Mike Huckabee Meet Abe Lincoln

The following was published with permission from Fair and UNbalanced.com:

by Burr Deming

How shall we regard the law?

Well, you obey it if it’s right.

– Mike Huckabee, interviewed on ABC
by George Stephanopoulis, September 6, 2015

Defiance against the Supreme Court is not a new theme. It was not even a new idea during segregation-now-segregation-tomorrow-segregation-forever days. Make no mistake. “Impeach Earl Warren” did not originate with Miranda warnings. It started with Brown vs the Board of Education.

So I go back to my question. Is slavery the law of the land? Should it have been the law of the land because Dred Scott said so? Was that a correct decision? Should the courts have been irrevocably followed on that?

– Mike Huckabee, September 6, 2015

As Mike Huckabee points out by inference, anti-Court sentiment was not always the province of racial conservatives.

When life-long slave Dred Scott sued for his freedom in 1846, he had the facts on his side. Those facts favored him even in slaveholding days. His owner was a military officer. The officer was transferred from Missouri, in which slavery was the law, to Illinois, which was a free state. He took Dred Scott with him. They were in Illinois for a year. Then they went to Wisconsin for three years. Wisconsin was a free territory.

Missouri courts had long ruled that slaves could no longer be owned if they and their owners moved into free territory, even for a short while. The precedent in Missouri was well known. “Once free, always free.” The case went back and forth on technicalities. He was a slave, then he was free, then the case went to the Supreme Court.

In 1857, the Supreme Court swept all the technical arguments aside. The overriding fact, said the court, was that Dred Scott was black. The was the beginning and the end of it. Any person descended from Africans could not be a US citizen, and could not be a party to a lawsuit. The rest should not even be considered.

Then the court added what in those days became the most controversial part of the published opinion. The Missouri Compromise, the act of Congress that had avoided civil war, should never have been passed.

It is the opinion of the court that the Act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned is not warranted by the Constitution and is therefore void.

– Chief Justice Roger B. Taney,
speaking for the Supreme Court, March 6, 1857

Before long, Dred Scott’s owners freed him anyway.

But conservatives of the day were overjoyed that the court had declared free territories to be slave territories. Property rights, including the right to own slaves, could not be infringed by Congress.

Liberal Republicans were faced with a dilemma. Everyone knew that rulings by the Supreme Court were the law of the land. To hold to anything else was considered extremist. And the court had said that prohibiting slavery in any territory was not warranted by the Constitution.

But the Supreme Court had given liberals a way out. The actual decision was that black people could not file suit in federal court, and that their lack of standing meant that all other factors were without meaning. Anything stated by the court after that was just something additional for the sake of clarity.

So the opinion about free territories being slave territories was not really a ruling. It was just an extra-legal opinion, an aside without any legal weight. It was an effort to persuade, not to rule.

The legal term for that sort of side opinion was Obiter Dictum, Latin for “by the way.” The by-the-way opinion should not be considered law. It was a non-legal opinion. As in everybody has an opinion.

Not only that, it was a wrong non-legal, by-the-way, Obiter Dictum opinion. And when the right case came before the court, the Justices would have a chance to issue a real opinion on an actual case. That legal opinion, whatever it turned out to be, would then become the law of the land.

It seems clear in retrospect that the court had ruled wrongly, even under the laws of slavery, and might have eventually reversed itself. As it turned out, the 14th Amendment, and subsequent amendments to the Constitution were enough to overrule the Supreme Court.

Mike Huckabee is correct in pointing out that the Supreme Court had issued a monstrously evil ruling. He goes further, suggesting that Abraham Lincoln had resisted the law. On the Dred Scott decision, he raises an interesting question.

Should Lincoln have been put in jail?
Because he ignored it.

– Mike Huckabee

Lincoln was accused by political opponents of even more than ignoring the decision. He was accused of resisting the authority of the court to interpret the Constitution, something that Lincoln denied.

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.

– Abraham Lincoln, June 26, 1857

“More than this would be revolution.” Some abolitionists were scornful of Lincoln for embracing the authority of the court. Wendell Phillips later referred to Abraham Lincoln as a huckster, “a first-rate second-rate man.”

Lincoln did make clear his hope and his faith that the law would eventually be interpreted differently, that the undisputed authority of the court would be used in a different direction than the Obiter Dictum opinion that had been offered as an aside. In fact, one day the court might even overturn the overarching ruling itself, the legal opinion that black people had no standing in any federal court.

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.

– Abraham Lincoln

Mr. Huckabee’s emotional strength comes from a moral certitude that served abolitionists well, and was applied in other circumstances by a minority of citizens, a minority that was later recognized as right.

His moral certitude does not rely on historical accuracy.

We had so many different presidents, including Jefferson, Jackson, Lincoln — there were other founders like Hamilton, Adams — who made it very clear that the courts can’t make a law.

Well no, actually.

Marbury v Madison established the precedent just 13 years after the Constitution itself became law. The Supreme Court is the final arbiter of what the Constitution, and what all US laws, mean.

Abraham Lincoln said it explicitly. Every President before Lincoln, going back to Jefferson, and every President since Lincoln, has recognized that authority.

When it comes to the right of gay people to enjoy the same equality as do you and I, to enjoy the same equality as does Mr. Huckabee, he might want to re-consider the morality of his increasingly lonely stand.

It is a stand that Lincoln never shared.

Pictures located and placed by MadMikesAmerica.

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