The following is revised from an article first posted here on November 3, 2016.
Politics and the Supreme Court are much in the news today, as they were in 1858 when Abraham Lincoln debated Stephen Douglas for the U.S. Senate seat from Illinois. Issues have changed but more recent court decisions demonstrate that underlying themes have not. Perhaps we can, again, learn from Mr. Lincoln and his thoughts on the court.
Incumbent Senator Douglas had been contending in favor of “popular sovereignty,” the concept that inhabitants of a territory should choose for themselves whether to allow slavery or not during the process of becoming a state. The federal government could not and should not interfere with this will of the people while citizens of existing states had no say. Douglas promised that this approach would bring the nation together in an acceptable compromise, putting an end to “slavery agitation,” allowing the nation to grow and prosper in peace.
But, countered Lincoln, this question of choice had already been settled the previous year by the Supreme Court in the Dred Scott decision. Scott sued for freedom on the basis that he had traveled with his master and resided temporarily in a northern state and later in a territory where slavery was illegal, thus nullifying his status as a slave. Similar suits had been successful in Missouri state courts where Scott and his owner then lived. The state court ruled in favor of Scott, but the politics were heating up. Scott’s owners contested vigorously; the case was elevated to the Supreme Court.
The court concluded (7-2) that Scott remained a slave because Negroes were not citizens and had no status to sue in federal court. If he had followed tradition that the court should settle cases on the narrowest possible basis, Chief Justice Roger B. Taney would have left it at that, but chose instead to write an expansive decision, which he intended to stand as the final declared solution to the broader political problem.
Taney specified that the Constitution permitted neither Congress nor territorial legislatures to exclude slaves—as property—from any territory. In so doing, he declared the Missouri Compromise of 1820—which banned slavery in the western territories above a line at 36°30? north—unconstitutional. All territories thus were opened to the possibility of slavery, including those previously closed. (The finding did not specify whether the Constitution permits an existing state or the people of a state to exclude slaves as property.)
Senator Douglas wholly supported the decision—necessarily to retain political support in the South. But to Lincoln, the court’s conclusion represented one-sided freedom and therefore not freedom at all, “The Judge is not sustaining popular sovereignty [by supporting Dred Scott], but absolutely opposing it,” be said, The decision, “does allow the people of a Territory to have slavery if they want to, but does not allow them not to have it if they do not want it.”
The logical conclusion, continued Lincoln: “Any one man may take slaves into a Territory, and all the other men in the Territory may be opposed to it, and yet by reason of the Constitution [as interpreted by the court] they cannot prohibit it. When that is so, how much is left of this vast matter [of choice by popular sovereignty], I should like to know?”
The other primary parties to the transaction, the slaves themselves, had no legal capacity to choose (not that their selection would be in any doubt could they express it). Douglas just ignored or argued around these inconsistencies.
In Dred Scott, therefore, the Supreme Court extrapolated a right from the Constitution, a right claimed by a vocal minority but not explicitly stated therein (a right of property in slaves), and explicitly expanded that right into areas where it had not universally applied (the territories). The declared right was allegedly justified by previous legislation and judicial precedent (certain references in the Constitution, fugitive slave laws), but the extended application was opposed by other existing laws and decades of precedent (Northwest Ordinance, Missouri Compromise), which the court declared null and void.
The right also was opposed by a large portion of the people as inimical to foundational moral principle, while the extended application was opposed as an incorrect interpretation of the Constitution. The right and its application limited the prerogatives of many citizens; it could (by advancing a competing form of labor) directly degrade other rights of citizens and might limit their ability to lawfully advance their own interests.
What alternatives remained for those adversely affected, and for those who believed the decision wrong and destructive to all concerned? These are common issues applying no less intensively and with no less moral weight to court decisions of our own times. How much is left of this vast matter of choice?
Douglas chastised his opponent for daring to oppose the Dred Scott decision, saying that he might advance a contrary opinion before the decision, but afterwards must abide by it, and to do otherwise was inciting dissention, radicalism, and violence.
But contrary or apparently contrary decisions had been made by the court before, Lincoln observed. This one is based upon falsehood in the main as to the facts, and no decision made on any question—particularly under such unfavorable circumstances—had been held as settled law without confirmation in legislative law. In other words, the court had been wrong before, and it should not legislate.
“The falsehood in fact is a fault of the premises. I believe that the right of property in a slave is not distinctly and expressly affirmed in the Constitution, and Judge Douglas thinks it is.” However one derives a right of property from the Constitution, a human being cannot be property. He could not speak of Negroes in the same category as horses and cattle.
The decision also was based on faulty analysis, as Lincoln would brilliantly expound in his Cooper Union address of 1860: the historical record showed that congress certainly could limit slavery, and had deliberately exercised that prerogative by banning it in the Northwest Territory.
Lincoln quoted a letter written by Thomas Jefferson in 1820: “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.”
But, Lincoln said, “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…. He would make it a rule of political action for the people and all 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.”
Although he disagreed with the court’s finding—that Scott remained a slave—the future president would accept it, for now. He would not, however, universalize the proposition; he certainly would not extend it to justify the extension of slavery into the territories. The court also could not take upon itself the authority to nullify the Missouri Compromise, an act of Congress that most people held to be settled law.
Recent court decisions are subject to the same scrutiny. They might be considered gospel among adherents insisting that all opponents, public and private, abide by them uncritically under all circumstances despite what many consider questionable logic, doubtful premises, and arguable faults. Those presenting counter arguments or advocating alternatives must be “inciting dissention, radicalism, and violence.” Citizens can be subject to prosecution and punishment for any actions not in active, overt conformance regardless of adverse effects on persons, families, communities, and the collective conscience of the nation.
When Lincoln said that the nation could not endure half slave and half free, that it would become all one thing or all the other, he had in mind a mechanism that could decide the issue quickly: “We may, ere long, see…another Supreme Court decision, declaring that the Constitution of the United States does not permit a State to exclude slavery from its limits…. Such a decision is all that slavery now lacks of being alike lawful in all the States. Welcome or unwelcome, such decision is probably coming, and will soon be upon us….”
He saw nothing in the language or logic of the Dred Scott findings to preclude the extension of an abominable decision, and much to endorse it. In the case of Dred Scott and slavery, and because we know what happened, this outcome seems farfetched to us now. Douglas said the court would never do such a thing, without stating why. But given the administration then in power, the mixed feelings of the public, and the makeup of the court, Lincoln feared that it was not only possible but probable. From the perspective of 1858, that seems a perfectly logical conclusion.
Dred Scott is usually considered the worst decision in the history of the Supreme Court: It further legitimized a reprehensible concept; it mandated a highly controversial interpretation of traditional morality and civic definitions of duty; it disturbed a long history of common understandings among the people. It was overturned by bloody war and the Thirteenth Amendment.
Similar controversy continues to swirl around the court today and its role in interpreting—as opposed to legislating—law. What is there in the language or logic of recent decisions precluding subsequent decisions extending and expanding them despite the controversies they provoke, and in the absence of—or even in the face of—countervailing legislation passed by majority rule of elected representatives? What alternatives remain for those adversely affected, and for those who believe a decision wrong and destructive to all concerned? How much is left of this “vast matter of choice”?
Those of us who are not constitutional lawyers or scholars—and befuddled by the complexities thereof—are compelled to fall back on the simplicity of common sense. Abraham Lincoln epitomizes common sense. He found the premises, logic, historical analysis, and moral implications of the Dred Scott decision severely wanting; he believed that the court had acted far beyond its mandate in the Constitution. He would oppose Dred Scott and seek to overturn it by all legal means. As noted by Jefferson, members of the Supreme Court are fallible humans, always vulnerable to such errors.
The debates continue.
Allen C. Guelzo, Lincoln and Douglas: The Debates That Defined America (New York: Simon and Schuster, 2008).
Harry V. Jaffa, Crisis of the House Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates, 50th Anniversary Edition (Chicago: University of Chicago Press, 2009).
Michael J. Sandel, Democracy’s Discontent: America in Search of a Public Philosophy, (Cambridge: The Belknap Press of Harvard University Press, 1996).
 Lincoln, “Speech At Springfield, July 17, 1858,” in The Complete Papers and Writings of Abraham Lincoln: Constitutional Edition (Complete Seven Volumes), ed. Arthur Brooks Lapsley (Kindle edition) (Hereafter cited as Complete Papers.); Lincoln, “First Joint Debate At Ottawa, August 21, 1858,” Complete Papers.
 Lincoln, “Speech At Chicago, July 10, 1858,” Complete Papers.
 Lincoln, “Fifth Joint Debate At Galesburgh, October 7, 1858,” Complete Papers.
 Lincoln, “Speech At Springfield, July 17, 1858,” Complete Papers.
 Lincoln, “Speech At Chicago, July 10, 1858,” Complete Papers; Lincoln, “Speech At Springfield, July 17, 1858,” Complete Papers.
 Lincoln, “Speech At Springfield, June 17, 1858,” Complete Papers.