Lincoln on Judicial DespotismTo Lincoln Dred Scott was an abomination, but for reasons of principle going even beyond those set forth by the dissenting Justices in the case. That Lincoln was devoted to the Declaration of Independence and viewed its statement of principles as integral to the American scheme of constitutional government is, if anything, an understatement. However, the Declaration was far from the only writing of Jefferson’s of which Lincoln was mindful. In Jefferson’s letter of September 28, 1820 to William C. Jarvis, from which I quoted earlier his line about judicial "despotism," he explained his opposition to judicial supremacy in constitutional interpretation as follows:
The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments coequal and co–sovereign within themselves. If the legislature fails to pass laws for a census, for paying the judges and other officers of government, for establishing a militia, for naturalization as prescribed by the Constitution, or if they fail to meet in Congress, the judges cannot issue their mandamus to them; if the President fails to provide the place of a judge, to appoint other civil and military officers, to issue requisite commissions, the judges cannot force him.
Upon his election as President, Lincoln faced the matter squarely in his Inaugural Address on March 4, 1861. With the specter of civil war looming, the new President, who had denounced the Dred Scott decision repeatedly in his senatorial campaign against Douglas in 1858 as well as in the presidential campaign, turned attention to it in his remarks to the nation.
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 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 a precedent for other cases, can better be borne than could the evils of a different practice. 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 to that extent practically resigned their government into the hands of that eminent tribunal.
The Rights of the Unborn: The Constitutional Challenge to Roe v. Wade the difficulties of securing the rights of the unborn have to be faced as Abraham Lincoln faced the passing of the Dred Scott Decision, convinced of its unconstitutionality and laying the groundwork for reversing it. His comments are worth repeating: "I think the authors of that notable instrument (the Declaration of Independence) intended to include all men, but they did not intend to declare all men equal in all respects.... They defined, with tolerable distinctness, in what respects they did consider all men created equal - equal in certain unalienable rights, among which are life, liberty and the pursuit of happiness. This they said, and this they meant.....
God's Justice and Ours What the "pro-choice" American does not believe is that a human fetus is as fully a human life as Uncle Charlie.
The Rights of the Unborn from Common Law to Constitutional Law English Common Law contains the precedents that became the very language of our Constitution, and it is from this well of principles, precedents and declarations that our legal system draws its precedents and principles, as well as the very language in which these precedents and principles are expressed.
How Not To Overturn Roe v. Wade The unstated premise of those who have adopted this strategy is that the Justices do not understand the nature of abortion, and that if they are forced to confront the scientific and medical facts about the conception and development of the unborn child, they will be compelled to reconsider Roe v. Wade and hold that the unborn child is a constitutional person. To speak in spiritual terms, the critics assume that the problem lies in the intellect rather than the will. That premise is mistaken.
Constitutional Persons:An Exchange on Abortion
...Roe had nothing whatever to do with constitutional interpretation….Roe is impervious to logical or historical argument; it is what some people, including a majority of the Justices, want, and that is that....Perhaps Roe may one day be whittled away by new appointees to the Court, though unless an unforeseeable cultural-political shift occurs, such candidates will have great difficulty in winning Senate approval. Dim as are the prospects for the demise of Roe, it is not imaginable that any Justice, let alone five of them, would rule that the Constitution prohibits all abortion, no exceptions. Schlueter's argument will never be more than a curiosity.
...I think it clear that the Constitution has nothing to say about abortion, … Roe should be overruled and the issue of abortion returned to the moral sense and the democratic choice of the American people.
----Robert H. Bork
The Federalist No. 78
ALEXANDER HAMILTON
May 28, 1788
…all judges who may be appointed by the United States are to hold their offices DURING GOOD BEHAVIOR… The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.
the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them….The judiciary…. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
…from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches;
Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable. Court excerises judgement, not will or force
Legislature voids any exercise of will by the Court.
STENBERG v. CARHART :Justice Scalia, dissenting. If only for the sake of its own preservation, the Court should return this matter to the people-where the Constitution, by its silence on the subject, left it-and let them decide, State by State, whether this practice should be allowed. Casey must be overruled.