Harry Truman famously remarked that the only thing new is the history we haven’t read yet. In a recent statement, “A Call to Action,” I joined with friends, tutored in history and law, as we sought to invoke Lincoln’s understanding of the rightful role of the political branches in containing and countering the decisions of the Supreme Court. Lincoln’s teaching had been set forth precisely in a series of speeches, in his debates with Stephen Douglas, and in his First Inaugural Address. But more than that, Lincoln’s understanding was reflected in a series of practical judgments carried out by his administration from its first moments. And now, in our own time, we find liberal Democrats acting on the same understanding in resisting the decisions of the Court, without quite realizing that they’ve been backing into Lincoln’s teaching yet again.
But all of this seems to come as news to David Blankenhorn, a friend of years gone by. The restatement of Lincoln’s teaching seemed to be jolting because it brought him news, something so novel, he reckoned, that it couldn’t be true. Plainly, this record of Lincoln, his political thought and his statecraft, had somehow been screened from David Blankenhorn’s reading of history and Lincoln. He gave us the clue to the puzzle when he made a point of telling us that he studied Lincoln at the feet of Professor David Donald. Donald springs from the guild of historians that began by treating as risible Lincoln’s understanding of “all men are created equal.” Lincoln thought that “proposition,” as he called it, expressed “an abstract truth, applicable to all men and all times.” The historians prided themselves on being too clever to credit the notion that there were such timeless truths, grounded in an enduring human nature. That Blankenhorn learned his history from this source explains what has been filtered from his understanding of Lincoln, and to explain may be to forgive.
But what remains to be faced seriously is the force of Lincoln’s teaching, a teaching that has evidently fled the memory of conservatives as well as liberals.
Lincoln’s Reverence for the Law
Russell Hittinger made the telling point that Lincoln could not have raised his hand on March 4, 1861, and taken the oath to “preserve, protect, and defend the Constitution,” if it were understood that the constitutional rights articulated in the Dred Scott case were now part of that Constitution, as though they were woven into the text itself. That decision recognized a new right not to be deprived of one’s property in a slave when one entered a Territory of the United States. Lincoln had led a national movement to counter and overturn that decision. He could not treat that judgment, false in its premises, revolutionary in its import, as settling the “law of the land.”
Lincoln and his Congress set to work almost at once to take the steps to narrow and undo that decision. In June 1862, the Congress passed and Lincoln signed an act that barred slavery from the Territories of the United States, any then existing, and any that may be created. With that move, the Republicans acted to counter—in effect, to negate—the decision in Dred Scott through an act of ordinary legislation, not a constitutional amendment.
Just why that was a move wholly consistent with the Constitution was explained luminously in Lincoln’s speeches. Blankenhorn suggests that Lincoln would have shown a contempt for law if he had truly acted in accord with the understanding we recalled in “The Call to Action.” But since his famous Lyceum speech in 1838, Lincoln sought to make respect for the law part of the “political religion” of the country. And he made it quite clear in rejecting the notion that “when Dred Scott has been decided to be a slave by the court, we, as a mob, will decide him to be free.” He would respect the judgment of the Court by respecting the outcome of the case in regard to the litigants involved in the case. But that was a different matter, he insisted, from accepting the principle articulated in the case “as a political rule which shall be binding on the voter, to vote for nobody who thinks it wrong, which shall be binding on the members of Congress or the President to favor no measure that does not actually concur with the principles of that decision.”
The precise, practical import of that judgment was to be seen right away, in the first days of the administration, in two cases springing from Boston. In the first case, a black student was denied a passport to study in France because, as the Court had held in Dred Scott, blacks could not be citizens of the United States and therefore could not carry American passports. In the second case, with the same reasoning, a black inventor was denied the right to hold a patent under the laws of the United States.
These were judgments rendered by two agencies of the federal government—the State Department and the Patent Office—and they were applying what they took to be a key principle in the Dred Scott case to very different circumstances. These were not cases of slaves litigating for their freedom. But, as Lincoln made clear, his administration would not accept the principles articulated in Dred Scott. And so the administration quashed both decisions. It issued both the passport and the patent, and in an opinion of the attorney general, Edward Bates, it was made clear that in the understanding of this administration, any black born free in the United States was indeed a citizen of the United States, anything in the Dred Scott decision notwithstanding.
Judicial Precedent is Different from Law
The most revealing test of this argument in our own time came when President Reagan stirred the wrath of Senator Gary Hart on the War Powers Act of 1973. With that act, the president could deploy troops abroad on his own initiative, but after ninety days the Congress could “veto” the move and withhold its concurrence. It was a species of the “legislative veto.” President Reagan regarded this act, as President Nixon had, as an unconstitutional abridgment of his powers as Commander in Chief. That stance brought a scolding from Senator Hart. He instructed the president that he was obliged to enforce even laws he did not approve until they were tested by the Supreme Court.
And yet Senator Hart had apparently failed to notice that just a year earlier the Supreme Court had struck down the “legislative veto” in the Chadha case, a case on immigration. But the “legislative veto” was at the very heart of the War Powers Act. Without it, that act lost its point. And yet, Hart and liberal Democrats in Congress kept enacting measures containing the legislative veto. In other words, they were content to respect the Chadha case as it bore simply on the litigants in that case, and they were content to narrow their understanding of the case as a case involving immigration. Hart and his colleagues were quite willing to claim for themselves, as officers under the Constitution, the same authority that they derided Reagan for claiming. But the sublime point that eluded them was that they were backing, once again, into Lincoln’s understanding.
Gary Hart was quite right, though, in flexing his authority to make judgments on the constitutionality of those measures he was asked to vote upon. John Marshall, in Marbury v. Madison, never said that the judges alone bore the responsibility to make those kinds of judgments. The judges were simply obliged to consider in any case whether the statute they were being asked to judge was compatible with the “fundamental law.” That obligation bore on presidents and members of Congress quite as well.
Legislatively Countering Same-Sex Marriage
Clearly, it would not be some kind of revolutionary act if the political branches sought to act right now, to narrow and counter the holding in the Obergefell case on same-sex marriage. There is no more need to wait for a constitutional amendment here than there was in the case of Dred Scott, or than there was in other cases over the years in which the Congress essentially encouraged judges to take a sober, second look at what they had done.
Just what might be put on the table now is an open question. Personally, I lean toward Carrie Severino’s proposal for DOMMA: a Defense of Monogamous Marriage Act.
The majority in Obergefell never sought to answer the argument made by Chief Justice Roberts: that it was hard to see how the principles stated by the Court would confine marriage to a coupling and deny marriage then to people in polygamous and polyamorous households, for they too may earnestly wish to marry “the ones they love.” The Congress could actually do the Court a favor by limiting a decision the majority would probably wish to see limited, but whose principle of limitation it cannot quite explain itself.
The old Defense of Marriage Act could be re-enacted to apply to plural marriage: The federal government would refuse to credit a “marriage” containing more than two people, and the states would be sustained in refusing to recognize a marriage coming in from another state with more than two persons. The Court may be compelled then to acknowledge that the federal government may, after all, form a policy on marriage. Unless, of course, the judges are prepared to strike down this measure and recognize a new right to polygamy. But even the majority in Obergefell may not be ready to do that, at least yet.
Of course, a measure of this kind would still leave undisturbed the arrangement of same-sex marriage. But a powerful lesson would be taught if members of the political classes were awakened anew to Lincoln’s understanding and to their own inescapable responsibilities. If members of Congress become aware again that they have authority in this domain, this might enfranchise in turn the voters who elect them. The matter would indeed then be taken out of the cloister of the courts and returned to the deliberations and arguments of ordinary people in the political arena. And it would be done then through the workings of the Constitution itself, not because of any permission slips handed down by five judges on a Court.
Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Director of the James Wilson Institute on Natural Rights & the American Founding in Washington, DC.