On Mike Huckabee’s Use of Abraham Lincoln

Several GOP presidential candidates have stepped-up to defend Kim Davis, the Kentucky county clerk who refused to issue marriage licenses to same-sex couples.

Leading the charge on this front is Mike Huckabee.  When Davis was released from prison yesterday Huckabee was there to celebrate with the law-breaking clerk as she came onto the stage to the blaring sound of Survivor’s 1982 hit “Eye of the Tiger.”  Yes, you read that correctly.  The theme song from the movie Rocky III.  Watch it here.  (The word on the street is that Survivor was not happy with Huckabee’s choice of music).

Huckabee is using Davis to give his presidential campaign a boost.  (Apparently his campaign workers kept Ted Cruz away from the rally so the Texas senator could not take any of the credit for Davis’s release). 

Davis has become an icon for the Christian Right.  The GOP candidates with strong connections to the evangelical community cannot stay away from this story.  Davis just might become the “Joe the Plumber” of this election cycle. Stay tuned.  I am guessing there will be a question about her during the next GOP debate.

But I digress.

What I really want to write about is the way Huckabee has drawn upon American history in his defense of Davis’s illegal actions.  He compares Davis’s resistance to the Obergfell v. Hodges decision on same-sex marriage with Abraham Lincoln’s supposed resistance to the Dred Scott vs. Sandford decision (1857) on slavery.

Unfortunately, this historical analogy does not work.  Kevin Levin, proprietor of the excellent blog Civil War Memory, debunks Huckabee’s shoddy use of the past.  Here is a taste:

Huckabee argues that Kim Davis is following in the footsteps of Lincoln, who he believes defied the Supreme Court’s decision in the case of Dred Scott.
It should come as no surprise that at no point has Huckabee offered textual evidence or reference to a specific moment in Lincoln’s public career to support his claim:
“Look, you would have hated Lincoln, because he disregarded the Dred Scott 1857 decision that said black people aren’t fully human,” Huckabee said when host Joe Scarborough questioned him about his support of Davis. “[Lincoln] disregarded [Dred Scott] because he knew it was not operative, that it was not logical.”
“You obey if it’s right,” the former Arkansas governor said on “This Week.” “So, I go back to my question, is slavery the law of the land because Dred Scott said so? Was that a correct decision? Should the courts have been irrevocably followed on that? Should Lincoln have been put in jail? Because he ignored it. That’s the fundamental question.”
The level of ignorance at work here is staggering. It doesn’t take much to locate Lincoln’s very public view of the Dred Scott case as well as his understanding of the judicial review. You can find it in a speech he gave in his hometown of Springfield, Illinois on June 26, 1857.
And now as to the Dred Scott decision. That decision declares two propositions-first, that a negro cannot sue in the U.S. Courts; and secondly, that Congress cannot prohibit slavery in the Territories. It was made by a divided court-dividing differently on the different points. Judge Douglas does not discuss the merits of the decision; and, in that respect, I shall follow his example, believing I could no more improve on McLean and Curtis, than he could on Taney.
He denounces all who question the correctness of that decision, as offering violent resistance to it. But who resists it? Who has, in spite of the decision, declared Dred Scott free, and resisted the authority of his master over him?
Judicial decisions have two uses-first, to absolutely determine the case decided, and secondly, to indicate to the public how other similar cases will be decided when they arise. For the latter use, they are called “precedents” and “authorities.”
We believe, as much as Judge Douglas, (perhaps more) in obedience to, and respect for the judicial department of government. We think its decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution. But we think the Dred Scott decision is erroneous. We know the court that made it, has often over-ruled its own decisions, and we shall do what we can to have it to over-rule this. We offer no resistance to it.
Read Levin’s entire post here.

4 thoughts on “On Mike Huckabee’s Use of Abraham Lincoln

  1. As I recall, the Emancipation Proclamation was based on the legal theory that in the recaptured rebel territories the Union was entitled to captured property – so if the slaves were “property,” they now belonged to the Union, which could free them. That would not be a repudiation of the Dred Scott decision. Moreover, Lincoln proposed the 13th Amendment, which officially erased the Dred Scott decision, so he didn't just ignore it. This hardly puts him in the same camp with Huckabee, who seems to think he can wave his hands and invoke his peculiar version of Christianity as an excuse for just ignoring a Supreme Court decision. As others have noted, another Arkansas Governor, Faubus, thought that he could ignore the Brown v. Bd. of Education decision and refuse to integrate the Little Rock school system. The Supreme Court unanimously disagreed, and Eisenhower used troops to enforce its order. It's called the rule of law. Huckabee should look it up.

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  2. Kevin Levin, proprietor of the excellent blog Civil War Memory, debunks Huckabee's shoddy use of the past. Here is a taste:

    When historians attack. But perhaps not so “shoddy.” Perhaps not a “debunking.”

    [Michael Paulsen holds a law degree from Yale.]

    https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/05/20/lincoln-versus-judicial-supremacy/

    While the chapter covers several themes, it provides a powerful illustration in practice of the inherent tension between constitutional supremacy and judicial supremacy. Lincoln stood for constitutional supremacy, and against the prospective binding authority of the Supreme Court’s betrayal of the Constitution in Dred Scott v. Sandford. Though we do not draw the conclusion too sharply in the book — we take positions, of course, but our aim is more generally to set forth the issues and arguments fairly and let readers draw their own conclusions — it seems fair to say that one cannot embrace the modern view of reflexive judicial supremacy without simultaneously opposing nearly everything Lincoln said and did as President.

    As President, Lincoln would on more than one occasion defy the supposed authority of “controlling” judicial interpretations of the Constitution. Lincoln and the Civil War Congress disregarded the Dred Scott decision entirely in enacting laws that prohibited slavery in the territories — exactly what Dred Scott had said was unconstitutional. In addition, as we shall see, Lincoln defied a judicial decision (Ex parte Merryman) purporting to limit his military authority to hold enemy prisoners in the course of his conduct of the Civil War. And if the Supreme Court had ever had the audacity to hold the Emancipation Proclamation unconstitutional or, worse still, to hold that the South had a constitutional right to secede — neither issue ever came before the Court — it is almost certain that Lincoln would have refused to abide by such a decision.

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  3. Whether or not Davis' actions can be compared to Lincoln may be questionable. However, Eugene Volokh, in a carefully written article for the Washington Post, gives other reasons why she was justified in her actions: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/04/when-does-your-religion-legally-excuse-you-from-doing-part-of-your-job/.

    It may be true that some in the GOP are championing Davis for their political agenda, but let us not suppose the left is not using her for their as well. By repeating the mantra, “she broke the law, she broke the law” they betray the nuances of the situation by poisoning the well. Furthermore, we know that what she has done is routinely done in other circumstances all the time by various public officials with little if any repercussions at all. Regardless of what one thinks of her actions, sending her to jail was over-the-top when other lesser measures could have been pursued. It seems to me the district judge wanted to make an example of her for the cause of SSM rights.

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  4. Here is an alternative perspective on Lincoln and Dred Scott from Princeton Law Professor Robert George: http://www.firstthings.com/article/2003/02/lincoln-on-judicial-despotism. He quotes from Lincoln's first inaugural address:
    “I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that 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.”
    George points out that Lincoln defied the SCOTUS decision in actions as president that basically ignored their authority.

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