The Scott decision was rendered in 1857, before Lincoln was even President. In a speech Lincoln gave in 1857, he expressed his disagreement with Scott, but also recognized that the Supreme Court possessed the authority to interpret the Constitution. Thus, he stated:
“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.”
During the Civil War, Lincoln, relying upon the war powers of the Constitution (Article II, Sec. 2) granted to him as Commander in Chief issued the Emancipation Proclamation, freeing slaves held in Confederate states. It did not free slaves living in the border states nor did it overrule Dred Scott. It was a Constitutional exercise of his war powers.
Congress passed a law prohibiting slavery in the territories. Was its constitutionality ever challenged? No. Unconstitutional laws are occasionally passed by Congress and signed by the President, but the unconstitutionality of such laws are not determined until they are challenged and ultimately decided by the Supreme Court. McCain-Feingold was passed by Congress and signed by the President. Its constitutionality was challenged and portions of it were held by the Supreme Court to be unconstitutional. Why? Because that is the authority granted by the Constitution to the Supreme Court. Was the law passed by Congress in 1862 unconstitutional? Yes. Was it ever challenged? Not to my knowledge. Why? Because there was a Civil War going on. Do you think the Confederacy which had already seceded from the Union and established its own government was going to challenge it?
The asininity of your position is belied by the subsequent passage of the 13th, 14th and 15th Amendments. If the Emancipation Proclamation and the 1862 law passed by Congress were sufficient to overrule Supreme Court precedent it would have been unnecessary to pass such Amendments. However, the Amendments were necessary and it is a further example of how checks and balances exist in the Constitution.
Your feeble efforts to support your bizarre position are embarrassing yourself. Please stop trying to espouse an argument which has no authority in either the text of the Constitution or Constitutional jurisprudence.
The speech you cite, especially taken in the context of actual history that followed 1857, supports my case, not yours.
Lincoln also cites another case that proves your all-encompassing claim that no executive has dared defy the Supreme Court and actually decide constitutionality for himself.
Lincoln:
Why this same Supreme court once decided a national bank to be constitutional; but Gen. Jackson, as President of the United States, disregarded the decision, and vetoed a bill for a re-charter, partly on constitutional ground, declaring that each public functionary must support the Constitution, "as he understands it ." But hear the General’s own words. Here they are, taken from his veto message:
"It is maintained by the advocates of the bank, that its constitutionality, in all its features, ought to be considered as settled by precedent, and by the decision of the Supreme Court. To this conclusion I cannot assent. Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power, except where the acquiescence of the people and the States can be considered as well settled. So far from this being the case on this subject, an argument against the bank might be based on precedent. One Congress in 1791, decided in favor of a bank; another in 1811, decided against it. One Congress in 1815 decided against a bank; another in 1816 decided in its favor. Prior to the present Congress, therefore the precedents drawn from that source were equal. If we resort to the States, the expressions of legislative, judicial and executive opinions against the bank have been probably to those in its favor as four to one. There is nothing in precedent, therefore, which if its authority were admitted, ought to weigh in favor of the act before me."
I drop the quotations merely to remark that all there ever was, in the way of precedent up to the Dred Scott decision, on the points therein decided, had been against that decision. But hear Gen. Jackson further—
"If the opinion of the Supreme court covered the whole ground of this act, it ought not to control the co-ordinate authorities of this Government. The Congress, the executive and the court, must each for itself be guided by its own opinion of the Constitution. Each public officer, who takes an oath to support the Constitution, swears that he will support it as he understands it, and not as it is understood by others."
Again and again have I heard Judge Douglas denounce that bank decision, and applaud Gen. Jackson for disregarding it. 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.
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.
The asininity of your position is belied by the subsequent passage of the 13th, 14th and 15th Amendments. If the Emancipation Proclamation and the 1862 law passed by Congress were sufficient to overrule Supreme Court precedent it would have been unnecessary to pass such Amendments. However, the Amendments were necessary and it is a further example of how checks and balances exist in the Constitution.
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Your argument is very weak. The Constitution binds all branches of the federal government, not just the Supreme Court. The Amendments bind the Congress and all future Congresses, the President and all future Presidents, and the Supreme Court and all future Supreme Courts. Not just the Supreme Court.