Bench Memos

Blankenhorn Loses the Argument, Changes the Subject

David Blankenhorn is back.  He now says that in his original foray into history, he “understated the degree and persistence of Lincoln’s opposition” to the Dred Scott decision  Well, he is rather too kind to himself.  He did not just understate.  He got every single factual assertion he made about Lincoln and Dred Scott dead wrong, so wrong that he painted a portrait of Lincoln that was the polar opposite of the truth.  This I demonstrated beyond dispute last week.  Hadley Arkes the next day delivered the coup de grace.  Oh, but now, unable to deny that he got absolutely everything wrong about Lincoln, he says that my post here reminded him of a “preacher rummaging through the Bible” for evidence to support his preordained conclusion.  Freud called this projection, I believe.

Blankenhorn’s Lincoln just isn’t Lincoln.  So he changes the subject.  We who oppose the constitutional atrocity of Obergefell (and call on our fellow citizens to join us) are now likened to the massive resisters of the Jim Crow South after Brown v. Board of Education.  So hard must Blankenhorn strain to employ this simile that he spins out a bizarre hypothetical in which federal troops are supposed to be forcing Idaho to issue marriage licenses after the state legislature has eliminated the offices that now issue them.  (Just wait until ol’ Snuffy Smith loads up his scattergun and goes after them revenooers too . . . )  Sorry, Mr. Blankenhorn.  We won’t wear the Klan hoods to justify your disgraceful blood-soaked calumnies.  As Lincoln said at Peoria in 1854:

Stand with anybody that stands RIGHT. Stand with him while he is right and PART with him when he goes wrong. Stand WITH the abolitionist in restoring the Missouri Compromise; and stand AGAINST him when he attempts to repeal the fugitive slave law. In the latter case you stand with the southern disunionist. What of that? you are still right. In both cases you are right. In both cases you oppose the dangerous extremes. In both you stand on middle ground and hold the ship level and steady.

It is true that rejecting the falsehood of judicial supremacy holds out the prospect that sometimes those who challenge the Supreme Court will be wrong to do so.  Will Blankenhorn admit that judicial supremacy carries its own risks, to the Constitution, the rule of law, republicanism, and justice?  Would he like to explain why all those risks have not been realized in the present case?

Mr. Blankenhorn a while back decided to (re-)align himself with the aggressors in the culture wars.  Now that those aggressors have achieved a five-vote victory in the Court to traduce the Constitution, and while they go on to employ coercive state power against Kim Davis, Barronelle Stutzman, Elaine Huguenin, and Catholic Charities, Blankenhorn takes his stand with Stephen Douglas and insists on the most unquestioning, rigid obedience to the mythical “principle” of judicial supremacy.  Even such an establishment figure as Chief Justice Roberts said in his Obergefell dissent that the majority had an “extravagant conception of judicial supremacy,” while Justice Alito remarked that the ruling showed that “decades of attempts to restrain this Court’s abuse of its authority have failed.”  Are these men “extremists” and enemies of the Constitution?  We who have called on our fellow Americans to oppose and resist Obergefell can find good company in our own day, it seems, not just in the 1850s. 

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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