Abraham Lincoln "On This Question of Judicial Authority": the Theory of Constitutional Aspiration

Abstract

the meaning of the Constitution. From Hamilton's early forays into the field of judicial review to the most recent explorations, most notably in the work of John Hart Ely (1980), the elaboration of important statements, or theories, of judicial review have been predicated on more or less clear renderings of constitutional purpose and design. This article will examine one such effort, that of Abraham Lincoln, whose famous argument on the limits of judicial supremacy provides the occasion for students of public law to piece together a coherent and illuminating constitutional theory. It is one that is responsive to the question raised by Lincoln in his third debate with Stephen Douglas: What do you understand by supporting the Constitution of ... the United States? (Collected Works, III, 1953: 130). As a part of this examination the article will discuss Professor Ely's thoughtful and widely acclaimed analysis, an analysis which, it is the argument here, represents a sharply divergent perspective on judicial review from that supported by Lincoln. The purpose, one should add, of invoking the contrary authority of someone of Lincoln's stature is not to attack Ely's work, or indeed to diminish his considerable scholarly achievement, but rather to suggest the distance we have traveled in a century of constitutional jurisprudence. Although Lincoln nowhere undertakes anything like the systematic analysis of judicial review found in Democracy and Distrust, his numerous reflections on a variety of legal and political issues enable one to formulate a Lincolnian legal philosophy, which in the succeeding pages will be characterized as the theory of constitutional aspiration. In this theory, the Supreme Court plays a prominent, though far from exclusive, role in the national striving to fulfill the ideals of the Constitution and the Declaration of Independence. The view of the Constitution as a document embodying ideals is not, of course, of only historical interest. Indeed, Ely's work is partly to be understood as a reaction to the popularity of this (for Ely, ill-founded) perception in the recent work of judges and constitutional scholars. In one important sense, however, this modern interpretation of the substantive constitution1 is not unlike Ely's process view, in that both accounts would find fault in an understanding according to which the meaning of the document could be derived from princi-