More Dred: Robert P. George is Stupid

John Schuyler in Frank Powell's A Fool There Was (1915). Via.

David Brooks:

Robert P. George, probably the most brilliant social conservative theorist in the country, argued that just as Lincoln persistently rejected the Dred Scott decision, so “we must reject and resist an egregious act of judicial usurpation.”

Robert P. George:

Faced with the Supreme Court’s Dred Scott decision, Lincoln declared the ruling to be illegitimate and vowed that he would treat it as such. He squarely faced Chief Justice Roger Brooke Taney’s claim to judicial supremacy and firmly rejected it. To accept it, he said, would be for the American people “to resign their government into the hands of that eminent tribunal.”

Today we are faced with the same challenge [in the Obergefell case]. Like the Great Emancipator, we must reject and resist an egregious act of judicial usurpation. 

Abraham Lincoln on Dred Scott, 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.

George is actually lying, or sloppily failing to check his facts, when he quotes a different Lincoln speech seeming to suggest something different; he didn't utter those words when "faced with the Dred Scott decision" in 1857, but nearly four years later, as democratically elected president of the United States, in his First Inaugural Address, faced with an armed rebellion in a third of the country, which claimed, wildly, that the rebellion was justified because they were afraid the new government might not respect the Constitution.

What Lincoln's words in the First Inaugural referred to, moreover, wasn't the Dred Scott ruling itself, but the question whether it "fully settled" the Constitutional issues involved. Chief Justice Taney's opinion was divided into two parts: the first settled the case by determining that Dred Scott himself had no citizenship rights and therefore no standing to sue for his freedom; and the second went on to argue that the ban on slavery in the "Upper Louisiana" territory north and west of Missouri, congressionally passed as part of the 1850 Missouri Compromise, was unconstitutional. The open question was whether the second part of the ruling was to be understood as a binding precedent, as Taney himself appears to have hoped, or mere obiter dicta, persuasively meant argumentation "said in passing".

Lincoln and the Republicans believed the holding of the first part was wrong, but agreed that respect for the constitutional role of the Court required them to accept it. But they claimed that the second part of the ruling, the launching of a huge constitutional upheaval irrelevant to the "ordinary litigation between parties in personal actions" of which the case consisted, wasn't, in a strict legal sense, a ruling at all, just the justice's supplementary opinion, and could therefore have no judicial force. (Per Wikipedia, this is now the accepted view of the case.)

So what Lincoln was rejecting in the speech wasn't Taney's claim of the Court's "judicial supremacy" (what part of "Supreme Court" don't you understand?) but his claim that the "words in passing" of the opinion were an essential part, and above all the horrible idea that they justified the Southern rebellion, as you can see if you don't strategically cut his sentence up:

the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.

He was speaking in this sense very much against resistance, not for it, the resistance of the Southern rebels against whatever the new government might choose to do on the subject; on the principle that, as the 1860 Republican platform said,

the new dogma that the Constitution of its own force carries slavery into any or all of the territories of the United States, is a dangerous political heresy, at variance with the explicit provisions of that instrument itself, with co[n]temporaneous exposition, and with legislative and judicial precedent, is revolutionary in its tendency and subversive of the peace and harmony of the country.

Unlike Obergefell, which will have a liberating effect on many thousands of Americans, as well as some possible inconvenience for a handful of bakers and photographers, nobody knows how many, Scott was the opposite of liberating, obviously, but had no real-world legal consequences, except for the unfortunate Scott family; Taney's vision that this case would prove the resolution of the entire slavery issue would prove to be as wrong as the reasoning in his opinion. Slavery failed to take hold in the territories in any case; in 1860 there were ten slaves in the entire Nebraska territory and the Kansas legislature overrode the governor's veto to abolish the peculiar institution there. What was historically important about it was the rage it churned up in the Southern states, with the sense that the Lincoln administration was going to do something, they couldn't have told you what, that would violate the Constitution as Justice Taney had read it (can you think of any recent presidents that have been regarded that way by some of our white Southern neighbors?).

In this way people like Robert P. George, attempting to stir up popular resistance to the government on the basis of rage against another kind of equality, and "turning decisions to political purposes" based on a distorted presentation of the legal arguments, is acting more in the spirit of Dred Scott than against it. And if he's the "most brilliant social conservative theorist in the country" they're in worse trouble than I thought. Just saying.