EDITOR’S NOTE: The following article is adapted from one that ran in the June 1, 2015, issue of National Review.
We live in a legal culture besotted by the myth of judicial supremacy. According to this myth, the Constitution means whatever five Supreme Court justices claim it means, and all other governmental actors are duty-bound to abide by that supposed meaning.
This mistaken concept of judicial supremacy is often confused with the power of judicial review — the ability of courts to review the constitutionality of laws and regulations that they are asked to apply. It is one thing for the Supreme Court to decline to apply a law that it deems to be unconstitutional; it is quite another for it to maintain that presidents, members of Congress, and state officials must likewise regard the law as unconstitutional and, further, must accept and follow the rationale of the Court’s decision.
Thus, Abraham Lincoln, in his first inaugural address, famously defended his rejection of the Dred Scott ruling: “If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . 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.” Lincoln’s actions as president were faithful to his words. In defiance of the dual holdings of Dred Scott, he signed into law a bill that outlawed slavery in the federal territories, and he instructed the State Department to issue passports to free blacks (thus recognizing them as citizens). Lincoln also refused to obey Chief Justice Taney’s order, in Ex parte Merryman, to release a prisoner from military custody.