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I do not forget the position assumed by some that constitutional questions are to be decided by the style="COLOR: #000000; BACKGROUND-COLOR: #00fc7c"Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that 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, having to that extent practically resigned their Government into the hands of that eminent tribunal.
In other words, Lincoln claimed that the Supreme Court had no power of juicial review over federal laws that came before it in cases.
Now compare that, to his 1856 Fremont campaign speech:
Do you say that such restriction of slavery would be unconstitutional, and that some of the States would not submit to its enforcement? I grant you that an unconstitutional act is not a law; but I do not ask and will not take your construction of the Constitution. The Supreme Court of the United States is the tribunal to decide such a question, and we will submit to its decisions; and if you do also, there will be an end of the matter. Will you? If not, who are the disunionists--you or we?
Thus Lincoln not only denied the power of judicial review once he became president, but he held that view only when it proved convenient for him. Note that the above case was made on August 1, 1856-- shortly before the outcome of the Dred Scot case, which Lincoln felt sure would be decided in favor of the Free states.
Then, after the Court ruled entirely with the slave states and slave-owners, Lincoln made the following speech:
...we have another nice little niche, which we may, ere long, see filled with another Supreme Court decision, declaring that the Constitution of the United States does not permit a State to exclude slavery from its limits. And this may especially be expected if the doctrine of "care not whether slavery be voted down or voted up," shall gain upon the public mind sufficiently to give promise that such a decision can be maintained when made.
Such a decision is all that slavery now lacks of being alike lawful in all the States. Welcome, or unwelcome, such decision is probably coming, and will soon be upon us, unless the power of the present political dynasty shall be met and overthrown. We shall lie down pleasantly dreaming that the people of Missouri are on the verge of making their State free, and we shall awake to the reality instead, that the Supreme Court has made Illinois a slave State. To meet and overthrow the power of that dynasty, is the work now before all those who would prevent that consummation. That is what we have to do. How can we best do it?
So there we have it: in 1856, when he thinks the Court will rule in his party's favor, he Lincoln says "The Supreme Court of the United States is the tribunal to decide the question of an unconstitutional act--" and challenges the other side to submit to its decision, calling them "disunionists" if they refuse.
Then when the court rules against him and his party, in 1858 he says "we must work to overthrow that dynasty--" i.e. he refuses to submit to the Supreme Court... thus making him and the Republicans "disunionist" by his own definition.
Then in 1861, President Lincoln says that the Supreme Court is simply "binding in any case upon the parties to a suit as to the object of that suit--" ONLY-- while claiming that it has NO power of judicial review over the underlying legislation!
In short, Lincoln seems to be the father of the term, "the politics of convenience;" meanwhile the nickname "Honest Abe" appears to be born purely out of sarcasm.
Last edited on Thu Nov 19th, 2009 04:41 am by ThomasWashington