Ben Carson, gaffes and the Supreme Court

Some context on the misrepresented comments of Dr. Ben Carson

Flicker/John Pemble

WASHINGTON, May 19, 2015 – Much has been said about what the wise world of journalism chooses to call “gaffes” perpetrated by Dr. Ben Carson. Hunter of Daily Kos recently discharged a particularly nasty hit piece (To Ben Carson’s fans, those ‘gaffes’ aren’t gaffes) in which the logic seems to be: Carson said X. X means Y. Y is nuts. Therefore Carson is nuts and so are all of his supporters, and they are really, really bad people.

But X consists of a highly selective quotation or a slanted paraphrase, and Y has little or no relationship to what was actually said or intended in context. All that is irrelevant to Hunter, whose sole purpose is to reinforce his conclusion.

He is evoking emotion—anger, fear, envy, hate, greed—for his fans rather than seeking rational exchange of useful information. That is what demagogues do in the politics of obfuscation, polarization, victimization and personal destruction.

Hunter’s hate-filled words are hardly worth response, and Dr. Carson is perfectly capable of addressing the issues. However, a few thoughts on one of them might be helpful. Hunter states: “Ben Carson hypothesizes that the president of the United States, which he aspires to be, does not necessarily have to abide by Supreme Court decisions he doesn’t like.”

That’s not what Carson said, but he did draw a comparison with Abraham Lincoln and the Dred Scott decision (1857), widely considered the worst decision in the Court’s history. So let’s ponder what Lincoln said.

The slave Dred Scott sued for freedom on the basis of temporary residence with his owner in a free state. The court majority denied the suit and returned Scott to slavery. Moreover, Chief Justice Roger B. Taney went on to declare that Africans had no rights as citizens under the Constitution.

Taney also opined that Congress had no authority to declare a territory free as it had done in the Missouri Compromise of 1820. For only the second time in its history, the Supreme Court ruled an act of Congress unconstitutional under the Marbury v. Madison (1803) doctrine of judicial review.

In his 1858 debates with Stephen Douglas for the Illinois senate seat, Lincoln maintained that the Dred Scott decision was fundamentally wrong. Douglas wholly supported it, as was necessary to retain Southern supporters. Douglas chastised his opponent for daring to oppose it, saying that he might advance a contrary opinion before the decision, but afterwards must abide by it, and to do otherwise was inciting dissension, radicalism and violence.

Lincoln countered that this new-found respect for the Court had not been in evidence when, for example, Douglas enthusiastically backed Andrew Jackson’s nullification of the National Bank decision. “The sacredness that Judge throws around this decision is a degree of sacredness that has never been before thrown around any other decision. I have never heard of such a thing.” Douglas was for Supreme Court decisions except when he was against them.

Contrary or apparently contrary decisions had been made by the Court before, Lincoln observed. This one is based upon falsehood in the main as to the facts, and no decision made on any question had been held as settled law without confirmation in legislative law.

The falsehood in fact was a fault of the premise. “I believe that the right of property in a slave is not distinctly and expressly affirmed in the Constitution, and Judge Douglas thinks it is.” However one derives a right of property from the Constitution, a human being cannot be property. Lincoln could not speak of Negroes in the same category as horses and cattle.

Lincoln quoted a letter by Thomas Jefferson: “To consider the judges as the ultimate arbiters of all constitutional questions—a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.”

Lincoln continued: “Judge Douglas will have it that all hands must take this extraordinary decision made under these extraordinary circumstances and give their vote in Congress in accordance with it, yield to it, and obey it in every possible sense…. He would make it a rule of political action for the people and all the departments of the government. I would not. By resisting it as a political rule, I disturb no right of property, create no disorder, excite no mobs.”

The future president would not nullify the decision, however wrong it was, by insisting that Dred Scott be freed. What Lincoln would do is oppose its every other application and seek to overturn it, which he accomplished with the 13th Amendment banning slavery.

Are there existing or potential Supreme Court decisions that might raise the same types of issues? Certainly. One that comes easily to mind is Roe v. Wade, with its many parallels to Dred Scott, but that is a discussion for another time. King v. Burwell on Obamacare and others on the redefinition of marriage are coming up.

Should Dr. Carson, following Lincoln, oppose such decisions if he feels they are wrong? You bet. Let us demand that his opinions are accurately and responsibly reported for consideration of the people, who will find them much more intelligent and sensible than anything Hunter produces. And let’s can the hit pieces.

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Dwight Hughes
Dwight Hughes graduated from the U.S. Naval Academy in 1967 and served twenty years as a surface warfare officer. For fifteen years, he managed software development projects relating to electronic mapping under contract for the United States Geological Survey. He holds an MA in Political Science, East Asian studies from the University of Rochester and an MS in Information Systems Management from USC. Dwight now writes on the past (Civil War naval history) and on current events. He and his wife Judi live in Virginia.