Lincoln Longed for a Dobbs-like Ruling to Correct the Erroneous Dred Scott Decision

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October 2, 2022

Last summer, Alexandria Ocasio-Cortez visited Stephen Colbert’s show, and gave the audience the full benefit of her ignorance regarding constitutional jurisprudence and American history.  When asked by Stephen Colbert about what appropriate action should be taken by the House of Representatives in response to the Supreme Court having recently struck down Roe v. Wade, she began by matter-of-factly informing viewers that there’s a historical precedent for overruling such Supreme Court decisions:

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I think, uh, history, really informs a lot.  Um, and it gives us lessons here, because this is not the first time that this has happened.  Uh, in the 1800s, the Supreme Court was taken over by the Confederate South, and started to rule in ways that limited Abraham Lincoln, for example. In the Dred Scott ruling, they ruled that black Americans are not and can never be full citizens of the United States.  And what did Abraham Lincoln do?  He signed the Emancipation Proclamation.

Let it not be said that AOC is without talents, and on display here is her remarkable knack to passionately layer falsehood-upon-falsehood to create a fantastic tale of fiction that is packaged as history, only to be unquestionably lapped up by the media and her devoted following.

She’s right about one thing.  History does “inform us a lot,” and especially when it comes to erroneous Court decisions.  It just does nothing to support the conclusions she’s drawn.

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But let’s begin with all that she has wrong about the history here.

First of all, the Supreme Court was never “taken over” by Confederates.  Not only is that a stupidly simplistic suggestion as to how those justices were appointed and confirmed over decades, but the Court that decided Dred Scott, the Taney Court, was anything but a gaggle of Southerners.  Only four of the nine justices were Southerners, in fact, and yet the Dred Scott decision was decided by margin of 7-2.

The Court’s recent judgements in decisions like Dred Scott did vex Lincoln, on a moral level.  However, Lincoln, unlike most twenty-first century millennials, believed in the primacy of American institutions such as the Supreme Court. 

In his 1861 Inaugural Address, he said as much, defending the “binding” nature of the Court’s judgement, and that the “evil effect” of “erroneous decisions” with the potential that they may be “overruled and never become a precedent for other cases” can “better be borne than could the evils of a different practice.”

Specifically, regarding the Taney Court, he said:

Nor is there in this view any assault upon the court or 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.

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Lincoln, in other words, wasn’t bent on obstinately rebuking the Court’s decision by executive overreach, as it apparently plays out millions of thoroughly-credentialed-yet-highly-uneducated minds, like AOC’s.  And proving this point isn’t difficult.  From this same speech, Lincoln said:

I understand a proposed amendment to the Constitution… has passed Congress, to the effect that the Federal Government shall never interfere with the domestic institutions of the States, including that of persons held to service.  To avoid misconstruction of what I have said, I depart from my purpose not to the speak of particular amendments so far as to say that, holding such a provision to now be implied constitutional law, I have no objection to its being made express and irrevocable.

Of course, AOC doesn’t know any of that, despite offering history lessons to American late-night audiences.  Again, in this fantasy that is held as their most fervent belief, countless progressives imagine that Lincoln unilaterally issued the Emancipation Proclamation to overcome the Court as an obstacle — in 1863, nearly six years after the Dred Scott decision and two years after the start of the Civil War.

The Proclamation, of course, didn’t free a single slave.  It applied only to states “in rebellion” to the Union. Those states did not recognize Lincoln’s authority at all, and slaves were still legally held to service in those states that weren’t “in rebellion.” 

Most historians agree that this was a political move, made largely out of desperation, in a war that was not going particularly well for the Union at the time, despite a small victory (at tremendous cost) in the Battle of Antietam a few months prior.  Emancipation was not universally supported even in the North, and the popular support for the war up to that point had been predicated on the military subjugation of the new confederacy of seceded states in order to reunify the country, not the abolition of slavery.  Lincoln issued the Proclamation to reframe the war to be about universal liberty so that the British and the French, which had both abolished slavery at home, would be reluctant to recognize the Confederate States as a legitimate nation or lend them support.

Somehow, though, AOC, along with the fawning media and her devoted acolytes, have managed to avoid all of this history in order to craft this fairy tale suggesting that, somehow, Dred Scott v. Sanford offers a parallel to Dobbs v. Jackson, which was the Supreme Court case that effectively repealed the Roe v. Wade decision of 1973.

It’s a marvelously stupid argument for pro-abortion ideologues, and their repetition in arguing it is the intellectual equivalent of a soccer goalie repeatedly kicking the ball into his own net.

First of all, Dred Scott was, as Lincoln argued, an “erroneous decision” which carried “evil effects.”  It was erroneous because it denied the right to liberty for slaves while inventing a right for slaveholders that is not enumerated in the Constitution.  The evil effects of that decision are obvious.

A remarkably similar argument has been made against Roe, also decided by a margin of 7-2 in 1973.  The decision was erroneous because it denied the right to life for unborn children while inventing a right for mothers (the right to kill their unborn children, in this case) that is not enumerated in the Constitution.  The evil effects of that decision should be equally obvious.

The obvious logical parallel is not observed with Dred Scott and Dobbs as so many progressives contend, but clearly observed with Dred Scott and Roe. And here is what is truly fascinating. 

In an 1857 speech on Dred Scott, Lincoln argued that the Court is an institution of self-repair, and the decision was “not yet quite established doctrine for the country.”  “We think the Dred Scott decision was erroneous,” Lincoln said.  “We know the court that made it, has often over-ruled its own decisions, and we shall do what we can to have it over-rule this.  We offer no resistance to it.”

That was Lincoln’s immediate response to the Dred Scott decision, and it was certainly not to issue the Emancipation Proclamation to overrule the Court.  Seems to me that if you’re going to invoke Lincoln to support your argument, it’s probably a good idea to know something about the man.  Lincoln fully intended to treat the Dred Scott ruling as binding, yet we also know that he was hopeful that the Court would reverse its decision.

This naturally leads one to the perfectly clear conclusion that a Dobbs-like ruling to constitutionally correct the erroneous Dred Scott decision was precisely what Lincoln hoped for, and that America would have the time, temperance, and patience to allow for that outcome, rather than tear itself apart.

The blithering nonsense of modern progressives notwithstanding, the repeal of Roe should make Americans quite proud.  It means that the American Constitution and its defined institutions can legally and peacefully correct the mistakes of the past, just as Abraham Lincoln believed they could.

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