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While the opinion of the court, by Chief-Justice Taney, in the Dred Scott case and the separate opinions of all the concurring judges, expressly declare that the Constitution of the United States neither permits Congress nor a Territorial legislature to exclude slavery from any United States Territory, they all omit to declare whether or not the same Constitution permits a State, or the people of a State, to exclude it.

 

Abraham Lincoln

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The several points of the Dred Scott decision, in connection with Senator Douglas's "care-not" policy, constitute the piece of machinery, in its present state of advancement. This was the third point gained. The working points of that machinery are: (1) That no negro slave, imported as such from Africa, and no descendant of such slave, can ever be a citizen of any State, in the sense of that term as used in the Constitution of the United States. This point is made in order to deprive the negro in every possible event of the benefit of that provision of the United States Constitution which declares that "the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States." (2) That, "subject to the Constitution of the United States," neither Congress nor a territorial legislature can exclude slavery from any United States Territory. This point is made in order that individual men may fill up the Territories with slaves, without danger of losing them as property, and thus enhance the chances of permanency to the institution through all the future. (3) That whether the holding a negro in actual slavery in a free State makes him free as against the holder, the United States courts will not decide, but will leave to be decided by the courts of any slave State the negro may be forced into by the master. This point is made not to be pressed immediately, but, if acquiesced in for a while, and apparently indorsed by the people at an election, then to sustain the logical conclusion that what Dred Scott's master might lawfully do with Dred Scott in the free State of Illinois, every other master may lawfully do with any other one or one thousand slaves in Illinois or in any other free State.

 

Abraham Lincoln

 

"The sovereignty of the States" is the language of the Confederacy, and not the language of the Constitution. The latter contains the emphatic words — This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.

 

Andrew Johnson

 

Auxiliary to all this, and working hand in hand with it, the Nebraska doctrine, or what is left of it, is to educate and mold public opinion, at least Northern public opinion, not to care whether slavery is voted down or voted up. This shows exactly where we now are; and partially, also, whither we are tending.
It will throw additional light on the latter, to go back, and run the mind over the string of historical facts already stated. Several things will now appear less dark and mysterious than they did when they were transpiring. The people were to be left "perfectly free," subject only to the Constitution. What the Constitution had to do with it, outsiders could not then see. Plainly enough now, it was an exactly fitted niche, for the Dred Scott decision to afterward come in, and declare the perfect free freedom of the people to be just no freedom at all. Why was the amendment, expressly declaring the right of the people, voted down? Plainly enough now: the adoption of it would have spoiled the niche for the Dred Scott decision.

 

Abraham Lincoln

 

[T]he constitution controls any legislative act repugnant to it. . . . It is emphatically the province and duty of the judicial department to say what the law is. . . . So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution disregarding the law; the court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty. . . . Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions . . . It would be giving the legislature a practical and real omnipotence . . . The judicial power of the United States is extended to all cases arising under the constitution.

 

John Marshall

 

The convention which framed the Constitution was indeed elected by the State legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation or pretensions to it. It was reported to the then existing Congress of the United States with a request that it might "be submitted to a convention of delegates, chosen in each State by the people thereof, under the recommendation of its legislature, for their assent and ratification." This mode of proceeding was adopted, and by the convention, by Congress, and by the State legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively and wisely, on such a subject — by assembling in convention. It is true, they assembled in their several States — and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act, they act in their States. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the State governments. From these conventions the Constitution derives its whole authority. The government proceeds directly from the people; is "ordained and established" in the name of the people, and is declared to be ordained, "in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings of liberty to themselves and to their posterity." The assent of the States in their sovereign capacity is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it, and their act was final. It required not the affirmance, and could not be negatived, by the State Governments. The Constitution, when thus adopted, was of complete obligation, and bound the State sovereignties.

 

John Marshall