Are the Supremes Really Supreme?

What would happen if the Supreme Court declared an act of Congress unconstitutional -- and the president told the Court to go jump in a lake? It actually happened once -- a century and a half ago. In 1857, the Supreme Court ruled on the case of a Missouri slave named Dred Scott. Scott's master had taken him into the free state of Illinois. Because of the Missouri Compromise and a law passed by Congress, residents in free states could demand their freedom. Scott did. Scott's owner, John Sandford, challenged the constitutionality of the Missouri Compromise. He argued that slaves were private property protected by the Constitution and could not be taken away without due process. Therefore, Congress lacked the constitutional authority to ban slavery in Illinois or anywhere else. The Supreme Court agreed. It not only sent Scott back into slavery, but also claimed he had never actually been free. The Court also ruled that Congress lacked the authority to forbid or abolish slavery in federal territories -- meaning the Missouri Compromise was illegal. As legal philosopher Robert George writes in First Things, "The Court had massively injected itself into the most divisive and morally charged issue of the day." Instead of ending the conflict over slavery, as the Court believed it was doing, it intensified it and heightened emotions. Abraham Lincoln, whose memory we celebrate today, saw the Dred Scott decision as an outrage, not only because the Court came down on the wrong side, but because the Court claimed authority to decide for the other branches of government once and for all what the Constitution required. In so doing, it placed the other branches in a position of inferiority and subservience, something the founders specifically rejected. And once he was president, Lincoln ignored Dred Scott. His administration treated free blacks as citizens, issuing them passports and other documents. In open defiance of the ruling, he signed legislation that restricted slavery in the western territories. To his critics, George writes, Lincoln was a lawless ruler who had no regard for the constitutional limits of his own power. But Lincoln saw himself following in the footsteps of another president. Thomas Jefferson also believed that the president and Congress were in no way inferior to the Supreme Court. Jefferson told a friend the Constitution "has wisely made all the departments coequal and co-sovereign within themselves." In so doing, the founders took into account fallen human nature. Both Jefferson and Lincoln believed the courts were quite capable of violating the Constitution -- and undermining constitutional government. Today, we have become so accustomed to the notion that the courts at every level have supreme authority that we're shocked at the very idea that a president or the Congress might stand up to the courts when they abuse their power. We need to get over our shock. Never before in our history have judges been so out of control beginning with Roe v. Wade in 1973 right up to the recent ruling by power-mad judges redefining marriage in Massachusetts. Presidents' Day is a great time to remember that two of our greatest presidents would never have accepted such arrogance. Nor should we. For further reading and information: Robert George, "Lincoln and Judicial Despotism," First Things, February 2003. Read President Thomas Jefferson's writings on judicial review. Read President Abraham Lincoln's speech on the Dred Scott decision, June 26, 1857 (courtesy of the Claremont Institute). See the "Worldview for Parents" page, "The Strength of a Leader." BreakPoint Commentary No. 030212, "Strength for Anxious Days: Lincoln's Spiritual Leadership." Marvin Olasky, "What if George W. Bush talked like Abraham Lincoln?", 12 February 2004. "When occasions present themselves, in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection." (Alexander Hamilton, Federalist No. 71, 18 March 1788.) Mitch Muncy, ed., The End of Democracy?: The Judicial Usurpation of Politics (Spence, 1997). The BreakPoint Role of Government Packet includes four booklets with speeches and writings by Colson on the purpose of government including, "The Causes of Virtue," "The Social Necessity of a Moral Consensus," "God and Caesar: Does Religion Belong in Public Life?" and "Creating the Good Society." Call 1-877-322-5527 to order ($10). Michael Novak, On Two Wings: Humble Faith and Common Sense at the American Founding (Encounter, 2001).


Chuck Colson


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