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Lincoln on Judicial Despotism

Thread ID: 10089 | Posts: 13 | Started: 2003-09-28

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Walter Yannis [OP]

2003-09-28 12:40 | User Profile

This is overall an excellent article, but the author's thesis is undermined by his PeeCee insistence that "Dred Scott" is a "minus" and "Brown v. Board of Education" a plus. The reader is left wondering where "Roe v. Wade" should fit in.

The simple (and I dare say obvious) truth is that all three cases are close relatives - all three are appalling exercises in judicial activism that wreaked havoc on our social fabric. Judicial overreaching is always destructive.

I've thought a good deal about how we can fix this problem of the judicial usurpation of politics made possible by 200 years of Marbury v. Madison. I suggest that we amend the Constitution, providing that the Senate oversees the publication of cases by simple majority vote, and that cases not published have no weight as precedent and are binding only on the parties to the case. This would in effect take from the Supreme Court the power to issue diktats, for example, striking down all state laws outlawing sodomy in a single stroke of the pen. It's not an original idea, by the way. I can't remember where I read the suggestion, but it is a good one.

On the other hand, "worse is better", so maybe it's best to forget about trying to fix the thing and secretly celebrate (while publicly condemning) each new judicial outrage as a step toward the collapse.

I hope several of the SCOTUS judges live to see it fall down about their ears.

Walter

Robert P. George

Copyright (c) 2003 First Things 130 (February 2003): 36-40.

After the Supreme Court’s landmark 1954 decision in Brown v. Board of Education ordering the desegregation of public schools in Topeka, Kansas, lawsuits promptly were brought to dismantle legally sanctioned segregation in other states. One of these was Arkansas. There, Governor Orville Faubus and other state officials maintained that they were not bound by the Supreme Court’s ruling in Brown. That decision was constitutionally incorrect, they insisted, and amounted to a federal court’s usurpation of the constitutional authority of the states. Moreover, Arkansas was not a party in the case. Therefore, they contended that a lower federal court in Little Rock had no constitutional authority to order the desegregation of public schools in Arkansas on the basis of the Brown decision.

Arkansas’ appeal of the lower court’s order eventually made it to the Supreme Court of the United States in the 1958 case of Cooper v. Aaron. No one had any real doubts about what the outcome of that case would be. The Justices would certainly uphold the desegregation order. They did so, however, in a ruling that did more than merely remind the Governor and other state officials that they had “no power to nullify a federal court order.” In a unanimous opinion, the Court asserted, for the first time, that “the federal judiciary is supreme in the exposition of the law of the Constitution.”

The idea of judicial supremacy—or the idea that the supremacy of the Constitution entails judicial supremacy in constitutional interpretation—has come to be so widely held not only in the legal profession but also by the public at large that today it seems unremarkable. As the nation prepares for our annual celebration of Abraham Lincoln’s birthday, however, we have an occasion to consider just how remarkable it is, and just how far it is from the Great Emancipator’s understanding of the legitimate scope of federal judicial power.

According to the standard account of the matter, the power of judicial review—that is, the authority of the federal judiciary to invalidate acts of Congress and the President when they are deemed to be unconstitutional—came to be entrenched in our law by the acceptance, tacit or otherwise, of the Supreme Court’s ruling in the 1803 case of Marbury v. Madison. Of course, nowhere in the text of the Constitution is any such power granted. Rather, Chief Justice John Marshall inferred the existence of the power, or, at least, something like it, from the fact that the written Constitution declares itself to be the Supreme Law of the Land, combined with the evident principle that, in Marshall’s language, “It is emphatically the province and duty of the judicial department to say what the law is.”

Now, a lively dispute has existed from the moment the Court handed down its decision in Marbury as to the scope of that ruling. Even today, some scholars argue that it did nothing more than declare that the Supreme Court is within its rights in declining to exercise an authority putatively conferred upon it by Congress when such authority exceeds the jurisdiction granted to the Court under Article Three of the Constitution. Certainly, as a technical matter, all the Court did in Marbury was refuse to exercise original jurisdiction beyond what it was granted in Article Three on the ground that the expansion of its original jurisdiction by Section 13 of the Judiciary Act of 1789 was unconstitutional. So, the contemporary constitutional scholar Robert Lowry Clinton argues that it is a mistake to read the case as claiming a judicial power to tell the President or Congress what they can or cannot do under the Constitution. He maintains that it simply stands for the power of the Court, as a coequal branch of government, to act on its own interpretation of the Constitution in deciding what it can and cannot do. This, Clinton observes, is entirely consistent with the recognition of a like power in the other branches.

Of course, the conventional reading of Marbury—shared by the decision’s friends and foes alike—has it standing for a considerably broader scope of judicial authority. Thomas Jefferson condemned the decision precisely because he viewed it as claiming a power of the courts to impose constitutional interpretations on the other branches. This, he later asserted, would have the effect of “placing us under the despotism of an oligarchy.” And at the opposite extreme from Professor Clinton’s reading is the reading offered by the Supreme Court in Cooper v. Aaron. What I described as a “remarkable” claim to judicial supremacy, the Cooper Justices presented as nothing more than a straightforward, uncontroversial, altogether mundane and logical implication of Marshall’s proposition about the “province and duty of the judicial department.” Indeed, the paragraph in which the Justices make the claim offers nothing in its support beyond the invocation of Marbury.

Whatever Marbury was supposed to mean about the scope of the power of judicial review, it is a notable fact that the Court declined to exercise that power to declare another act of Congress to be unconstitutional until 1857, when it ruled in the case of Dred Scott v. Sandford. Scott was a slave in Missouri who had been taken by his master into the free state of Illinois and the free Wisconsin Territory. He then brought a suit demanding his freedom in St. Louis County Court under Missouri law, claiming that he was legally entitled to be free by virtue of having resided in a free state or territory. He won in the trial court but the ruling in his favor was reversed by the Supreme Court of Missouri. He then brought a new case in the federal courts to consider, among other things, whether a state could reverse the “once free, always free” principle under which the St. Louis County Court had ruled in Scott’s favor. Once the matter entered the federal courts, it became a massive political hot potato. Sandford (whose name was actually Sanford), acting on behalf of his sister who was Dred Scott’s owner, injected into the litigation the question whether any black person, free or slave, could be a citizen of the United States, and he directly challenged the constitutionality of the Missouri Compromise of 1820, which forbade slavery in the Louisiana Territory north of latitude 36° 30’. Although the power of Congress to forbid slavery in federal territories was well–established, Sandford argued that slaves were private property of the sort protected by the Constitution against deprivation without due process of law, and that therefore Congress lacked any constitutional authority to ban slavery in the territories.

When the matter reached the Supreme Court of the United States, Chief Justice Roger Brooke Taney, writing for a seven–man majority against two dissenters, accepted Sandford’s major contentions, not only sending Scott back into slavery, but holding, in effect, that he had never been free. The majority ruled that blacks could not be citizens of the United States, and therefore lacked the concomitant right to bring lawsuits in federal courts. Moreover, they held that Congress lacked constitutional authority to forbid or abolish slavery in federal territories. And still further, since slaves were, the Court ruled, personal property protected by the Constitution, the Missouri Compromise was unconstitutional.

All of this added up to a sweeping and profound ruling. The Court had massively injected itself into the most divisive and highly morally charged issue of the day. In my edited book entitled Great Cases in Constitutional Law, there is a most interesting exchange between Prof. Cass Sunstein of the University of Chicago and Prof. James McPherson, my colleague at Princeton, regarding the political impact of the Dred Scott decision. Sunstein defends the commonly held view that the case polarized an already dangerously divided country and made the Civil War and its toll of carnage almost inevitable. Instead of ending the conflict over slavery by definitively resolving it, as Taney apparently hoped to do, the Court, according to Sunstein, intensified the conflict and heightened emotions. McPherson holds the minority view that the case “did not really polarize the country any more than it was already polarized by the issue of slavery in the territories.”

Whichever scholar has the better argument, they agree that the decision focused the debate over slavery and introduced into the already heady brew of issues involved in that debate the question of the scope of judicial power under the Constitution. McPherson points out that “so thoroughly did the Dred Scott decision pervade and structure the Lincoln–Douglas debates [in 1858] that in one of those debates a Douglas supporter shouted from the audience to Lincoln: ‘Give us something besides Dred Scott.’ Quick as a cat Lincoln responded: ‘Yes, no doubt you want to hear something that don’t hurt.’”

To Lincoln Dred Scott was an abomination, but for reasons of principle going even beyond those set forth by the dissenting Justices in the case. That Lincoln was devoted to the Declaration of Independence and viewed its statement of principles as integral to the American scheme of constitutional government is, if anything, an understatement. However, the Declaration was far from the only writing of Jefferson’s of which Lincoln was mindful. In Jefferson’s letter of September 28, 1820 to William C. Jarvis, from which I quoted earlier his line about judicial “despotism,” he explained his opposition to judicial supremacy in constitutional interpretation as follows:

The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments coequal and co–sovereign within themselves. If the legislature fails to pass laws for a census, for paying the judges and other officers of government, for establishing a militia, for naturalization as prescribed by the Constitution, or if they fail to meet in Congress, the judges cannot issue their mandamus to them; if the President fails to provide the place of a judge, to appoint other civil and military officers, to issue requisite commissions, the judges cannot force him. Now, I daresay that to us—living in the aftermath of an expansion of judicial power that may, perhaps, more properly be conceived as having been expressed and ratified, rather than created, by the Supreme Court in Cooper v. Aaron—this language is quite shocking. Part of this, no doubt, has to do with the prestige that courts, including the Supreme Court of the United States, enjoy in elite sectors of our culture. Criticism of the scope of judicial power is often perceived by its partisans as, in effect, attacking the independence of the judiciary or even the ideal of judicial independence. The key thing to see is that Jefferson’s language was not at all shocking to Lincoln. On the contrary, it is entirely in line with his own fears of the political consequences of judicial supremacy.

Like Jefferson, Lincoln believed that courts, including the Supreme Court of the United States, could violate the Constitution and even undermine constitutional government. That judges, whenever they invalidate executive or legislative acts, purport to speak in the name of the Constitution, and claim merely to be giving effect to its commands, was in Lincoln’s view no guarantee against judicial despotism. Judges exercising effectively unconstrained power were, in his view, no less a threat to the Constitution than other governmental officers exercising such power. His fear was not that judges would sometimes err in their constitutional rulings. Given human fallibility, that is in*evitable and unremarkable. His fear, rather, was that judges are capable of behaving unconstitutionally, just as other officials are capable of behaving unconstitutionally, by exceeding the authority granted to them under the Constitution and thereby usurping the authority allocated to other officials in a delicate system of checks and balances. Indeed, Lincoln believed that judicial violations of the Constitution were in certain respects graver matters than the violations of elected officials.

Lincoln, of course, was a lawyer. He knew from experience that judges come in all shapes and sizes—competent and incompetent, conscientious and slapdash, honorable and corrupt. He wasn’t a skeptic after the fashion of the legal realists who would rise to prominence in the law schools fifty years or so after his death. But his view of courts was realistic. He knew that it was essential to the success of a lawyer to know the law; but he also knew that it didn’t hurt to know the judge. He believed in courts but he didn’t venerate them. Nor did he automatically identify what the courts did or said with “the law.”

His mature and most profound reflections on the scope of judicial power and the role of the judiciary in the American constitutional system came in relation to the debate over Dred Scott. By 1858, when the question was at the heart of the political contest in which he was engaged, the Court had ruled, but the question of the ruling’s status was far from resolved. Recall that the ruling was the first invalidation of a federal statute by the Court in more than fifty years, and only the second in the nation’s history. The question of the proper posture toward it for the other branches to adopt was very much alive, and a politician’s position on the question might well determine his electoral fate. Bound up, as it was, with the urgent and divisive issue of slavery, there was no avoiding the issue—despite the best efforts of even the most agile political types, such as Stephen Douglas.

Upon his election as President, Lincoln faced the matter squarely in his Inaugural Address on March 4, 1861. With the specter of civil war looming, the new President, who had denounced the Dred Scott decision repeatedly in his senatorial campaign against Douglas in 1858 as well as in the presidential campaign, turned attention to it in his remarks to the nation.

I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, 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. For Lincoln, then, the evil of the Dred Scott decision was not merely the expansion of slavery. It was that the decision threatened to undermine the basic principles of republican government precisely by establishing judicial supremacy in matters of constitutional interpretation. It was not merely that the Court decided the suit in favor of the wrong party. It was that the Court claimed authority to decide for the other branches once and for all what the Constitution required, thus placing them in a position of inferiority and subservience. For the people to “resign their government into the hands of that eminent tribunal” would be, according to Lincoln, the abandonment of democratic self–government and the acquiescence in oligarchic despotism. There is a not–very–faint echo of Jefferson in Lincoln’s First Inaugural.

In office, Lincoln gave effect to his position against judicial supremacy by consistently refusing to treat the Dred Scott decision as creating a rule of law binding on the executive branch. His administration issued passports and other documents to free blacks, thus treating them as citizens of the United States despite the Court’s denial of their status as citizens. He signed legislation that plainly placed restrictions on slavery in the western territories in defiance of Taney’s ruling. For his critics, these actions, combined particularly with his suspension of the writ of habeas corpus, revealed him to be a lawless and tyrannical ruler, one who had no regard for the constitutional limits of his own power. But none can say that he had not made his opposition to judicial supremacy clear before assuming office.

It is ironic that the declaration of judicial supremacy made by the Warren Court came in the context of the Court’s efforts to enforce a ruling in the cause of racial equality and civil rights. The occasion for Lincoln’s declaration of implacable opposition to judicial supremacy had been a decision which, above all others, stained the Court’s reputation as an institution dedicated to, as it says above the entrance to the Marble Temple in Washington, D.C., “equal justice under law.” Indeed, the popularity of the Court’s ruling in the Brown case (not, initially at least, in the South, but throughout much of the country and certainly among journalists, professors, and other opinion leaders) no doubt helps to explain why the remarkable dictum in Cooper v. Aaron was so little remarked on at the time, and why few have noted its incompatibility with the principles of Jefferson and Lincoln.

I find that my own students are more than merely surprised to learn about the views of the author of the Declaration of Independence as well as the Great Emancipator. They, too, have drunk in the idea that courts, particularly the Supreme Court (upon which more than a few imagine themselves someday serving), are the ultimate protectors of rights and, as such, should have the ultimate say on constitutional questions. After all, they reason, somebody, or some institution, has to have the final word, or else nothing is ever settled. And students, at least my students, want things to be settled. And the ultimate settler of things—when the things in question are politically ultimate things, constitutional things—should be a nonpolitical body. Politics, my students say, is too messy. Democratic institutions are too prone to passion, prejudice, and foolishness for us to entrust to them matters of constitutional significance. We don’t want to make our rights subject to voting, they say. There needs to be a higher institution to provide a check against the bigots and demagogues of politics—an institution where matters are resolved by calm and rational inquiry and judgment; an institution whose membership is drawn from a narrower, more refined, more highly educated circle; one that is not subject to political retaliation for unpopular decisions of principle. What would have happened, they ask, had the political branches felt themselves free to dispute Brown v. Board of Education?

One imagines Lincoln in the classroom reminding the youngsters that the unchecked power to do good is unavoidably also the unchecked power to do evil. If we like what the Justices did in Brown v. Board, let us not forget what they did in Dred Scott. And there is more to the balance sheet. Was it not the Court, after all, that during the period from 1905 to 1937 repeatedly invalidated both state and federal worker protection laws and social welfare legislation? Did the Justices not read into the due process clause of the Fourteenth Amendment a “right to freedom of contract” in whose name they frustrated the legislative will and usurped the constitutional authority of the elected representatives of the people? This, in any event, is the conventional reading of the history by contemporary liberals and conservatives alike.

And then there is the issue of abortion, surely the most vexing, divisive, and morally charged issue of our own time. Does the Supreme Court’s ruling striking down state prohibitions of abortion in the 1973 cases of Roe v. Wade and Doe v. Bolton belong on the plus side of the Court’s ledger with Brown v. Board or on the minus side with Dred Scott? Does that in turn depend on whether one happens to see abortion as a woman’s right or as a violation of the rights of an unborn child? If so, should one’s view of the proper scope of judicial power, and the legitimacy of judicial supremacy, depend upon the contingent fact that the Court happened to come down the way it did on abortion? After all, the Court could have come down, as the German Constitutional Court did in a 1975 decision interpreting Germany’s Basic Law, in precisely the opposite way—invalidating a legislatively enacted liberalization of abortion. Supporters of the right to abortion who criticize the German decision make exactly the same arguments—the same Lincolnian arguments—against judicial supre*macy that supporters of the right to life who criticize Roe v. Wade make. Their argument is that, to put it in Lincoln’s language, “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.”

Robert P. George is McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University. He is author, most recently, of The Clash of Orthodoxies.

Ruffin

2003-09-28 16:13 | User Profile

I know that this article is about the "Supreme Court", but I must inject a thought about Lincoln.

I think that most people who study Lincoln, even most of his detractors, make a mistake by taking him seriously as a philosopher of law. It's an injustice to the truly great men, real philosophers, that he's so often lumped in with them. I don't think that any serious person would associate our modern "presidents", cheap window-dressing imitations of executives that they are, with the founders. Lincoln was certainly the first such scoundrel that those who finally grabbed control of the blossoming economic powerhouse America was becoming were able to pass off as a principled leader. He was far beneath all of his predecessors in everything - character and principle, refinement, and seriousness. He was a complete stooge of unprincipled financiers who took the grand ideas of the founders only for an obstacle to be overcome in consolidating their power. About the only difference between 19th century stooges and 20th-21st century stooges, and one that fools a lot of people nowadays, is that in the old days one had to speak more fluent English. And even Lincoln's use of the language was down several rungs from what it had been.

Nevermind the "Supreme Court". It has always been a bad joke and an inviting tool for usurpers. Any people who accept supreme edicts that are clearly against their interests deserve what they get.

It's the pretense at seriousness that bothers me, as if these men were intensely debating real issues, rather than play-acting, or superficially impersonating the founders. They don't do it because they're tyrants. They aren't that able. They do it because they're paid to do it, in one way or another.

Forgive my carrying on. I want y'all to know that I'm still around and enjoying OD.

Fernando Wood

2003-09-29 02:10 | User Profile

[QUOTE]I've thought a good deal about how we can fix this problem of the judicial usurpation of politics made possible by 200 years of Marbury v. Madison. I suggest that we amend the Constitution, providing that the Senate oversees the publication of cases by simple majority vote, and that cases not published have no weight as precedent and are binding only on the parties to the case. This would in effect take from the Supreme Court the power to issue diktats[/QUOTE]

A very good idea, but if the political will existed, amending the constitution wouldn't be necessary. The other two branches ARE coequal with the judiciary when it comes to interpreting the Constitution. It is true, as George states in his article, that this isn't the establishment view. Again, it comes back to a question of political will. As Andrew Jackson said when faced with a judicial ruling he opposed, "John Marshall has made his decision. Let him enforce it."

Now here's a thought experiment. George W. Bush has said he is against gay marriage. If the Supremes were to rule laws banning same-sex unions are unconstitutional, do you think Bush would have the nerve to follow Jackson's example?

Fernando Wood

2003-09-29 02:31 | User Profile

[QUOTE=Ruffin]I think that most people who study Lincoln, even most of his detractors, make a mistake by taking him seriously as a philosopher of law. It's an injustice to the truly great men, real philosophers, that he's so often lumped in with them. I don't think that any serious person would associate our modern "presidents", cheap window-dressing imitations of executives that they are, with the founders. Lincoln was certainly the first such scoundrel [/QUOTE]

No argument here. But, in the spirit of "giving the devil his due", at least Ol' Abe wasn't taken in by judicial pretensions to constitutional supremacy (i.e., "the Constitution is whatever the Supreme Court says it is").

Ruffin

2003-09-29 03:07 | User Profile

That's certainly true, Fernando. A shyster is necessarily more of a realist than are most people.

Faust

2003-09-29 04:17 | User Profile

I do wonder Brown v. Board of Education gets so press and Shelley v. Kraemer gets almost none. If it had not been for Shelley v. Kraemer we could protect our families and kids in many areas.

Shelley v. Kraemer, 334 U.S. 1, 1948 [url]http://forums.originaldissent.com/showthread.php?t=9959[/url]

In the Dred Scott decision all the Court did was restate the law as it had been from the start of our nation.

Walter Yannis

2003-10-02 16:05 | User Profile

[QUOTE=Ruffin]That's certainly true, Fernando. A shyster is necessarily more of a realist than are most people.[/QUOTE]

I respectfully disagree with your assessment of Lincoln's legal acumen.

One cannot reasonably dismiss such a colossal political figure with mere epithets. Like him or not, Lincoln clearly possessed a powerful and penetrating intellect. He bent a nation of 60 million to his will, and set much of the course of history for the past (nearly) century and a half.

I think that words like "shyster" don't - ahem - take anything like a full accounting of those facts.

Speaking as a fellow attorney, I can only say that Lincoln was a fine trial lawyer. He won more cases than he lost, and he took on some tough cases. Lincoln is a fixture in the legal folklore, just as William Jennings Bryant and other great lawyers rightly are.

He was also, in my humble opinion, a deep legal thinker. His analysis of the Constitutional issues of his day were profound, and I think in most respects profoundly right. They certainly won the day - and there's nothing that proves genius quite like astonishing success from very humble beginnings, in my very humble Yankee opinion.

Lincoln was, perhaps most importantly, a rhetorician of towering genius. Agree with him or not, some of his speeches are widely recognized monuments of the English language. They're studied and memorized throughout the world. They were quoted by the Czechs in 1968 and the Chinese in 1989 (to name but a few). Lincoln's rhetorical genius places him among the greatest writers who ever lived - certainly among the greatest speech writers of history.

I think you're letting your feelings about the tragic events of the Civil War, and Lincoln's pivotal role in them, cloud your objective assessment of his very formidible abilities. I am sympathetic to some of the arguments against Lincoln's program and certainly his methods are subject to question, but I think that his brilliance is not open to serious dispute.

Lincoln was a political genius, pure and simple. His genius becomes more apparent as time goes on, as his influence - for good or for ill - echoes down the ages.

A gentleman, Ruffin, gives his enemy his due. I gently suggest that you are being less than entirely true to the chivalrous traditions of your own very great Section in your dismissive disdain this towering historical figure.

Warmest regards,

Walter

Walter Yannis

2003-10-02 16:16 | User Profile

[QUOTE]In the Dred Scott decision all the Court did was restate the law as it had been from the start of our nation.[/QUOTE]

I agree that the reasoning in Dred Scott contained an excellent summary of the good racial sense that was the hallmark of our young nation. There's no doubt in my mind that Lincoln himself agreed with that much of it. Nobody believed then (and, frankly speaking, nobody could reasonably believe now) that blacks and whites were as groups equal, or that it was in any way desireable that they should become fellow citizens.

The problem was that Justice Taney didn't limit his decision to the facts of the case, but rather reached out and struck down the underpinnings of the very tenuous compromise that had been struck between the sections regarding slavery in the territories. It was Taney's judicial activism that was the spark that lead to the Conflagration.

Walter

FadeTheButcher

2003-10-02 16:17 | User Profile

"Sovereign is he who decides on the state of exception."

-- Carl Schmitt, Political Theology

^^ truer words have rarely been spoken.

Ruffin

2003-10-05 23:02 | User Profile

[QUOTE=Walter Yannis]I respectfully disagree with your assessment of Lincoln's legal acumen.

One cannot reasonably dismiss such a colossal political figure with mere epithets. Like him or not, Lincoln clearly possessed a powerful and penetrating intellect. He bent a nation of 60 million to his will, and set much of the course of history for the past (nearly) century and a half.

I think that words like "shyster" don't - ahem - take anything like a full accounting of those facts.

Speaking as a fellow attorney, I can only say that Lincoln was a fine trial lawyer. He won more cases than he lost, and he took on some tough cases. Lincoln is a fixture in the legal folklore, just as William Jennings Bryant and other great lawyers rightly are.

He was also, in my humble opinion, a deep legal thinker. His analysis of the Constitutional issues of his day were profound, and I think in most respects profoundly right. They certainly won the day - and there's nothing that proves genius quite like astonishing success from very humble beginnings, in my very humble Yankee opinion.

Lincoln was, perhaps most importantly, a rhetorician of towering genius. Agree with him or not, some of his speeches are widely recognized monuments of the English language. They're studied and memorized throughout the world. They were quoted by the Czechs in 1968 and the Chinese in 1989 (to name but a few). Lincoln's rhetorical genius places him among the greatest writers who ever lived - certainly among the greatest speech writers of history.

I think you're letting your feelings about the tragic events of the Civil War, and Lincoln's pivotal role in them, cloud your objective assessment of his very formidible abilities. I am sympathetic to some of the arguments against Lincoln's program and certainly his methods are subject to question, but I think that his brilliance is not open to serious dispute.

Lincoln was a political genius, pure and simple. His genius becomes more apparent as time goes on, as his influence - for good or for ill - echoes down the ages.

A gentleman, Ruffin, gives his enemy his due. I gently suggest that you are being less than entirely true to the chivalrous traditions of your own very great Section in your dismissive disdain this towering historical figure.

Warmest regards,

Walter[/QUOTE]

All I can do is disagree, Walter. And no, I don't find it necessary to belittle the intellect of men I don't like. I just don't believe Lincoln was a great thinker. More like a Clinton, he was shrewd and convincing to those who automatically assume that high office is the mark of a great mind. An experienced car salesman can sell a wreck to a scientist or a philosopher.

Take Alan Dershowitz for example. He's certainly no dummy, but I don't regard him as a genius or even a great thinker. But he wins a lot of court cases. Hell, even George W. Bush has been convincing to most Americans, and what is he but a low-grade soft-sell Dershowitz?

Please don't think that I'm making Lincoln out to be an idiot. I'm not. Just not on par with most of his predecessors, yankee or not. I have little doubt that he was more credible as a thinker than most if not all of the men who followed him as presidents of the United States. Not a very big compliment, that.

Ruffin

2003-10-05 23:26 | User Profile

I don't know what came over me. I skipped the most realistic example, Jews in general. They're given credit for brilliance beyond most whites, by many of the people who know what a swindle they've pulled on the western world. Lincoln on a grand scale, it's. But they can't manage their shitty little country without American support, and most of their so-called accomplishments in things like the arts and sciences have been plagiarized from you-know-who.

This is the way I see Lincoln. Smart, crafty, deceitful, full of glossy and grandiose ideals on the outside, crude and contradictory on the inside. It does sound like something Jewish, doesn't it, sending Americans off to squelch the sovereignty of white men, in the name of high ideals? Who but Americans would be impressed by such a transparent power grabber?

Bardamu

2003-10-06 00:00 | User Profile

Some say that Lincoln planned to repatriate African-Americans to their motherland. If that is the case, then he isn't all bad. Other than that, curse his soul for presiding over the butchery of half a million White sons.

Fernando Wood

2003-10-06 02:00 | User Profile

[QUOTE=Bardamu]Some say that Lincoln planned to repatriate African-Americans to their motherland. If that is the case, then he isn't all bad.[/QUOTE]

This article from AMERICAN RENAISSANCE gives a good summary of Lincoln's racial views:

[url]http://www.amren.com/915issue/915issue.html[/url]

Abraham Lincoln and the Problem of Slavery Most historians prefer to ignore Abraham Lincoln's views on slavery and race. By today's standards he was an uncompromising white supremacist. by Edward Kerling In 1989, to celebrate the 25th anniversary of the Civil Rights Act of 1964, President George Bush invited a number a black leaders to the White House. In his remarks on that occasion, the President said he looked forward to the day when Abraham Lincoln's vision would be fully realized, and a black man would sit in the oval office. With all due respect for President Bush, one can say with complete confidence that Lincoln never envisaged a black president. He made it clear on many occasions that he abhorred the very thought of social or political equality for blacks, and that although he considered slavery an evil, he saw no future in America for free blacks. He thought that the races should be separated, and until the very end of his life he did everything within his power to remove blacks from the territory of the United States. The Abraham Lincoln of history is vastly different from “the great emancipator” whose racial views have been increasingly shrouded in myth. Views on Slavery Though he did not, himself, own slaves, Lincoln showed no marked antipathy for those who did. In his legal practice, before entering politics, he represented slaveholders in cases involving runaway slaves. During his career as a Whig Congressman, he mustered party support for the slaveholder Zachary Taylor's 1842 bid for the presidency. His wife, Mary Todd, was the daughter of one of Kentucky's most prominent slaveholders, and when the South seceded many of his in-laws went with it.

After he switched to the newly-formed Republican party and received its nomination for the presidency, Lincoln outlined his views on slavery in the famous Cooper Union speech of February 27, 1860. He endorsed Thomas Jefferson's view that slavery should neither be extended into new territories nor abolished in those regions where it was already practiced: “As those [founding] fathers marked it, so let it again be marked, as an evil not to be extended, but to be tolerated and protected only because and so far as its actual presence among us makes that toleration and protection necessary.” Speaking for his party, he said, “this is all Republicans ask-all Republicans desire-in relation to slavery.” I am not in favor of bringing about the social and political equality of black and white races. From today's perspective, such a position seems hopelessly ambiguous, and even at the time it was subject to attack. Anyone who described slavery as an evil sounded like an abolitionist, but the question all abolitionists had to answer was how to treat the slaves once they had been freed. Lincoln had answered this question during his 1858 campaign against Steven Douglas for the U.S. Senate. Abolition was a topic of much debate, but the notion of equality for blacks was resisted by most Americans. Douglas’ supporters tried to undermine Lincoln by spreading rumors that he was an egalitarian, but on September 18 he made his position clear, in words that sound quite shocking today: “I am not, nor ever have been in favor of bringing about in any way the social and political equality of the white and black races; I am not nor ever have been in favor of making voters or jurors of Negroes, nor of qualifying them to hold office, nor intermarry with white people.” The offices from which blacks were to be barred presumably included the presidency. Lincoln went on: “I will say in addition to this that there is a physical difference between the white and black races which I believe will forever forbid the two races living together on terms of social and political equality.” Lincoln, like many thoughtful people of his time, faced a serious moral and social dilemma. Chattel slavery was an abomination, but a multi-racial society of mutual equality was unthinkable. What, then, was the status of the black American to be? Was there a humane, ethical solution to this problem? Lincoln lived in an era in which even a politician could get a nickname like Honest Abe. In his analysis of the race problem-which was then, and still is, the most sensitive and controversial one facing the nation-he lived up to his reputation. As early as 1857, in a speech at Springfield, Illinois, he had struck the theme to which he would adhere for the rest of his life: "Let us be brought to believe it is morally right to transfer the African to his native clime, and we shall find a way to do it."
“There is a natural disgust in the minds of nearly all white people to the idea of an indiscriminate amalgamation of the white and black races. A separation of the races is the only prevention of amalgamation . . . “Such separation . . . must be effected by colonization . . . . The enterprise is a difficult one, but where there is a will there is a way, and what colonization needs now is a hearty will. Let us be brought to believe it is morally right to transfer the African to his native clime, and we shall find a way to do it, however great the task may be.” In Lincoln's mind, the establishment of colonies of blacks outside the territory of the United States was the only way to navigate between the twin evils of slavery and multi-racialism. After his election as President he used his office as best he could to follow this course. War-time Colonization Policy By the time Lincoln took the oath of office on March 4, 1861, seven southern states had already seceded. The nation faced an urgent crisis that many believed would plunge it into war. Only a month later, the Confederates captured Fort Sumpter and the conflict had begun. It is astonishing to realize that even at this time of great fear and turmoil, Lincoln was spending precious hours working out a colonization plan. The war was only a month old by the time he had prepared a five-point program to free the slaves and separate the races: (1) The states must voluntarily emancipate the slaves, because slavery was an internal matter, subject to state authority. (2) Slaveholders were to be paid for the loss of their property. (3) The federal government would give the states financial aid to help compensate slaveholders. (4) The actual freeing of slaves would be gradual, so as to prevent economic dislocation. Some states might wait until the year 1900 to free their last slaves. (5) Free blacks were to be persuaded to leave the United States and be colonized. Lincoln soon began looking for suitable territories for colonization. Ambrose Thompson, a wealthy shipping magnate, had gained control of several hundred thousand acres in the Chiriqui district of what is now Panama. He proposed to develop coal mines in this territory and to use colonized blacks as labor. Later, the blacks would work their own plantations of cotton, sugar, and tobacco. Lincoln appointed a special commission to investigate the feasibility of this plan. Late in 1861, while Thompson's plan was being studied, Lincoln personally drafted an emancipation bill for the state of Delaware. Delaware was a slave state, but it had only 1,800 slaves in 1860, and had decided to stay with the Union. Lincoln's proposal would have offered federal compensation to slaveholders, and the President hoped that it would become a model for the three other slave states that had stayed loyal to the Union. Eventually, he hoped to persuade the Confederate states to adopt the same scheme. To his disappointment, the bill was defeated in the Delaware legislature by a combination of pro-slavery sentiment and partisan conflict. Lincoln did not give up. In his first annual message to Congress on December 3, 1861, he proposed that all blacks who had fallen into the hands of Union forces should be deemed free. He proposed that “steps should be taken for colonies for them . . . at some place or places in a climate congenial to them. It might be well to consider, too, whether the free colored people already in the United States . . . could be included in such colonization.”

Just a few months later, in April, 1862, Lincoln succeeded in applying his freedom plan to the only portion of United States territory over which he felt the federal government had appropriate jurisdiction: Washington, D.C. The district's slaveholders were to be compensated an average of $300 for each of their 3,185 slaves, and an additional $100,000 was appropriated “to aid in the colonization and settlement of such free persons of African descent now residing in said District, including those liberated by this act . . . .” When he signed the bill, Lincoln noted with satisfaction that his two principal approaches to the problem of slavery-compensation and colonization-had been incorporated into the law. In July of the same year, Lincoln signed a bill that provided $500,000 for use by the President in colonizing blacks who fell into the hands of the Union army. This was in addition to the $100,000 voted earlier. Coming at a time when the war was going very badly for the North, and when the budget was swamped with military expenses, these appropriations suggest how fervently Lincoln desired the separation of the races. Lincoln did not hesitate to state his case directly to blacks. On August 14, 1862, he spoke to the first delegation of blacks ever to be invited to the White House: “You and we are different races. We have between us a broader difference than exists between almost any two races . . . . [T]his physical difference is a great disadvantage to us both, as I think your race suffers very greatly, many of them, by living among us, while ours suffers from your presence.” “It is better for us both, therefore, to be separated,” he concluded, and urged the delegation to find men who were willing to move, with their families, to Central America. Lincoln had even appointed a Commissioner of Emigration, Reverend James Mitchell, whose job it was to organize colonization. The day after the meeting with the black delegation the commissioner placed the following ad in newspapers: “Correspondence is desired with colored men favorable to Central American, Liberian or Haytien [sic] emigration, especially the first named.” He also issued a memorandum to black ministers, urging them to promote emigration. These measures met with some small success, and were supported by many whites. When a group of 61 blacks passed through Cleveland on its way to Boston for passage to Haiti, the Cleveland Plain Dealer wrote, “We hope the remainder of our dusky brethren will follow their example.” On September 12, 1862, five days before Lincoln issued the preliminary Emancipation Proclamation, the federal government signed a contract with Ambrose Thompson for colonization on the Thompson lands in Chiriqui. The contract included a signed statement from the President directing the Secretary of the Interior to execute the contract. The very day before issuing the Proclamation, Lincoln signed a contract for the resettlement of 5,000 free blacks on an Island near Haiti. Tragically, the contractor turned out to be a cruel swindler, who rounded up several hundred ex-slaves and left them on an uninhabited island, where most of them died. The Emancipation Proclamation In the Proclamation itself, made public on September 17, Lincoln repeated his desire to compensate slaveholders within the Union for the emancipation of their slaves, and to promote colonization.

However, this was only a proposal; the President made no attempt to free the slaves in the four slave states that had remained in the Union, nor in those parts of the Confederacy that were under Union control. The only slaves whom he unilaterally declared free were those in territory controlled by the Confederates, and who were therefore entirely beyond his power to free. Moreover, Lincoln promised the states of the Confederacy that their practice of slavery would remain unmolested if they stopped their “rebellion” within 100 days. By means of the Proclamation, Lincoln was clearly adhering to a policy he had spelled out in a letter to the New York Times less than a month earlier: “My paramount objective in this struggle is to save the Union, and is not to save or destroy slavery. If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all slaves I would do it; and if I could save it be freeing some and leaving others alone I would do that.” [Emphasis in the original.] Historians still wonder how Lincoln thought he could help save the Union by claiming to free slaves over whom he had no control. Some believe that he hoped to counteract the military benefits the Confederacy enjoyed by its efficient use of slaves. Others argue that he hoped to gain foreign credibility by giving the war a moral rather than a strictly geo-political purpose. It is also possible that he meant to head off radical abolitionists who wanted to emancipate all slaves unconditionally. In any case, it is clear that freedom for slaves was strictly subordinate to other purposes. It is no surprise, therefore, that in his next message to Congress on December 1, 1862, Lincoln had little to say about the Proclamation, and much to say about his favored plan: “That portion of the earth's surface which is owned and inhabited by the people of the United States is well adapted to be the home of one national family; and it is not well adapted for two, or more.” He continued: “I have urged colonization of the Negroes, and I shall continue. “My Emancipation Proclamation was linked with this plan . . . “I can conceive of no greater calamity than the assimilation of the Negro into our social and political life as our equal . . . “We cannot attain the ideal union our Fathers dreamed, with millions of an alien, inferior race among us, whose assimilation is neither possible or desirable.” Lincoln then went on to propose an amendment to the Constitution that would give Congress the power to appropriate money and send free blacks, with their consent, to places outside of the United States The Plan Fails This was not to be. Nor did the Thompson plan for Colonization in Chiriqui prove feasible. On September 5, 1862, a scientist reported that the Chiriqui coal was very low grade and that the land “will always be of little or no value to its owners.” Furthermore, no other country wanted the freed blacks. On September 19, the Washington representative of Costa Rica, Nicaragua, and Honduras denounced the attempt to cast upon Central America “a plague of which the United States desired to rid themselves.” The diplomat hinted that the territories he represented would use force to repel any colonizing expedition. Lincoln was forced to set aside his plans for colonization, but they remained an important part of his thinking. General Benjamin Butler reported a conversation with the President in early April of 1865, by which time the war had been won and Lincoln's assassination was only a few days away. Lincoln said to him, “But what shall we do with the Negroes after they are free? I can scarcely believe that the South and the North can live in peace, unless we can get rid of the Negroes.” Lincoln then spoke of Butler's experience in moving large numbers of men by sea, and mentioned that the United States had a large navy. He asked Butler to draw on his wartime experience and devise a plan to send blacks overseas. Throughout his presidency, therefore, Lincoln tried to implement the plan outlined by Jefferson: gradual emancipation, compensation to slaveholders, colonization of freed blacks, and the promotion of white immigration to take the place of black labor. It is only by means of the most willful disregard for the historical evidence that Lincoln can be construed as a champion of racial equality. In his mind, emancipation was linked to colonization, and he might well have opposed it if he had thought that free blacks would remain in the United States. There is a sad irony in the fact that our current President should be so ignorant about his predecessor's thinking as to believe that Lincoln looked forward to the day when the United States would elect a black to its highest office. To be sure, Lincoln did meet the first black delegation ever to visit the White House-but only to urge them and their brethren to leave the country forever. Today, thinking about race is so clouded that it obscures even the past. Edward Kerling lives in Michigan City, Indiana.