In nearly two and a half centuries of American constitutionalism, from 1776 to today, the words that are most difficult to understand yet crucial to our republic are found in Abraham Lincoln’s first inaugural address. Reflecting upon the Supreme Court’s infamous pro-slavery decision in Dred Scott v. Sandford (1857), Lincoln observed that “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.”

Here we find the fundamental paradox of American constitutionalism, which contains both republican self-government and the rule of law. The rule of law requires judicial power and independence. But republicanism requires that these powerful and independent judges be made the people’s servants, not their masters. Lincoln venerated the Constitution, willing even to wage war against the Southern states in order to preserve it. But Lincoln rejected the suggestion that judges are our final arbiters in announcing the Constitution’s meaning; that obligation fell to the people themselves, for the sake of both republican self-government and the rule of law. 

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