The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday, I began introducing some of the themes of "The Constitution: An Introduction," my new co-authored book with my son, Luke Paulsen. (My thanks again to Eugene Volokh for allowing me to guest-blog this week, in part to introduce the book.)
As noted in that first post, one of the recurring motifs of the book is questioning the (modern) conventional wisdom of judicial supremacy over all other branches and officers of government in matters of constitutional interpretation. The chapter devoted to Lincoln and the Civil War is an especially good illustration of this.
Chapter Seven, "Crisis," concerns the rise and election of Lincoln, the constitutional crisis of secession and civil war, and Reconstruction. While the chapter covers several themes, it provides a powerful illustration in practice of the inherent tension between constitutional supremacy and judicial supremacy. Lincoln stood for constitutional supremacy, and against the prospective binding authority of the Supreme Court's betrayal of the Constitution in Dred Scott v. Sandford. Though we do not draw the conclusion too sharply in the book—we take positions, of course, but our aim is more generally to set forth the issues and arguments fairly and let readers draw their own conclusions—it seems fair to say that one cannot embrace the modern view of reflexive judicial supremacy without simultaneously opposing nearly everything Lincoln said and did as President. Indeed, on a thoroughgoing judicial supremacist view, it could fairly be argued that the South was justified in seceding—in reaction to the election of a president committed to a lawless course of action.
Here is an extended passage from that chapter:
Lincoln's position on slavery in the territories and the Supreme Court's decision in Dred Scott were in direct contradiction. Today it seems clear that Lincoln's interpretation of the Constitution was right and the Supreme Court's interpretation was wrong—horribly, willfully wrong. Yet, was Lincoln not bound to regard the Supreme Court's decision against his position as deciding the matter? Indeed, are not all public officials, and all citizens, obliged to treat the Court's decisions as settling constitutional questions, whether they agree with those decisions or not?
That was Stephen Douglas's position in the famous series of seven debates that he and Lincoln had in their 1858 election contest for the US Senate. Opposing the Supreme Court's decision, argued Douglas, was equivalent to opposing the Constitution itself.
Lincoln vigorously denied Douglas's position. Supreme Court opinions decide only the individual case before the court, Lincoln argued. They do not bind members of Congress or the President in their political actions. It was thus proper for the other branches of government—and for the people—to resist wrong and harmful decisions of the Supreme Court and to seek to have them reversed and overturned. That was simply part of the Constitution's system of checks and balances. …
Lincoln would remain remarkably consistent—and increasingly insistent—on the constitutional duty of elected officials to resist unlawful decision of the Supreme Court that they considered harmful to the nation as a whole and to its people. The alternative, in Lincoln's mind, was resignation of free, popular government under the Constitution into the hands of the Court, no matter how wrongheaded it's decisions.
As President, Lincoln would on more than one occasion defy the supposed authority of "controlling" judicial interpretations of the Constitution. Lincoln and the Civil War Congress disregarded the Dred Scott decision entirely in enacting laws that prohibited slavery in the territories—exactly what Dred Scott had said was unconstitutional. In addition, as we shall see, Lincoln defied a judicial decision (Ex parte Merryman) purporting to limit his military authority to hold enemy prisoners in the course of his conduct of the Civil War. And if the Supreme Court had ever had the audacity to hold the Emancipation Proclamation unconstitutional or, worse still, to hold that the South had a constitutional right to secede—neither issue ever came before the Court—it is almost certain that Lincoln would have refused to abide by such a decision.
Did this make Abraham Lincoln a lawless president (as some have seriously argued)? Was the South perhaps constitutionally justified in seceding, given Lincoln's "unconstitutional" stance against the Supreme Court's authority in matters of constitutional interpretation? Or was Lincoln right that the Constitution itself is of superior authority to the Supreme Court? History has vindicated Lincoln's position in practical terms. Ironically, however, most constitutional scholars today side with Douglas, against Lincoln. The modern consensus favors judicial supremacy in constitutional interpretation: whatever the Supreme Court says, goes.
At the very least, it should give one pause that, on the judicial supremacist view—the view espoused by Douglas—Dred Scott was properly the law of the land; that Lincoln was wrong to resist it; that Lincoln's election as President was indeed the election of a lawless man and an attack on the constitutional rights of the South; and that everything Lincoln did as President rested on an improper view of the Constitution and the authority of the Supreme Court. In short, it is hard to accept modern notions of judicial supremacy without rejecting much of what Lincoln stood for, and much of what he did as President.
Lincoln's view—not Douglas's—seems more faithful to the Constitution itself. The Constitution is "the supreme law of the land," not the Supreme Court's misinterpretations of it. The logic of the Constitution's separation-of-powers arrangement would seem to refute the notion that any one branch has supreme authority over its interpretation. And the framers of the Constitution explicitly denied that the Constitution established judicial supremacy. Lincoln, on the framers' view, was right.
But that view did not command universal acceptance in Lincoln's day (just as it does not today). It was hated in the South and regarded with skepticism even by many in the North. Thus, when Lincoln was elected President in 1860, his well-known views stirred a constitutional crisis that had long been brewing.
The rest of the chapter is devoted to the constitutional crisis of secession, Lincoln's theory of Union and his justification for fighting the Civil War, Lincoln's uses of the Commander in Chief Clause power—including his suspension of the writ of habeas corpus and his Emancipation Proclamation—the eventual adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments, Reconstruction, and the impeachment trial of President Andrew Johnson.
Independent presidential constitutional interpretation—typified and taken to its logical extreme by Lincoln during the Civil War—is just one application of the broader theory that multiple actors legitimately may interpret the Constitution within the scope of their constitutional powers and may do so independently of the decisions of the judiciary. Tomorrow, I will sketch the book's treatment of other even more controversial variations on this theme: Congress's use of the impeachment power to remedy perceived constitutional violations by executive or judicial officers; the legitimacy of state officers' independent constitutional interpretation ("interposition" and "nullification"); and the province of the jury in constitutional interpretation.