There is no precedent in American history which gives the Supreme Court final say on Constitutional issues. This is a 200-year-old Fedralist argument which has been repeatedly rejected by every branch of government INCLUDING the Supreme Court since the days of Jefferson and Burr. Still somehow today we find ourselves throwing our hands up in resignation as the current court issues blatantly biased ruling after ruling.
from Larry Kramer, the dean of the Stanford Law School on this development, and what the Constitution and the settled law really say on the subject.
The idea of the other branches of government and/or the people taking on the Supremes is a time-honored one. Teddy Roosevelt and FDR famously, and successfully, did it last century. The most famous, and aggressive assault on a Supreme Court and their image of themselves as a sovereign entity, though, is Abraham Lincoln's speech on the Dred Scot decision by Chief Justice Taney's court which ruled that escaped slaves could not claim freedom by moving to free states, that they must still be considered the property of the slave owners from which they had escaped, and in fact did not even have standing to use the courts to sue for their freedom.
The speech follows in it's entirety below. I think it's time that Mr. Obama made one of these regarding the recent Supreme Court decisions on the 2000 Presidential vote in Florida, on the anti-lobbying legislation passed by Congress, and by the campaign finance regulations they struck down in Citizen United vs. The Federal Election Commission.
President Obama, as our first African-American president is the first Commander-in-Chief who could actually reference slavery or any of the arguments made against it in comparison to any other problem in America without worrying about being lambasted for it.
Remember that President Lincoln is going after not only his vanquished opponent, Stephen Douglas with this speech, but also against a sitting Supreme Court It's a textbook example of how to rip someone a new one using logic, poetry, conviction, B**LS, and his own arguments.
By "settled" he means that the rulings have gone around the circuits and no one has screamed bloody murder, and there have been no POPULAR UPRISINGS, ect. Citizens United and all the freedoms granted and corporations ownership since 1980 are most definitely NOT even remotely well-settled, not to mention the The Fed's dumping $16 trillion down the gullet of the credit-swap beast to cover about 30 acres of fat banker ass.
Ladies and gentlemen, Mr. Abraham Lincoln:
June 26, 1857
Fellow citizens,
I am here tonight, partly by the invitation of some of you and partly by my own inclination. Two weeks ago Judge Douglas spoke here on the several subjects of Kansas, the Dred Scott decision and Utah. I listened to the speech at the time, and have read the report of it since. It was intended to controvert opinions which I think just, and to assail (politically, not personally,) those men who, in common with me, entertain those opinions. For this reason I wished then, and still wish, to make some answer to it, which I now take the opportunity of doing
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 Douglas 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, 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 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.
I have said, in substance, that the Dred Scott decision was, in part, based on assumed historical facts which were not really true and I ought not to leave the subject without giving some reasons for saying this. I therefore give an instance or two, which I think fully sustain me. Chief Justice Taney, in delivering the opinion of the majority of the Court, insists at great length that negroes were no part of the people who made, or for whom was made, the Declaration of Independence, or the Constitution of the United States.
On the contrary, Judge Curtis, in his dissenting opinion, shows that in five of the then thirteen states, to wit, New Hampshire, Massachusetts, New York, New Jersey and North Carolina, free negroes were voters and, in proportion to their numbers, had the same part in making the Constitution that the white people had. He shows this with so much particularity as to leave no doubt of its truth; and, as a sort of conclusion on that point, holds the following language:
"The Constitution was ordained and established by the people of the United States, through the action, in each State, of those persons who were qualified by its laws to act thereon in behalf of themselves and all other citizens of the State. In some of the States, as we have seen, colored persons were among those qualified by law to act on the subject. These colored persons were not only included in the body of ‘the people of the United States,’ by whom the Constitution was ordained and established; but in at least five of the States they had the power to act and, doubtless, did act by their suffrages upon the question of its adoption."
Again, Chief Justice Taney says:
"It is difficult, at this day, to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence and when the Constitution of the United States was framed and adopted."
And again, after quoting from the Declaration, he says:
"The general words above quoted would seem to include the whole human family, and if they were used in a similar instrument at this day, would be so understood."
In these the Chief Justice does not directly assert but plainly assumes,as a fact that the public estimate of the black man is more favorable
now than it was in the days of the Revolution. This assumption is a mistake. In some trifling particulars, the condition of that race has been ameliorated but, as a whole, in this country, the change between then and now is decidedly the other way and their ultimate destiny has never appeared so hopeless as in the last three or four years. In two of the five States, New Jersey and North Carolina, that then gave the free negro the right of voting, the right has since been taken away and in a third, New York, it has been greatly abridged, while it has not been extended, so far as I know, to a single additional State, though the number of the States has more than doubled. In those days, as I understand, masters could, at their own pleasure, emancipate their slaves but since then, such legal restraints have been made upon emancipation, as to amount almost to prohibition. In those days, Legislatures held the unquestioned power to abolish slavery, in their respective States but now it is becoming quite fashionable for State Constitutions to withhold that power from the Legislatures.
In those days, by common consent, the spread of the black man’s bondage to new countries was prohibited but now Congress decides that it will not continue the prohibition and the Supreme Court decides that it
could not if it would. In those days our Declaration of Independence was held sacred by all, and thought to include all but now, to aid in making the bondage of the negro universal and eternal, it is assailed and sneered at and construed and hawked at, and torn, 'til if its framers could rise from their graves they could not at all recognize it. All the powers of earth seem rapidly combining against him. Mammon is after him; ambition follows, and philosophy follows, and the Theology of the day is fast joining the cry. They have him in his prison house; they have searched his person, and left no prying instrument with him. One after another they have closed the heavy iron doors upon him, and now they have him, as it were, bolted in with a lock of a hundred keys, which can never be unlocked without the concurrent of every key; the keys in the hands of a hundred different men, and they scattered to a hundred different and distant places; and they stand musing as to what invention, in all the dominions of mind and matter, can be produced to make the impossibility of his escape more complete than it is.
It is grossly incorrect to say or assume, that the public estimate of the negro is more favorable now than it was at the origin of the government.
Three years and a half ago, Judge Douglas brought forward his famous Nebraska bill. The country was at once in a blaze. He scorned all opposition, and carried it through Congress. Since then he has seen himself superseded in a Presidential nomination, by one indorsing the general doctrine of his measure, but at the same time standing clear of the odium of its untimely agitation and its gross breach of national faith and he has seen that successful rival Constitutionally elected not by the strength of friends but by the division of adversaries, being in a popular minority of nearly four hundred thousand votes. He has seen his chief aids in his own State, Shields and Richardson, politically speaking, successively tried, convicted and executed for an offense not their own, but his. And now he sees his own case standing next on the docket for trial.
There is a natural disgust in the minds of nearly all white people, to the idea of an indiscriminate amalgamation of the white and black races and Judge Douglas evidently is basing his chief hope, upon the chances of being able to appropriate the benefit of this disgust to himself. If he can, by much drumming and repeating, fasten the odium of that idea upon his adversaries, he thinks he can struggle through the storm. He therefore clings to this hope as a drowning man to the last plank. He makes an occasion for lugging it in from the opposition to the Dred Scott decision. He finds the Republicans insisting that the Declaration of Independence includes ALL men, black as well as white and forthwith he boldly denies that it includes negroes at all and proceeds to argue gravely that all who contend it does do so only because they want to vote and eat and sleep and marry with negroes! He will have it that they cannot be consistent else. Now I protest against that counterfeit logic which concludes that, because I do not want a black woman for a
slave I must necessarily want her for a
wife. I need not have her for either, I can just leave her alone. In some respects she certainly is not my equal; but in her natural right to eat the bread she earns with her own hands without asking leave of any one else, she is my equal and the equal of all others.
Chief Justice Taney, in his opinion in the Dred Scott case, admits that the language of the Declaration is broad enough to include the whole human family, but he and Judge Douglas argue that the authors of that instrument did not intend to include negroes, by the fact that they did not at once actually place them on an equality with the whites. Now this grave argument comes to just nothing at all by the other fact that they did not at once,
or ever afterwards, actually place all white people on an equality with one or another. And this is the staple argument of both the Chief Justice and the Senator for doing this obvious violence to the plain unmistakable language of the Declaration.
I think the authors of that notable instrument intended to include all men but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color, size, intellect, moral developments or social capacity. They defined with tolerable distinctness, in what respects they did consider all men created equal—equal in "certain inalienable rights, among which are life, liberty, and the pursuit of happiness." This they said, and this meant. They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the
right, so that the
enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere.
The assertion that "all men are created equal" was of no practical use in effecting our separation from Great Britain; and it was placed in the Declaration, not for that, but for future use. Its authors meant it to be, thank God, it is now proving itself a stumbling block to those who in after times might seek to turn a free people back into the hateful paths of despotism. They knew the proneness of prosperity to breed tyrants and they meant when such should re-appear in this fair land and commence their vocation they should find left for them at least one hard nut to crack.
I have now briefly expressed my view of the
meaning and
objects of that part of the Declaration of Independence which declares that "all men are created equal."
Now let us hear Judge Douglas’ view of the same subject, as I find it in the printed report of his late speech. Here it is:
"No man can vindicate the character, motives and conduct of the signers of the Declaration of Independence, except upon the hypothesis that they referred to the white race alone, and not to the African, when they declared all men to have been created equal—that they were speaking of British subjects on this continent being equal to British subjects born and residing in Great Britain—that they were entitled to the same inalienable rights, and among them were enumerated life, liberty and the pursuit of happiness. The Declaration was adopted for the purpose of justifying the colonists in the eyes of the civilized world in withdrawing their allegiance from the British crown, and dissolving their connection with the mother country."
My good friends, read that carefully over some leisure hour, and ponder well upon it. See what a mere wreck, mangled ruin, it makes of our once glorious Declaration.
"They were speaking of British subjects on this continent being equal to British subjects born and residing in Great Britain!" Why, according to this, not only negroes but white people outside of Great Britain and America are not spoken of in that instrument. The English, Irish and Scotch, along with white Americans, were included, to be sure, but the French, Germans and other white people of the world are all gone to pot along with the Judge’s inferior races.
I had thought the Declaration promised something better than the condition of British subjects but, no, it only meant that we should be
equal to them in their own oppressed and
unequal condition. According to that, it gave no promise that having kicked off the King and Lords of Great Britain we should not at once be saddled with a King and Lords of our own.
I had thought the Declaration contemplated the progressive improvement in the condition of all men everywhere but, no, it merely "was adopted for the purpose of justifying the colonists in the eyes of the civilized world in withdrawing their allegiance from the British crown and dissolving their connection with the mother country." Why, that object having been effected some eighty years ago, the Declaration is of no practical use now—mere rubbish—old wadding left to rot on the battle-field after the victory is won.
I understand you are preparing to celebrate the "Fourth" tomorrow week. What for? The doings of that day had no reference to the present and quite half of you are not even descendants of those who were referred to at that day. But I suppose you will celebrate and will even go so far as to read the Declaration. Suppose after you read it once in the old fashioned way you read it once more with Judge Douglas’ version. It will then run thus: "We hold these truths to be self-evident that all British subjects who were on this continent eighty-one years ago were created equal to all British subjects born and then residing in Great Britain."
And now I appeal to all Democrats as well as others; are you really willing that the Declaration shall be thus frittered away, thus left no more at most, than an interesting memorial of the dead past, thus shorn of its vitality, and practical value; and left without the
germ or even the
suggestion of the individual rights of man in it?
But Judge Douglas is especially horrified at the thought of the mixing blood by the white and black races: agreed for once—a thousand times agreed. There are white men enough to marry all the white women, and black men enough to marry all the black women; and so let them be married. On this point we fully agree with the Judge; and when he shall show that his policy is better adapted to prevent amalgamation than ours we shall drop ours, and adopt his. Let us see. In 1850 there were in the United States, 405,751, mulattoes. Very few of these are the offspring of whites and
free blacks; nearly all have sprung from black
slaves and white masters. A separation of the races is the only perfect preventive of amalgamation but as all immediate separation is impossible the next best thing is to
keep them apart
where they are not already together.
If white and black people never get together in Kansas, they will never mix blood in Kansas. That is at least one self-evident truth. A few free colored persons may get into the free States, in any event; but their number is too insignificant to amount to much in the way of mixing blood. In 1850 there were in the free states, 56,649 mulattoes; but for the most part they were not born there—they came from the slave States, ready made up. In the same year the slave States had 348,874 mulattoes all of home production. The proportion of free mulattoes to free blacks—the only colored classes in the free states—is much greater in the slave than in the free states. It is worthy of note too, that among the free states those which make the colored man the nearest to equal the white, have, proportionally the fewest mulattoes the least of amalgamation. In New Hampshire, the State which goes farthest towards equality between the races, there are just 184 Mulattoes while there are in Virginia—how many do you think? 79,775, being 23,126 more than in all the free States together.
These statistics show that slavery is the greatest source of amalgamation; and next to it, not the elevation, but the degeneration of the free blacks. Yet Judge Douglas dreads the slightest restraints on the spread of slavery, and the slightest human recognition of the negro, as tending horribly to amalgamation.
This very Dred Scott case affords a strong test as to which party most favors amalgamation, the Republicans or the dear union-saving Democracy. Dred Scott, his wife and two daughters were all involved in the suit. We desired the court to have held that they were citizens so far at least as to entitle them to a hearing as to whether they were free or not; and then, also, that they were in fact and in law really free. Could we have had our way, the chances of these black girls, ever mixing their blood with that of white people, would have been diminished at least to the extent that it could not have been without their consent. But Judge Douglas is delighted to have them decided to be slaves, and not human enough to have a hearing, even if they were free, and thus left subject to the forced concubinage of their masters, and liable to become the mothers of mulattoes in spite of themselves—the very state of case that produces nine tenths of all the mulattoes—all the mixing of blood in the nation.
Of course, I state this case as an illustration only, not meaning to say or intimate that the master of Dred Scott and his family, or any more than a per centage of masters generally, are inclined to exercise this particular power which they hold over their female slaves.
I have said that the separation of the races is the only perfect preventive of amalgamation. I have no right to say all the members of the Republican party are in favor of this, nor to say that as a party they are in favor of it. There is nothing in their platform directly on the subject. But I can say a very large proportion of its members are for it, and that the chief plank in their platform—opposition to the spread of slavery—is most favorable to that separation.
Such separation, if ever effected at all, must be effected by colonization; and no political party, as such, is now doing anything directly for colonization. Party operations at present only favor or retard colonization incidentally. The enterprise is a difficult one; but "when there is a will there is a way;" and what colonization needs most is a hearty will. Will springs from the two elements of moral sense and self-interest. Let us be brought to believe it is morally right, and, at the same time, favorable to, or, at least, not against, our interest, to transfer the African to his native clime, and we shall find a way to do it, however great the task may be. The children of Israel, to such numbers as to include four hundred thousand fighting men, went out of Egyptian bondage in a body.
How differently the respective courses of the Democratic and Republican parties incidentally bear on the question of forming a will—a public sentiment—for colonization, is easy to see. The Republicans inculcate, with whatever of ability—they can, that the negro is a man; that his bondage is cruelly wrong, and that the field of his oppression ought not to be enlarged.
The Democrats deny his manhood; deny, or dwarf to insignificance, the wrong of his bondage; so far as possible, crush all sympathy for him, and cultivate and excite hatred and disgust against him; compliment themselves as Union-savers for doing so; and call the indefinite outspreading of his bondage "a sacred right of self-government."
The plainest print cannot be read through a gold eagle; and it will be ever hard to find many men who will send a slave to Liberia, and pay his passage while they can send him to a new country, Kansas for instance, and sell him for fifteen hundred dollars, and the rise.
Next - Part 4 - PSYCHE!
