Newt Gingrich this week unleashed a series of attacks on the judiciary, calling for abolishing judges, getting rid of lifetime tenure, and ignoring judicial rulings that he does not agree with. We discussed yesterday his suggestion that judges could be arrested by federal officers and forced to appear before Congress to answer for their unpopular decisions. However, last night on Hardball I took Gingrich to task for what I consider a misrepresentation of not just the law but history in his reference to Lincoln.
In support of his suggestion that he would simply ignore court decisions with which he disagreed, Gingrich cited Lincoln who, he noted, refused to comply with the Dred Scott decision. He stated:
“Lincoln repudiates the Dred Scott decision in his first inaugural address in 1861 and says, no nine people can make law in this country. That would be the end of our freedom. So I would suggest to you, actually as a historian, I may understand this better than lawyers.”
Lincoln did in fact disagree with the Dred Scott decision and did chastise the Court in his inaugural — not unlike Obama’s chastising of the Court in his State of the Union. However, Gingrich’s historical point is simply wrong and grotesquely misstates Lincoln’s position on Dred Scott.
First, let’s start with the inaugural speech. Gingrich started out well in that Dred Scott was referenced in the speech and denounced by Lincoln. However, Lincoln actually acknowledged the duty of the parties of the Court to comply with such decisions:
“I do not forget the position assumed by some that constitutional questions are to be decided by the 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 precedent for other cases, can better be borne than could the evils of a different practice.
Lincoln then added the following two lines:
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 practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.”
Lincoln does not say that he will refuse to comply with Dred Scott. He is denouncing the Court for usurping the power of the political branches — a common complaint in our history. In fact, Lincoln stresses “[n]or is there in this view any assault upon the court or the judges.”
The inaugural address is best cited to show that the difficulty between Presidents and the Supreme Court goes back many decades. The citation of the Dred Scott conflict, however, to show that a president can “ignore” Supreme Court rulings is unfounded and wrong.
First, it was the 14th Amendment that undid Dred Scott with the “Citizenship Clause”:
Amendment XIV, Section 1, Clause 1:
“ All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
That occurred in 1868 — roughly three years after the death of Lincoln.
Second, the Emancipation Proclamation did not technically set aside Dred Scott. The decision denied citizenship rights to slaves. The Emancipation Proclamation did not grant the rights of citizenship to slaves and only affected slaves in the rebel states. It was an executive order carried in war against states that had removed themselves from the Union — the ultimate denial of the authority of not just the Supreme Court but the entire constitutional system. Notably, it did not even outlaw slavery but merely freed the slaves in those states in rebellion with the Union.
Third, Dred Scott v. Sandford, 60 U.S. 393 (1857), was itself a curious ruling with debatable binding effect. The Court began its fractured decision by holding that it lacked jurisdiction because Scott had no standing. That should have been the end of the decision. Instead, the Court said that the underlying federal law was unconstitutional — a curious ruling given the fact that the Court said that it could not hear the case. Every justice then held forth with opinions. The justices did state that Congress could not prohibit slavery in federal territories and slave owners were entitled to due process. However, there was no due process accorded to slave owners who later broke from the Union and stood in open rebellion under the Emancipation Proclamation.
Fourth, Lincoln never refused to comply with the ruling — even the controversial aspect of striking down federal prohibitions on slavery in the territories. The ruling was actually handed down during the term of President James Buchanan — just two days into his term. We now know that Buchanan not only complied with the law but inappropriately pressured the Court to render it. Buchanan wrote to U.S. Supreme Court Associate Justice John Catron to push for a ruling before his inauguration to reduce tensions in the country and later pressured Associate Justice Robert Cooper Grier to join the majority of Southerners in their ruling. The decision as fully enforced by the Executive Branch and Lincoln was not president at the time.
Finally, Lincoln actually honed his policy close to what he understood to be the line set by the Court. For example, he expressly countermanded the order of Union general John Frémont freeing slaves in Missouri and asked “Can it be pretended that it is any longer a government of Constitution and laws, wherein a General, or a President, may make permanent rules of property by proclamation?”
The point is simple: Gingrich is wrong on both the law and history. Ironically, Lincoln can be criticized (and I have criticized him) for ignoring the Constitution in suspending habeas corpus — though some still defend him. He also failed to fully comply, in my view, with the decision in Ex Parte Merryman, as have other presidents including Bush and Obama. However, this was not done with a claim of the right to ignore Supreme Court cases but under an interpretation of the precedent and inherent presidential power.
Gingrich has previously shown a certain artistic license in dealing with Court decisions. For example, in a reference to Cooper v. Aaron, he has written that in “1958 … the Warren court asserted by itself that the Supreme Court was supreme over the president and the Congress.” This point is further stated in his “white paper” given out to followers where he states:
In 1958, all nine sitting justices of the Supreme Court signed on to a judicial opinion in the case Cooper v. Aaron that asserted that the Supreme Court’s interpretation of the Constitution was supreme in importance to the constitutional interpretation of the other two branches of government, and that this judicial supremacy, all nine justices asserted, is a “permanent and indispensable feature of our constitutional system.”
The Supreme Court assertions in Cooper v. Aaron are factually and historically false. Nevertheless, following Cooper v. Aaron, the executive and legislative branches have largely acted as if the Constitution empowered the Supreme Court with final decision making authority about the meaning of the Constitution. The executive and legislative branches have further behaved as if they have no choice but to give total deference to Supreme Court decisions, even if the executive and/or legislative branch believes the Supreme Court has seriously erred in its constitutional judgments.
Much of this passage seems to disagree as much with the holding in Marbury v. Madison, but the decision was actually directed at the states. The Court held that the states were bound by the decision in Brown v. Board of Education.
Gingrich’s assault on the foundations of an independent judiciary should be a sobering moment for every American — Republican or Democrat, Liberal or Conservative. Our constitutional system represents a certain covenant of faith between citizens. What Gingrich reflects is a crisis of faith in one of the central defining aspects of this American experiment with free government. It is not his misuse of history but lack of faith in our system that is so unnerving.