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I came across this treasure entirely serendipitously on July 12, 2010. I’d been researching another topic, but a tray containing petitions relevant to my internship duties also included resolutions and memorials from members of state bars asking Congress to fund the widespread distribution of published Supreme Court decisions. When I noticed something signed by “Members of the Bar, of the State of Illinois,” I hoped for one of those utterly thrilling archival experiences few researchers get to enjoy.

I wasn’t disappointed. Imagine my elation at spotting this legendary signature:

 

 

 

A few moments later, a reference archivist with a healthy obsession in the early history of Illinois wandered in on unrelated business. (I just learned that this individual is also a member of the Board of the Directors of the Abraham Lincoln Institute.) Together, we marveled at the magnificent roster of subscribers, which also included David Davis, William Herndon, Norman Judd, Orville Browning, Richard Yates, and all nine members of the Illinois Supreme Court for the December 1844 term (how I’m able to date the document without now being able to link it to a particular term and session of Congress).

Since Lincoln discoveries are major news these days, I was naturally curious as to whether this ground had been trod before. Dozens of Google searches yielded (and still yield) nothing. The memorial’s text appears nowhere on the internet. Several days after I found the document, the aforementioned archivist emailed me this: “I showed a xerox of the petition about Supreme Court reports to someone working on the multi-year, multi-person staff assembling Lincoln-signed documents held by the National Archives. Your discovery was news to them. Nice going.” Much more than with the Thoreau/Emerson antislavery petition, then, I can confidently assert that I don’t believe interested scholars (and there are many of them) have known that this document exists. In that sense, this may be a genuine discovery. (Update: The director of the Papers of Abraham Lincoln projects believes it is.) And as far as I’m aware, this is the only known example of a petition to Congress signed by our 16th President. (Edit: I was wrong! Here’s another.)

I didn’t photograph the document as thoroughly as I should have, and my photocopy is halfway across the country. But these images should supply a near-complete portrait of the signatories:

As for the “lesser lights,” David Davis and Norman Judd were instrumental in securing Lincoln’s nomination for the presidency at the 1860 Republican Convention in Chicago. Lincoln later nominated Davis to the Supreme Court. William Herndon was one of Lincoln’s law partners and earliest biographers. As Governor of Illinois during the Civil War, Richard Yates would appoint Orville Browning to fill the deceased Stephen Douglas’ Senate seat. Yates became a senator himself, serving in the Congress that passed the Civil Rights Act of 1866 and proposed the Fourteenth Amendment. (Yates’ signature is cut off in these photos—my apologies.)

Here are pictures of the memorial’s text:

A transcript:

“To the Senate, and House of Representatives, of the United States of America.

The memorial of the Subscribers, Members of the Bar, of the State of Illinois, respectfully represents:

That it is of great importance, that the Decisions of the Supreme Court of the United States, should have a more general circulation among the People of the Country.

Containing the only authentic exposition of the Constitution, and Acts of Congress, and embodying the Supreme Judicial Law of the Union, their dissemination should be coextensive, with the vast and wide interests, over which they have a controlling influence.

Hitherto, the great cost of the Decisions of that Court, have rendered their purchase, impossible to many of the Profession.

In many parts of the Union, the Judges of the State Courts, cannot have access to these Decisions, although often called upon to apply them. The recent reduction of the cost, of the Reports of the Supreme Court of the United States, affords to the general Government, an opportunity to spread them throughout the Union.

To the Courts of Superior Jurisdiction of every State, to the Executive, and Legislative branches, of every State Government, as well as, to every College, and Public Library, a Copy of the Reports of these Decisions, might be presented, at a cost to the United States, far below the benefits, which would thereby be conferred on the People; and your Memorialists respectfully represent, that they Sincerely desire that the objects herein set forth, may be accomplished, by the wisdom and Justice of your Honorable Bodies.”

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And so there exists a Congressional record in which Lincoln incidentally endorses the notion of judicial supremacy—that Supreme Court decisions are “the only authentic exposition of the Constitution.” (Though please eventually see Edit 5 below if you’ve read this far.) That preambular language likely had one purpose—to affirm the vitality of McCulloch v. Maryland in the wake of presidential vetoes of Congressional Bank recharters on constitutional as well as policy grounds. Lincoln later famously denied that the Dred Scott case could irrevocably settle the relevant constitutional issues, but in a June 26, 1857 speech, he sought to portray Stephen Douglas as the more egregious flip-flopper. Douglas had recently proclaimed that “whoever resists the final decision of the highest judicial tribunal [Dred Scott], aims a deadly blow to our whole Republican system of government”; resisters were “enemies of the Constitution” and “enemies of the supremacy of the laws.” But Douglas had previously denounced McCulloch, subscribing instead to Andrew Jackson’s quotable sentiment that “Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution.” (Is this why Douglas didn’t sign the memorial you see above? Or perhaps he was in Washington at the time?)

If we analogize the memorial to a legislative bill, signing the document would be equivalent to voting ‘aye’ on a piece of legislation. Lincoln possessed a careful and discriminating legal mind—I doubt he would have endorsed a particular formulation of public policy, however self-serving, while denying the truth of one of its express premises. I also think it’s extremely unlikely that he would have signed such a petition without reading it (though as president, he did robotically sign off on certain War Department documents of lesser importance, trusting wholly in Stanton’s competence). In any case, Lincoln’s apparent early endorsement of judicial interpretive supremacy is worthy of at least some scholarly consideration. (Probably the most lengthy treatment of Lincoln and judicial authority to date, Michael Paulsen’s “Lincoln and Judicial Authority,” begins its analysis with Lincoln’s reaction to Dred Scott, possibly because no older pertinent source was then available.)

However bizarre a classification it might be, I would wager that this is the only petition in American history in which one signer later issued an official determination on the constitutionality of another signer’s acts—David Davis, writing for the Court in Ex parte Milligan (1866), rejected the Lincoln administration’s creation of military tribunals in areas outside the theater of war. That one memorialist judicially reviewed another is especially interesting here, since both men (even the eventual victim) apparently countenanced the document’s explicit defense the legitimacy and finality of the practice.

I don’t think Congress made the appropriation these Illinois lawyers requested. Had such a bill emerged, the debate might have resembled that of March 1837 when the Senate considered a $30,000 stipend for the widowed Dolley Madison (erm, a $30,000 appropriation to purchase Madison’s notes from the Constitutional Convention). Calhoun found no textual warrant for Congress to purchase private manuscripts, and he argued that Madison’s own view of the General Welfare Clause rendered that clause off limits. A debate over purchasing and distributing privately published Supreme Court reports would probably have been fought on similar terms, pitting strict constructionists with a political interest in refuting the doctrine of judicial supremacy against Whigs eager to sustain it.

For more on the initial difficulty of obtaining bound volumes of the Supreme Court reports, I recommend Chapter 6, “The Reporters,” in G. Edward White’s The Marshall Court and Cultural Change.

Edit: A few readers have very thoughtfully pointed out that it matters greatly what the memorialists understood by the word “authentic” in asserting that Court decisions are “the only authentic exposition of the Constitution.” Perhaps, they say, I’ve too hastily concluded that the petitioners ostensibly advocated judicial supremacy in the interpretation of the Constitution. That may be true. But I also think the political context of the 1830s and 40s should inform our interpretation of the relevant text.

As I recall, repudiation of the coordinate-construction portions of Jackson’s Bank Veto (and similar language in Tyler’s vetoes) was an article of faith among Whigs. The Jackson and Tyler vetoes postdated McCulloch and so denied its finality. But they did more than that. In particular, Jackson’s veto denied the applicability of all Supreme Court decisions in cases in which Congress or the President might render their own constitutional judgments. Jackson argued that “[t]he opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must [be permitted] to have only such influence as the force of their reasoning may deserve.” Whether we take the word “authentic” to evince the memorialists’ judicial-supremacist sympathies or give it the far more limited meaning of “legally valid,” the belief that Court decisions are “the only authentic exposition of the Constitution” is utterly antithetical to the Jacksonian view. The very statement would have offended good Democrats to their core. I don’t know much about the the other signers’ partisan affiliations during the mid-1840s, but I do know that Lincoln professed to revere Henry Clay and his political principles, and there can be little doubt what Clay would have meant by insisting in 1844 or 1845 that Supreme Court decisions were “the only authentic exposition of the Constitution.”

Also keep in mind that an analogy the memorialists used in the very same paragraph gave them an incentive to maximize their audience’s perception of the Supreme Court’s interpretive authority. Reports of the decisions should be “coextensive, with the vast and wide interests, over which they have a controlling influence.” The signers wanted the reports disseminated far and wide—to all three branches of every state government and to colleges and public libraries throughout the nation, and the decisions’ influence over great national affairs was “controlling,” determinative. This seems to me yet another reason to favor the interpretation I’ve described.

This analysis commits me to the position that, if Lincoln consciously agreed with the content of the memorial he signed, he simply changed his mind on the nature of judicial authority. He once avowed that only a subsequent Supreme Court ruling could displace a former ruling on constitutional matters, yet he later sought to mobilize public opinion so that Congress could purport to do precisely what Dred Scott said the Constitution prohibited it from doing.

Edit 2: There can be little doubt that the petitioners’ foremost desire was to receive bound volumes of Supreme Court decisions rather than to universalize a particular philosophy of constitutional interpretation. The immediate impetus for their request was a recent reduction in the cost of purchasing the reports. I’m not claiming Lincoln was once a rabid judicial supremacist, so in that sense, we shouldn’t make too much of this petition. But he personally inscribed his name on a document that affirmed a principle he would later repudiate. Had he objected to that sweeping principle, I suggest, he would not have signed the petition.

If the previous statement is true, Lincoln either was a preexisting advocate of judicial supremacy or decided the doctrine was correct when prompted to make up his mind. I think we can draw a significant conclusion from this—he would not then have endorsed the opposite view, i.e., that each branch must be guided by its own opinion of the Constitution because the Supreme Court’s interpretations are binding only on itself. Nor, given what we know about his political philosophy during this time, would we expect him to have embraced a constitutional theory prominently associated with Jackson’s bank veto. (Mark Graber tells me Lincoln made claims resembling the petition’s “only authentic exposition” language in debates over the Illinois Supreme Court in the 1840s.) Yet Lincoln’s immediate goal in the 1858 Senate campaign was to become an instrument in the purported Congressional abrogation of Dred Scott‘s territorial holding. Such an act would have presupposed a Congressional constitutional exposition contrary to Dred Scott, and Lincoln plainly would have considered it an “authentic one.”

Edit 3: I’m extremely grateful for the feedback I’ve received thus far. One scholar I admire exceedingly has suggested to me that, at least until James Bradley Thayer’s influential 1893 article, it was widely assumed that although the Court possessed the authority to rule on the constitutionality of legislative and executive actions, those determinations weren’t regarded as supreme; judicial review need not preclude Congressional and presidential expositions of their own constitutional powers. So Lincoln and friends wouldn’t have equated “authentic” with “supreme.” I think this argument overlooks the critical word “only” in the phrase “the only authentic exposition of the Constitution.” The petitioners cannot have engaged in the sort of assuming the above scholar mentions, for they’re on the record as believing that only Supreme Court decisions are the “authentic exposition of the Constitution.” No matter what meaning one gives “authentic,” the word “only” convinces me that the doctrine the petitioners endorsed would not have admitted the legal validity/normative authority of any legislative or executive constitutional exposition inconsistent with a prior Supreme Court decision.

Edit 4: It’s also been suggested that Lincoln viewed the portion of Taney’s opinion on the invalidity of the Missouri Compromise as mere obiter dictum, so later efforts to resist it weren’t necessarily incompatible with the idea that the Supreme Court’s legitimately reasoned constitutional holdings were “authentic.” I was initially cool to this objection, but it may be more valid than I previously thought.

I don’t think anyone has ever denied that the other branches can advance interpretations of their own constitutional powers before the Supreme Court has so opined. Enactment of a law implies an institutional belief that the subject matter was within Congress’s powers, and the terms of the presidential oath make it impossible for him not to think critically about what the Constitution means and allows him to do, for example. The obiter dictum objection holds that Lincoln didn’t regard any of Dred Scott‘s principal holdings as legitimate constitutional judgments, as they were unnecessary to dispose of the case. So it would follow that there wasn’t any inconsistency in assenting to the petition’s complete contents (assuming he did) and resisting Dred Scott‘s territorial holding, as a post-1857 Congressional prohibition of slavery in the territories would have predated an authentic judicial constitutional exposition on the matter. I tend to agree with Don Fehrenbacher’s view that a rejection of the Missouri Compromise’s validity and an assertion of an omnijurisdictional right to own slaves (however atrociously reasoned) constituted a valid judicial attempt at refuting the claim that Dred Scott was a citizen because residence at Ft. Snelling had freed him. Perhaps my own hesitancy to embrace the obiter dictum charge makes me skeptical that Lincoln did inwardly. I think it was political boilerplate at the time, even if it’s the orthodox legal view today. But I suppose the constitutional significance of this finding is nil if we don’t take Lincoln at his word elsewhere in the way I’ve suggested we perhaps should.

Edit 5: Just as I’d abandoned hope for a consensus interpretation, Calvin Massey offers an explanation I find quite persuasive. The petitioners wanted published volumes of full Supreme Court opinions; they clearly had inadequate access to those volumes (pecuniary constraints). Where were state judges and attorneys to go for the text of Supreme Court decisions? Newspapers, pamphlets, and the like. These informal reports may have been incomplete, slipshod, or subtly revised for partisan effect. Court decisions contained constitutional expositions, but only the Dallas, Cranch, Wheaton, Peters, and Howard volumes could be considered authentic ones. If this is correct, the petitioners had nothing to say about any theory of constitutional interpretation. Massey’s explanation treats what we know were the petitioners’ grievances as the key to interpreting their ambiguous language. This may be “avoiding the constitutional issue,” but it strikes me as correct. And while I do think most signers thought this way, I wouldn’t rule out that some Whigs may have believed the “only authentic exposition” language to be a clever entendre and taken satisfaction that lawyerly Jacksonians hadn’t grasped the phrase’s broader implications (another historian suggests this as a possibility).

Massey’s insight does assume, however, that whatever versions of Supreme Court decisions the petitioners could access for no cost were not “Decisions of the Supreme Court of the United States” as the phrase was used. This may or may not be a problem. “Decisions” are described as being something not in wide circulation and that Congress should purchase, but in the second-to-last and last paragraphs, “Decisions” and the “Reports” of decisions are apparently regarded as distinct concepts. To me, the former use of “Decisions” reveals far more about the drafter and signers’ intent than does the latter.

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