When Conservatives Invoke Lincoln: From Dred Scott to Obergefell

Conservative scholar Robert George has issued a “call to action” to constitutional scholars and presidential candidates who are opposed to the Supreme Court’s gay marriage decision in Obergefell v. Hodges. George believes the decision was wrongly decided, that it is a gross usurpation of judicial power and misinterpretation of the Constitution.

But things take an interesting turn in the statement, when George invokes Lincoln on Dred Scott to argue that, despite the Court’s ruling, we—and more important, government officials, including future presidents—should not accept Obergefell as the law of the land. That is, we, and they, should not accept Obergefell as binding on our/their conduct.

Obergefell is not “the law of the land.” It has no more claim to that status than Dred Scott v. Sandford had when President Abraham Lincoln condemned that pro-slavery decision as an offense against the very Constitution that the Supreme Court justices responsible for that atrocious ruling purported to be upholding.

Lincoln warned that for the people and their elected leaders to treat unconstitutional decisions of the Supreme Court as creating a binding rule on anyone other than the parties to the particular case would be for “the people to cease to be their own rulers, having effectively abandoned their government into the hands of that eminent tribunal.”

Because we stand with President Lincoln against judicial despotism, we also stand with these distinguished legal scholars who are calling on officeholders to reject Obergefell as an unconstitutional effort to usurp the authority vested by the Constitution in the people and their representatives….

As the 2016 election season heats up, we call on all who aspire to be our next President to pledge to

1.  treat Obergefell, not as “the law of the land,” but rather (to once again quote Justice Alito) as “an abuse of judicial power”

2.  refuse to recognize Obergefell as creating a binding rule controlling other cases or their own conduct as President…

Like Lincoln, we will not accept judicial edicts that undermine the sovereignty of the people, the Rule of Law, and the supremacy of the Constitution. We will resist them by every peaceful and honorable means. We will not be bullied into acquiescence or silence. We will fight for the Constitution and our beloved Nation.

This move is interesting for two reasons.

First, it’s always interesting to me when conservatives depart from their customary role as the defenders of the law and lawfulness, and take up the more lawless elements of what I think is their true patrimony. Here’s how George finesses that issue:

We have great respect for judges. We have even greater respect for law. When judges behave lawlessly, it is the law that must be honored, not lawless judges.

The Supreme Court is supreme in the federal judicial system. But the justices are not supreme over the other branches of government. And they are certainly not supreme over the Constitution.

In Obergefell v. Hodges, five justices, without the slightest warrant in the text, logic, structure, or historical understanding of the Constitution presumed to declare unconstitutional the marriage laws of states that maintain the historic and sound understanding of marriage as the conjugal union of husband and wife.

But, second, and perhaps more interesting, is how George uses, or misuses, Lincoln.

It’s certainly true that Lincoln was opposed, strongly opposed, to the notorious Dred Scott decision. It’s also true that Lincoln refused to treat that decision as constitutional precedent. But Lincoln was equally of the mind that he and other officials could not resist the decision. Here’s Lincoln’s famous speech on the case in 1857:

We believe, as much as Judge [Stephen] 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 over-ruled its own decisions, and we shall do what we can to have it to over-rule this. We offer no resistance to it.

Lincoln is careful to say that in not treating Dred Scott as precedent he means that he will seek to overturn the decision by the Court itself, that he will not allow to be viewed as settled law. He will agitate for the wrongness of the decision, argue against its application in future rulings, and perhaps seek the appointment, if/when given the chance, of Supreme Court justices who agree with him. What he will not do is resist the decision. ...