Call it the Dred Scotting of religious liberty.
Writing gay marriage into the Constitution as once there was a Supreme Court decision that attempted to write slavery into the Constitution. Make no mistake. Whatever else the five lawyers in black robes thought they were doing with their ruling on gay marriage, they have opened the door — many think the door was already open — for a full-blown assault on religious liberty.
Who better to look to for a response to the Obergefell v. Hodges decision than the man who earned his marble statue on the Washington Mall by opposing the idea that the Dred Scott decision should be regarded as “settled law”?
Substitute the Supreme Court’s ruling on gay marriage — which many Americans see as yet another assault on religious liberty — with the hotly controversial issue of the Court’s 1857 Dred Scott decision on slavery. Or the Court’s 1819 decision in McCulloch v. Maryland. The latter decision declared the Bank of the United States to be constitutional, the former was a deliberate attempt by Democrats on the bench to make slavery constitutional.
In June of 1857, the year before he would challenge Illinois Democrat and incumbent Senator Stephen A. Douglas for a seat in the U.S. Senate, Abraham Lincoln addressed the subject of Dred Scott and whether decisions of the Supreme Court should be challenged. Lincoln, was, famously, a lawyer and a good one. He revered the law. And up until the Dred Scott decision, issued by the Court months earlier in March of 1857, Lincoln was unhesitating in his support of judicial decisions. But deliberately, willfully inserting slavery into the Constitution — not based on the law but on the pro-slavery sentiments of the Court’s members, notably including Chief Justice Roger Taney — was a bridge too far for Lincoln. In writing his opinion on the case Taney had quite specifically made his bias plain, saying that African-Americans “had no rights which the white man was bound to respect.”
Lincoln biographer David Herbert Donald writes of Lincoln’s reaction this way:
“So blatant was the Chief Justice’s misreading of the law, so gross was his distortion of the documents fundamental to American liberty [meaning the Declaration of Independence and the Constitution], that Lincoln’s faith in an impartial, rational judiciary was shaken; never again did he give deference to the rulings of the Supreme Court.”
Not only was Lincoln done with his faith in giving “deference” to the idea of “an impartial, rational judiciary,” he used his speech to tear into Douglas (whom he refers to always as “Judge Douglas” in reference to Douglas’s earlier title as a Justice on the Illinois Supreme Court) for Douglas’s hypocrisy on the issue. In the wake of Dred Scott Douglas was an enthusiastic supporter of the Court’s decision. Lincoln accused Douglas and Chief Justice Taney of, in Herbert’s words, “working, together with other Democrats, to extend and perpetuate slavery.” With the Dred Scott case decided and slavery now, supposedly, enshrined in the Constitution forever, Douglas wanted no one to tamper with it — much less try and undo it.
Yet Douglas had not always felt this enthusiastically about supporting the Supreme Court when it handed down a decision he didn’t like. Douglas, Lincoln recalled, had been an enthusiastic supporter of President Andrew Jackson’s war on the Bank of the United States in the 1830s. The Bank had been declared to be constitutional — the law of the land — by the Supreme Court in the 1819 McCullough v. Maryland case. When Congress voted a re-charter for the Bank in 1832, Jackson — who despised the Bank — vetoed the legislation. Deliberately and willfully ignoring the Court’s decision from over a decade earlier. Speaking of both Jackson’s refusal to obey the Court’s decision and the Douglas support for Jackson’s refusal, Lincoln said this (bold print supplied by me):
“He [Douglas] denounces all who question the correctness of that decision, as offering violent resistance to it. But who resists it? Who has, in spite of the decision, declared Dred Scott free, and resisted the authority of his master over him?
Judicial decisions have two uses-first, to absolutely determine the case decided, and secondly, to indicate to the public how other similar cases will be decided when they arise. For the latter use, they are called “precedents” and “authorities.”
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.
Judicial decisions are of greater or less authority as precedents, according to circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession.
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….
Lincoln then quoted Jackson on the latter’s refusal to support the Court’s decision on the Bank of the United States. Said President Jackson, the man identified as the co-founder of the Democratic Party in today’s endless Jefferson-Jackson fundraisers for Democrats:
It is maintained by the advocates of the bank, that its constitutionality, in all its features, ought to be considered as settled by precedent, and by the decision of the Supreme Court. To this conclusion I cannot assent. Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power, except where the acquiescence of the people and the States can be considered as well settled. So far from this being the case on this subject, an argument against the bank might be based on precedent. One Congress in 1791, decided in favor of a bank; another in 1811, decided against it. One Congress in 1815 decided against a bank; another in 1816 decided in its favor. Prior to the present Congress, therefore the precedents drawn from that source were equal. If we resort to the States, the expressions of legislative, judicial and executive opinions against the bank have been probably to those in its favor as four to one. There is nothing in precedent, therefore, which if its authority were admitted, ought to weigh in favor of the act before me.
If the opinion of the Supreme court covered the whole ground of this act, it ought not to control the co-ordinate authorities of this Government. The Congress, the executive and the court, must each for itself be guided by its own opinion of the Constitution. Each public officer, who takes an oath to support the Constitution, swears that he will support it as he understands it, and not as it is understood by others.”
In other words: Jackson was saying that each of the three branches of government must decide for itself about a Court opinion. And in the case of the Bank of the United States — which Jackson despised — he didn’t give a damn what the Court said. He was the president, and he refused to follow the Court’s opinion, and went out of his way to sabotage it. Lincoln, after reminding Douglas of the latter’s double standard — ignoring the Court on the Bank was great but to do so on slavery was essentially treasonous — made it plain that while he, Lincoln, would not “resist” the Court’s ruling on Dred Scott he would do everything in his power to overturn it. Which, to say the least, Lincoln did. He never viewed the Court’s opinion as “settled” law.
Why does this matter now?
There is a considerable difference between being opposed to gay marriage and opposed to the Supreme Court’s habit of imposing favorite policies by judicial fiat. There are millions of Americans who view this decision as Lincoln viewed Dred Scott — “erroneous” and an assault on religious liberty. Lincoln opposed slavery. He refused to accept that the Dred Scott decision — the constitutionalizing of slavery by judicial fiat- was the end of the discussion. As he noted, Andrew Jackson refused to accept the Court’s support for the Bank of the United States — and deliberately used his presidential power to bring the Bank down.
So why now — with Lincoln himself, the founder of the Republican Party, offering a precise precedent for opposing a Supreme Court opinion — even hesitate to follow Lincoln’s example? And for good measure, the example of Andrew Jackson, the latter honored and revered by today’s Democratic Party?
As Lincoln did not shrink from opposing slavery, so too should conservatives never shrink from defending religious liberty. Senator Ted Cruz is out front on this as might be expected from a star at Harvard Law School who also served as the Solicitor General of Texas.
As Republican presidential candidates find themselves having to address the Court’s decision on gay marriage, they should take time some time to read Lincoln’s June 26, 1857 speech on Dred Scott.
And one other thing. Note well that Lincoln begins his speech with a discussion of the people of Utah and… polygamy. Polygamy in Utah then, as gay marriage is now, a hot issue. (And for that matter polygamy, in the wake of this Court decision on gay marriage, is once again surfacing as an issue.) Lincoln’s view on Utah? Here it is:
But in all this, it is very plain the Judge evades the only question the Republicans have ever pressed upon the Democracy in regard to Utah. That question the Judge well knows to be this: “If the people of Utah shall peacefully form a State Constitution tolerating polygamy, will the Democracy admit them into the Union?” There is nothing in the United States Constitution or law against polygamy; and why is it not a part of the Judge’s “sacred right of self-government” for that people to have it, or rather to keep it, if they choose? These questions, so far as I know, the Judge never answers. It might involve the Democracy to answer them either way, and they go unanswered.
In other words? Lincoln was saying then of polygamy what so many Republicans are saying now of gay marriage. It’s a state issue.
The more things change the more they stay the same. And in the case of the fight for religious liberty — thought to be enshrined in the First Amendment and now clearly under assault? As the Dred Scotting of religious liberty tries to steamroll all things religious before it, looking to Abraham Lincoln for guidance is a good place to begin.