Lincolnian Judicial Tyranny

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"The War between the States established . . . this principle, that the federal government is, through its courts, the final judge of its own powers."

~ Woodrow Wilson,
Constitutional Government in the United States, p. 178

It’s high time for conservatives who belly ache and complain about federal judicial tyranny to confront the fact so clearly stated in 1908 by Woodrow Wilson: It was the War between the States that established arbitrary federal judicial tyranny over the American people. The recent Supreme Court opinion that sanctifies racial discrimination against whites in higher education is merely the latest example of this 140-year tradition.

Lincoln’s war overturned the Jeffersonian states’ rights tradition in America, an important element of which was citizen opposition to any federal monopoly of constitutional interpretation. As Jefferson himself wrote in his famous 1798 Kentucky Resolution (See F. Drake and L. Nelson, eds., States’ Rights and American Federalism, p. 81):

The government created by this compact [i.e., the Constitution] was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but that as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress (emphasis added).

If the federal government were ever to become the sole judge of the limits of its own powers through its own courts, Jefferson warned, then there would eventually be no limits to those powers and the Constitution would effectively become a dead letter.

In the Virginia Resolve of 1798, U.S. Senator John Taylor echoed Jefferson’s states’ rights judicial philosophy. The powers of the federal government, wrote Taylor, are "limited by the plain sense and intention" of the Constitution, and are "no further valid than they are authorized by the grants enumerated in that compact." Moreover, whenever there is a "dangerous exercise of other powers, not granted by the said compact, the States . . . have the right, and are duty bound, to interpose for arresting the progress of the evil . . ."

The Jeffersonians urged the citizens of all states to nullify any and all federal laws that violated the Constitution. The importance of such nullification or interposition was clearly explained by St. George Tucker in his book, View of the Constitution of the United States. Tucker was the stepfather of John Randolph, the author of a 1796 plan for the abolition of slavery in Virginia, and a professor of law at the College of William and Mary. His book was an attempt to apply William Blackstone’s Commentaries on the Laws of England to the American political system.

Tucker believed that any confederacy such as the United States would become a despotism if the people did not retain sovereignty over their agent, the federal government, as citizens of the respective states. He concurred with Jefferson and Taylor that if the federal government were to enact unconstitutional laws, "every such act is an act of usurpation in the government, and, as such, treason against the sovereignty of the people" (p. 32). This meant opposing the federal judiciary with nullification whenever it overstepped its constitutional bounds.

In his classic, Tyranny Unmasked, John Taylor continued this theme by mocking the idea that the founders would have trusted "five or six men" of the Supreme Court to be the sole guardians of constitutional liberty. "Being an essential principle for preserving . . . liberty [the founders] never could have designed to destroy it, by investing five or six men, installed for life, with a power of regulating the constitutional rights of all political departments" (p. 198). He recognized that state governments could be corrupt, of course, but it was "inconceivable" to him that they could be as corrupt as kings, presidents, senates, congress, or federal judges, all of whom hold a degree of centralized power that is largely detached from public scrutiny and control.

Another great Jeffersonian political theorist, John C. Calhoun, understood that a paper constitution would never be sufficient protection against the political plundering of one (taxpaying) class by another (tax-consuming) class. Over time, the majority would "endeavor to elude" any constitutional restraints on federal powers by ignoring the arguments of the strict constructionists. Appeals to reason, truth, justice, or the obligations imposed by the Constitution would be sneered at as "folly" with the end result being "a subversion of the Constitution" (R.M. Lence, Union and Liberty: The Political Philosophy of John C. Calhoun, p. 27). This of course is exactly what has happened with increasing frequency ever since 1865.

Andrew Jackson also embraced the Jeffersonian legal philosophy in his response to the Supreme Court’s opinion in McCulloch vs. Maryland that the Second Bank of the United States was constitutional. "To this conclusion I cannot assent," Jackson declared. Congress and the president must each weigh in, and

Must each for itself be guided by its own opinion of the Constitution. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill . . . The opinion of the [Supreme Court] judges has no more authority over Congress than the opinion of Congress has over the judges . . . (Robert Remini, Andrew Jackson and the Bank War, p. 82).

From 1789 until 1865 the citizens of all states, North and South, made periodic use of the principles of nullification, interposition, and even the threat of secession, to protect themselves from federal judicial tyranny (and federal tyranny in general). They invoked the Jeffersonian judicial philosophy to oppose protectionist tariffs, military conscription, the War of 1812, the Fugitive Slave Act, the Bank of the United States, trade embargos, and other unconstitutional usurpations (See James J. Kilpatrick, The Sovereign States: Notes of a Citizen of Virginia).

Lincoln’s war ended citizen opposition to federal judicial tyranny. As Forrest McDonald wrote in States’ Rights and the Union (p. 224), one consequence of Lincoln’s war was that

[T]he [Supreme] court was the sole and final arbiter of constitutional controversies. No longer could a Jefferson arise to insist that the other branches of the federal government had coequal authority to determine constitutionality. No more could a Calhoun arise to defend a doctrine of interposition or nullification.

Jefferson, Tucker, Taylor and Calhoun would not be at all surprised to learn that the consequence of this has been rampant federal judicial tyranny of the sort on display this week with the Supreme Court’s affirmative action opinion.

Indeed, generations of leftists have celebrated the fact that Lincoln did more than anyone to destroy constitutional limitations on federal power. In Constitutional Problems Under Lincoln the "progressive" historian James Randall wrote approvingly of the fact that Lincoln’s trashing of the Constitution in the North during the war created precedents for "a living constitution" that, with creative interpretations by the federal judiciary, could become "a vehicle of life." He criticized "excessive reliance" on the ideas of "a by-gone generation," i.e., the founding fathers.

More recently, "liberal" Columbia University law professor George P. Fletcher applauded Lincoln’s "casual attitude toward formal constitutional institutions, such as the writ of habeas corpus" in his book, Our Secret Constitution. Federal judges merely need to claim to believe in "a higher law" than the Constitution to "allow themselves to sidestep the rules" that are set forth in the Constitution. This is what Sandra Day O’Connor did in writing the majority opinion in the recent affirmative action case. She declared racial diversity (but no other kind) in higher education to effectively be a "higher law" than the Constitution itself. She claimed that a mixing of skin colors on college campuses was a "compelling state interest" that should trump the Constitution. She also invoked the "one nation, indivisible" line from the Pledge of Allegiance to bolster her "argument." How appropriate, and par for the course, for her to ignore the Constitution while quoting a late nineteenth century socialist’s ode to centralized government power instead. "One nation, indivisible," has come to mean complete subservience to federal judicial tyranny on the part of the American people. St. George Tucker (p. 112) described this "doctrine of non-resistance against arbitrary power and oppression" as "absurd, slavish, and destructive to the good and happiness of mankind."

Thomas J. DiLorenzo [send him mail] is the author of the LRC #1 bestseller, The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War (Forum/Random House, 2002) and professor of economics at Loyola College in Maryland.

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