You may have heard of an “open letter” to the Biden Administration, co-authored by Mark Tushnet, an emeritus professor at Harvard Law School (self-described socialist and advocate of scorched earth progressivism), and San Francisco State University political science professor Aaron Belkin (whose self-description is “scholar, author, activist and dancer”), urging the President to “to restrain MAGA justices immediately by announcing that if and when they issue rulings that are based on gravely mistaken interpretations of the Constitution that undermine our most fundamental commitments, the Administration will be guided by its own constitutional interpretations”. If that screed is news to you, you can read critiques here and here and here and many other heres.
Professors Tushnet and Belkin call their stance “Popular Constitutionalism” (a peculiar label, given that one of their main targets is Students for Fair Admissions v. Harvard, a decision that the populace strongly approves). That doctrine, they say, “has a proud history in the United States, including Abraham Lincoln’s refusal to treat the Dred Scott decision as a political rule that would guide him as he exercised presidential powers”. That is true in a mushy sort of way, but not the way that the professors assert. They see it as justification for massive resistance.
For example, President Biden could declare that the Court’s recent decision in the affirmative action cases applies only to selective institutions of higher education and that the Administration will continue to pursue affirmative action in every other context vigorously because it believes that the Court's interpretation of the Constitution is egregiously wrong.
That recommendation is a trifle odd. The only colleges that aren’t “selective” are those that admit all applicants; by definition they don’t practice affirmative action. It seems unlikely, too, that the professors contemplate drawing an arbitrary line between the most selective tier and the rest. They surely aren’t demanding that Harvard be cut off from the federal money spigot. Any concession that SFFA v. Harvard applied to anyone would be for display purposes only, a thin cover for an all-out push for continued discrimination.
That brings us to Abraham Lincoln, whose views on responding to Dred Scott v. Sandford are worthy of consideration. Lincoln did indeed declare forcefully that the decision was bad law. His principal statement on what its opponents should do about it was set forth in an address that he delivered on June 26, 1857, in the course of his campaign for the Senate:
Judicial decisions have two uses – first, to absolutely determine the case decided, and secondly, to indicate to the public how other similar cases will be decided when they arise. For the latter use, they are called "precedents” and “authorities.”
We believe, as much as Judge Douglas, (perhaps more) in obedience to, and respect for the judicial department of government. We think its decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution. But we think the Dred Scott decision is erroneous. We know the court that made it, has often over-ruled its own decisions, and we shall do what we can to have it to over-rule this. We offer no resistance to it.
Lincoln was replying specifically to his opponent, Stephen Douglas, who had argued that, once the Supreme Court decides a question, “forc[ing it] upon the country as a political issue” is “a deadly blow at our whole Republican system of government”. Lincoln disagreed.
If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.
But when, as it is true we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country.
Lincoln could have been speaking for those who believed that Roe v. Wade and the Court’s equivocal pre-SFFA affirmative action jurisprudence were “wanting in all these claims to the public confidence”. Those critics didn’t treat those decisions as “settled doctrine”, but they also didn’t defy them. States enacted laws placing restrictions on abortion, many of which the Court found to be permissible. Congress forbade spending federal funds to procure abortions in most circumstances. That law, too, the Court upheld. With regard to affirmative action, several states, including such liberal bastions as California and Washington, outlawed racial preferences in higher education by the vote of the people. All of those were acts that Lincoln would not have regarded as “factious” or “even disrespectful”.
If Professors Tushnet and Belkin advocated that species of resistance, both sexes of goose are entitled to the same sauce, but their rhetoric makes it clear that they have in mind something more vigorous. Their spirit is more Ross Barnett and Orval Faubus than Abraham Lincoln.
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