fbpx

More of Lincoln on Departmentalism vs. Judicial Supremacy

Just when I thought was done with Departmentalism vs. Judicial Supremacy, they pull me back in again!  In my last post, I quoted Abraham Lincoln’s famous statement about Dred Scott in his first inaugural: “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” (emphasis added).  I noted that one might interpret this as expressing the view that a series of decisions might bind the other branches of the government.

Seth Barrett Tillman alerts me to this longer statement by Lincoln, from his Speech on the Dred Scott Decision, given at Springfield, Illinois, on June 26, 1857:

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 reaffirmed through a course of years,—it then might be, perhaps would be factious, nay, even revolutionary, not to acquiesce in it as a precedent.

But when, as 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.

This statement provides more information about Lincoln’s view.  First, it is clear that he believes that some individual precedents, depending on the circumstances, should be followed.  Second, the italicized portion of the quote suggests that he believes that a series of decisions over time, even if lacking some of the other favorable indicia he mentions, would be binding.  This suggests that the reading of Lincoln’s inaugural that I previously offered may have been correct.

Of course, that Lincoln said it does not mean it is correct, as a matter of law or morality at the time (although some people seem to act as if it does).  But Lincoln was a very smart and experienced lawyer and his statements tell us something about the law in the middle of the 19th Century.

Update: I made some changes to this post to more accurately represent the effect of Lincoln’s statement on the question of the bindingness of a series of precedents.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on July 13, 2015 at 11:11:36 am

Mike:

OK, fair enough! The quote would seem to indicate that Lincoln was no radical "departmentalist" and that as a matter of general practice he was prepared to recognize the force of precedent. Yet, it is not in the normal course of events that we find controversy, nor is it there that we should seek to determine an underlying principle but rather in those circumstances where as Lincoln says, "...(the) 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..."

And in that regard, did not Lincoln forcefully resist (while making all manner of verbal acknowledgement of the governments limited ability to contest existing constitutional support for slavery,yes) the decision. Lincoln, in the quote above, may merely be recognizing general practice / custom. Yet, that recognition is not quite the same as a concession that the Courts are Supreme and that the Executive or Legislative is duty bound in all circumstances to comply with Judicial determinations. Again, recall the comment of Lincoln's concerning "the loss of liberty."

read full comment
Image of gabe
gabe
on July 13, 2015 at 22:51:28 pm

It seems to suggest to me that while the President has the power to determine for himself what the constitution means, he should exercise that power carefully. Just as the Supreme Court has the power to overturn prior precedent, but doesn't do so without a good reason, so should the President respect long standing understandings without a good reason not to. This doesn't say that such precedent bind the president, but that it should just be respected (assuming the President doesn't believe the opinion was mistaken).

read full comment
Image of Devin Watkins
Devin Watkins

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.