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."

PCBs, GOOD FOR YOUR HEALTH

By Gerald and Natalie Sirkin c2007 A front-page story on PCBs in the March 9 News-Times is just wrong. The first thing to know about PCBs is that they never killed a single person nor did they ever cause cancer. The second is that although they are invariably called “cancer-causing,” that designation comes chiefly from a single rat study. The third thing is that the subject rats were exposed daily for 21 months to 100 parts per million (ppm) of PCBs containing 60% chlorine. (The 100 ppm was about 5,000 times the tolerable daily intake of PCBs set by FDA in 1973.) When rats were exposed to PCBs containing less chlorine, they developed no cancers. The fourth, that when the exposed rats were allowed to live out their lives, they had fewer cancers and lived longer than the unexposed rats. PCBs is a family of chemicals known as polychlorinated biphenyls. PCBs contain chlorine ranging from 12% to 70%. They were used in two General Electric plants that manufactured electrical equipmen...

Taking The Fifth, After Esty

Whether or not U.S. Representative Elizabeth Esty will serve the remainder of her term or resign immediately is very much an open question. But, in any case, the battle for Connecticut’s 5 th U.S. Congressional District has begun with a show of unexpected fireworks. For many years, the 5 th District was a toss-up proposition; both Republicans and Democrats have held and surrendered the seat. Geographically the 5 th District touches the border of New York from Connecticut’s northern-most point to Danbury in the southern quadrant and includes much of Litchfield county and parts of Fairfield, Hartford and New Haven counties. Party affiliation is competitive, in round figures, 30 percent Democrat, 25 percent Republican and 45 percent unaffiliated. Over the years, the Democrat Party in Connecticut has moved from the center to the left, but the 5 th District has been a moderate preserve. During the Obama presidential election, Republican moderates within Connecticut's U.S. ...