Bench Memos

David Blankenhorn’s Lincoln: Bent, Folded, Mutilated

At The American Interest, David Blankenhorn tries to repossess Abraham Lincoln from a group of scholars (among whom I proudly count myself) who have invoked the Great Emancipator by denouncing the Supreme Court’s Obergefell decision as lawless, and called on public officials and candidates to treat it in the same way.  (We also call on our fellow Americans to join us.)  The precise issue between Blankenhorn and us is whether we can in fact claim Lincoln, as we make our argument that a Supreme Court ruling on a contested question is not the last word on the law of the land, and needn’t be treated as obligatory on other officials who take an oath to obey the Constitution.  Here Blankenhorn stakes out his position:

My own view is that the Supreme Court is and must remain our final arbiter regarding the Constitution’s meaning, the only exceptions being the processes of Constitutional amendment and the Court itself overturning previous decisions. Consequently, I do not believe that elected officials can lawfully choose to ignore decisions of the Supreme Court. . . .

. . . I reject as an appeal to lawlessness the astonishing claim made by the “Call to Action” scholars that U.S. citizens and officials are at liberty under our Constitution to defy the Supreme Court, provided that they have personally decided, as these scholars have, that the Court’s findings lack compelling reasoning and are without warrant in the Constitution. But I reject even more the hijacking of Abraham Lincoln to make this dubious argument, and now I’d like to try to explain why.

Blankenhorn’s attempt to reclaim Lincoln from his putative “hijacking” is only as good as his evidence from Lincoln’s words and deeds—and only as good as Blankenhorn’s inferences from that evidence.  But it is Blankenhorn who is guilty of misreading Lincoln.

He begins his case thus:

Here is Lincoln in a campaign speech in July of 1856, a few months prior to the Dred Scott decision: “The Supreme Court of the United States is the tribunal to decide such questions [the constitutionality of laws on slavery], and we [Republicans] will submit to its decisions; and if you [Democrats] do also, there will be an end of the matter.”

From this, Blankenhorn concludes that at this time Lincoln “assert[ed] without qualification his view that the Supreme Court is the final arbiter” of constitutional questions. 

Our critic may have known the great Lincoln scholar David Donald, but he has not studied Lincoln himself closely enough.  While that report of a Lincoln speech appears in the Collected Works, it is a dubious account.  Even the reporter says of it that he was “re-producing from memory”—not from stenography—something that he heard Lincoln say.  And four years later, confronted with this report, Lincoln repudiated it!  In an autobiography he prepared for a Chicago journalist writing a campaign biography in 1860, Lincoln said of himself (in the third person):

In the canvass of 1856, Mr. L. made over fifty speeches, no one of which, so far as he remembers, was put in print. One of them was made at Galena [the very one on which Blankenhorn relies], but Mr. L. has no recollection of any part of it being printed; nor does he remember whether in that speech he said anything about a Supreme court decision. He may have spoken upon that subject; and some of the newspapers may have reported him as saying what is now ascribed to him; but he thinks he could not have expressed himself as represented.

He “thinks he could not have expressed himself as represented.”  To what representation of his views could Lincoln have been objecting?  It could only be the claim that he had said Supreme Court decisions settle all constitutional questions and that he and his party “will submit to its decisions.”  That is because Lincoln had spent the previous three years insisting that the Dred Scott ruling must be resisted.  Not just criticized, but actively resisted.

Even Blankenhorn concedes that Dred Scott “seems to have caused Lincoln to rethink his position.”  He evidently does not know that Lincoln effectively claimed never to have stated the position Blankenhorn attributes to him!  Perhaps Lincoln said what was reported at Galena in 1856, or said something close to it.  Then he either forgot having said it, or had a real change of mind and wanted (dishonestly) to deny a flip-flop.  But whatever the truth of what he said at Galena, everything he said from Dred Scott onward was consistent and coherent.  But not to David Blankenhorn, who after a few partial quotations writes this:

If any reader can derive from these statements a coherent position—much less a clear statement of principles—about the Supreme Court generally or the Supreme Court in light of Dred Scott, that reader is more capable than I am.

Let’s try to pull the threads together as best we can. . . .

Blankenhorn, alas, pulls nothing together but what he wants to find.  His Lincoln is no “extremist” like the scholars’ group Blankenhorn condemns.  Why, he’s a “decidedly non-dogmatic man” who just wanted to criticize the Dred Scott ruling as “erroneous,” and somehow persuade the Supreme Court to change its mind, while paying “very high respect” to it and offering “no resistance.”  Most importantly, Blankenhorn says, Lincoln did none of the following “extreme” things (these are Blankenhorn’s bullet points):

  • He did not say (as our scholars say he did) that what he or others view as an erroneous decision of the Supreme Court is not binding on anyone except the parties to the dispute.
  • He did not say (as our scholars do, in his name) that Americans should rise up against “lawless judges” and “refuse to accept judicial edicts” which they find offensive or believe to be unconstitutional.
  • He did not say (as our scholars do, in his name) that under our Constitution, U.S. elected officials may lawfully defy rulings of the Supreme Court with which they disagree.

But in fact, Lincoln did say every single thing that Blankenhorn here denies he said.  First, in a fragment of notes that the Collected Works editors date to probably January 1857—two months before the decision—Lincoln jotted this rumination on the position he expected Douglas to take:

It affirms that, whatever the Supreme Court may decide as to the constitutional restriction on the power of a territorial Legislature, in regard to slavery in the territory, must be obeyed, and enforced by all the departments of the federal government.

Now, if this is sound, as to this particular constitutional question, it is equally sound of all constitutional questions; so that the proposition substantially, is “Whatever decision the Supreme court makes on any constitutional question, must be obeyed, and enforced by all the departments of the federal government.”

Again, it is not the full scope of this creed, that if the Supreme court, having the particular question before them, shall decide that Dred Scott is a slave, the executive department must enforce the decision against Dred Scott. If this were its full scope, it is presumed, no one would controvert it’s correctness. But in this narrow scope, there is no room for the Legislative department to enforce the decision; while the creed affirms that all the departments must enforce it. The creed, then, has a broader scope; and what is it? It is this; that so soon as the Supreme court decides that Dred Scott is a slave, the whole community must decide that not only Dred Scott, but that all persons in like condition, are rightfully slaves.

It could hardly be clearer that the position Lincoln is preparing himself to criticize is . . . David Blankenhorn’s position today.

In his momentous speech on Dred Scott in Springfield on June 26, 1857—a speech Blankenhorn selectively quotes—Lincoln said this:

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.

The following year, as he prepared for his debates with Stephen Douglas in the 1858 Senate campaign, Lincoln prepared notes for himself in which he said, “Some of us refuse to obey this decision as a political rule.”  In Chicago, on July 10, 1858, he said this:

I have expressed heretofore, and I now repeat, my opposition to the Dred Scott Decision, but I should be allowed to state the nature of that opposition, and I ask your indulgence while I do so. What is fairly implied by the term Judge Douglas has used “resistance to the Decision?” I do not resist it. If I wanted to take Dred Scott from his master, I would be interfering with property, and that terrible difficulty that Judge Douglas speaks of, of interfering with property, would arise. But I am doing no such thing as that, but all that I am doing is refusing to obey it as a political rule. If I were in Congress, and a vote should come up on a question whether slavery should be prohibited in a new territory, in spite of that Dred Scott decision, I would vote that it should. . . .

What are the uses of decisions of courts? They have two uses. As rules of property they have two uses. First—they decide upon the question before the court. They decide in this case that Dred Scott is a slave. Nobody resists that. Not only that, but they say to everybody else, that persons standing just as Dred Scott stands is [sic] as he is. That is, they say that when a question comes up upon another person it will be so decided again, unless the court decides in another way, unless the court overrules its decision. Well, we mean to do what we can to have the court decide the other way. That is one thing we mean to try to do.

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.  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.

Can anyone distinguish Blankenhorn’s position from Douglas’s?  Of course, like Lincoln, we who oppose Obergefell “mean to try” to get the Supreme Court to “decide the other way.”  But how are we to do that, if we treat the ruling as the unquestioned law of the land and take no active steps to act on the opposite understanding?

Here is Lincoln one week later in Springfield:

I am opposed to that decision in a certain sense, but not in the sense which he puts on it. I say that in so far as it decided in favor of Dred Scott’s master and against Dred Scott and his family, I do not propose to disturb or resist the decision.

I never have proposed to do any such thing. I think, that in respect for judicial authority, my humble history would not suffer in a comparison with that of Judge Douglas. He would have the citizen conform his vote to that decision; the Member of Congress, his; the President, his use of the veto power. 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.

Repeatedly in the course of the seven debates with Douglas, Lincoln asserted the nonbinding character of the Dred Scott ruling.  In the first debate, Ottawa, August 21: “It is nothing that I point out to [Douglas] that his great prototype. Gen. Jackson, did not believe in the binding force of decisions. It is nothing to him that Jefferson did not so believe.”

In the second debate, Freeport, August 27, Lincoln framed his famous “Freeport questions,” demanding Douglas’s answers.  The third one was this: “If the Supreme Court of the United States shall decide that States can not exclude slavery from their limits, are you in favor of acquiescing in, adopting and following such decision as a rule of political action?”  The clear implication is that Lincoln would not so acquiesce, and he wants to put Douglas on the spot, as a putative supporter of both local majority rule and Dred Scott.

At Carlinville, Illinois, August 31: “Douglas demands that we shall bow to all decisions. If the courts are to decide upon political subjects, how long will it be till Jefferson’s fears of a political despotism are realized?”

In the sixth debate, Quincy, October 13:

Judge Douglas also makes the declaration that I say the Democrats are bound by the Dred Scott decision while the Republicans are not. In the sense in which he argues, I never said it; but I will tell you what I have said and what I do not hesitate to repeat today. I have said that as the Democrats believe that decision to be correct and that the extension of slavery is affirmed in the National Constitution, they are bound to support it as such; and I will tell you here that General Jackson once said each man was bound to support the Constitution “as he understood it.” Now, Judge Douglas understands the Constitution according to the Dred Scott decision, and he is bound to support it as he understands it. I understand it another way, and therefore I am bound to support it in the way in which I understand it.

The following year, stumping for local candidates in Ohio, here is Lincoln at Columbus, September 16, 1859:

This Dred Scott decision says that the right of property in a slave is affirmed in that Constitution, which is the supreme law of the land, any State Constitution or law notwithstanding. Then I say that to destroy a thing which is distinctly affirmed and supported by the supreme law of the land, even by a State Constitution or law, is a violation of that supreme law and there is no escape from it. In my judgment there is no avoiding that result, save that the American people shall see that Constitutions are better construed than our Constitution is construed in that decision. They must take care that it is more faithfully and truly carried out than it is there expounded.

Running for president in 1860, Lincoln had to confront the accusation (lodged against him by Douglas in language almost identical to Blankenhorn’s against his opponents) that he was advocating lawlessness.  He addressed himself to southerners at Cooper Union on February 27: “do you really feel yourselves justified to break up this Government, unless such a court decision as yours is, shall be at once submitted to as a conclusive and final rule of political action?”  There is no doubt that Lincoln was reaffirming his refusal to submit his own constitutional judgment in this way.

The above should suffice to render quite clear what seems incoherent in Lincoln to David Blankenhorn, and to interpret the meaning of what Lincoln said in his first inaugural address, which our critic has read but not understood:

[T]he 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.

And what did Lincoln actually do, as president, to make good on asserting the people’s right to govern themselves when they disagree with the Supreme Court?  He treated free blacks as citizens—instructing the executive branch to grant them patents and passports—in defiance of the Dred Scott ruling that they were not to be considered citizens.  And he signed an act of Congress in 1862 outlawing slavery in all the territories, the exact same kind of legislation the Court had proclaimed unconstitutional.

Judicial supremacy may be David Blankenhorn’s dogma.  But it plainly was not Abraham Lincoln’s.  And we who reject it today may rightly claim to uphold the banner of the Great Emancipator.





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