Sunday, October 11, 2015

When Conservatives Cite Lincoln: From Dred Scott to Obergefell — Crooked Timber

Hyperbole is the death knell of rational argument, if not of practical effect.  By overstating an argument one attempts  to prove more than available evidence supports.  Thus it is with Robert George whose near insurrectionary call to defy the Supreme Court's 5-4 marriage quality ruling.  To George the modern secular conception of marriage as merely personal commitment is an anathema.  Only procreative purpose, capacity, or openness is morally acceptable.  And in his view the state must enforce that principle.  The Obergefell majority rule is therefore illegitimate, in his view.

OK.  But he then attempts to show that his view has moral sanction by citing Abraham Lincoln's supposed defiance of Dred Scott v. Sanford.  Unfortunately for George the evidence is plain that Lincoln engaged in no such defiance.

When Conservatives Cite Lincoln: From Dred Scott to Obergefell — Crooked Timber
by Corey Robin  (CUNY Graduate Center)
Conservative scholar Robert George has issued a “call to action” to constitutional scholars and presidential candidates who are opposed to the Supreme Court’s gay marriage decision in Obergefell v. Hodges. George believes the decision was wrongly decided, that it is a gross usurpation of judicial power and misinterpretation of the Constitution.
But things take an interesting turn in the statement, when George invokes Lincoln on Dred Scott to argue that, despite the Court’s ruling, we—and more important, government officials, including future presidents—should not accept Obergefell as the law of the land. That is, we, and they, should not accept Obergefell as binding on our/their conduct.
Obergefell is not “the law of the land.” It has no more claim to that status than Dred Scott v. Sandford had when President Abraham Lincoln condemned that pro-slavery decision as an offense against the very Constitution that the Supreme Court justices responsible for that atrocious ruling purported to be upholding.
Lincoln warned that for the people and their elected leaders to treat unconstitutional decisions of the Supreme Court as creating a binding rule on anyone other than the parties to the particular case would be for “the people to cease to be their own rulers, having effectively abandoned their government into the hands of that eminent tribunal.”
Because we stand with President Lincoln against judicial despotism, we also stand with these distinguished legal scholars who are calling on officeholders to reject Obergefell as an unconstitutional effort to usurp the authority vested by the Constitution in the people and their representatives….

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