A study of events relating to the Supreme Court’s Dred Scott decision of 1857, such as the Lincoln-Douglas debates that occurred the following year, can help answer an interesting historical question: How did politicians of 1850s America understand the concept of checks and balances? Or, more specifically, how did they want judicial checks to be publicly understood? This is not so straightforward. True, the concept of “checks and balances” and its functionality to the “separation of powers” — terms coined by Montesquieu in his 1748 The Spirit of the Laws — were foundational to the design of the U.S. Constitution of 1787 (justified in the Federalist Papers, such as 47, 48, and 51). But the Lincoln-Douglas debates suggest (public-facing) perceptions of mutual regulation could differ dramatically among antebellum politicians, and were a bit dissimilar to modern understandings, in that efficacy was more doubted.
The Dred Scott decision declared that black Americans, even free persons, were not citizens of the United States and were not entitled to associated rights. Further, it was decreed unconstitutional to prohibit slavery in U.S. territories. The Missouri Compromise of 1820, which had created such a prohibition, and the Kansas-Nebraska Act of 1854, which had allowed territorial residents to decide the issue for themselves, were nullified. This was only the second time the Supreme Court had overturned federal law, and the first time it had rejected a major one.[1] Marbury v. Madison in 1803 explicitly established the Supreme Court’s power to wield such a check when it overturned a minor provision of federal legislation.[2] Article III of the Constitution, rather short indeed, does not specifically grant this power; it had to be extrapolated from an interpretation. It should be understood that the novelty of what occurred with Dred Scott left room for many questions.
Interestingly, the pro-slavery politician Stephen A. Douglas, Abraham Lincoln’s rival candidate for a U.S. Senate seat representing Illinois, publicly questioned the effectiveness of the Dred Scott ruling. He had no qualms about the decision — he would “always bow in deference” to the Court, and thought Lincoln’s objections were misguided for a nation “made by the white man, for the benefit of the white man.”[3] But he wondered in the famous debates whether total openness to slavery in the territories could be enforced, saying that “if the people of a territory want slavery they will have it, and if they do not want it they will drive it out… Slavery cannot exist a day in the midst of an unfriendly people with unfriendly laws.”[4] Americans out west would need the proper local legislation and police enforcement to either ban slavery or protect it.[5] The Court’s ruling did not matter. Here Douglas’ view was perhaps slanted by an earnest devotion to popular sovereignty. He wrote the Kansas-Nebraska Act, and then in 1857 had opposed the creation of Kansas as a slave state because the residents did not desire it.[6] He defended the popular will more fiercely than slavery. But Douglas was perhaps also aiming not to lose moderate Illinois voters — too much allegiance to Dred Scott in a free state could be a political mistake, therefore it was better to stress a respect for the decision but doubt its effectiveness. In any event, we observe an interesting view on a seismic judicial check in the 1850s: it is meaningless in practice. In modern times, with many Supreme Court declarations of unconstitutionality under our belt, such a perspective is more rare. Lincoln derided Douglas’ theory of slavery’s survival, saying it was historically untrue and that territorial legislatures would have no choice but to tolerate slavery, just as they had earlier been forced to tolerate freedom.[7]
Lincoln also questioned the Court’s efficacy, from a different angle. After criticizing perceptions of the “sacredness” of the Dred Scott ruling, pointing out that courts change their minds and overrule their prior decisions all the time, Lincoln essentially wondered whether Congress could overturn or ignore a decision of the Supreme Court. Again, the relative novelty of what the Court had done, Lincoln’s sincere perspectives on checks and balances, and his desire to gain anti-slavery voters must all be considered as factors in such an astounding proposition. “Douglas will have it,” Lincoln said, “that all hands must take this extraordinary decision, made under these extraordinary circumstances, and give their vote in Congress in accordance with it, yield to it and obey it in every possible sense.”[8] He then pointed out that a couple decades prior, the Court had ruled that a national bank was constitutional (note this did not throw out established federal legislation, but upheld it). But later President Andrew Jackson “said that the Supreme Court had no right to lay down a rule to govern a co-ordinate branch of the government…”[9] He vetoed Congress’ recharter of the bank, declaring it unconstitutional. In the 1830s, the belief that the judicial branch could regulate and guide the legislative branch was not so universal, despite Marbury. One may be tempted to wave this off as part of Jackson’s personal penchant for ignoring restrictions on his authority, but here Lincoln is asking similar questions about the Court’s power in the 1850s, and pointing out Douglas once asked them as well: “I will venture here to say, that I have heard Judge Douglas say that he approved of General Jackson for that act.”[10] Lincoln insisted that “each member [of Congress] had sworn to support [the] Constitution as he understood it.”[11] Should Supreme Court understandings supercede congressional or presidential understandings? What Lincoln heavily implies here — he never goes so far as confident assertion — is that if another branch of government could reject a judicial finding of constitutionality, could one not reject a finding of unconstitutionality?[12] Douglas, despite any earlier ideas on a similar but not identical case, marveled that anyone would insinuate Congress could reverse a Court decision.[13]
Research of other documents will provide a wider view of what 1850s public officials made of the Court’s first overthrow of major federal legislation. Based on the debates, Douglas and Lincoln agreed with Chief Justice Roger B. Taney, who pushed the Dred Scott decision through with questionable constitutional interpretations, that the Court had such a right.[14] Did others disagree? More likely, were more politicians speculating on what came after judicial rulings — such as whether federal, state, or territorial legislatures could wave them aside, as both Douglas and Lincoln suggested? What other concerns existed? And in the same way the debates do not evidence how widespread such questions were, they cannot be utilized to parse earnest belief from political theatre. How much did Lincoln and Douglas actually believe what they were saying, and how much was for power interests, or ideological interests? We would need to turn to their private letters or journal entries and hope for comparative material, doing the same with other public officials offering subversive questions and bold interpretations in front of voters.
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[1] Paul Finkelman, Dred Scott v. Sandford: A Brief History with Documents (New York: Bedford/St. Martin’s, 2017), 7.
[2] Ibid.
[3] Ibid., 195.
[4] Ibid., 204.
[5] Ibid.
[6] Ibid., 179-180.
[7] Ibid., 212-213.
[8] Ibid., 199.
[9] Ibid.
[10] Ibid.
[11] Ibid.
[12] Lincoln only flirts with contradiction concerning a legislature’s response to a Supreme Court ruling. When Douglas insisted that enslavement would not survive in some territories due to local lawmakers refusing to pass affirmative legislation or enforce the Court’s decision, Lincoln argued that they would nevertheless be forced to permit slavery (p. 213). To refuse was to “violate and disregard your oath” to the Constitution, and besides, “how long would it take the courts to hold your votes unconstitutional and void? Not a moment” (ibid). But here (two months earlier), Lincoln wonders whether Congress could flout the Court’s ruling, adding that “If I were in Congress, and a vote should come up on a question whether slavery should be prohibited in a new territory, in spite of that Dred Scott decision, I would vote that it should” (198). Members of Congress should vote how they understand the Constitution. However, this is not a true contradiction, as Lincoln appears to see Congress, not territorial legislatures, as possibly having the power to override the Court. One legislature is a federal branch, the other not. Douglas also comes close to contradiction with his insistence that the Dred Scott ruling be respected — it is “a rule of law binding on this country” made by “the ultimate tribunal on earth” (201) — while also insisting popular sovereignty would reign in the territories despite the decision. But he has wiggle room as well: what ought to be respected not always is.
[13] Finkelman, Dred Scott, 201.
[14] Ibid., 30-38, 194-195, 198-199.
Griffin 