In the late 1930s, President Franklin Roosevelt, outraged over U.S. Supreme Court decisions hostile to the New Deal, proposed expanding the number of Supreme Court justices. His “court-packing” scheme failed, and few of FDR’s admirers today view this episode as an admirable moment in his presidency.
Here’s a footnote to this bit of history: Both FDR and his Attorney General, Homer Cummings, tried to recruit Abraham Lincoln to their cause. After all, Roosevelt pointed out, the Great Emancipator himself had favored expanding the number of Supreme Court justices. After all, Cummings added, after the infamous Dred Scott case of 1857, in which the Court held that African Americans could not be citizens and that Congress had no power to exclude slavery from the territories, Lincoln too had strongly condemned the Supreme Court. He and FDR were of like mind on this point!
The great Lincoln scholar David Donald, under whom I studied, years ago wrote a wonderful essay called “Getting Right with Lincoln.” Donald shows that, beginning shortly after Lincoln’s death in 1865 and continuing through the present, one of the most predictable and frequently recurring strategies in U.S. partisan politics is the attempt to recruit Lincoln. For example, during the political battles over Reconstruction in the late 1860s and 1870s, both Radical Republicans in Congress and their most hated enemies claimed Lincoln as their hero and guide. The result was what Donald calls “a ghoulish tugging at Lincoln’s shroud.”
And that was only the beginning. In countless utterances over the decades, politicians and activists have cited Lincoln’s words and deeds in defense of—and also opposition to—the Greenback movement, Prohibition, the New Deal, states’ rights, socialism, communism, the Republican Party platform of the day, the Democratic Party platform of the day, and sundry other philosophies and causes. One of those recent causes has been gay rights.
In the mid-1990s, shortly after David Donald published his award-winning biography, Lincoln, I had lunch with him in (yes, this is true) Lincoln, Massachusetts. He’d just completed a national book tour, and so I asked him: What question had he heard most often? Answer: “Was Lincoln gay?” It seems that many writers in recent years have speculated about Lincoln’s friendship with a young law partner, Joshua Speed, although most historians (Donald included) find little or no evidence that Lincoln was gay or that he ever had homosexual experiences. Nevertheless, by the 1990s, Lincoln had been recruited to yet another cause.
Today we see another interesting effort to recruit Lincoln, this time in opposition to gay rights. And this time, as in the case of FDR’s defense of court-packing in the 1930s, the evidence on display consists of Lincoln’s views of the Supreme Court at the time of Dred Scott.
Several weeks ago, more than sixty U.S. scholars—several of whom I know and respect—issued a public statement and a “Call to Action” in response to the recent U.S. Supreme Court decision in Obergefell v. Hodges, in which the Court held that gay couples have the right to marry. The scholars find that the Court’s decision legalizing gay marriage nationwide is based on “no compelling reasoning” and is “without the slightest warrant in the text, logic, structure, or historical understanding of the Constitution.” As a result, they assert that the Court’s decision in Obergefell is “not the law of the land” and need not be treated as such by citizens and by U.S. elected officials. They repeatedly cite Lincoln to support their arguments and conclusions.
Similarly, a small but visible group of writers and leaders in recent months—including two Republican presidential candidates, former Arkansas governor Mike Huckabee and former U.S. Senator Rick Santorum—have also cited Lincoln to justify their conclusion that U.S. public officials, individually and in tandem, have both a legal right and a moral obligation to refuse to obey the Court finding or recognize it as law.
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. Nor do I believe that state governments have a legal right to nullify Federal laws, including those stemming from the Supreme Court. Such actions are not lawful but revolutionary, and therefore can only be grounded philosophically in the right of revolution, which our nation’s founders admirably recognized and exercised in 1776.
For these reasons, 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.
In some cases, presenting as dispositive one or a very few sentences selected from a much larger corpus—let’s call this practice versification—is legitimate. If I ask you what the U.S. Constitution says about the establishment of religion, simply citing the First Amendment is enough to do the trick.
With Lincoln, however, versification rarely works. In their “Call to Action,” defending their conclusion that Supreme Court’s decision on gay marriage is “not the law of the land,” our scholars, citing one portion of one sentence from Lincoln’s First Inaugural Address, report that
Lincoln warned that for the people and their elected leaders to treat unconstitutional decisions of the Supreme Court as a binding rule on anyone other than the parties to a particular case would be for “the people to cease to be their own rulers, having effectively abandoned their government into the hands of that eminent tribunal.”
Our scholars attempt to make very much of these 21 words from Lincoln. Indeed, on these thin grounds they erect three big claims.
- They claim that Lincoln asserted that what he, Lincoln, viewed as erroneous Supreme Court decision is not binding on anyone except the parties to that particular case.
- They assert that their proposed massive resistance strategy for opposing Obergefell is the same as Lincoln’s course of action in opposing Dred Scott.
- They claim that for U.S. elected officials to defy or refuse to conform to the Obergefell decision (as Kim Davis, an elected county clerk, recently did in Kentucky) is to “stand with Lincoln against judicial despotism.” They add: “Like Lincoln, we will not accept judicial edicts that undermine the sovereignty of the people, the Rule of Law, and the supremacy of the Constitution.”
If these claims are true, Lincoln has been successfully recruited. But are they true? Does the verse these scholars cite adequately summarize what we need to know? Perhaps not.
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.”
Here is Lincoln in June of 1857, responding to the recently announced Dred Scott decision:
We believe, as much as Judge Douglas, (perhaps more) in obedience to, and respect for the judicial department of government. We think its decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution. But we think the Dred Scott decision is erroneous. We know the court that made it has often over-ruled its own decisions, and we shall do what we can to have it to over-rule this. We offer no resistance to it.
Here is Lincoln in 1861, in his First Inaugural Address:
I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice.
The following sentences in this Address—including the 21 words from which the “Call to Action” gleans so much meaning—are these:
At the same time, the 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. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.
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. As late as 1856, Lincoln was asserting without qualification his view that the Supreme Court is the final arbiter on questions of slavery. But then came Dred Scott, which seems to have caused Lincoln to rethink his position. And what is that revised position?
- He says that he opposes as “erroneous” the Court’s decision on slavery and wants to “do what we can do” to have it over-ruled, either by the Court itself or by amending the Constitution.
- He says that that he and his allies offer “no resistance” to the Court’s decision.
- He says that he “does not forget the position assumed by some” that the Supreme Court is the final authority on Constitutional questions.
- He suggests that even what he and others view as “erroneous” Supreme Court decisions are not only “binding” on the parties themselves, but also deserve from all departments of government “very high respect and consideration in all parallel cases.”
- He says that, in a free society, policies regarding “vital questions” cannot be “irrevocably fixed” by the Supreme Court “the instant they are made in ordinary litigation.”
- He says that Supreme Court decisions on Constitutional questions, “when fully settled,” should control “the general policy of the country,” and he warns that any alternative to this principle would be “revolution.”
While it may be hard—certainly I find it hard—to deduce from these various statements a clear understanding of what, exactly, Lincoln is saying, it seems very clear that there are certain things that Lincoln is not saying.
- 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.
In other words, he did not say any of the main things that our scholars, in their “Call to Action,” assert or strongly suggest that he did say.
It strikes me as ironic that the “Call to Action” scholars ascribe to Lincoln a political temperament that in truth was wholly alien to him: the temperament of extremism. It commonly expresses itself in insular self-righteousness, angry denunciations of everyone except fellow true believers, and political action in which doctrinal purity is the highest concern. Lincoln was often surrounded by such people, as the mid-19th century was arguably the angriest and most polarized era in U.S. history. But he was never one of them.
Lincoln had deep convictions, and ended up giving his life for them, but he was remarkably non-dogmatic. Politically, he was often noncommittal and often seemed to want things both ways. He would confuse his friends and incite his enemies by frequently telling them, “My policy is to have no policy.” He would change his mind, equivocate, propose half-measures which displeased everyone. The ideologues and purists within his own party—men such as Charles Sumner, Thaddeus Stevens, and Horace Greeley—were usually exasperated with him and often even furious.
Stylistically, he nearly always chose humor over vitriol, understanding over judgment, telling stories over delivering lectures, and making suggestions over giving orders to those who reported to him. A strong and confident man, but one who also experienced dark depression, he was mild-mannered. His capacity for empathy was striking to the people around him.
He was not a member of a political faction or caucus. He was not the advocate of a doctrine. He had a remarkable ability to work with, and ultimately win the loyalty of, leaders of nearly diametrically opposed views. All his life Lincoln told people that Henry Clay of Kentucky, often called “The Great Compromiser”, was his “beau ideal of a statesman.”
But our scholars want to turn this decidedly non-dogmatic man into a dogmatist. They seek to enlist Lincoln in support of an extremist idea that Lincoln not only never endorsed, but that he opposed vigorously. Lincoln deeply opposed slavery. That’s one reason why the Dred Scott decision so shocked and distressed him, and why he was so determined to oppose it. But even more than slavery—as Lincoln made clear beyond doubt in his famous letter to Horace Greeley in 1862—Lincoln opposed the idea that Americans may lawfully defy or abrogate Federal laws that they oppose.
Indeed, as Lincoln understood it, the Civil War was fought over precisely this issue. The entire goal of his presidency, as he told Greeley, was to “save the Union.” And in Lincoln’s view, what exactly would destroy the Union? Not slavery, as much as Lincoln detested slavery, and not flawed Supreme Court decisions. Lincoln believed that the Union would only be destroyed—just as for four terrible years it nearly was destroyed—by some states and leaders successfully claiming the right to take the nation’s laws into their own hands, defying the national government and flouting our only established procedures for deciding, even as we painfully disagree, what the Constitution means. Far from endorsing a way of thinking and acting that is so conducive to lawlessness, Lincoln gave his life in order to defeat it.
Lincoln was a poet-president and probably the greatest American of his generation. Our least-educated President, he may have been our wisest and most empathetic. He likely saved the country that he died for. We continue to live in his shadow, and his words continue to haunt and inspire us. As Edwin Stanton said on the morning Lincoln died, Lincoln belongs to the ages.
In this light, asking ourselves today “What would Lincoln do?” is understandable and proper. But we should also appreciate why the world has little noted and not long remembered those countless attempts since 1865 to use Lincoln in the service of small orthodoxies and partisan political quarrels. Lincoln’s legacy—everything he stood for—is unsuited to these narrow purposes, which helps to explain why we care about him in the first place. We’ll always be trying to get right with Lincoln, but our efforts will disappoint unless we also try to get Lincoln right.