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SCOTUS, Lincoln, Huckabee

Would he have supported Kim Davis's resistance? (Everett Historical/Shutterstock

This morning on This Week, George Stephanopoulos cited this blog in questioning Mike Huckabee on the Kim Davis situation. Watch here:

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Huckabee said that Your Working Boy must dislike Abraham Lincoln, who held there was no obligation to obey the odious Dred Scott decision. I looked up the 1857 speech in which Lincoln said this. Excerpts:

And now as to the Dred Scott decision. That decision declares two propositions-first, that a negro cannot sue in the U.S. Courts; and secondly, that Congress cannot prohibit slavery in the Territories. It was made by a divided court-dividing differently on the different points. Judge Douglas does not discuss the merits of the decision; and, in that respect, I shall follow his example, believing I could no more improve on McLean and Curtis, than he could on Taney.

He denounces all who question the correctness of that decision, as offering violent resistance to it. But who resists it? Who has, in spite of the decision, declared Dred Scott free, and resisted the authority of his master over him?

Judicial decisions have two uses-first, to absolutely determine the case decided, and secondly, to indicate to the public how other similar cases will be decided when they arise. For the latter use, they are called “precedents” and “authorities.”

We believe, as much as Judge Douglas, (perhaps more) in obedience to, and respect for the judicial department of government. We think its decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution. But we think the Dred Scott decision is erroneous. We know the court that made it, has often over-ruled its own decisions, and we shall do what we can to have it to over-rule this. We offer no resistance to it.


Judicial decisions are of greater or less authority as precedents, according to circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession.

If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.

But when, as it is true we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country-But Judge Douglas considers this view awful. Hear him:

“The courts are the tribunals prescribed by the Constitution and created by the authority of the people to determine, expound and enforce the law. Hence, whoever resists the final decision of the highest judicial tribunal, aims a deadly blow to our whole Republican system of government — a blow, which if successful would place all our rights and liberties at the mercy of passion, anarchy and violence. I repeat, therefore, that if resistance to the decisions of the Supreme Court of the United States, in a matter like the points decided in the Dred Scott case, clearly within their jurisdiction as defined by the Constitution, shall be forced upon the country as a political issue, it will become a distinct and naked issue between the friends and the enemies of the Constitution-the friends and the enemies of the supremacy of the laws.”

Why this same Supreme court once decided a national bank to be constitutional; but Gen. Jackson, as President of the United States, disregarded the decision, and vetoed a bill for a re-charter, partly on constitutional ground, declaring that each public functionary must support the Constitution, “as he understands it .” But hear the General’s own words. Here they are, taken from his veto message:

“It is maintained by the advocates of the bank, that its constitutionality, in all its features, ought to be considered as settled by precedent, and by the decision of the Supreme Court. To this conclusion I cannot assent. Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power, except where the acquiescence of the people and the States can be considered as well settled. So far from this being the case on this subject, an argument against the bank might be based on precedent. One Congress in 1791, decided in favor of a bank; another in 1811, decided against it. One Congress in 1815 decided against a bank; another in 1816 decided in its favor. Prior to the present Congress, therefore the precedents drawn from that source were equal. If we resort to the States, the expressions of legislative, judicial and executive opinions against the bank have been probably to those in its favor as four to one. There is nothing in precedent, therefore, which if its authority were admitted, ought to weigh in favor of the act before me.”

I drop the quotations merely to remark that all there ever was, in the way of precedent up to the Dred Scott decision, on the points therein decided, had been against that decision. But hear Gen. Jackson further-

“If the opinion of the Supreme court covered the whole ground of this act, it ought not to control the co-ordinate authorities of this Government. The Congress, the executive and the court, must each for itself be guided by its own opinion of the Constitution. Each public officer, who takes an oath to support the Constitution, swears that he will support it as he understands it, and not as it is understood by others.”

Again and again have I heard Judge Douglas denounce that bank decision, and applaud Gen. Jackson for disregarding it. It would be interesting for him to look over his recent speech, and see how exactly his fierce philippics against us for resisting Supreme Court decisions, fall upon his own head.

Lincoln’s speech shows one thing unambiguously: that the respect politicians have for the Supreme Court’s authority often depends on whether or not the agree with the decision.

Beyond that, Lincoln says that recognizing and obeying a SCOTUS decision depends on the subjective judgment of others as to whether or not the Court rightly decided the case at hand. That is, he says we should respect and obey Supreme Court decisions, unless we find them egregious.

Well, it is hard to find a more egregious decision in the Court’s history than Dred Scott. Still, just because the sainted Abraham Lincoln said something does not make it Gospel truth. Do we really want to grant to the executive branch the right to reject decisions made by the Supreme Court? What if Eisenhower had rejected Brown v. Board, and told Southern governors that federal authorities would decline to enforce it on unwilling states? If Lincoln is right, and if Jackson before him was right, on what firm and clear principles do we reject SCOTUS rulings?

What if Anthony Kennedy had sided with the conservative dissenters in Obergefell, finding that there is no constitutional right to same-sex marriage — and, in response, the president and state officials said they were not bound to recognize it, because they find the decision to be egregiously wrong? We all know that conservatives would have been the first to insist on law and order, and calling on liberals to respect the Constitution. And had Obama refused to accept the lawful decision of the Supreme Court, it would have provoked a constitutional crisis.

Here’s a bit of the exchange between Stephanopoulos and Huckabee this morning:

HUCKABEE: … We had so many different presidents, including Jefferson, Jackson, Lincoln — there were other founders like Hamilton, Adams — who made it very clear that the courts can’t make a law. The Constitution is expressly clear that that’s a power reserved to Congress.

When the courts have a ruling, then it is incumbent on Congress to codify that into law and specifically delineate what that means. That hasn’t happened, George.

STEPHANOPOULOS: But how is this different then from Loving v. Virginia back in 1967? Of course that was a Supreme Court ruling that struck down bans on interracial marriage. If a clerk at that time had said my religious beliefs forbid me from issuing this license, would you support that?

HUCKABEE: Well, it is incredibly different situation because —


HUCKABEE: — what the Supreme Court did in Loving — no, it’s not the same, George, not even close. Because in Loving you still had a marriage which was a man and a woman, and it was equal protection. But it didn’t redefine marriage. What’s — the Supreme Court did in June —

STEPHANOPOULOS: But you didn’t have laws implementing —


HUCKABEE: This is why —

STEPHANOPOULOS: You didn’t have laws implementing the ruling then either, so would it have been OK to defy the Supreme Court in that case?

HUCKABEE: I think it’s — again, it’s a very different equation altogether because this is a redefinition. Marriage is not defined in the federal Constitution at all; it’s a matter for the states. And applying the Fourteenth Amendment to the equality of men and women and their relationship in marriage is totally different than redefining marriage.

And I think what we’ve seen here is the overreach of the judiciary. This, if allowed to stand without any congressional approval, without any kind of enabling legislation, is what Jefferson warned us about. That’s judicial tyranny.

Wait, what? Under our constitutional system, if the people reject a Supreme Court ruling, they have through their elected representatives the power to amend the Constitution to override SCOTUS’s call. In what sense do we have judicial tyranny if we have the mechanism in our democratic system to nullify a judicial decision? And if the executive branch could pick and choose from among the SCOTUS decisions it would recognize, would we not have executive tyranny?

Lincoln seems to be saying that we should play by the rules, except when we shouldn’t. That is, it is “revolution” (Lincoln’s word) when we disobey the Court’s rulings, except when we conclude that the Court really and truly blew it. How are we to know when the justices have blown a ruling so badly that we can defy it?

In that case, doesn’t the rule of law all come down to “who, whom”?

Anyway, I agree with Huckabee that race and sexuality are two very different things for purposes of marriage, but he’s completely sidestepping Stephanopoulos’s question here. The rest of Huckabee’s performance is equally uninspiring. For example:

STEPHANOPOULOS: Doesn’t she have to the duty to obey a legal order from the court?

HUCKABEE: Well, you obey it if it’s right. So I go back to my question. Is slavery the law of the land? Should it have been the law of the land because Dred Scott said so? Was that a correct decision? Should the courts have been irrevocably followed on that? Should Lincoln have been put in jail? Because he ignored it.

I mean, that’s the fundamental question. Do we have a check and balance system? Do we have three equal branches or do we have one supreme branch, not just the Supreme Court? That’s the fundamental question.

“You obey it if it’s right.” Well, who decides that? Had Anthony Kennedy ruled the other way, would a liberal Episcopalian county clerk be justified in refusing to recognize the conservative Obergefell ruling? And, doesn’t the “checks and balances” system Huckabee claims is being invalidated by the Supreme Court provide for a lawful way to override Obergefell and its implications: a constitutional amendment? Why is Huckabee not organizing a campaign to amend the constitution either to overturn Obergefell or to make religious liberty protections even stronger in the Constitution than they already are in the First Amendment?

Look, what I, as an Orthodox Christian, believe about same-sex marriage is unpopular. It is not unpopular in Rowan County, Kentucky, perhaps, but in the country as a whole, it is unpopular, and it will become increasingly unpopular as the oldest Americans die out. The rule of law — specifically, the willingness of authorities who detest people like me as dirty rotten bigots to obey court decisions — may well be the only thing that safeguards people like me from abuse. I believe Americans like me are safer in a country with respect for the rule of law, even if it means allowing for something we find morally repugnant, than we would be in a country in which people felt free to flout court decisions they believed strongly to be wrong. We might cut down all the laws in the country to get at the devil, but when the devil turns on us, where would we hide?

(It’s not an original line, granted, but it’s highly appropriate to this discussion, I think.)

UPDATE: Religious conservative Denny Burk didn’t buy it when Huckabee forwarded this argument last week. Excerpt:

So Davis’s legal team has been making a religious liberty claim. Yet Huckabee argues here that the Supreme Court’s decision does not have the force of law. I agree with Huckabee that Obergefell is judicial tyranny, but his defense of Davis seems really strange. I’m no lawyer, but it’s hard to imagine any judge of any ideological persuasion buying this line.

2. Notice the looks on the faces of Joe, Mika, and the other hosts. Their tortured expressions reveal their nonplussed disbelief at Huckabee’s legal argument. They aren’t buying it. And what we witness in their response is likely what other Americans will feel as well.

3. Because Huckabee’s argument isn’t really based on religious liberty, I do not think that it is likely to persuade fair-minded Americans who might otherwise be open to a religious liberty claim in these kinds of cases. I’m concerned that this appearance isn’t really helping us to move the ball down the field—at least not in the direction that we want it to go. I am thankful that Huckabee wishes to defend Davis and do the right thing, but I’m skeptical whether this line will help the cause of religious liberty. It seems more likely to sow confusion and contempt toward our first freedom.

about the author

Rod Dreher is a senior editor at The American Conservative. He has written and edited for the New York Post, The Dallas Morning News, National Review, the South Florida Sun-Sentinel, the Washington Times, and the Baton Rouge Advocate. Rod’s commentary has been published in The Wall Street Journal, Commentary, the Weekly Standard, Beliefnet, and Real Simple, among other publications, and he has appeared on NPR, ABC News, CNN, Fox News, MSNBC, and the BBC. He lives in Baton Rouge, Louisiana, with his wife Julie and their three children. He has also written four books, The Little Way of Ruthie Leming, Crunchy Cons, How Dante Can Save Your Life, and The Benedict Option.

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