Liberty, Prudence, Imperfection, and Law

“Obergefell, Lincoln, and the Problem of ‘Circumstance,’” By Bruce Frohnen

Some time ago I was asked to sign on to a statement calling for resistance to the Supreme Court’s execrable decision in Obergefell v. Hodges. (The statement can be found here.) The Obergefell decision, ordering all states to redefine marriage within their jurisdictions by issuing marriage licenses to same-sex couples, was a clear power grab on the part of the Supreme Court. It was a decree without basis in our constitutional language or tradition, in effect legislating the ideology of five judges. The merits of an ideology that sees the natural family as unnecessary to the rearing of healthy, well-grounded children and thus to a functioning republic are, in a sense, beside the point. The legal, or rather constitutional, point is that the Obergefell decision constitutes a massive seizure of power, perhaps finally setting in stone the role of our Supreme Court as a legislative body ruling from above and beyond the Constitution.

I declined to sign on to the statement, authored by my good friend, constitutional scholar Brad Watson with the help of a number of other worthies. I had no plans to issue any public dissent from the letter, however, because I agree with its central premise and goal. The premise: that the Court has acted with contempt for our Constitution, outside its jurisdiction, and thus illegitimately. The goal: to salvage what is left of our constitutional and cultural traditions by galvanizing constitutional resistance on the part of state and federal officeholders to that decision. The right of the people of each state to define marriage within their jurisdiction as seems to them most in accordance with their own traditions and understandings of the true and proper bases of family and society is essential. If allowed to stand, the Obergefell decision will render this right null and so further undermine our already severely damaged federalism, separation of powers, and rule of law—all necessary to the maintenance of free, constitutional government in the United States.

That said, a number of responses to the Obergefell statement, and defenses of that statement, indicate to me that clarification is in order as to the grounds of legitimate resistance in the face of the exercise of unconstitutional judicial power. In a post at Crisis magazine (available here) Austin Ruse castigates pro-Obergefell columnist David Blankenhorn for taking issue with the statement, focusing on that statement’s use of Abraham Lincoln as the lodestar of its interpretation of the Constitution and of the right to refuse obeisance to the Supreme Court in upholding it. The Blankenhorn article was answered by followers of the late Harry Jaffa, who signed the original statement. These writers focus on parsing particular Lincolnian phrases. And, as it has for many years in articles over which few people trouble themselves, the debate will go on over what Lincoln “really meant” and how we should take his many statements regarding the Supreme Court, the Constitution, the nature of the Union, and what defense of that Union justifies in terms of presidential action.

Despite what many followers of Harry Jaffa might like to claim concerning anyone who doubts the absolute wisdom and virtue of Abraham Lincoln, this writer is no neoconfederate. I am quite convinced that chattel slavery was wrong and that the confederate states deserve the bulk of the blame for the Civil War. However, I declined to sign on to the Obergefell statement precisely on account of its lengthy, repeated quotations from Lincoln. I found this tactic unacceptable for two reasons: first, because the arguments made in those quotations are, in my view, inadequate to the task assigned them. Second, because I do not think Abraham Lincoln presents a good model of a faithful, constitutional chief executive.

First, Lincoln’s words present an argument for constitutional resistance that is inadequate and misleading. I would not want to overstate this point. The portion of Lincoln’s First Inaugural Address reproduced in the statement is accurate overall. Here he makes the essential point against judicial supremacy like that claimed by the Obergefell majority: “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.”

Sadly, we already are ruled, by and large, by judicial legislators. What, then, is to be done? The statement provides a quite lengthy quotation from an earlier Lincoln who analyzes the problem from a purely political standpoint. The statement quotes Lincoln thus: “Judicial decisions are of greater or less authority as precedents, according to circumstances.” What circumstances? If the 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.

This statement claims both too much and too little. It claims too little by justifying the kind of prudential acquiescence that has resulted in institutionalization of administrative lawmaking, use by the courts of the fiction of “substantive due process” to extend the reach of the federal government into every nook and cranny of public and private life, and, indeed, judicial legislation itself. When Edmund Burke wrote of the legitimacy of longstanding, prescriptive rights, he wrote in terms of centuries, not years.

Moreover, Lincoln’s list of “claims to the public confidence” for Supreme Court decisions leaves out of consideration the problem of linguistic gymnastics such as those used by Chief Justice Roberts in his opinion upholding Obamacare against common sense and the plain language of the statute (limiting subsidies to state, not federal, exchanges). One wonders, given the loose and partial nature of the justifications Lincoln provides, what would and would not be “good enough” in a decision to justify its continued legitimacy. Most important, Lincoln leaves out a central fact of our constitutional separation of powers, namely, the responsibility of each branch of government to read and interpret laws and the Constitution itself and to act in accordance with this reading. James Madison observed that

as the Legislative, Executive, and Judicial departments of the United States are coordinate, and each equally bound to support the Constitution, it follows that each must, in the exercise of its functions, be guided by the text of the Constitution according to its own interpretation of it; and consequently; that in the event of irreconcilable interpretations, the prevalence of the one or the other department must depend on the nature of the case, as receiving its final decision from the one or the other, and passing from that decision into effect, without involving the functions of any other.

It is intrinsic to a system of separated powers and federalism that attempts by one branch or level of government to usurp the authority of another should be called what they are—usurpations—rather than being accepted as if they constitute good, constitutional law.

Like Lincoln, the Obergefell statement claims too much on behalf of particular policy preferences; it pursues grand political considerations to the unfortunate exclusion of more essential issues of constitutional structure. This is intrinsically dangerous because it puts the putative virtues of a particular governmental rule or order above its proper form and genesis in determining its constitutional validity. Many bad laws are, alas, constitutional—just as many good ones are not. The forum for determining the value of particular policies and their formulation into good law lies with the legislatures. Whenever any “law” altering the rights and duties of persons issues from any other source, that “law” is illegitimate and should not be put into effect—whether we like the underlying rule or not. And this is true even if the president claims that the heavens (or Union) will fall unless his will is treated as law. For too long Americans have chosen to look the other way when orders from one branch or level of government have accorded with their desires (or even “expectation”) despite being promulgated in defiance of the Constitution. This is how constitutions and republics die.

As a people, it is up to us to hold our legislators to high standards in their choice of policies and to hold all members of all branches and all levels of government to a strict standard of adherence to constitutional forms in their choice of both means and ends. Thus, such outsized reliance on Lincoln to buttress the statement’s pro-Constitution argument is sadly ironic. One need be no sympathizer with the Confederacy in order to wish to avoid such close identification with that overreaching president in dealing with constitutional issues or to find his references to “circumstances” as determining the authority of Supreme Court decisions highly problematic. In the name of the very good goal of preserving the American Union, President Lincoln repeatedly and knowingly violated his oath of office and the rights of particular Americans, including by suspending procedural rights of due process in areas in which the courts were open and ready for business, as well as declaring martial law in various areas. Lincoln also acted in defiance of the separation of powers, issuing his own orders to blockade the South, raise the militia, and otherwise prosecute the war without calling Congress into session so that it could take on the role the Constitution specifically assigned to it.

That Lincoln took these actions for good reason is not only no excuse, it makes the point that “good reasons” or “good policy”—as for example, “marriage equality”—do not justify acting beyond and above our Constitution. We have two out of control branches of government right now—the president as well as the Supreme Court. Both branches are inhabited by people who share contempt for the rule of law. I declined to sign on to the statement because I would not want to identify myself with combating the overreach of one branch at the expense of assisting the overreach of another. Nor, ours being a Constitution of limited, enumerated powers, would I want to encourage ceding to the federal government essential police powers that by their nature belong with the states and localities. It is my hope that in opposing this latest instance of judicial usurpation of sovereign powers we can move beyond attempts to construct a political deity in the form of Abraham Lincoln and instead work to focus the interest and energies of the people on the Constitution itself—not as the provider of all good things but as a mechanism and set of procedures necessary for them to retain their system of ordered liberty.


Bruce P. Frohnen is Professor of Law at The Ohio Northern University Pettit College of Law.

2 Responses to ““Obergefell, Lincoln, and the Problem of ‘Circumstance,’” By Bruce Frohnen”

  1. gabe


    I. for one, find nothing wrong with these comments of Lincoln – providing that one recognize the “milieu” in which the comments were issued.

    Lincoln, to my mind, was actually presenting a Burkean argument, one in which prescription and custom play defining roles in what is not only proper but also constitutional. Indeed, if one reads the fine works of Phillip E. Reid and Jack Greene on the (English) constitutional foundations of the American Revolution (and consequently the US Constitution) you will find that the role of both custom AND acquiescence is prominent in the justification of constitutional law by both the British Metropolitans AND the American colonists. Further, the very same men who drafted and ratified the Constitution can be found to have used *acquiescence* as the reason that the colonists did not dispute Parliament’s right to impose taxes upon the colonies trading activities. I believe the phrase they used was ” to which we have happily acquiesced.”

    I suspect Lincoln was simply quoting American history and practice as well as British custom and practice.

    The role of custom AND acquiescence (or passive consent) is far too frequently overlooked when examining the foundations of our own political system.

    Yet, clearly, you are correct when discussing the current acquiescence of the American citizenry with respect to the Behemoth Administrative State. I question whether any American, other than a Federal factotem, can be said to have “happily” acquiesced to the unrelenting power grab of the Agencies – or for that matter the ascendancy of our divinely inspired Black Robes.

    In any event, context, cultural context, matters with respect to Mr. Lincoln’s comments; and in the most notable instance in which the Black Robes of the Court did defy the accepted custom (of at least half the nation) by twisting words / meanings, Mr. Lincoln to his credit did lash out and question the role of the Judiciary.

    As for the other matters, what is it that the Romans used to say – War makes its own Law.

    take care

  2. gabe

    Oops!!! Forgot to paste the comments upon which my above comments were based – so here they are:

    “If the 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.”

    Have a Happy Thanksgiving (or in our newly secularized world must I refer to it as advertisers now do as Happy “Black Friday Weekend.”



Please Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Basic HTML is allowed. Your email address will not be published.

Subscribe to this comment feed via RSS

%d bloggers like this: