ABRAHAM LINCOLN ON THIS QUESTION OF JUDICIAL AUTHORITIES THE THEORY OF CONSTITUTIONAL ASPIRATION

In: The Western political quarterly: official journal of Western Political Science Association, Band 36, Heft 1, S. 52-70

Abstract

LINCOLN'S UNDERSTANDING OF THE CONSTITUTION BREAKS VERY LITTLE NEW GROUND: IN ALL IMPORTANT RESPECTS IT FOLLOWS IN THE NATURAL RIGHTS TRADITION OF THE EIGHTEENTH CENTURY. HIS PRINCIPAL CONTRIBUTION TO OUR CONSTITUTIONAL JURISPRUDENCE LIES IN THE ADAPTATION OF THIS UNDERSTANDING TO THE PRACTICE OF JUDICIAL REVIEW. DRED SCOTT V. SANDFORD WAS ONLY THE SECOND CASE IN WHICH THE SUPREME COURT INVALIDATED CONGRESSIONAL POLICY, AND IT WAS THE FIRST OCCASION WHERE LEGISLATION OF ANY IMPORTANCE WAS INVOLVED. JOHN MARSHALL HAD CHOSEN WISELY IN SELECTING A RATHER TRIVIAL SECTION OF A LAW DEALING WITH JUDICIAL MATTERS TO CREATE THE PRECEDENT FOR JUDICAL REVIEW. THE LUXURY OF INSIGNIFICANCE DID NOT PRESENT ITSELF TO LINCOLN; INSTEAD, OUR MOST PROFOUND NATIONAL CRISIS RENDERED UNAVOIDABLE REFLECTION ON THE GREAT UNRESOLVED DILEMMA OF JUDICIAL REVIEW HOW TO RESPOND TO A DEVIANT DECISION OF A DEVIANT INSTITUTION. LINCOLN'S RESPONSE TO IGNORE THE DECISION AS A POLITICAL RULE, WAS PREDICATED ON THE VIEW THAT THOSE SWORN TO UPHOLD THE CONSTITUTION HAVE AN OBLIGATION TO ADVANCE THE CAUSE OF CONSTITUTIONAL PRINCIPLE, TO THE END OF REALIZING THE IDEALS OF THE DECLARATION OF INDEPENDENCE.