Abraham Lincoln, Stephen A. Douglas, Debates of Lincoln and Douglas: Carefully Prepared by the Reporters of Each Party at the times of their Delivery.

[33] the United States tells you. It has provided that the judicial power of the United States shall be vested in a Supreme Court, and such inferior Courts as Congress may from time to time ordain and establish. Thus, by the Constitution, the Supreme Court is declared, in so many words, to be the tribunal, and the only tribunal, which is competent to adjudicate upon the constitutionality of an act of Congress. He tells you that that Court has adjudicated the question, and decided that an act of Congress prohibiting slavery in the Territory is unconstitutional and void ; and yet he says he is going to pass another like it. What for? Will it be any more valid? Will he be able to convince the Court that the second act is valid when the first is invalid and void? What good does it do to pass a second act? Why, it will have the effect to arraign the Supreme Court before the people, and to bring them into all the political discussions of the country. Will that do any good? Will it inspire any more confidence in the judicial tribunals of the country? What good can it do to wage this war upon the Court, arraying it against Congress, and Congress against the Court? The Constitution of the United States has said that this Government shall be divided into three separate and distinct branches, the executive, the legislative and the judicial, and of course each one is supreme and independent of the other within the circle of its own powers. The functions of Congress are to enact the statutes, the province of the Court is to pronounce upon their validity, and the duty of the Executive is to carry the decision into effect when rendered by the Court. And yet, notwithstanding the Constitution makes the decision of the Court final in regard to the validity of an act of Congress, Mr. Lincoln is going to reverse that decision by passing another act of Congress. When he has become convinced of the folly of the proposition, perhaps he will resort to the same subterfuge that I have found others of his party resort to, which is to agitate and agitate until he can change the Supreme Court and put other men in the places of the present incumbents. I wonder whether Mr. Lincoln is right sure that he can accomplish that reform. He certainly will not be able to get rid of the present Judges until they die, and from present appearances I think they have as good security of life as he has himself. I am afraid that my friend Lincoln would not accomplish this task during his own lifetime, and yet he wants to go to Congress to do it all in six years. Do you think that he can persuade nine Judges or a majority of them, to die in that six years, just to accommodate him? They are appointed Judges for life, and according to the present organization, new ones cannot be appointed during that time ; but he is going to agitate until they die, and then have the President appoint good Republicans in their places. He had better be quite sure that he gets a Republican President at the same time to appoint them. He wants to have a Republican President elected by Northern votes, not a Southern man participating, and elected for the purpose of placing none but Republicans on the bench, and consequently, if he succeeds in electing that President, and succeeds in persuading the present Judges to die, in.order that their vacancies may be filled, that the President will then appoint their successors. And by what process will he appoint them? He first looks for a man who has the legal qualifications, perhaps he takes Mr. Lincoln, and says, “Mr. Lincoln, would you not like to go on the Supreme bench?” “Yes,” replies Mr. Lincoln. “Well,” returns the Republican President, “I cannot appoint you until you give me a pledge as to how you will decide in the event of a particular question coming before you.” What would you think of Mr. Lincoln if he would consent to give that pledge? And yet he is going to prosecute a war until he gets the present Judges out, and then catechise each man and require a pledge before his appointment as to how he will decide each question that may arise upon points affecting the Republican party. Now, my friends, suppose this scheme was practical, I ask you what confidence you would have in a Court thus constituted a Court composed of partisan Judges, appointed on political grounds, selected with a view to the decision of questions in a particular way, and pledged in regard to a decision before the argument) and without reference to the peculiar state of the facts.