Speech on the Dred Scott Decision

Image: Abraham Lincoln. Calvin Jackson (October 1, 1858) Library of Congress, https://www.loc.gov/pictures/item/98504517/.
Are there any Supreme Court decisions that would count as fully settled under Lincoln’s definition? What actions did Lincoln take as president that violated the reasoning of Dred Scott and illustrated his position about the limits of the Court’s power?
Compare Lincoln’s argument about judicial power to the Court’s reasoning in Cooper v. Aaron? How would Jefferson or Lincoln have responded to the Court’s claim of judicial supremacy in Cooper? Do Lincoln’s arguments against Chief Justice Taney’s reasoning in Dred Scott confirm Brutus’ fears about the Supreme Court?

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Dred Scott (1799–1858) was an enslaved man whose second owner, a U.S. Army officer, took him to Illinois, a free state, and then to the Wisconsin Territory, where slavery was illegal under the terms of the Missouri Compromise. Scott was eventually returned to Missouri, where his owner died and ownership transferred to his wife. Scott tried to sue for his freedom based on two Missouri statutes, one allowing people of color to sue for wrongful enslavement and the other ruling that any person taken to a free territory became free and could not be reenslaved in a slave state. In the Supreme Court’s landmark decision Dred Scott v. Sandford, seven of nine justices ruled that Scott had no right to sue for his freedom because no persons of African descent, whether free or enslaved, could be U.S. citizens. Chief Justice Roger Taney (1777–1864), writing for the majority, also claimed that Congress did not have the power to ban slavery because the Fifth Amendment protected slaveowners’ property rights, and slaves were legal property. The Court also struck down the Missouri Compromise legislation, which Congress had used to limit the expansion of slavery to new states and territories.

Opponents of slavery, including Abraham Lincoln, believed that the Court’s decision was designed to impose slavery on the entire country. One month after the Dred Scott decision, Lincoln spoke in response. His speech, which covered several issues in the slavery controversy, focused on the Founders’ understanding of equality in the Declaration of Independence, but also noted that the case raised questions about judicial power. If the Court’s rulings were supreme, the Dred Scott decision must stand and slavery’s opponents would have no recourse. Lincoln argued that Americans should submit to Court decisions when they are “ fully settled,” because not to do so “would be revolution.” But he went on to explain why the Dred Scott decision was not fully settled and what was required for a Court precedent to be so. Under Lincoln’s understanding of a settled decision, few if any Supreme Court decisions would ever count as fully settled. Court decisions should control a particular case, Lincoln argued, but did not necessarily bind other institutions, an argument he repeated in his First Inaugural Address.

—Joshua Dunn

Source: Abraham Lincoln, “Reply to Douglas,” in Life of Abraham Lincoln . . .Containing . . . the speeches, messages, proclamations and other official documents illustrative of his eventful administration, ed. Frank Crosby (Philadelphia: John E. Potter, 1865), 431–441, https://quod.lib.umich.edu/l/lincoln2/ack7441.0001.001/433?rgn=full+text;view=image.

. . . And now as to the Dred Scott decision. That decision declares two propositions—first, that a negro cannot sue in the U.S. Courts; and secondly, that Congress cannot prohibit slavery in the territories. It was made by a divided court—dividing differently on the different points. Judge Douglas1 does not discuss the merits of the decision; and, in that respect, I shall follow his example, believing I could no more improve on McLean and Curtis,2 than he could on Taney.

He 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 overruled its own decisions, and we shall do what we can to have it to overrule 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 reaffirmed 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. But Judge Douglas considers this view awful. Hear him:

The courts are the tribunals prescribed by the Constitution and created by the authority of the people to determine, expound, and enforce the law. Hence, 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. I repeat, therefore, that if resistance to the decisions of the Supreme Court of the United States, in a matter like the points decided in the Dred Scott case, clearly within their jurisdiction as defined by the Constitution, 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.

Why, this same Supreme Court once decided a national bank to be constitutional;3 but Gen. Jackson, as president of the United States, disregarded the decision, and vetoed a bill for a recharter, partly on constitutional ground, declaring that each public functionary must support the Constitution “as he understands it.”4

Again and again have I heard Judge Douglas denounce that bank decision, and applaud Gen. Jackson for disregarding it.5 It would be interesting for him to look over his recent speech, and see how exactly his fierce philippics against us for resisting Supreme Court decisions fall upon his own head. It will call to his mind a long and fierce political war in this country, upon an issue which, in his own language, and, of course, in his own changeless estimation, was “a distinct and naked issue between the friends and the enemies of the Constitution,” and in which war he fought in the ranks of the enemies of the Constitution. . . .

  1. 1. Stephen A. Douglas, a senator for Illinois and a leading figure in the Democratic Party, was Lincoln’s chief political antagonist.
  2. 2. Justices John McLean (1785–1861) and Benjamin Curtis (1809–1874) wrote dissenting opinions in Dred Scott.
  3. 3. McCulloch v. Maryland
  4. 4. Veto of the Bank Bill
  5. 5. Opposition to the Bank of the United States was the policy of the Democratic Party, and Jackson a party hero
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