Tomorrow is the 200th anniversary of the birth of the Great Emancipator. His rise to the Presidency was based in part on his denunciation of the infamous decision of Dred Scott v. Sandford, 60 U.S. 393 (1856). One of Mr. Lincoln's primary points of disagreement with his rival Stephen Douglas was whether we are obligated to accept that the Constitution means what the Supreme Court says it means. Yes, in the sense of obeying the court's mandate and in the sense of lower courts being bound by the precedent, but no, we are not obligated to accept that proposition beyond those limits. From Mr. Lincoln's speech of June 26, 1857:

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....

In the last half-century, the Supreme Court has grafted many rules on to the Constitution that the people never put there. Every time the Court does so, it violates the people's right of self-government, usurping to itself a decision that the Constitution actually leaves to the people. The very Justices so often lauded in our law schools as great defenders of the Constitution are actually the worst violators of it.

Following in the footsteps of Abraham Lincoln, we at CJLF will continue working to restore the real Constitution.