Law and Order:
Republicans, the Supreme
Court, and the Constitution
ON 9 December 1861, as Congress began the first regular session of the war, Senator John P. Hale introduced a resolution. He was the new chair of the Naval Affairs Committee, but the New Hampshire radical found it hard to adapt to the change from being an opposition voice to becoming a power in the majority. His proposal reflected his problem with adapting to the evolving ideology of freedom, union, and power. He asked the Judiciary Committee to examine "the expediency and propriety of abolishing the present Supreme Court … and establishing instead thereof another Supreme Court." Lyman Trumbull of Illinois, the committees chair, buried the measure. He felt, as most Republicans did, that the trouble lay not with the institution but with its membership, which they expected to change through their new power of appointment. Many Republicans saw that opportunity as crucial, fearing that if the Court had its way, what they did to fight the war or slavery might be held unconstitutional. Nor did a party that had just taken responsibility for preserving the Union wish to suggest or effect that radical a change in the body politic.1
This conclusion pained Republicans, and not just because theirs was a reform-minded party. Their members included old Democrats who shared the Court majority's Jacksonian support for democracy and a limited federal government, and Whigs raised to worship the constitutional nationalism of John Marshall and denigrate Andrew Jackson's disobedience of his decisions. But Charles Evans Hughes, a controversial chief justice of the twentieth century, called the Dred Scott decision of 1857 a "self-inflicted wound" that not only was bad law but damaged the Court's reputation. With that ruling, an institution Republicans revered turned satanic. As so often happened, Abraham
Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Book title: Freedom, Union, and Power: Lincoln and His Party during the Civil War. Contributors: Michael S. Green - Author. Publisher: Fordham University Press. Place of publication: New York. Publication year: 2004. Page number: 177.
This material is protected by copyright and, with the exception of fair use, may not be further copied, distributed or transmitted in any form or by any means.