By Josh Hammer
The first president elected under the partisan banner of the modern Republican Party, Lincoln is naturally remembered most fondly (by most, that is, except for perhaps a few “Lost Cause” Ron Paul-style pseudo-secessionists and now some Breitbart.com comment section “alt-right” types) for his dual victories in both preserving the Union and in defeating one of the greatest moral injustices in our nation’s history—that of chattel slavery.
What is perhaps less frequently noted is that one of the particular means Lincoln invoked to achieve his ends was a relentless assault on the legitimacy of the U.S. Supreme Court to not merely render idiosyncratic judgments as it pertains to the litigants in the suit properly before it, but to authoritatively settle political issues for the broader republic. In his famous 1858 debates with Stephen Douglas, Lincoln repeatedly rejected this fallacious doctrine of judicial supremacy and, concomitantly, the validity of Chief Justice Roger Taney’s monstrously inhumane decision the year prior, in Dred Scott v. Sandford; it was Douglas who was forced to resort to majoritarian pleas for “popular sovereignty” and “the will of the people” in the western territories, and who repeatedly slandered Lincoln as being dangerous and lawless.
Upon his ascendance to the White House, Lincoln turned his doctrinal convictions into presidential practice. Here was the Great Emancipator, outlining what today we would call a constitutional interpretive theory of departmentalism, in his First Inaugural Address:
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.
In challenging the binding supremacy of judicial authority, Lincoln, of course, was only channeling the likes of James Madison—who wrote in The Federalist No. 49 that “[t]he several departments being perfectly coordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers”—and Thomas Jefferson—who wrote in an 1804 letter to Abigail Adams that “[to] give[ ] to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature and executive also, in their spheres, would make the judiciary a despotic branch.”
Does the object of Lincoln’s scorn seem particularly relevant today, in the aftermath of Brexit? As the mercurial “swing justice” (increasingly just a mainstream progressive jurist, if you actually break down his recent term voting) Anthony Kennedy once again demonstrated in this morning’s abortion travesty, it should:
In 1973, the U.S. Supreme Court, under precisely the same “substantive due process” doctrinal guise that Taney invoked in Dred Scott one hundred and sixteen years prior, declared in Roe v. Wade a constitutional right to deprive an entire sub-class of human beings of their natural right to life. As Princeton’s iconically conservative Professor Robert P. George and Erick alike have argued over the years, the substantive arguments for unfettered abortion access today look a lot like the arguments for slavery that the likes of Stephen Douglas and Roger Taney advanced back in the 1850s. It is increasingly imperative that conservatives channel the spirit of Lincoln and reject these fundamentally illegitimate rulings, which, like the Obergefell v. Hodges same-sex marriage decision last term, all purport to rest on the same baseless exegetical grounds: namely, that the anodyne words “due process of law” in Section 1 of the Fourteenth Amendment text magically transmogrify the Supreme Court justices into a de facto oligarchical super-legislature.
Except the justices cannot form a de facto super-legislature if we do not acquiesce to it, because judicial supremacy is a fundamentally illegitimate doctrine. It is neither required by the constitutional text nor supported by the basic constitutional structure. I noted as much here, two months ago, in opining on a pro-life bill that the Oklahoma Legislature had passed:
While the legislation’s mechanical approach via medical profession regulation is indeed novel, there is not a particularly strong argument that such a de facto total abortion ban would survive a simple judicial application of Roe v. Wade and Planned Parenthood v. Casey. But here is the catch: **Oklahoma legislators do not, and should not, care****. The myth of judicial supremacy—under which the constitutional prognostications of a bare majority of the U.S. Supreme Court are equated with the Constitution itself and thus trigger Article VI’s Supremacy Clause—is both textually and structurally specious. To the extent many erroneously think such judicial supremacist sentiment is required by the landmark 1803 case of Marbury v. Madison, that is demonstrably false.
The legislators of the State of Oklahoma take an oath to (amongst other things) “support, obey, and defend the Constitution of the United States”—not to support, obey, and defend the Constitution as it is interpreted (or egregiously misinterpreted, as happened in Roe and Casey) by a bare majority of the U.S. Supreme Court. Such political tugs-of-wars between the federal government’s branches, and indeed as between federal and state governments, is how the ultimate question of who interprets the Constitution has historically been settled. There is nothing at all inherently wrong with passing legislation that violates current U.S. Supreme Court precedent, so long as fellow constitutional actors—here, Oklahoma state legislators—earnestly believe they are acting soundly within the confines of the Constitution as they independently construe it, in accordance with their oaths of office.
In the aftermath of today’s deep disappointment regarding Texas’s landmark 2013 pro-life law, fellow States would be well-suited to follow this advice and consider the ruling non-binding for their own purposes. Texas was a party to the suit, so it is in perhaps a trickier situation—but that is not the case for the other 49 States, many of which are dominated by Republican-held legislatures and governor mansions. Political actors swear a duty to uphold and defend the Constitution of the United States—not the Constitution as it is perversely distorted by a majority of sitting U.S. Supreme Court justices.
Here was Professor George, earlier this year, writing at First Things on the anniversary of Roe:
Expressly rejecting the false doctrine of judicial supremacy in constitutional interpretation, the Great Emancipator defied the Dred Scott holding by treating free blacks as citizens (something the justices had said they could never be) and by promoting and signing into law an act of Congress restricting slavery in the federal territories.
Lincoln refused to treat an abusive and anti-constitutional edict of the Supreme Court as “the law of the land.” We would do well to emulate him, lest we (to use his words) “practically resign [our] government into the hands of that eminent tribunal.” Lincoln saw something that we must not fail to perceive today, namely, that what is at stake in a case like Dred Scott v. Sandford (and Roe v Wade) is not only the moral principle of the inherent and equal dignity of each and every member of the human family—the principle of the Declaration—but also the principle of republican government: government of the people BY and FOR the people.
In standing defiantly against the fundamentally lawless holding in Roe, and by insisting that those who aspire to high political office do likewise if they wish to have our votes, we are standing BOTH for the unborn and their human rights AND for constitutional self-government—the form of government that Benjamin Franklin famously said he and his fellow Founders had given us … “if you can keep it.”
As Ted Cruz himself noted in an interview with Professor George last December, it is long past due for conservatives to unite in rejecting judicial supremacy for the illegitimate self-aggrandizement that it is. It is a far more satisfying alternative to kowtowing to the thoroughly un-Lincolnian orange-hued fraudster who has hijacked our Party’s nomination, and who has proffered a list of possible Supreme Court judges that is just as ostensibly alluring as it is utterly irrelevant.
Today’s disastrous ruling highlights the stakes of this particular debate. Meanwhile, the Brexit debate highlights the importance of sovereignty and republican self-rule. Let’s reject judicial supremacy and regain our republic.
NOTE: For those interested, I recently wrote a somewhat lengthy paper on this precise topic of judicial supremacy—specifically, on the fallout of the debate in the aftermath of the ObergefellSupreme Court decision. I am attaching it here.