The Constitution and the Sources of Refuge

Note: The Papal Posse – Raymond Arroyo, Fr. Gerald Murray, and myself – will appear on EWTN’s “The World Over” Thursday night at 8 PM. (Consult your local listings for rebroadcasts. Shows are also available on the EWTN YouTube channel shortly after airing.) We’ll be discussing yesterday’s column on religious repression in China, and the bombshell new book on priestly celibacy by Benedict XVI and Cardinal Sarah, among other topics. Please tune in. – Robert Royal 

In a telling commentary on Roe v. Wade, Russell Hittinger pointed out that Abraham Lincoln could not have raised his hand and taken an oath to the Constitution on March 4, 1861 if that document had been thought to incorporate that new “constitutional right,” articulated by the Court in the Dred Scott case, a right not to be dispossessed of property in a slave when one entered a Territory of the United States.

That decision threatened to make slavery national in scope.  But Lincoln had just led a successful national movement to counter and overturn that holding in Dred Scott.   He would not counsel a flouting of the Court.  “We do not propose,” he said, “that when Dred Scott has been decided to be a slave by the court, we, as a mob, will decide him to be free.”

He would not disturb or overturn the judgment of the Court in regard to the litigants, whose case was being settled.  But he and the opponents of slavery would nevertheless refuse to accept the principle articulated in that case “as a political rule which shall be binding on the voter, to vote for nobody who thinks it wrong, which shall be binding on the members of Congress or the President to favor no measure that does not actually concur with the principles of that decision.”

This was a refined argument, but as Lincoln sought to explain, it was the only tenable understanding that could be reconciled with the logical structure of the Constitution and the separation of powers.  As he would explain in his inaugural address, the decisions of the Supreme Court deserved “high respect and consideration in all parallel cases by all other departments of the Government.”  A mistaken decision by the Court could be better borne because it could be limited to the particular case at hand, and it may be overruled.

But it was quite another matter to say that “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.” [Italics added.] A bare majority of five judges could join with two parties, possibly in a collusive suit, and together they could impose a policy on the whole country.  They could then remove the question of slavery – or abortion – from the hands of legislatures and voters.


At that moment, said Lincoln, “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.”

From its earliest moments in office, Lincoln’s government moved through administrative decisions to counter the decision in Dred Scott that black people could not be citizens of the United States.  And in June 1862, Congress passed, and Lincoln signed, an act of ordinary legislation, barring slavery from the Territories of the United States, and from any future State to be carved out of those Territories.  That Act was a move of the political branches to challenge the Court and to suggest to the judges, in a not-so-gentle way, that they should take a sober second look at what they had done.

It is curious that so many lawyers and judges are taken by surprise when they hear this account, evidently for the first time.  They seem even more deeply unaware that the story has been replayed into our own days with disputes setting Congress against the Court – and with the Congress not backing down.   The deeper surprise is that, in our own time, it has been the liberals who have refused to settle in with the judgments of the Court they have found less than congenial.

Well, of course, some of us have been arguing for years that the same understanding should be applied to the matter of abortion.  The Reagan Administration could have respected the outcome of Roe v. Wade for the litigants in the case – and yet refused to allow the National Institutes of Health to use, in experiments, tissue drawn from babies killed in elective abortions.

But the conservative political class has found it hard to recall the key precedent with Lincoln, or it has been sheepish in summoning the nerve to press that argument against a class of lawyers who profess no longer to recall it.

And yet, that sense of things lingers in another form, as I’ve argued in these columns. It lingers, for example, in the willingness of Congress to legislate protections of “conscience” for doctors and nurses who don’t wish to participate in abortions.  No religion among us claims rights of “conscience” against the laws that bar discrimination based on race.  If the right to abortion was as morally rightful as the right not to suffer those discriminations, we would be just as obliged at every turn to respect and facilitate that right, not to resist it.

But the fact that Congress can keep offering this ground of resistance is the telling sign that the rightness of abortion is still deeply denied, deeply contested.  And there is no need for us to rely on claims of mere “belief” as the ground of our refusal to fall into line.  The hidden truth is that we find our refuge in the lingering authority of the political branches to stake out a moral position at odds with the declarations of the Supreme Court.


*Image: Posthumous Portrait of Dred Scott by Louis Schultze, c. 1882 [Missouri Historical Society]

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.