judicial decisions are of greater or less authority as precedents, according to circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession.
If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.
But when, as it is true we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country…
Lincoln continues after this more general passage about the nature of precedents to demolish Douglas’s insistence that, once the Supreme Court rules, the people must assent. Cleverly, Lincoln recalls that “this same Supreme court once decided a national bank to be constitutional,” a decision that Douglas—falling in line with his party—abhorred and vigorously resisted. “Again and again have I heard Judge Douglas denounce that bank decision, and applaud Gen. Jackson for disregarding it. It would be interesting for him to look over his recent speech, and see how exactly his fierce philippics against us for resisting Supreme Court decisions, fall upon his own head.”
At a later (July 10, 1858) speech in Chicago, Lincoln went even further in rejecting Douglas’s recent and opportunistic turn toward judicial absolutism. Lincoln protested that Douglas wanted Americans to regard the Dred Scott decision not only as settled law, but as sacrosanct.
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. [Laughter.] 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.
Indeed they do.