The American Presidency

Lincoln

In Dred Scott, Justice Taney argued that African Americans were not entitled to rights under the Constitution. To arrive at this conclusion, he asked and answered a simple question: Did the framers, at the time of the Constitution, view blacks as part of the people? For various reasons, he argued they didn't. Several legal historians believe he argued in this way in order to entirely side-step the issue of race: Taney thought that this sort of decision might remove the politically-charged topic from legal and political discussions of the day. ³⁷

For Lincoln, the Court's decision in Dred Scott was unconstitutional. That Lincoln could contest and differ on this ruling is quite remarkable in itself: While the court may have the final say over what the Constitution means, the President could object to how they interpreted it! In essence, the President could seize some power if he interpreted the court's interpretation. Lincoln justified the Presidential "right" to interpretation by referencing Jackson, noting that, "the court had no right to lay down a rule to govern a co-ordinate branch of the government, the members of which had sworn to support the Constitution—that each member had sworn to support that Constitution as he understood it." ³⁸ First, by emphasizing the judiciary should be coordinate; Lincoln implies that judicial review somehow raises the Judicial above the Executive. While there may be checks and balances (as the Executive appoints judges), judicial review is somehow a more unfair, or more "ultimate," check that any others. Jackson would likely have agreed!

Second, Lincoln's primary argument rests on his claim that members of the Executive take an "Oath" to support the constitution as he understood it. Once again, the Oath the executive takes does not mention "understanding," and yet Lincoln suggests that it is an implication, bound into the Oath. How, after all, can one support a Constitution that he does not understand? The Oath, then, presents a tension in the roles of the Executive and Judiciary: How can the Executive "execute" the law when the Supreme Court denies their interpretation of it? Doesn't waiting for the Supreme Court somehow hinder the efficiency and timeliness of Executive actions?

Lastly, that the Republican Lincoln would reference the Democratic Jackson suggests how unifying and vexing the Court's role appeared to have become for all Presidents.

Stephen Douglas appeared to have no such qualms with the Court's authority and used Lincoln's quote as a point of contention, reminding him, "the right and province of expounding the Constitution… is vested in the judiciary established by the Constitution." ³⁹ This statement itself is quite an interpretation as Article 3 did not use the word "expound" or any similar verbiage. Stephens was likely aware of this detail, but avoided it for the sake of rhetoric. Still, by interpreting the court's right to "expound," Stephens quote reveals how entrenched and fundamental this "right" had become by the middle of the 19-th century.