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Newt Gingrich Flunks History

In his ongoing rant against the Judiciary, Newt Gingrich has repeated made reference to Abraham Lincoln’s alleged decision to refuse to comply with the Supreme Court’s decision in the infamous Dred Scott case, which held that runaway slaves were not citizens of the United States. As it turns out, though, Gingrich pretty much gets history wrong here. Law Professor Jonathan Turley cites a number of factors that Gingrich gets wrong here, all of which pretty much make his assertion about Lincoln’s position, or its legal import completely incorrect:

Lincoln never refused to comply with the ruling — even the controversial aspect of striking down federal prohibitions on slavery in the territories. The ruling was actually handed down during the term of President James Buchanan— just two days into his term. We now know that Buchanan not only complied with the law but inappropriately pressured the Court to render it. Buchanan wrote to U.S. Supreme Court Associate Justice John Catron to push for a ruling before his inauguration to reduce tensions in the country and later pressured Associate Justice Robert Cooper Grier to join the majority of Southerners in their ruling. The decision as fully enforced by the Executive Branch and Lincoln was not president at the time.

Finally, Lincoln actually honed his policy close to what he understood to be the line set by the Court. For example, he expressly countermanded the order of Union general John Frémont freeing slaves in Missouri and asked “Can it be pretended that it is any longer a government of Constitution and laws, wherein a General, or a President, may make permanent rules of property by proclamation?”

The point is simple: Gingrich is wrong on both the law and history.

Turley also takes note of Lincoln’s First Inaugural Address where he specifically makes note of the Dred Scott decision without specifically naming it:

I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. 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. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.

As Turley notes, Lincoln’s words are not an assault on the right of the judiciary to make decisions in the cases brought before it, but a criticism of their usurpation of legislative authority. This is a common theme in American politics that continues to this day. At no point does Lincoln say that he considers the decision non-binding, nor does he say that he would refuse to comply with it, or instruct Federal employees to refuse to comply with it. As Turley notes, the decision was handed down nearly 4 years before Lincoln became President and its implementation was moved forward by his predecessor. As the nation tumbled blindly toward Civil War, due in no small part to Buchanan’s inattention and incompetence regarding the chaos clearly visible around him, the Dred Scott decision was fully enforced.

By the time Lincoln took the oath of office, it was arguably the case that Dred Scott was effectively a nullity, on the other hand. It was 151 years ago today, just a month and a half after Lincoln had been elected President, that South Carolina became the first state to secede from the Union. By the time of this Inauguration on March 4, 1861,  seven states had seceded from the Union. Within two months, four more states had seceded and the Civil War had begun. At that point, issues concerning the Fugitive Slave Act and the expansion of slavery into the Western territories were largely moot. Escaped slaves encountered by the Union Army were treated as contraband of war and given their freedom, usually by being sent North where some ended up fighting in or serving the Union Army eventually. Additionally, the Southern states took the position that they had broken away from the Union and were thus no longer bound by Federal Law.  When Lincoln issued the Emancipation Proclamation, he was explicit in declaring it to be an exercise of his powers as Commander in Chief and applied it only to slaves in areas still being controlled by the Confederacy as as January 1, 1863. In other words, contrary to Gingrich’s claim, Lincoln never refused to comply with the Supreme Court’s ruling in Dred Scott v. Sanford. 

Gingrich may have a Ph.D. in modern European history, but it looks like he needs some refresher courses when it comes to American history.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. PogueMahone says:

    Newt Gingrich Flunks History.

    WRONG!!

    Newt never took history. He did, however, receive an A in Conservative Revisionist History 101.

    Like or Dislike: Thumb up 1 Thumb down 0

  2. Fiona says:

    I know that he has a Ph.D. and all, but it still galls me to no end that Newt calls himself a historian, when it’s clear that his only interest in history is rewriting it to serve his purposes. He couldn’t even manage to get himself tenured at a third-rate college at a time when being a sentient white male was pretty much all it took.

    So–no big surprise that he was wrong about Lincoln. No big surprise that he doesn’t seem to understand the Constitution he seeks to defend. No big surprise that he can’t seem to grasp the simple concept of balance of powers. I only hope that his free fall in the polls continues. He’s Palin with a penis. He may know a few bigger words than she does, but he’s equally ignorant.

    Highly-rated. Helpful or Unhelpful: Thumb up 18 Thumb down 1

  3. DMan says:

    It’s too bad Gingrich has no excitable following that are willing to rewrite wikipedia for him.

    Like or Dislike: Thumb up 3 Thumb down 0

  4. michael reynolds says:

    @Fiona:
    Upvoted for “Palin with a penis.”

    Like or Dislike: Thumb up 1 Thumb down 1

  5. Moosebreath says:

    And this is the person the Republicans point to as their idea man…

    Like or Dislike: Thumb up 2 Thumb down 0

  6. Hey Norm says:

    @ Fiona…
    I’m with Michael Reynolds on that.

    Like or Dislike: Thumb up 1 Thumb down 0

  7. OzarkHillbilly says:

    Newt Gingrich Flunks History

    heh.

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  8. OzarkHillbilly says:

    @Moosebreath: No, that is Paul Ryan. No, I mean Eric Cantor. No, no, I mean Tom Coburn….. Lindsey Graham? I GOT IT!

    Michele Bachmann.

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  9. Ernieyeball says:

    Toot Toot here comes Newt, Ridin’ down the Rails…
    Hawkeye Caucus in his sites he’s on the Campaign trail.
    He Blows past Michelle and Mitt and Rick…
    “It’s me you want” he wails!
    Pandering to the Iowa GOP with Hot Air in his Sails!

    Like or Dislike: Thumb up 3 Thumb down 0

  10. Wayne says:

    When a court decision was decided and if previous Presidents abided by that decision is irrelevant to whether or not a later President followed that decision. Can Obama or Bush when in office ignored a decision made 40 years ago that has not been overturned? Does the fact Reagan and Carter followed it, makes it impossible for Bush or Obama not to have followed it?

    As for the Dred Scott deal, much of history is debatable and Gingrich is not the only historian to think Lincoln went against the Supreme Court’s decision on more than one occasion. I also will point out that the Supreme Court still considered the Southern States as part of the United States and not as a Sovereign Nation. Being so that would mean from the Northern Perspective that U.S. laws still apply to the Southern States including the Dred Scott decision.

    http://www.supremecourthistory.org/history-of-the-court/history-of-the-court/the-taney-court-1836-1864/

    Trying to sharp shoot Newt because he is not your candidate of choice doesn’t change the main points he is trying to make. He is not trying to abolish the Judicial branch but gain control of some activist Judges. A big benefit of our system is that two branches can prevent the third from overstepping their power. This includes the judicial branch. The Supreme has done so in in the past. Activist judges can and sometimes do interpret laws they way they want it and not the way they were meant. Any law can be perturbed in a very warp way.

    Shouldn’t the legislator and executive branches be able to check such overreaching of power?

    Like or Dislike: Thumb up 1 Thumb down 3

  11. PD Shaw says:

    I’m not sure Gingrich said anything incorrect:

    Lincoln repudiates the Dred Scott decision in his first inaugural address in 1861 and says, no nine people can make law in this country.

    I guess it depends upon what he means by “repudiates,” if it means refused to comply with it, then he didn’t refuse to comply. But what would it mean not to comply with it?

    Dred Scott was freed and dead by the time Lincoln was President. The object of the suit was no more.

    Second, Lincoln believed as many did then and now, that the bulk of the lawsuit was dictum. After having decided the court did not have jurisdiction to provide Scott relief, it should have dismissed the case and said no more. This suggests strongly to me that Lincoln was prepared to ignore the ruling in part. Note that Lincoln’s innagural rejects criticism of judges who “decide cases properly brought before them.” I don’t think Lincoln believes that part of the case invalidating the Missouri Compromise was property before the SCOTUS.

    In any event, it would seem the validity of the Compromise would only become an issue if a state like Maine wanted to become a slave state. And as Doug writes secession mooted out whatever issues that might have arisen.

    Like or Dislike: Thumb up 2 Thumb down 1

  12. @PD Shaw:

    In more than one interview, Gingrich has said that Lincoln also said that he would not abide by the decision and instructed his subordinates to act accordingly. This is untrue.

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  13. Tsar Nicholas says:

    When the chattering classes are worried about something that either happened or didn’t happen 150 years ago then it’s obvious this primary season officially has jumped the shark.

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  14. mantis says:

    @Wayne:

    As for the Dred Scott deal, much of history is debatable and Gingrich is not the only historian to think Lincoln went against the Supreme Court’s decision on more than one occasion.

    Translation: so what if he doesn’t know what he’s talking about? Some other people are ignorant too, so it’s ok.

    A big benefit of our system is that two branches can prevent the third from overstepping their power.

    Indeed, but not how Newt thinks they can. That’s the problem.

    Like or Dislike: Thumb up 5 Thumb down 0

  15. Wayne says:

    A couple more points, at the beginning of the war before the Emancipation Proclamation, the North freed slaves after their attacks in the South. That would be counter to the Dred Scott decision. The Emancipation Proclamation was an executive order by “Lincoln” that went against the Dred Scott decision. Many of the executive action by Lincoln and legislation action by the North went against the Court decision prior to amending the Constitution. Rightly so IMO but it does show that the two other branches can counter a Supreme Court decision even without a Constitutional amendment.

    “On June 19, 1862, Congress prohibited slavery in United States territories, and President Lincoln quickly signed the legislation. By this act, they opposed the 1857 opinion of the Supreme Court of the United States in the Dred Scott Case that Congress was powerless to regulate slavery in U.S. territories”

    Like or Dislike: Thumb up 1 Thumb down 1

  16. Wayne says:

    @Mantis
    Debatable means there are facts that both sides can argue in support of their position. Of course if anyone disagree with you, they are ignorant and do not know what they are talking about. Typical left mentality. You win arguments not by arguing facts but just by throwing insults. . Funny thing is they think they are real intellectual for doing so. .

    Like or Dislike: Thumb up 1 Thumb down 6

  17. PD Shaw says:

    @Wayne: While I don’t agree with the argument, I think you raise a debatable argument with the June 19, 1862, Act. Putting aside the question of whether parts of the decision or dictum, the SCOTUS only specifically ruled that the Missouri Compromise was unconstitutional, which was the law Scott argued made him free. Other federal laws like the Northwest Ordinance, the Kansas Nebraska Act and the Compromise of 1850 were not touched, leaving open the possibility, though not entirely likely given the SCOTUS’ reasoning, that other federal laws may or may not be invalid. For one thing, part of what Dred Scott was trying to do was to overrule an unfavorable Missouri court ruling through the federal courts and federal supremacy. By holding that the Missouri Compromise was unconstitutional, there was no federal law that could be said to be supreme to state law. That’s not the same dynamic in the federal territories.

    That said, Congress passed a law; Lincoln did not pass a law, and I’m not sure the situations are the same.

    Like or Dislike: Thumb up 3 Thumb down 0

  18. Wayne says:

    @PD Shaw
    Lincoln signed off on the law which is part of passing laws. Yes a Presidential Veto can be overruled and Congress are the ones that construct the laws but Presidents are part of the process. Many laws would not exist today if the President didn’t signed them.

    Otherwise you made some good points. The Supreme Court at the time didn’t want to get in the middle of things before and during the war, the habeas corpus case being a prime example. Also as I’m sure you are aware of Supreme Court decisions often have impact s and implications far beyond the decision of that one case or even the subject matter of that case.

    As I have said many times in the past, history conclusions often depends greatly on the eye of the beholder. Some facts are indisputable but conclusions about the facts and how they affected outcomes are often disputable. Stating someone is absolutely wrong because you have a different conclusion on it and that it is not debatable when it is, is being egotistical.

    Lincoln acknowledged that he was walking a thin line. He acknowledged that the law of the land and Supreme Court decisions must be taken into serious account but the judicial branch is not an absolute authority.

    Like or Dislike: Thumb up 1 Thumb down 0

  19. PD Shaw says:

    @Wayne: I agree that Lincoln would not have signed the legislation if he thought it was unconstitutional (though he might if he thought his veto would be overriden). I was merely suggesting there is a difference in degree between outright executive hostility to the judiciary and signing legislation from another branch of government. Though, largely the difference is that between one-against-one and two-against-one.

    Lincoln ran for POTUS largely in opposition to the Dred Scott decision; I have no doubt in my mind that he designed to limit or eliminate it. The specific nature of that design is unclear to me. The fact that the legal holding of the decision was debatable (dictum, several opinions, some poor writing on Taney’s part) gave him substantial opportunity to challenge parts of the decision while disavowing that he was ignoring it.

    When I wrote earlier that secession had rendered the issue moot; what I meant was that whatever Lincoln’s design on Dred Scott, it was certainly superceded by his greater concern of national unity. I don’t agree with Turley’s paragraph about the Freemont Emancipation. I don’t think Lincoln thought Freemont was necessarily actuing uncontitutionally; he thought Freemont was acting with complete political naivete — an emancipation in Missouri would thow the border states into the Confederacy. I think Lincoln’s mind went to the practical first (including the practical issues of forging national unity and concensus); if constitutional quandries emerged he would ask for a supporting legal opinion after-the-fact.

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  20. anjin-san says:

    He’s Palin with a penis.

    @ Fiona

    Give me a shout if you are ever in SF. You have at least a martini or two coming to you for that one :)

    Like or Dislike: Thumb up 0 Thumb down 0

  21. anjin-san says:

    @ Wayne

    Once again, I am going to have to ask you to run your comments through a Babble to English translator and repost….

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  22. anjin-san says:

    Newt actually said he was ready to “take on the judiciary the way FDR did”.

    Now pretty much everyone with a pulse knows that FDRs attempt at court stacking was probably the stupidest thing he ever did. Think about it. Here is FDR, one of the most remarkable men in our history – a man who saved the country, not once, but twice. In his spare time, he set in motion the chain of events that ended the horrible disease that crippled him and so many others.

    And Newt picks probably the worst decision FDR ever made as the lead to follow. Sadly, but perhaps not surprisingly, this repulsive toad has found welcoming arms in the modern conservative movement.

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  23. Joel says:

    @anjin-san:
    The internment camps are a pretty strong contender for FDR’s worst decision.

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