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The years from 1857 to 1861, with Dred Scott freshly inscribed as “the law of the land,” saw a wave of radical challenges to the power of the Supreme Court.
Here’s a 30-part thread (lol) from my research-in-progress on antislavery politics and the early Republican Party.
Here’s a 30-part thread (lol) from my research-in-progress on antislavery politics and the early Republican Party.
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Today’s Left has begun to embrace FDR’s court-packing plan in the 1930s, but in some ways, the antislavery struggle of the 1850s represented an even more sweeping assault on the foundations of judicial power.
Today’s Left has begun to embrace FDR’s court-packing plan in the 1930s, but in some ways, the antislavery struggle of the 1850s represented an even more sweeping assault on the foundations of judicial power.
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Abolitionists and Republicans condemned the Dred Scott decision, “this judicial incarnation of wolfishness,” as Frederick Douglass called it. Yet they knew the problem of proslavery jurisprudence could not be solved by antislavery jurisprudence alone. https://rbscp.lib.rochester.edu/4399
Abolitionists and Republicans condemned the Dred Scott decision, “this judicial incarnation of wolfishness,” as Frederick Douglass called it. Yet they knew the problem of proslavery jurisprudence could not be solved by antislavery jurisprudence alone. https://rbscp.lib.rochester.edu/4399
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“We can appeal from this hell black judgment of the Supreme Court,” said Douglass, “to the court of common sense and common humanity.” The remedy for Dred Scott did not reside in a lawyer’s plea or a judge’s opinion, but in mass political struggle.
“We can appeal from this hell black judgment of the Supreme Court,” said Douglass, “to the court of common sense and common humanity.” The remedy for Dred Scott did not reside in a lawyer’s plea or a judge’s opinion, but in mass political struggle.
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For the Republican Party, that struggle meant declaring political war on the idea of an all-powerful judiciary. After 1857 Republicans responded to Dred Scott, as the historian David Potter wrote, not with “an attack on the decision,” but “an attack on the Court.”
For the Republican Party, that struggle meant declaring political war on the idea of an all-powerful judiciary. After 1857 Republicans responded to Dred Scott, as the historian David Potter wrote, not with “an attack on the decision,” but “an attack on the Court.”
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“The Supreme Court of the United States,” announced the New-York Tribune, the largest Republican newspaper in the country, has “polluted its garments in the filth of Pro-Slavery politics. From this day forth it must stand… as a self-disgraced tribunal.”
“The Supreme Court of the United States,” announced the New-York Tribune, the largest Republican newspaper in the country, has “polluted its garments in the filth of Pro-Slavery politics. From this day forth it must stand… as a self-disgraced tribunal.”
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But what could Republicans do about the power of this disgraced Court? By 1858 it contained five proslavery Southerners, three of their Northern Democratic “doughface” allies, and only one (moderately) antislavery justice, John McLean of Ohio.
But what could Republicans do about the power of this disgraced Court? By 1858 it contained five proslavery Southerners, three of their Northern Democratic “doughface” allies, and only one (moderately) antislavery justice, John McLean of Ohio.
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Some suggested immediate reforms, including the appointment of up to five new justices. “This Court is the citadel of Slavery,” reported one Cincinnati newspaper, “and Republicans intend to storm it.”
Some suggested immediate reforms, including the appointment of up to five new justices. “This Court is the citadel of Slavery,” reported one Cincinnati newspaper, “and Republicans intend to storm it.”
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Probably the most popular idea — maybe even more radical, in its way, than court-packing — was a plan “reorganize” the entire federal judiciary on the basis of circuit court population.
Probably the most popular idea — maybe even more radical, in its way, than court-packing — was a plan “reorganize” the entire federal judiciary on the basis of circuit court population.
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In 1858 William Seward introduced a bill of this kind, which would have created an instant & enduring free-state majority on the Supreme Court. It went nowhere in the Democratic Senate, but kept national focus on the Court as a bulwark of slavery.
In 1858 William Seward introduced a bill of this kind, which would have created an instant & enduring free-state majority on the Supreme Court. It went nowhere in the Democratic Senate, but kept national focus on the Court as a bulwark of slavery.
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Ultimately, the most important Republican response was not any of the various technical reform proposals, but a concentrated *political* attack on the Court’s authority as an elevated and impartial arbiter of law.
Ultimately, the most important Republican response was not any of the various technical reform proposals, but a concentrated *political* attack on the Court’s authority as an elevated and impartial arbiter of law.
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Famously, both Seward and Abraham Lincoln accused the Court of advancing a proslavery conspiracy: Chief Justice Taney had plotted with President Buchanan to craft a piece of legal “machinery” that would make slavery lawful everywhere. http://www.abrahamlincolnonline.org/lincoln/speeches/house.htm
Famously, both Seward and Abraham Lincoln accused the Court of advancing a proslavery conspiracy: Chief Justice Taney had plotted with President Buchanan to craft a piece of legal “machinery” that would make slavery lawful everywhere. http://www.abrahamlincolnonline.org/lincoln/speeches/house.htm
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Republicans also denounced “superstitious worship” of the Supreme Court, mocking the “fulsome flattery” of life-tenured judges who, by virtue of their high position, somehow transcended mortal politics. In fact, they were just political appointees like any other.
Republicans also denounced “superstitious worship” of the Supreme Court, mocking the “fulsome flattery” of life-tenured judges who, by virtue of their high position, somehow transcended mortal politics. In fact, they were just political appointees like any other.
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The Tribune even published a general roast of the Court, noting Taney’s “sinister expression,” and describing the doughfaced Justice Grier as “a blonde of a rotund figure” whose “soft and rosy nature… succumbs under touch and returns into shape on its removal.”
The Tribune even published a general roast of the Court, noting Taney’s “sinister expression,” and describing the doughfaced Justice Grier as “a blonde of a rotund figure” whose “soft and rosy nature… succumbs under touch and returns into shape on its removal.”
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Above all, the Republican assault struck at the fundamental power of the judiciary. The Supreme Court, they argued, had the authority to decide particular cases, but not to settle larger political disputes over the meaning of the Constitution.
Above all, the Republican assault struck at the fundamental power of the judiciary. The Supreme Court, they argued, had the authority to decide particular cases, but not to settle larger political disputes over the meaning of the Constitution.
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Today we call this power “judicial review,” but as scholars like Keith Whittington argue, it really amounts to something much more like to “judicial supremacy,” and its roots are not legal or constitutional but themselves political. https://press.princeton.edu/titles/8427.html
Today we call this power “judicial review,” but as scholars like Keith Whittington argue, it really amounts to something much more like to “judicial supremacy,” and its roots are not legal or constitutional but themselves political. https://press.princeton.edu/titles/8427.html
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After Dred Scott, Republicans mounted a direct challenge to this power — perhaps the most aggressive popular attack on judicial supremacy in U.S. history. “A Court makes a decision,” argued one New York legislator, “but does not make the law.”
After Dred Scott, Republicans mounted a direct challenge to this power — perhaps the most aggressive popular attack on judicial supremacy in U.S. history. “A Court makes a decision,” argued one New York legislator, “but does not make the law.”
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Nor was this argument confined to the most self-consciously radical Republicans. Maine senator Hannibal Hamlin, Lincoln’s future Vice President, offered a blanket rejection of the Court’s authority to “decide a political question for us.”
Nor was this argument confined to the most self-consciously radical Republicans. Maine senator Hannibal Hamlin, Lincoln’s future Vice President, offered a blanket rejection of the Court’s authority to “decide a political question for us.”
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In 1858, Lincoln’s famous debates with Stephen Douglas turned on the Republican attack on judicial supremacy. Douglas, like other conservatives, accused Lincoln’s party of seeking “to destroy public confidence in the highest judicial tribunal on earth.”
In 1858, Lincoln’s famous debates with Stephen Douglas turned on the Republican attack on judicial supremacy. Douglas, like other conservatives, accused Lincoln’s party of seeking “to destroy public confidence in the highest judicial tribunal on earth.”
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Yet Lincoln persisted in rejecting judicial supremacy — and also the basic idea underlying it, that law somehow exists before or beyond politics, and thus it was illegitimate to resist the proslavery Court through popular antislavery mobilization. https://quod.lib.umich.edu/l/lincoln/lincoln3/1:30?rgn=div1;view=fulltext
Yet Lincoln persisted in rejecting judicial supremacy — and also the basic idea underlying it, that law somehow exists before or beyond politics, and thus it was illegitimate to resist the proslavery Court through popular antislavery mobilization. https://quod.lib.umich.edu/l/lincoln/lincoln3/1:30?rgn=div1;view=fulltext
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Across the late 1850s, Lincoln argued that “the American people,” not the Supreme Court, were the true arbiters of the Constitution, and that the only way to defeat the proslavery judiciary was through mass political struggle.
https://quod.lib.umich.edu/l/lincoln/lincoln3/1:137?rgn=div1;view=fulltext
Across the late 1850s, Lincoln argued that “the American people,” not the Supreme Court, were the true arbiters of the Constitution, and that the only way to defeat the proslavery judiciary was through mass political struggle.
https://quod.lib.umich.edu/l/lincoln/lincoln3/1:137?rgn=div1;view=fulltext
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After Lincoln and Hamlin were elected in 1860, the new president’s inaugural address articulated this view in perhaps the strongest language he ever used.
https://quod.lib.umich.edu/l/lincoln/lincoln4/1:389?rgn=div1;view=fulltext
After Lincoln and Hamlin were elected in 1860, the new president’s inaugural address articulated this view in perhaps the strongest language he ever used.
https://quod.lib.umich.edu/l/lincoln/lincoln4/1:389?rgn=div1;view=fulltext
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Once in power, Lincoln and congressional Republicans “reorganized” the federal judiciary and “packed” the Court, adding an additional justice in 1863. More fundamentally, though, they simply ignored the proslavery precedents established in the 1850s.
Once in power, Lincoln and congressional Republicans “reorganized” the federal judiciary and “packed” the Court, adding an additional justice in 1863. More fundamentally, though, they simply ignored the proslavery precedents established in the 1850s.
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In June 1862, for instance, Congress passed and Lincoln signed a bill banning slavery from the federal territories—a direct violation of the ruling in Dred Scott. The Court meekly acquiesced, recognizing that its political power was long since broken. https://cwemancipation.wordpress.com/2012/06/19/slavery-ends-in-the-territories/
In June 1862, for instance, Congress passed and Lincoln signed a bill banning slavery from the federal territories—a direct violation of the ruling in Dred Scott. The Court meekly acquiesced, recognizing that its political power was long since broken. https://cwemancipation.wordpress.com/2012/06/19/slavery-ends-in-the-territories/
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As the legal historian Charles Warren later lamented, Republicans' popular assault on the Court crippled the institution for more than a decade. https://www.pulitzer.org/winners/charles-warren
(For me, this was Good: it helped make emancipation and Reconstruction possible.)
As the legal historian Charles Warren later lamented, Republicans' popular assault on the Court crippled the institution for more than a decade. https://www.pulitzer.org/winners/charles-warren
(For me, this was Good: it helped make emancipation and Reconstruction possible.)
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Drawing direct “lessons from history” is a fool’s errand, but at least this should remind us that judicial power — however grandly it may be imagined by friends and foes alike — is critically dependent on political currents.
Drawing direct “lessons from history” is a fool’s errand, but at least this should remind us that judicial power — however grandly it may be imagined by friends and foes alike — is critically dependent on political currents.
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In some ways, the Left today shares the position of antislavery forces in the 1850s: a rich, well-organized sect, whose commitment to property far exceeds its belief in democracy, has made the Supreme Court a citadel of reaction: https://www.thenation.com/article/the-bosses-constitution/ cc @JedediahSPurdy
In some ways, the Left today shares the position of antislavery forces in the 1850s: a rich, well-organized sect, whose commitment to property far exceeds its belief in democracy, has made the Supreme Court a citadel of reaction: https://www.thenation.com/article/the-bosses-constitution/ cc @JedediahSPurdy
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Yet as Keith Whittington argues, the resort to judicial supremacy is not a sign of strength, but an admission of weakness: a beleaguered regime calls upon the authority of the Court only to achieve what it cannot accomplish through electoral politics.
Yet as Keith Whittington argues, the resort to judicial supremacy is not a sign of strength, but an admission of weakness: a beleaguered regime calls upon the authority of the Court only to achieve what it cannot accomplish through electoral politics.
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The Bosses’ Constitution has no more chance of winning public support today than the slaveholders’ agenda of the 1850s. It is, probably, the *least popular* wing of a larger conservative politics that has come to depend on minority rule: http://www.slate.com/news-and-politics/2018/10/minority-rule-not-in-the-constitution cc @jbouie
The Bosses’ Constitution has no more chance of winning public support today than the slaveholders’ agenda of the 1850s. It is, probably, the *least popular* wing of a larger conservative politics that has come to depend on minority rule: http://www.slate.com/news-and-politics/2018/10/minority-rule-not-in-the-constitution cc @jbouie
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To make this undemocratic project vulnerable, it must be made visible.
It may not be enough to question the decisions, the justices, or even the structure of the current Court — we may need to challenge, as Lincoln did, the foundation of its power to determine the law.
To make this undemocratic project vulnerable, it must be made visible.
It may not be enough to question the decisions, the justices, or even the structure of the current Court — we may need to challenge, as Lincoln did, the foundation of its power to determine the law.
(tfw your epic twitter thread is scooped by the Appeal to Reason in 1909)
