Bench Memos

150 Years Ago Today

One hundred fifty years ago today, President Lincoln signed into law a bill barring slavery in the federal territories. This important stroke for freedom was one of several actions that Lincoln took in furtherance of his sound understanding (set forth in his First Inaugural Address) that he was not obligated to accept the principles of the Dred Scott decision as binding on him as president. Lincoln, in brief, did not subscribe to the misguided myth of judicial supremacy.

I thank Andrew Hyman for calling this sesquicentennial anniversary to my attention, and, relatedly, I’m pleased to call attention to Andrew’s new law-review article, “The Due Process Plank,” which argues that the Republican Party’s 1860 platform does not support the doctrine of substantive due process.

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