Wednesday, July 6, 2022

Abraham Lincoln quoting Thomas Jefferson on judicial despotism and oligarchy

At Springfield, Illinois, July 17, 1858

Now, as to the Dred Scott decision; for upon that he [Douglas] makes his last point at me. He boldly takes ground in favor of that decision.

This is one-half the onslaught, and one-third of the entire plan of the campaign. I am opposed to that decision in a certain sense, but not in the sense which he puts on it. I say that in so far as it decided in favor of Dred Scott’s master and against Dred Scott and his family, I do not propose to disturb or resist the decision.

I never have proposed to do any such thing. I think, that in respect for judicial authority, my humble history would not suffer in a comparison with that of Judge Douglas. He would have the citizen conform his vote to that decision; the Member of Congress, his; the President, his use of the veto power. He would make it a rule of political action for the people and all the departments of the government. I would not. By resisting it as a political rule, I disturb no right of property, create no disorder, excite no mobs.

When he spoke at Chicago, on Friday evening of last week, he made this same point upon me. On Saturday evening I replied and reminded him of a Supreme Court decision which he opposed for at least several years. Last night, at Bloomington, he took some notice of that reply; but entirely forgot to remember that part of it.

He renews his onslaught upon me, forgetting to remember that I have turned the tables against himself on that very point. I renew the effort to draw his attention to it. I wish to stand erect before the country as well as Judge Douglas, on this question of judicial authority; and therefore I add something to the authority; and therefore I add something to the authority in favor of my position. I wish to show that I am sustained by authority, in addition to that heretofore presented. I do not expect to convince the Judge. It is part of the plan of his campaign, and he will cling to it with a desperate grip. Even, turn it upon him – turn the sharp point against him, and gaff him through – he will still cling to it till he can invent some new dodge to take the place of it.

In public speaking of it is tedious reading from documents; but I must beg to indulge the practice to a limited extent. I shall read from a letter written by Mr. Jefferson in 1820, and now to be found in the seventh volume of his correspondence, at page 177. It seems he had been presented by a gentleman of the name of Jarvis with a book, or essay, or periodical, called the ‘Republican,’ and he was writing in acknowledgement of the present, and noting some if its contents. After expressing the hope that the work will produce a favorable effect upon the minds of the young, he proceeds to say:

That it will have this tendency may be expected, and for that reason I feel an urgency to note what I deem an error in it, the more requiring notice as your opinion is strengthen by that of many others. You seem in pages 84 and 148, to consider the judges as the ultimate, arbiters of all constitutional questions – a very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is, ‘boni judicis est ampliare jurisdictionem’; and their power is the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.

Thus we see the power claimed for the Supreme Court by Judge Douglas, Mr. Jefferson holds, would reduce us to the despotism of an oligarchy.

Now, I have said no more than this – in fact, never quite so much as this – at least I am sustained by Mr. Jefferson.

1 comment:

Calgacus said...

It's important to know that Lincoln's and Jefferson's insights are the law. The quote "Boni judicis est ampliare jurisdictionem" is very apt, for a check on this real danger is in the constitution. Congress can almost always overrule the Supreme Court. But strangely, it is little known and debated, though it has been used around 20 times in history.

Congress controls the Supreme Court's appellate jurisdiction. It can take away the power of the Court to even hear such cases - "jurisdiction stripping". And at least one Representative, Mondaire Jones, is not asleep on this. He is introducing bills - like restoring the whole Voting Rights Act, which is probably both the most important and politically feasible example, and taking away the Supreme Court's shameful, despotic power over it.