We are in a period of American history eerily similar to the one faced by President Abraham Lincoln when he was first elected. Lincoln said what needed to be said about the U.S. Supreme Court, and this past Saturday, the executive committee of the Tennessee Republican Party made a statement on abortion that would have made Lincoln proud. I really think you need to understand what is going on.
Lincoln’s election in 1860 came at a historic time. In his inaugural address on March 4, 1861, he made a clear statement about how the people, from whom the federal judiciary receives its powers, should view decisions of the United States Supreme Court.
But to appreciate Lincoln’s statement, you have to understand the United States Supreme Court to which he referred, Dred Scott v. Sanford.
The Issue the Court Had to Decide
While many have heard of the Dred Scott decision and many understand it to have been “bad,” few understand what the issue was that made the decision so bad.
Dred Scott, a resident of Missouri, sued John Sanford, a resident of New York in federal court “under that provision of the Constitution which gives jurisdiction in controversies between citizens of different States.” The suit was filed by Mr. Scott “to assert the title of himself and his family to freedom.”
Mr. Sanford defended by arguing that Mr. Scott did not have the “right to sue in a court of the United States” because he was “a negro of African descent, whose ancestors were of pure African blood, and who were brought into this country and sold as slaves.”
Though Mr. Scott had been born in the United States and would thus seem to be a citizen, Mr. Sanford claimed Mr. Scott could not be a “citizen, in the sense in which that word is used in the Constitution of the United States” and thus had none of “the rights, and privileges, and immunities, guaranteed by that instrument to the citizen[,] [o]ne of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.”
Resolving the Issue by Dehumanizing Scott
The Court framed the issue this way,
The words ‘people of the United States’ and ‘citizens’ are synonymous terms, and mean the same thing. . . . The question before us is, whether the class of persons described in the [complaint] . . . compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution. (emphasis added)
How could the Court say that the people who ratified the U.S. Constitution intended to exclude those persons born in the United States from being citizens with rights under the U.S. Constitution?
This was the Supreme Court’s answer with respect to the descendants of slaves:
They were at that time [the adoption of the Constitution] considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, . . . and had no rights or privileges but such as those who held the power and the Government might choose to grant them. (emphasis supplied)
Please let this understanding of persons and the basis upon which some persons have rights and others do not sink in; the “dominant” party in power may someday consider you part of a “subordinate and inferior class of beings.”
President Lincoln’s Statement Regarding the Supreme Court’s Power to Dehumanize Persons
It was in this context that President Lincoln said the following:
I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. (emphasis supplied)
Deciphering Lincoln’s Statement for Non-Lawyers
In his statement, Lincoln denies what we, ignorant of the history of our own form of government, have accepted as true.
First, he denies that a “decision” by a court resolving a particular dispute between particular parties is law in the sense that the Constitution itself is law and, for that reason, a court decision (opinion) is not “policy.” Most lawyers today mistakenly think of judicial opinions as law and making policy, and then want us to join in their mistaken opinion.
Second, he denies that a judgment between particular parties to a particular controversy is “binding” on those who were not parties to the case decided.
Moreover, when the legal issue is different from the one resolved in a particular controversy, even if on the same topic and involving perhaps the same parties, it is not conclusive or binding on the parties as to the new and different controversy.
For example, just because legislation deals with abortion, if the precise legal question is not the same as those previously decided by the Supreme Court—as is the case with the state Senate’s Ninth Amendment version of House bill 77 on abortion—then Roe v. Wade should certainly be “considered,” but it is not binding precedent.
Today, however, we are told by lawyers such as those who oppose a direct challenge to Roe v. Wade that we must treat judgments against other states as if they were a judgment against Tennessee, and we are told that words in an opinion about the Constitution on the subject of abortion are, as a practical matter, the same as the words in the Constitution.
What Should Lincoln’s Statement Teach TN’s Governor and Legislators?
What Lincoln is saying is that while Tennessee’s state elected officials should give “very high respect and consideration” to an opinion of the U.S. Supreme Court, there is nothing in an opinion or a judgment, even against Tennessee, that would prohibit the legislature from enacting the same law over and over again until, like the judge in Luke’s story of the persistent widow asking for justice, the U.S. Supreme Court relents and reverses its earlier opinion as to what it thinks the U.S. Constitution means.
This is what we once knew as a system of checks and balances, used to prevent the U.S. Supreme Court from becoming “rulers” over the people.
Can Losing a Direct Challenge to Roe Be a Pro-Life Setback?
What I just said (and Lincoln said before me!) is why I vehemently disagree with the pro-life lawyers who have argued that enacting a ban on abortion, if not upheld by the U.S. Supreme Court, will “set the pro-life movement back.”
Balderdash! If the Court is not inclined to reverse Roe with a direct challenge to its presuppositions, it sure won’t reverse Roe if those presuppositions aren’t challenged.
Moreover, if you don’t want to risk Roe being affirmed, then these pro-life lawyers shouldn’t recommend the passage of any legislation! Why? Because those laws, too, could result in Roe being affirmed, as has been the case for 46 years!
That legislators would buy this kind of circular reasoning demonstrates an utter lack of independent critical thinking skills. They let these pro-life lawyers convince them not to enact a particular bill based on a legal argument they didn’t think of because it could be a setback if Roe is affirmed while failing to acknowledge that the very bills they propose could have the same effect.
On What Basis Could Losing a Challenge to Roe Be a Setback?
Losing a case in the U.S. Supreme Court is only a setback if the people and their representatives allow it to be a setback. We usually allow that setback in one of two ways.
First, we wrongly assume that the “decisions of the Supreme Court” irrevocably fix “the policy of the Government upon vital questions affecting the whole people.” So, we tiptoe around the edges of the fundamental question the Court got wrong, hoping they choose to see the light. The Court has been allowed to walk in darkness for 46 years now because we won’t shine the light of real law on their darkness.
Second, we refuse to spend the resources necessary to continue the fight.
In Which Camp Are Tennessee’s Senators?
I presume that some of Tennessee’s senators are in the latter camp, because the “setback” argument is so demonstrably specious and would lead to doing nothing of any significance, ever. So, I presume they will resort to their other favorite argument—a concern with “wasting money” in a potentially losing effort.
In my view, spending money in defense of our God-given rights and their abrogation by means of judicial tyranny is not a waste, particularly when the state is presenting a new constitutional argument to the Court.
If those in this latter group buy the judicial nose-counting view of the federal judiciary’s power being urged upon them—that is, the U.S. Supreme Court is in complete control of Tennessee’s “public policy affecting the whole of our people” so long as they only have a governor and 132 legislators and there are five of them—then, in the words of Lincoln, they will have “practically resigned [our] Government into the hands of that eminent tribunal.”
If that happens, then we, the people, will deserve the judicial tyranny we have allowed these legislators to visit upon us by electing and reelecting them.
How to Evaluate Your Legislator
This is not fun for me to say, because I have friends, good friends, in this latter camp. Some I served with. But I believe those who remain in this latter camp when it’s time to vote will have demonstrated to voters that they don’t really understand our form of government; the powers delegated to the respective branches of government and to the federal and state sovereigns, respectively; our system of checks and balances and how to use them; and, perhaps most fundamentally, that a price must continually be paid by the people in order for them to govern themselves. Those are not inconsequential matters.
Tennessee Republican Party Gets It Right; Will Its Elected Members?
The foregoing now should explain why I think the state’s Republican Party got it right by adopting, by acclamation, a resolution last Saturday urging the governor and all Republican members of the General Assembly to “pursue Pro-life legislation in 2020 that protects the fundamental right to life beginning at conception.”
The leaders of the state’s Republican Party know that when an unborn child, clearly a living human being, is treated by the U.S. Supreme Court as a “subordinate and inferior being” who only has “rights or privileges but such as those who [hold] the power and the Government might choose to grant them,” then the members of their party have failed to learn from the history of Scott v. Sanford and from their own party’s history. They are not “the Party of Lincoln” anymore.
Let’s pray we have a governor like Lincoln and that our Republican legislators don’t doom us to continue the current deadly repetition of history foisted upon us by Roe v. Wade and its dehumanization of the unborn to prevent their recognition as “persons” under our Constitution.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.
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