What happens when the American people reject election results? Defy a Supreme Court holding? President James Buchanan, our vilified 15th president, had strong views on those questions.
Sen. Stephen A. Douglas, in an attempt to save the Union, engineered passage of the Kansas-Nebraska Act of 1854. That law included this provision:
"The true intent and meaning of this Act (is) not to legislate slavery into any Territory or State, nor to exclude it therefrom; but to leave to the people thereof free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States."
In January 1857, the Supreme Court decided the Dred Scott case, holding that the Constitution left the question of slavery to the states. It further held that the Constitution gave Congress no power over slavery (only a duty to assist returning fugitive slaves). Additionally, it held that as Congress had no power over slavery, it could not "delegate" a power to the territories, which it didn't have. Perhaps most importantly, the court held that a slave was "property," and that under the Fifth Amendment's "due process" clause, "no person could be deprived of his ... property, without due process of law."
After the Dred Scott decision, the Douglas Democrats persistently denounced President Buchanan for adhering to the Supreme Court's Dred Scott decision.
They accused the president of "proving faithless to the Cincinnati Platform, which he had accepted, and on which he was elected."
President Buchanan's position was that even if the Cincinnati Platform had affirmed, as the Douglas Democrats insisted, the right of a territory to approve or reject slavery therein pursuant to Congressional authorization, that in the face of an unequivocal contrary Supreme Court decision, it was the President 's duty to act in adherence to that Supreme Court decision, rather than a party platform. In Mr. Buchanan's words,
"He could not hesitate in the choice (between adhering to the party platform, or to the law of the land as pronounced by the Supreme Court) under his oath [to] faithfully and to the best of his ability to 'preserve, protect and defend the Constitution of the United States.' Sad must be the condition of any country where an appeal can be taken from judicial decisions to excited popular elections! ... When [the law] is disregarded and defied by excited and exasperated popular majorities, anarchy and confusion must be the inevitable consequence. Public and private rights are sacrificed to the madness of the hour. ... To avoid such evils, history has taught us that the people will at last seek refuge in the arms of despotism. Let all free governments in the future take warning that the late disastrous civil war, unjustifiable as it was, would most probably never existed had not the American people disobeyed and resisted the Constitution of the country as expounded by the tribunal which they themselves had created for this express purpose."
Most modern legal scholars believe Dred Scott was wrongfully decided, relying on the dissenting opinion therein of Justice Benjamin Robbins Curtis.
Chief Justice Roger Taney, for the majority, had written that Negroes could not be U.S. citizens, and therefore could not sue a citizen of another state in Federal Court ("diversity of citizenship jurisdiction"). Curtis replied that Negroes were considered citizens in most of the northern states; they thus could sue a citizen of another state in Federal Court.
Taney wrote Congress had no power over slavery in the territories. Curtis responded that for 70 years, that power had been universally acknowledged by every branch of government.
Taney wrote that slaves were "property," protected by "due process." Curtis replied that - since Magna Carta (1215) -- the due process clause meant that no man could be executed, imprisoned or fined, except in accordance with the laws of the land.
Candidate Abraham Lincoln later made the moral argument slavery is immoral, and "nobody has a right to do a wrong."
At least in one respect, however, President Buchanan was right. Americans have every right to peacefully express disagreement with election results, or high court decisions.
But when Supreme Court holdings and/or election results are violently "defied by excited and exasperated popular majorities, anarchy and confusion must be the inevitable consequence."
Posted: QCOline.com March 7, 2017
Copyright 2017, John Donald O'Shea
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