Posted on 02/13/2006 10:41:19 AM PST by Mr. Silverback
One hundred fifty years ago, a Constitutional crisis took place similar to one that we have been threatened with over Roe v. Wade—one in which no moral consensus could be achieved between the three branches of government. The first constitutional crisis was over the hot-button issue of that day: slavery. The Supreme Court declared an act of Congress unconstitutional, and the president, Abraham Lincoln—to his everlasting credit—refused to recognize the Court’s decision.
In 1857, the Supreme Court ruled on the case of a Missouri slave named Dred Scott. Scott’s master, John Sandford, had taken him into the free state of Illinois. Because of the Missouri Compromise, banishing slavery in some states, slaves in free states could demand their freedom. Scott did.
Scott’s owner challenged the constitutionality of the Missouri Compromise, arguing that slaves were private property protected by the Constitution and could not be taken away without due process. Congress, therefore, he argued, lacked the constitutional authority to ban slavery in Illinois or anywhere else.
The Court agreed and not only sent Scott back into slavery, but also claimed he had never been free. The Court also ruled that Congress lacked the authority to forbid or abolish slavery in federal territories—meaning the Missouri Compromise was illegal.
Lincoln saw Dred Scott as an outrage, in part because the Court claimed authority to decide for the other branches of government once and for all what the Constitution required. In so doing, it placed the other branches in a position of inferiority and subservience, something the founders specifically rejected.
As president, Lincoln ignored Dred Scott. His administration treated free blacks as citizens, issuing them passports and other documents. In open defiance of the court ruling, he signed legislation that restricted slavery in the western territories.
Lincoln saw himself following in the footsteps of another president. Thomas Jefferson also believed that the president and Congress were in no way inferior to the Court. Jefferson told a friend the Constitution “has wisely made all the departments coequal and co-sovereign within themselves.” In so doing, the founders took into account fallen human nature. Both Jefferson and Lincoln believed courts were capable of violating the Constitution and undermining constitutional government. Ultimately, of course, as we know, Lincoln proposed that the Constitution be amended to outlaw slavery—and it was, with the Thirteenth Amendment.
Today, we have become so accustomed to the notion that the courts have supreme authority that we are shocked at the idea that a president or the Congress might stand up to them.
Well, fortunately, we’ve just witnessed the appointment of two new Supreme Court justices who respect the court’s limited rights under the Constitution. And we have a president who is appointing, throughout the court system, judges who will bring the courts back to a proper understanding of their role. And so we may avert the kind of constitutional crisis Lincoln faced over our own divisive issues like abortion and so-called same-sex “marriage.”
Lincoln’s birthday is a great occasion to remember that two of our greatest presidents would never have tolerated lawless judges who had no regard for the constitutional limits of their own power.
Nor should we.
Alan Keyes said EXACTLY the same thing. When it comes to a proper understanding of the constitution, there is no one better.
Lincoln saw himself following in the footsteps of another president. Thomas Jefferson also believed that the president and Congress were in no way inferior to the Court. Jefferson told a friend the Constitution “has wisely made all the departments coequal and co-sovereign within themselves.” In so doing, the founders took into account fallen human nature. Both Jefferson and Lincoln believed courts were capable of violating the Constitution and undermining constitutional government. Ultimately, of course, as we know, Lincoln proposed that the Constitution be amended to outlaw slavery—and it was, with the Thirteenth Amendment.Well said.
The closest the Supremes could get to enforcement would be to ask the Congress to impeach the POTUS.
There's a hole in your argument that I can drive a truck through, and that hole was made by the use of the word "arbitrary." You act as if Colson is saying the president may reject a SCOTUS ruling if they say toe-may-toe and he says toe-mah-toe. But "arbitrary" is hardly the issue.
For example, Lincoln defied the SCOTUS because they had overridden the clear intent of Congress on a very thorny issue that had been passed after decades of debate. Moreover, the Congress had passed the Missouri Compromise in an effort to save the Union, and the SCOTUS was undermining that just to make sure dipstick slave owners didn't have to worry about losing their "property."
You seem to be missing that we're talking about a situation where the SCOTUS defies the Constitution and the clear will of the people, and does so in a way that endangers the Republic. That's hardly an "arbitrary" situation, and it is a situation where the POTUS and Congress must act to preserve good order and separation of powers.
I considered using a different word but finally came back to arbitrary which means subject to individual discretion or preference. If Colson's proposal were the custom, I think the President's constitutional reasoning would be no better that the Court's for which arbitrary is a good description. They adhere to principle only when convenient for their desired result. When it's not we get penumbras and emanations and reversed decade old precedents. Presidents would do no better, in fact they'd probably be worse, being subject as they are to influential lobbies and passing political pressures.
Problems start when all three branches of government decide to ignore the Constitution - like in Maryland v. Craig, when the SCOTUS sided with them and concluded that the Confrontation Clause does not require confrontation, because the interest of the state "outweighs" constitutional text (it would be actually funny if not scary)...
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