By: John C. Eastman | Commentary. The Federalist
Lincoln believed self-government requires citizens and their representatives to continue reasoning together about the meaning of the Constitution, even after courts have spoken.
The Supreme Court has spoken. Now what?
That question has confronted the nation before. In 1857, the Supreme Court believed it had settled one of the most consequential constitutional controversies in American history. In Dred Scott v. Sandford, Chief Justice Roger Taney declared that persons of African descent could never become citizens of the United States and that Congress lacked authority to prohibit slavery in the territories. Many believed the court had spoken the final constitutional word.
Abraham Lincoln disagreed. His administration’s response to Dred Scott illustrates the point. President Lincoln did not disregard the court’s judgment in Dred Scott’s own case. But neither did he treat Taney’s opinion as binding executive or legislative policy for the future.
In 1862, for example, Congress passed, and Lincoln signed into law, An Act to secure Freedom to all Persons within the Territories of the United States, which prohibited slavery in the territories notwithstanding Dred Scott’s contrary constitutional holding. And the executive branch abandoned the Buchanan administration’s practice of denying passports to black Americans, including Frederick Douglass — a practice that had rested on Taney’s assertion that they could never be citizens.
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