A lot of topics crop up when people argue about politics and Supreme Court decisions, but the historic 1857 Dred Scott decision about slavery usually isn’t one of them.
But current presidential candidate and Supreme Court critic Mike Huckabee, in a recent interview, turned a few heads with his comments about the Dred Scott decision. The comments were sensitive enough to be the top trending story on Facebook for Thursday night and Friday morning.
Huckabee was speaking with radio host Michael Medved about the Kim Davis situation in Kentucky, where a county official, Davis, had refused to issue marriage licenses to same-sex couples despite the Supreme Court’s Obergefell decision.
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Here is the full exchange between Huckabee and Medved.
Huckabee: If the process of our constitutional form of government is followed, then you have to respect that’s what it is. So if there’s same-sex marriage in a state that has voted on it, either directly by the people’s vote or by the elected representatives, I would disagree with it as being a valid definition of marriage, but there’s some times that you accept the law, even if you don’t agree with it. But what you don’t accept is bypassing the process. Michael, I think this is where a lot of elites … because I’ve been just drilled by TV hosts over the past week
Medved: I can imagine.
Huckabee: How dare you say that it’s not the law of the land? Because that’s their phrase, ‘it’s the law of the land.’ Michael, the Dred Scott decision of 1857 still remains to this day the law of the land which says that black people aren’t fully human. Does anybody still follow the Dred Scott Supreme Court decision?”
Medved: Well, the Dred Scott decision was overturned by the 13th Amendment, and if you go look at the Lincoln-Douglas debates, of 1858, right after the Dred Scott decision was adjudicated, governor, and seriously, it is right there, Lincoln says, ‘we must respect this decision as the will of the court but I think it was wrongly decided. We must overcome it.’ And in other words, to recognize that Obergefell is the law of the land right now, doesn’t mean that you accept it permanently. I am just curious, would you try to undo it with a constitutional amendment, as we did with the 13th Amendment and the Dred Scott decision?
Huckabee: I don’t think that is necessary, because in the case of this decision, it goes back to what Jefferson said, that if a decision is rendered that is not borne out by the will of the people either through their elected representatives and gone through the process, if you just say it’s the law of the land because the court decided, then Jefferson said, ‘You now have surrendered to judicial tyranny.'
Huckabee then argued that the Obergefell decision wasn’t the operative law of the land because it wasn’t codified as a statute at the federal or state level in Kentucky, and Davis was performing her public duty.
“She’s operating under the fact that there is no statute in her state or at the federal level that authorizes her,” he concluded.
The Dred Scott decision is commonly understood to have been effectively overturned after the Civil War with the passage of the 13th and 14th Amendments. Back in 1857, the Supreme Court decided that under Articles III and IV of the Constitution that slaves or persons descended from slaves couldn’t be citizens. “A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a ‘citizen’ within the meaning of the Constitution of the United States,” said Chief Justice Roger Taney.
The 13th Amendment, ratified in 1865, held that “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” The 14th Amendment stated that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”
In other recent interviews, Huckabee drew analogies to people who disagreed with the Dred Scott decision and with the Obergefell decision.
"You obey it if it's right," Huckabee told ABC's "This Week." "So I go back to my question. Is slavery the law of the land? Should it have been 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."
Another point raised by Huckabee that drew criticism was that a Supreme Court decision such as Obergefell lacked the legal force of a state or federal law.
In May 2015, Huckabee told Chris Wallace from Fox News that "many of our politicians have surrendered to the false god of judicial supremacy, which would allow black-robed and unelected judges the power to make law as well as enforce it."
Wallace pointed to the Supreme Court’s Marbury v. Madison decision from 1803, which established that the Court could overturn laws it felt were unconstitutional.
"Judicial review is exactly what we've operated under. We have not operated under judicial supremacy," Huckabee told Wallace. "Presidents have understood that the Supreme Court cannot make a law."
"We are sworn to uphold the Constitution and the law," Huckabee told Wallace. "And it has to be consistent and agreed upon with three branches of government. One can’t overrule the other two. That’s all I’m saying," Huckabee added.
The Marbury v. Madison decision is widely understood to grant the Supreme Court the power to overturn laws and executive actions that it determines are in conflict with the Constitution.
“It is emphatically the province and duty of the judicial department to say what the law is. . . . If two laws conflict with each other, the courts must decide on the operation of each,” said Chief Justice John Marshall in 1803.
The topic of judicial review and its proper application by the courts, will unlikely fade away as the debate continues about the Obergefell decision, and the role of the Supreme Court as a 2016 presidential campaign topic.
