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A Historian’s Perspective on Gingrich & Lincoln

Newt Gingrich wrongly claimed the Dred Scott decision “ruled that slavery extended to the whole country.” It did not. The ruling stated that Congress had no authority to ban slavery in new territories, but it stopped short of applying the ruling to all states. Gingrich also claimed that President Lincoln “explicitly instructed his administration to not enforce Dred Scott.” But the research historian at the Lincoln presidential library knows of no such directive or any reason to issue one.

In arguing for the need to curb the power of the judiciary, Gingrich frequently cites Lincoln’s well documented opposition to the Supreme Court’s Dred Scott ruling. Gingrich did so twice Dec. 18 on “Face the Nation.” The former House speaker, who earned a Ph.D. in history and taught the subject briefly, often says he is speaking “as a historian.” We asked Bryon Andreasen, the research historian at the Abraham Lincoln Presidential Library and Museum in Springfield, Ill., to review Gingrich’s comments about Lincoln on “Face the Nation” for historical accuracy.

Gingrich, Dec. 18: Lincoln spends part of his first inaugural because people tend to forget, the Supreme Court in Dred Scott, ruled that slavery extended to the whole country. And Lincoln said very specifically, that’s the law of the case that is not the law of the land. Nine people cannot create the law of the land or you have eliminated our freedom as a people.

Andreasen made three points about Gingrich’s comments. We’ll provide Andreasen’s detailed analysis later, but first we will summarize his main points:

  • The Dred Scott decision did not extend slavery “to the whole country,” as Gingrich claimed.
  • Gingrich’s statement that “Lincoln said very specifically, that’s the law of the case that is not the law of the land” — is, in Andreasen’s words, “historically defensible.”
  • It is “essentially accurate,” Andreasen said, for Gingrich to paraphrase Lincoln’s belief that “nine people cannot create the law of the land or you have eliminated our freedom as a people.”

Here is Andreasen’s complete analysis, as provided to us in an email, including words and phrases he chose to put in italics and bold:

Point One: The Dred Scott decision did not extend slavery to whole country. In his opinion Chief Justice Taney said (1) that people of African descent were not citizens with standing to sue in Federal Court, and (2) that Congress had no constitutional authority to prohibit slavery in federal territories — that a slaveholder’s property rights (including slave property) were constitutionally protected. This in effect extended slavery to all federal territories (thus overturning the old Missouri Compromise of 1820). But Taney did not expressly hold that his ruling applied to states (as opposed to territories). He stopped short of that. Lincoln and others feared that the logic Taney used in the Dred Scott case could be used in a future court case to extend slavery to all the states. But Gingrich is technically incorrect to suggest that the Dred Scott decision extended slavery everywhere.

Point Two: In the second sentence above, Gingrich paraphrases a complex section of the First Inaugural where Lincoln explains his philosophy regarding the proper deference that should be given to Supreme Court decisions. Lincoln took a narrow view of the binding authority of Supreme Court rulings. (1) Lincoln acknowledges — but doesn’t expressly concede — the proposition that it is the Supreme Court that decides all constitutional questions (Lincoln leaves open the door to the view that each branch of government has a similar power and duty to decide constitutionality — a view that was more prevalent in the 18th & 19th centuries than it is today). (2) Lincoln does expressly accept the proposition that the Supreme Court has absolute authority to make a decision binding on all parties to a case brought before it — in Gingrich’s parlance, the “law of the case.” (3) Lincoln concedes that Supreme Court decisions are entitled to “very high respect and consideration” as precedent in subsequent similar cases. (4) Regarding cases where the Supreme Court decides erroneously, Lincoln reasoned that because the Court’s authority is restricted to the case at hand with the chance that it may be “over-ruled” [over-ruled by who?– presumably by a subsequent court case, but 19th century jurisprudence left room for arguing that it could be the President or Congress] and may therefore “never become a precedent for other cases,” the Court’s occasional mistakes can be better tolerated — “can better be borne”– than “the evils of a different practice.” In this passage Lincoln reveals his conservative 19th century constitutional outlook regarding Supreme Court decisions — an outlook at that is subject to historical debate. Bottom line, Gingrich’s second line — “And Lincoln said very specifically, that’s the law of the case that is not the law of the land” — is historically defensible.

Point three: Although Lincoln is willing to go along with Supreme Court decisions because they are limited in scope, are subject to being over-ruled, and the alternatives are worse evils, he cannot help making an observation that reveals his democratic concerns regarding the Court:

“At the same time the candid citizen must confess that 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 instant they are made, in ordinary litigation between parties, in personal actions, 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.”

Gingrich’s simplifying paraphrase — “Nine people cannot create the law of the land or you eliminated our freedom as a people” — roughly reflects Lincoln’s message here, and I think can probably be accepted as essentially accurate regarding Lincoln’s thinking. Gingrich leaves out the part that Lincoln nevertheless goes out of his way in the next two sentences to absolve the court of blame when politicians “turn their decisions to political purposes” (a jab at both Jefferson Davis and Stephen A. Douglas).

Later in the “Face the Nation” interview, Gingrich makes the claim that Lincoln “explicitly instructed his administration to not enforce Dred Scott.” However, Andreasen says he knows of no evidence that Lincoln ever issued such a directive, or any reason why the president would have done so.

Gingrich, Dec. 18: But I’ll go back to Lincoln who people generally think respected the law. Lincoln explicitly instructed his administration to not enforce Dred Scott. And he said flatly, it’s the law of the case, not the law of the land. It’s in his first inaugural.

But if Gingrich was wrong to claim that Lincoln specifically ordered his administration not to enforce the Dred Scott decision, he’s on firmer ground when he paraphrased Lincoln as saying in his first inaugural address that the decision was “not the law of the land.” Andreasen’s analysis:

Nowhere in the First Inaugural Address does Lincoln “explicitly instruct his administration to not enforce Dred Scott.” (The term “Dred Scott” does not appear anywhere in the text of the speech), though most historians would admit that Lincoln probably had Dred Scott in mind when he wrote the paragraph about Supreme Court decisions. To the extent Lincoln did have Dred Scott in mind, Gingrich is correct that Lincoln argued that the decision was the “law of the case, not the law of the land.” Many historians today (and some of Lincoln’s contemporaries) would have debated Lincoln on this point — but Gingrich is technically not wrong in his inference that it was Lincoln’s attitude.

I myself don’t read the First Inaugural as an explicit instruction to the officers of the Executive Branch to “not enforce” Dred Scott. Lincoln didn’t have to make such a pronouncement. As we … discussed over the phone, there were many, many other legal issues that quickly consumed the President and U.S. government officials. I can’t think of any instances where anyone brought a court case during the war challenging congressional control of slavery in federal territories where the Dred Scott decision would have been tested (and ignored) by government officials.

Andreasen ended his email by saying that “these are complicated issues that historians continue to argue over.” True enough, but the speaker was wrong in his characterization of Dred Scott and on whether Lincoln ordered his administration not to enforce the ruling.

— Eugene Kiely