Lincoln’s ‘apple of gold’ and the case against court-packing
Article excerpt
Shortly before leaving Springfield for his inauguration in 1861, President-elect Abraham Lincoln made notes for his own use on the nearly impossible task before him: preserving the Union. Lincoln anchored his deepest beliefs in the Declaration of Independence, a belief he would make manifest in his Gettysburg Address on Nov. 19, 1863. The Declaration was […]
Shortly before leaving Springfield for his inauguration in 1861, President-elect Abraham Lincoln made notes for his own use on the nearly impossible task before him: preserving the Union.
Lincoln anchored his deepest beliefs in the Declaration of Independence, a belief he would make manifest in his Gettysburg Address on Nov. 19, 1863. The Declaration was in his mind as he prepared to leave for Washington, D.C. Lincoln wrote to himself that “we could not, I think, have secured our free government, and consequent prosperity” without the Declaration and then, in an echo from the Book of Proverbs, he noted that the Declaration was “the word, ‘fitly spoken’ which has proved an ‘apple of gold’ to us.”
The “Union, and the Constitution,” he continued, employing the exact biblical metaphor, “are the picture of silver subsequently framed around it. … The picture was made for the apple, not the apple for the picture. So let us act, that neither picture, or apple shall ever be blurred, or bruised or broken.”
“The Declaration is more important than the Constitution,” Harvard professor and political theorist Harvey Mansfield told the Wall Street Journal in an interview published this past weekend. “The apple of gold is in the frame of silver,” Mansfield said. “[T]here’s a difference between the revolutionary fervor in the Declaration and the political prudence in the Constitution, and the former was the precondition of the latter.”
This weekend, we hold up the Declaration and celebrate its enduring appeal across all lands and since the time it sprang from Jefferson’s pen.
But it cannot stand alone without the “frame” of the Constitution that protects it, even as the principles of the Declaration inform good and sound analysis and application of the Constitution.
Which is why even as we salute the revolutionary fervor of the framers and the sacrifices made by them and the patriots of long ago, we ought to resolve to honor as well the Constitution rather than plot its dismemberment.
Portrait of Abraham Lincoln. (AP Photo)
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“Court packing” is the rage of the radical left wing of the Democrats. They anchor their proposals to expand the court from 9 to 14 in the fact that the Constitution of 1789 did not specify the number of justices who would serve on the court and that the first Congress settled on six and adjusted it all the way to 10 until after the Civil War and the ratification of the 14th Amendment, with its guarantee of due process for all.
The original Constitution also included a guarantee of due process, which obliged the federal government to all that phrase includes. The Fourteenth Amendment obliged the state governments not to “deprive any person of life, liberty, or property, without due process of law.”
“These words have as their central promise an assurance that all levels of American government must operate within the law (‘legality’) and provide fair procedures,” offers Cornell Law School’s Legal Information Institute as a definition of “due process of law.” The Constitution Center has a much longer explanation and the Supreme Court itself has generated casebooks with decisions expanding on what due process means.
What it cannot mean, however, is the sudden, shocking, and unprecedented expansion of the court’s membership for the purpose of overturning not just one decision but decades and decades of evolving case law. To rupture the long, slow, and careful development of the nation’s Constitution as understood in thousands of opinions is the sharp break with the rule of law that the Left in the United States demands. It is an unconstitutional demand, and no amount of vacuous rhetoric ought to obscure the destruction of the Constitution’s guarantees of “due process” that would follow such an abandonment of a court that has never been above 10 members and which has been at nine since 1869, a year after the ratification of the Fourteenth Amendment.
THE REVOLUTIONARY VIRTUE OF PROCESS
Republicans and responsible Democrats ought to begin now to build the legislative wall against even thinking about “court-packing.” When FDR tried to tamper with the court in 1937-1938, his own party rebelled. Nearly a century later, some Democrats no longer care about the Constitution.
But as we approach our 250th birthday celebration, serious Americans intent on preserving the union ought to make known that they will never support an assault on the Supreme Court. The court is the weight-bearing wall of the individual liberties of every citizen. It should remain at nine members for another 250 years, unless and until the Constitution it protects is amended to change that now-long-established and indeed sacred number.