Lincoln and Judicial Supremacy: A Note on the Galena Speech of July 23, 1856

LINCOLN AND JUDICIAL SUPREMACY: A Note on the Galena Speech of July 23, 1856 Don E. Fehrenbacher In the Dred Scott decision of March 6, 1857, the Supreme Court was responding to an invitation extended repeatedly by political leaders for nearly a decade—an invitation to resolve the most dangerous public issue of the times. This pressure for judicial intervention is described in almost identical terms by the authors of two recent studies of the Court: Reflecting the rising faith and confidence in the Court was the pervasive belief throughout the 1850's that the judiciary could best solve the constitutional problem of slavery in the territories. Such diverse political figures as Stephen A. Douglas, Abraham Lincoln, and Senator Albert Brown, a Mississippi Democrat, periodically considered the problem to be legal in nature and hence justiciable by the Supreme Court, ? After all, the Court was at the apogee of its prestige among moderates in both sections. Statesmen—including at one time or another Lincoln, Clay, Douglas, Webster, and Presidents Pierce and Buchanan—and leaders of the bar were increasingly intrigued with a judicial cure for the nation's illness.2 Douglas and Lincoln make especially interesting examples because later they supposedly hedged or repudiated their willingness to accept a judicial determination of the question. Yet there are reasons for doubting that either man was as inconsistent as he seems. Douglas, in fact, never quarreled with the Dred Scott decision itself; the Court's denial of congressional power to prohibit slavery in the territories merely added a constitutional gloss to the political policy that he had championed so successfully with his Kansas-Nebraska Act. What he rejected was the inference that the decision also demolished popular sovereignty by depriving territorial legislatures of the power to prohibit slavery. Having acknowledged in 1856 that this too was a judicial question, he nevertheless insisted—and correctly so— that the powers of a territorial government were not at issue in the Dred Scott case.3 The constitutionality of popular sovereignty thus remained 1 Stanley I. Kutler, Judicial Power and Reconstruction Politics (Chicago, 1968), p. 9. 2 R. Kent Newmyer, The Supreme Court under Marshall and Taney (New York, 1968), p. 141. See also: Charles Warren, The Supreme Court in United States History (Boston, 1932), II, 330; Albert J. Beveridge, Abraham Lincoln, 1809-1858 (Boston, 1928), II, 418-19. 3 For a more extensive discussion of this point, see Don E. Fehrenbacher, Prelude to Greatness: Lincoln in the 1850's (Stanford, Calif., 1962), pp. 131, 133-34, 190. 197 198civil war history an open question, since the Supreme Court had not yet passed judgment upon it. Accordingly, the controversial "Freeport doctrine," asserting that no such judgment could ever force slavery upon an unwilling people, did not apply to the Dred Scott decision, but rather to a hypothetical decision that might one day be rendered. Furthermore, the doctrine was not even a theoretical rejection of judicial authority, but instead a commentary on the practical limits of judicial power. Believing that in this way he had accommodated his views to the Dred Scott decision, Douglas felt no need to question or analyze the institution of judicial review. For Lincoln, however, it was a different matter. Historians who include Lincoln with other advocates of a leave-it-tothe -Court policy are actually relying imprudently upon one dubious piece of evidence. During the presidential contest of 1856, Lincoln campaigned vigorously for John C. Fremont, nominee of the new Republican party. Among the many speeches that he made (more than fifty, by his own count), was one delivered at Galena, Illinois, on July 23. The only record of what he said on that occasion is a newspaper report published three days later in the Galena Daily Advertiser. This article consists largely of five paragraphs enclosed in quotation marks, allegedly reproducing the climax of Lincoln's speech.4 The passage seized upon by many historians is the following: Do you say that such restriction of slavery would be unconstitutional and that some of the States would not submit to its enforcement? I grant you that an unconstitutional act is not a law; but I do not ask, and will not take your...