Dear friends:The issues we’ve joined are important. In your recent public statement and “Call to Action”, you declare that the recent Supreme Court decision holding that gay couples have the right to marry is “not the law of the land” and should not be treated as such by U.S. elected officials. You repeatedly cite the views of Abraham Lincoln to justify this assertion.My recent essay in The American Interest, “What Would Lincoln Do?”, challenges your argument and particularly seeks to make the case that it’s usually a bad idea to try to recruit Lincoln for contemporary partisan political duty. Several of you have thoughtfully responded, including Matthew Franck in National Review (“David Blankenhorn’s Lincoln: Bent, Folded, Mutilated”) and Hadley Arkes in The Public Discourse (“Recovering Lincoln’s Teaching on the Limits of the Courts—and Giving the News to David Blankenhorn”). I’ve also benefitted from lively exchanges on the topic with my friend Robert George on Facebook and from reading his earlier First Things essay, “Lincoln on Judicial Despotism.” I’m grateful for these replies and exchanges.From my perspective, here’s the nub of our disagreement: I believe that you are urging upon Americans an extremist idea in the name of a revered American who was the opposite of an extremist. By way of keeping our conversation going, let me try to explain—with respect—what I mean.An Extremist IdeaUnless I misunderstand you, your argument extends beyond Obergefell and beyond any particular Supreme Court ruling. You’re proffering a general proposition. You’re articulating a doctrine. You’re interpreting the Constitution. You assert that U.S. officials who sincerely believe that a Supreme Court ruling is unconstitutional (what you also call “lawless”) have both a legal right and a moral obligation to ignore that decision and to refuse to enforce it as public policy.I view this idea as extremist mainly because I’ve seen it up close, in my own life. I know how it looks, sounds, and feels in actual operation, and I know what it can lead to, not to exclude violence.In May 1954, about a year before I was born, the largest newspaper in my home state of Mississippi ran a front-page editorial entitled “Bloodstains on White Marble Steps.” The topic of the editorial was the just-announced U.S. Supreme Court decision in Brown v. Board of Education, in which the Court, overturning a previous Court ruling, declared racial segregation in U.S. public schools to be unconstitutional. Elected officials in Mississippi overwhelmingly viewed the Brown decision itself as unconstitutional, or, as they repeatedly put it, “unlawful”, and the editors of the Jackson Daily News agreed, announcing plainly that “Mississippi will not and cannot try to abide by such a decision.” And then they made this prediction: “Human blood may stain Southern soil in many places because of this decision. . .”The prediction turned out to be true. When I was seven years old, in the fall of 1962, with Mississippi’s schools still segregated, the state governor, Ross Barnett, went on television and radio across the state to denounce Brown v. Board of Education in unflinching language—language, in fact, that might be familiar to you—and to rally public support for the doctrine of “interposition”, which stipulates that a U.S. state can lawfully prevent the enforcement of a Federal judicial edict that the state’s leaders and citizens consider to be unconstitutional. Barnett said: “We must either submit to the unlawful dictates of the Federal government or stand up like men and tell them, never!”Toward that end of “standing up like men”, the governor urged his fellow Mississippians to gather in Oxford, Mississippi, the site of the University of Mississippi, to prevent by any means necessary the enforcement of the unlawful judicial decree. Mississippians responded, and on the night of September 29, 1962, two people were killed and over 300 were injured in what amounted to a state-sponsored riot instigated by the governor’s repeated calls to the public to oppose what he viewed as judicial despotism.At the level of constitutional reasoning, it strikes me that what you are calling upon American officials to do today is precisely what Ross Barnett and other Mississippi leaders actually did in 1962. If I’m wrong in this assumption, please correct me.Let’s consider a hypothetical. What if the governor of, say, Idaho, tomorrow ordered the closure of every County Recorder’s Office in the state, on the grounds that having no such agencies at all is preferable to submitting supinely to unconstitutional Federal coercion? You may or may not favor such an action on prudential grounds, but as constitutional reasoning, isn’t such an action of defiance a good example of what you’re arguing that U.S. officials today have every legal right and moral obligation to carry out? (Virginia county officials who in 1959 closed their public schools rather than obey what they sincerely viewed as an unconstitutional Supreme Court order to integrate them certainly saw things exactly this way.)Or what if the state of, say, Arizona tomorrow simply refused to issue marriage licenses to gay couples? And what if, in such a situation, the Federal government were to respond by sending troops to Arizona to make sure that gay couples could get marriage licenses? And if that were to happen, what if the aggrieved citizens of Arizona were to decide to arm themselves and gather in the state capitol to defend, by force if necessary, the true meaning of the U.S. Constitution?Whose side should we be on? The side of the Federal government, which, by your lights, would be seeking to impose a blatantly unconstitutional, illegal act on the people of Arizona? Or should we stand with the people of Arizona who are willing, if necessary, to give their lives for the principle of self-government and the protection of the Constitution?It doesn’t help matters to say, as several of you have said, that while you’d support the state’s right to abrogate the Court’s decision, you would not personally counsel violence as a method of resolving the dispute. It doesn’t matter what you would counsel. Plenty of people counseled Ross Barnett against violence. Plenty of people counseled against the attack on Fort Sumter in 1861, which the attackers also justified on the basis of their sincere interpretation of the Constitution—an interpretation, moreover, that bears remarkable similarities to your own.What matters is not your view of violence, but the political structure of the situation. When our last, best procedures for resolving deep conflict are unilaterally declared by one or both sides to be legally inoperative because unconstitutional, we know from our history that what often emerges to take the place of politics is violence or threats of violence, despite counsel to the contrary. In other words, what is structurally decisive in such situations is an interpretation of the Constitution—which in my understanding is your interpretation—that might as well have been designed to produce irresolvable conflicts, which in turn often lead to violence. Ultimately, it’s an interpretation of the Constitution that allows some of us to declare the legal right and obligation to take the law into our own hands, thereby effectively substituting disorder for order and force for argument in our political life.It’s therefore no coincidence, as the Marxists used to say, that this idea—whether it’s called nullification, interposition, states rights, or opposition to judicial despotism—is so closely linked historically to politically motivated and inspired violence. It’s the idea that led to state-sponsored violence against Cherokees and Christian missionaries in Georgia in the 1830s, when Georgia and the U.S. Supreme Court could not agree on the legality of a Supreme Court decision; precipitated the threat of a Federal military invasion of South Carolina in 1833 during the so-called “Nullification Crisis”; ripped the country into two and led to a devastating Civil War in the 1850s and 1860s; and helped to facilitate, and was used to justify, a terrible stream of violence and brutality in the South in the 1950s and 1960s.That’s what I mean, and all I mean, by describing what you appear to be advocating as an “extremist” idea. It has nothing to do, in my mind, with my substantive disagreement with you on gay marriage. And I don’t mean (simply) that what you’re advocating is a minority or currently unpopular constitutional view. I hold minority views myself. I mean that what you call for has the proven potential to split Americans apart, possibly irrevocably, and to lead, as my hometown newspaper aptly put it, to blood on our soil.In Lincoln’s Name Our exchanges have convinced me that, in my essay, I understated the degree and persistence of Lincoln’s opposition to the Dred Scott Supreme Court ruling of 1857, in which the Court infamously held that African Americans cannot be citizens and that Congress had no power to exclude slavery from the territories. Lincoln detested that decision and viewed it as a threat to the country. The decision shook his faith in an impartial judiciary. He wanted it overturned.More to your point, he refused to accept Dred Scott as a fixed guide to public policy (a “political rule”) for the United States. And by 1862, notwithstanding the absence of either a Constitutional amendment or a reversal of the decision by the Court, Dred Scott as public policy had been effectively nullified by a combination of Lincoln’s leadership, Congressional action, and the exigencies of the Civil War. In my essay, I should have emphasized these points more forthrightly.I also now recognize that, from your perspective, it’s important for us to acknowledge that ignoring or abrogating a Supreme Court decision is not always and certainly not necessarily done for purposes (such as racial segregation) that most Americans today abhor, but can also be done for purposes (such as opposition to slavery) that nearly all Americans today revere. Point taken.At the same time, I believe that your attempt to recruit Lincoln as a spokesperson, symbol, and political champion for the revival of the doctrine of interposition as applied to today’s culture wars is significantly weakened by three important considerations.Chaos and Violence Don’t Teach Us Much About Preventing Chaos and ViolenceThe main American story in the middle and late 1850s is the nation’s rapid slide toward violence and civil war. Substantively, the main cause of the slide was slavery. Constitutionally, the main cause was the breakdown of the only established procedures through which, under our Constitution, painful disagreements among us can be peaceably managed. The Kansas-Nebraska Act of 1854, which repealed the Missouri Compromise, was a terrible blow to the idea that Congressional compromise can avert civil war. The Dred Scott decision of 1857, arguably the worst Court decision in our history, was a second terrible blow, this time aimed at the very idea of an impartial, rational judiciary.During these years things fell apart; the center could no longer hold; force replaced argument; defiance replaced accommodation. What Lincoln later called the better angels of our nature seemed to desert us. Lincoln struggled under these terrible circumstances with wisdom and courage and skill, but neither he nor anyone could stop the nation’s descent into disorder and violence.Is there really much of anything about Dred Scott, up to and including Lincoln’s response to it, that we should embrace today as a lasting guideline for how to live together peaceably under our Constitution? I don’t think so. I doubt that Lincoln would think so either. The national breakdown of which Dred Scott was both a result and a cause does not demonstrate for us the living how to protect our Constitution. More the opposite.Lincoln Did Not Have a Clear-Cut Doctrine of the JudiciaryIn your replies, you seem to suggest that nearly everything Lincoln ever said about the judiciary adds up to one big and crystal-clear idea, which is principled opposition to what you call “judicial despotism” or the doctrine of “judicial supremacy.” For example, Matthew Franck in his article has compiled many sentences from Lincoln’s speeches and excerpts from Lincoln’s notes to himself and from various other documents. He has drawn detailed exegetical conclusions, inferences, and deductions from these various pieces of text, all in support of his one big thesis about Lincoln’s doctrine of the judiciary.This intellectual method reminds me of a preacher rummaging through the Bible in search of any word, any verse, any interpretation or inference that can help him to reach the conclusion that, at the beginning of his inquiry, he most ardently desired to reach. I question this approach and this conclusion.If Lincoln did aim to articulate a particular, distinctive doctrine regarding the Supreme Court, as you seem to think that he did, what was the name of that doctrine? As you know, when Calhoun and others walked down this same philosophical road, they wrote long constitutional treatises explicating the doctrine of “nullification.” In later years Strom Thurmond, James J. Kilpatrick, Ross Barnett and others embraced and explained at length the related doctrine of “interposition”, which, as I’ve said, seems to me to be the doctrine that you’re embracing in your statement and “Call.”What did Lincoln name his doctrine? Or, for that matter, the doctrine he opposed? In my view, Lincoln didn’t name or clearly define his constitutional doctrine on this subject because he didn’t have one. Let me here repeat that I agree with you that Lincoln refused to defer to the Supreme Court regarding Dred Scott as public policy. That’s an important fact. But I’m hardly alone in arguing that Lincoln, in this as in other areas, was much more pragmatic that doctrinal.For example, unlike some other leading Republicans such as Salmon P. Chase, Lincoln throughout the 1850s accepted, notwithstanding his personal preferences, the constitutionality of the Fugitive Slave Law. In late 1860, as President-elect, he also proposed the repeal of personal-liberty laws in Northern states that had been passed in order to thwart that widely despised Federal statute. Yet only a few months later, with the U.S. law still in force, Lincoln as President refused to enforce it, thus allowing many slaves mainly from the South but also (and this was obviously more problematic for Lincoln) from loyal border states to attain their freedom by fleeing to Federal army camps. What does this narrative tell us about Lincoln’s constitutional doctrine? Perhaps something, but surely not very much.Similarly, what do Lincoln’s wartime measures effectively repudiating the Dred Scott decision—such as issuing legal documents to African Americans and supporting restrictions on slavery in the territories—tell us about Lincoln’s overall philosophy of the judiciary? The answer again is something, but not very much. Lincoln’s overwhelming priority was to win the war. The effort by us today to extract from his conduct during these months an abstract constitutional doctrine, sufficiently detachable from historical circumstance to be usable off the shelf for whatever current dispute is troubling us, is unlikely to succeed.More broadly, it seems clear that Lincoln’s views on the judiciary changed over time (particularly after Dred Scott) in response to changing circumstances. A balanced view of what he said and did on this topic reveals a man who often equivocated, often seemed to want to things both ways, and often said things that were either contradictory or difficult to understand.Without trying to re-litigate past exchanges between us, let me offer just one example. Responding to the Dred Scott ruling, Lincoln in 1857 says that Supreme Court decisions on Constitutional questions “when fully settled” should control “the general policy of the country” and warns that any alternative to this principle would be “revolution.” Does that sound like a man calling for a wholesale overturning of established notions of judicial review? Or even a man calling for the nullification of a Court decision? And what, pray tell, does that obviously key phrase “fully settled” specifically mean?To the best of my knowledge, Lincoln never makes this clear. I don’t think he ever wanted to make it clear. Trying to save a nation that was tearing itself apart, Lincoln always wanted room to maneuver. He often quipped that “my policy is to have no policy”, and the Lincoln scholar David Donald memorably, and I believe accurately, wrote that Lincoln’s one dogma was an absence of dogma.The doctrinal purists and extremists within his own party—and there were many—never really trusted him. Many despised him. Lincoln’s feelings toward them, however, are revealing. He tells his secretary that these men are “utterly lawless” and “the unhandiest devils in the world to deal with”, but “after all their faces are set Zionwards.” They’re overly zealous and reckless, Lincoln seems to be saying, but they’re walking toward the light. Here, I believe, we get a glimpse into Lincoln’s character and his basic approach to people and politics.In His Character and Political Temperament, Lincoln Was a Consistent Opponent of ExtremismThe key truth of Lincoln’s political life prior to the attack on Fort Sumter in 1861 was that he tried and failed to prevent the breakup of the Union while protecting the Constitution. They key truth of Lincoln’s life from Fort Sumter to his death in 1865 was that he tried and succeeded in restoring the Union while protecting the Constitution as best he could.To me, in either of these periods, it’s very hard to find in Abraham Lincoln a man preoccupied with drawing ideological lines between him and others, or a proponent of the hard-edged, uncompromising position nearly certain to divide and polarize. If, for your purposes today, you want as your spokesperson a political leader from the 1850s who opposed Dred Scott and who also consistently pushed his ideology to extremes and habitually sought out polarization and conflict in the name of doctrinal integrity, there are many qualified candidates from which to choose. But Lincoln is not one of them.
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Published on: November 12, 2015
A ReplyLincoln v. Obergefell
If you are seeking out conflict and polarization for the sake of doctrinal purity, Lincoln is not the champion for you.