Papers Of Abraham Lincoln

Fragment on the Dred Scott Case, [December 1856 - August 1858]1

What would be the effect of this, if it should ever be the creed of a dominant party in the nation? Let us analyse, and consider it–

It affirms whatever decision ^that, whatever^ the Supreme Court may decide as to the constitutional restriction on the power of a territorial Legislature, in regard to slavery in the territory,2 must be obeyed, and enforced by all of the departments of the federal government–

Now, if this is sound, as to this particular ^constitutional^ question, it is equally sound of all constitutional questions; so that the proposition substantially, is "Whatever decision the Supreme court makes on any constitutional question, must be obeyed, and enforced by all the departments of the federal government–"3

Again, it is not the full scope of this creed, that if the Supreme Court, having the particular question before them, shall decide that Dred Scott is a slave, the executive department must enforce the decision against Dred Scott– If this were it's full scope, it is presumed, no one would controvert it's correctness– But in this narrow scope, there is no room for the Legislative department to enforce the decision; while the creed affirms that all the departments must enforce it– The creed, then, has a broader scope; and what is it? It is this; that

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so soon as the Supreme court decides that Dred Scott is a slave, the whole community must decide that not only Dred Scott, but that all persons in like condition, are ^rightfully^ slaves4

1Abraham Lincoln wrote this document. The U.S. Supreme Court heard a re-argument of Scott v. Sandford—the so-called Dred Scott case—during its December 1856 term. Lincoln delivered public speeches in June 1857 and August 1858 in which he referenced the case and utilized some of the same reasoning featured in this document. Therefore, although the precise date that Lincoln wrote this fragment is unclear, the editors date it sometime between December 1856 and August 1858.
Scott v. Sandford, 60 U.S. (19 How.) 393 (1856); Report of Speech at Springfield, Illinois; Report of Speech at Chicago, Illinois; Report of Speech at Chicago, Illinois; Report of Speech at Chicago, Illinois; Speech at Springfield, Illinois; Report of Speech at Springfield, Illinois; Report of Speech at Springfield, Illinois; Report of Speech at Beardstown, Illinois.

2In mid-1856, in relation to the contentious topic of the Kansas Territory’s admission to the union as a state, members of the U.S. Senate debated whether the Kansas Territorial Legislature had the right “at any time to exclude slavery or allow it,” or whether that right was reserved for states. Senator Stephen A. Douglas argued that the issue was something for the U.S. Supreme Court to decide. Lincoln is likely alluding to this debate, which was closely connected to larger concerns that the U.S. Supreme Court might rule, in Scott v. Sandford, that the U.S. Constitution affirmed the right of slaveholders to bring enslaved persons into any and all federal territories.
Cong. Globe, 34th Cong., 1st Sess., Appendix, 796-98 (1856); Nicole Etcheson, “’A Living, Creeping Lie’: Abraham Lincoln on Popular Sovereignty,” Journal of the Abraham Lincoln Association 29 (Summer 2008), 16; Eric Foner, The Fiery Trial: Abraham Lincoln and American Slavery (New York: W. W. Norton, 2010), 92.

3Per article three, section one of the U.S. Constitution, the U.S. Supreme Court held authority over the lower courts in the United States. Per article six of the U.S. Constitution, the members of each of the other two branches of government (legislative and executive) were bound to support the Constitution. However, the nation’s major political parties had long disagreed whether all segments of government were constitutionally-bound to enforce U.S. Supreme Court rulings. The Whig Party, for instance, was inflamed when President Andrew Jackson refused to enforce the Supreme Court’s ruling on the question of Second Bank of the United States. Lincoln was a strong supporter of a national bank and argued repeatedly that national banks were wholly constitutional.

U.S. Const. art. 3, § 1; art. 6; David Herbert Donald, Lincoln (New York: Simon & Schuster, 1995), 52; Michael Burlingame, Abraham Lincoln: A Life (Baltimore: The Johns Hopkins University Press, 2008), 1:96, 150-51.

4For full details on the U.S. Supreme Court’s ruling in the Dred Scott case, see Scott v. Sandford.
Lincoln was deeply concerned that a future Supreme Court decision might declare it unconstitutional for a state to forbid slavery within its borders and thereby make slavery universal throughout the nation. He offered his full view of the court’s decision in the Dred Scott case during a June 1857 speech that he delivered in Springfield, Illinois. He and Douglas also debated the case and the implications of the court’s decision during the Lincoln-Douglas Debates.
David Herbert Donald, Lincoln, 207-8.