“A republic . . . if you can keep it”
Why Lincoln defied Dred Scott and we must defy Roe
1 . 22 . 16
Today, January 22, 2016, the 43rd anniversary of the monstrous decision of the Supreme Court to deprive an entire class of human beings—those hidden in their mothers’ wombs waiting to be born—of the most basic human right, we recall that the Supreme Court did this once before in our history. Men and women of African descent, stolen and carried in bondage to our shores, were—in defiance of the first principles of our Nation’s founding—deprived by the Supreme Court of their most basic rights. The case was Dred Scott v. Sandford, the Roe v. Wade of its time.
As with Roe, the Dred Scott decision lacked any warrant in the text, logic, structure, or original understanding of the Constitution. It was, as Abraham Lincoln rightly insisted, an act of judicial will, not law, and as such an assault on the very Constitution in whose name the justices purported to act. Dred Scott, like Roe v. Wade, was a case of judicial usurpation in the cause of mass dehumanization.
While Lincoln, as a matter of prudence, was willing to treat the ruling as binding on the parties to the suit as to the object of the suit, he adamantly refused, not only in word but also in deed, to treat the holding of Dred Scott as valid or binding as a rule on him as President or on the Congress. Expressly rejecting the false doctrine of judicial supremacy in constitutional interpretation, the Great Emancipator defied the Dred Scott holding by treating free blacks as citizens (something the justices had said they could never be) and by promoting and signing into law an act of Congress restricting slavery in the federal territories.
Lincoln refused to treat an abusive and anti-constitutional edict of the Supreme Court as “the law of the land.” We would do well to emulate him, lest we (to use his words) “practically resign [our] government into the hands of that eminent tribunal.” Lincoln saw something that we must not fail to perceive today, namely, that what is at stake in a case like Dred Scott v. Sandford (and Roe v Wade) is not only the moral principle of the inherent and equal dignity of each and every member of the human family—the principle of the Declaration—but also the principle of republican government: government of the people BY and FOR the people.
In standing defiantly against the fundamentally lawless holding in Roe, and by insisting that those who aspire to high political office do likewise if they wish to have our votes, we are standing BOTH for the unborn and their human rights AND for constitutional self-government—the form of government that Benjamin Franklin famously said he and his fellow Founders had given us . . . “if you can keep it.”
Let’s keep it.
Robert P. George is the McCormick Professor of Jurisprudence at Princeton University.