"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Tuesday, September 9, 2008

Lincoln and Judicial Authority

Michael Stokes Paulsen, Lincoln and Judicial Authority (at ssrn)
In this Article, I trace the development of Abraham Lincoln's stance on judicial authority, and his eventual repudiation of judicial supremacy, from his first major speech addressing the Dred Scott decision in 1857, through the Lincoln-Douglas debates of 1858, the presidential campaign and "secession winter" of 1860, and, finally, during Lincoln's presidency, from his first inauguration in March 1861 to his assassination in April 1865. The moral of this story, I conclude, is one I have advanced in other writing: the President, and other nonjudicial political actors swearing an oath to the Constitution and acting within the spheres of their separate constitutional powers, are not constitutionally bound by erroneous decisions of the Supreme Court that they in good faith conclude are antithetical to the Constitution and harmful to the nation. One may reject this proposition - nearly all constitutional scholars, judges, and elected officials today do - but only by rejecting one of Lincoln's most important political and constitutional positions, fundamental to everything else he said and did as President. Lincoln's rejection both of Dred Scott specifically and more generally of judicial supremacy in constitutional interpretation was an essential part of the platform on which Lincoln rose to national prominence and was elected President. That stance, and Lincoln's election on such a platform, was featured among prominent Southerners' purported constitutional justifications for secession: the nation had just elected a lawless, anticonstitutional President who would invade the South's constitutional rights, as duly determined by the United States Supreme Court, with respect to slavery. The decision by Lincoln and the Union to fight secession thus depends, for its legitimacy, on a rejection of the Southern position on the legitimacy of Lincoln's constitutional views.The judicial supremacist stance accepted by most people today is the anti-Lincoln stance. It is the position of Lincoln's early political arch-adversary, Senator Stephen Douglas, in support of the binding authority of Dred Scott and of any subsequent decision of the Supreme Court extending slavery throughout the nation. And it is the position of Jefferson Davis and the South, in opposition to the constitutional legitimacy of a President and party elected on a platform of opposition to the controlling force of the Supreme Court's interpretations of the Constitution. In short, if the Douglas-Davis view is right - that judicial decisions bind subsequent judicial actors, and all political actors - then Lincoln was wrong in nearly everything he stood for. Indeed, Lincoln's election as President rested on fundamentally anticonstitutional premises. If judicial supremacists are correct, the South was not only within its rights in seceding, but did so for just constitutional cause - rebelling against an administration and government premised on a grave breach of the Constitution.

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