Skip to main content

The Supreme Court and Defiant Presidents: FDR, Lincoln and Jackson

“The Court, in addition to the proper use of its judicial functions, has improperly set itself up as a third house of the Congress - a super-legislature, as one of the justices has called it - reading into the Constitution words and implications which are not there, and which were never intended to be there.

“I want - as all Americans want - an independent judiciary as proposed by the framers of the Constitution. That means a Supreme Court that will enforce the Constitution as written, that will refuse to amend the Constitution by the arbitrary exercise of judicial power - in other words by judicial say-so.”

The author of these words was not Supreme Court Justice Antonin Scalia, still less Robert Bork, an originalist interpreter of the U.S. Constitution whose name has given rise to the expression “borked.” To be borked means to be publicly assaulted in congress by ideologically committed legislators who profoundly disagree with the words Franklin Delano Roosevelt delivered to the American public in a fireside chat on March 9, 1937.

But FDR was not the only president to quarrel with the courts. At least one pronouncement of the court, the infamous Dred Scott decision, was roundly assailed by Abraham Lincoln in his “Speech on the Dred Scott Decision,” delivered on June 26, 1857.

Judge Steven Douglas had appeared at the same venue two weeks before Lincoln and declared that “whoever resists the final decision of the highest judicial tribunal, aims a deadly blow to our whole Republican system of government—a blow, which if successful would place all our rights and liberties at the mercy of passion, anarchy and violence.” Any resistance to the Dred Scott decision, Douglas said, “shall be forced upon the country as a political issue, it will become a distinct and naked issue between the friends and the enemies of the Constitution—the friends and the enemies of the supremacy of the laws."

Having determined that African Americans were not “persons” according to the law and so not entitled to constitutional protections, The Supreme Court, Lincoln said, had decided “that a negro cannot sue in the U.S. Courts; and secondly, that Congress cannot prohibit slavery in the Territories.”

Republicans offer no violent resistance to the decision of the court, Lincoln said, and then outlined several conditions that must be met for fair-minded people to give internal assent to a Supreme Court decision as a precedent: “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.”

A close student of history, Lincoln recalled that President Andrew Jackson, had defied a Supreme Court decision on the matter of a national bank, and it was with great glee that he ran Douglas through with a sword taken from Jackson’s armory. Lincoln quoted Jackson: “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.” But Jackson went further than even Lincoln was prepared to go in assaulting the preeminent authority of the court.

"If the opinion of the Supreme Court covered the whole ground of this act,” said Lincoln quoting Jackson -- who was to the Democratic Party of the day what Lincoln later became to the Republican Party – “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.”

While Lincoln was not willing to go quite so far in his opposition to Supreme Court decision as Jackson or Roosevelt -- who proposed to pack a court that had resisted programs affirmed by the congress -- the arguments put forward by all three presidents show us, if nothing else, that resistance to Supreme Court decisions from the other co-equal branches of government is nothing new under the sun.

Comments

Popular posts from this blog

The Blumenthal Burisma Connection

Steve Hilton , a Fox News commentator who over the weekend had connected some Burisma corruption dots, had this to say about Connecticut U.S. Senator Dick Blumenthal’s association with the tangled knot of corruption in Ukraine: “We cross-referenced the Senate co-sponsors of Ed Markey's Ukraine gas bill with the list of Democrats whom Burisma lobbyist, David Leiter, routinely gave money to and found another one -- one of the most sanctimonious of them all, actually -- Sen. Richard Blumenthal."

Powell, the JI, And Economic literacy

Powell, Pesci Substack The Journal Inquirer (JI), one of the last independent newspapers in Connecticut, is now a part of the Hearst Media chain. Hearst has been growing by leaps and bounds in the state during the last decade. At the same time, many newspapers in Connecticut have shrunk in size, the result, some people seem to think, of ad revenue smaller newspapers have lost to internet sites and a declining newspaper reading public. Surviving papers are now seeking to recover the lost revenue by erecting “pay walls.” Like most besieged businesses, newspapers also are attempting to recoup lost revenue through staff reductions, reductions in the size of the product – both candy bars and newspapers are much smaller than they had been in the past – and sell-offs to larger chains that operate according to the social Darwinian principles of monopolistic “red in tooth and claw” giant corporations. The first principle of the successful mega-firm is: Buy out your predator before he swallows

Down The Rabbit Hole, A Book Review

Down the Rabbit Hole How the Culture of Corrections Encourages Crime by Brent McCall & Michael Liebowitz Available at Amazon Price: $12.95/softcover, 337 pages   “ Down the Rabbit Hole: How the Culture of Corrections Encourages Crime ,” a penological eye-opener, is written by two Connecticut prisoners, Brent McCall and Michael Liebowitz. Their book is an analytical work, not merely a page-turner prison drama, and it provides serious answers to the question: Why is reoffending a more likely outcome than rehabilitation in the wake of a prison sentence? The multiple answers to this central question are not at all obvious. Before picking up the book, the reader would be well advised to shed his preconceptions and also slough off the highly misleading claims of prison officials concerning the efficacy of programs developed by dusty old experts who have never had an honest discussion with a real convict. Some of the experts are more convincing cons than the cons, p