Panel 2 The Lawyer Presidents: Lincoln, Obama & the Rule of Law

Robert Magee, Former Managing Editor of the Fireplace Blog

         Panel Two was entitled The Lawyer Presidents: Lincoln, Obama, and the Rule of Law.  It featured three speakers, each of whom strove to connect the lessons of Lincoln’s Presidency to the problems faced by the Obama Administration.  The first was Dr. Timothy Huebner, Associate Professor of History at Rhodes College, the second was Dr. Thomas C. Mackey, Adjunct Professor of Law at the University of Louisville Brandeis School of Law, and the third was Anthony Paul Farley, the James Campbell Matthews Distinguished Professor of Jurisprudence at Albany Law School. 

            Dr. Huebner’s talk was entitled The Supreme Court and the Presidency: Lincoln/Taney and Obama/Roberts.  In it he outlined the revolution in America’s understanding of the Constitution that Lincoln represented.  Symbolically, it was a revolution against the constitutional view Chief Justice Taney represented when he swore in President Lincoln in March of 1864.  Dr. Huebner began by noting that the swearing in of President Obama was the first in which a Chief Justice swore in someone who had voted against his appointment to the Supreme Court.  As we all remember, this was an awkward moment. 

            This awkwardness was nothing compared, Dr. Huber noted, to Chief Justice Taney’s swearing in of Lincoln.  Taney had spent his career as both a politician and a judge promoting a Jacksonian constitutional understanding, an understanding typified in his opinion in Dred Scott v. Sanford.[1]  It was a view that considered individual liberty and political power to be inherently opposed to one another.  It was a view which generally opposed centralization of power and which viewed the right to own property as the cornerstone of individual freedom.  Thus, Chief Justice Taney held in Dred Scott that a slaveholder’s individual right to own and use his property trumped federal prohibitions against the spread of slavery in the territories.  Dr. Huebner stressed that Taney’s holding that the Constitution had been written by the Founders on the understanding that slaves were to be property and not citizens was not the crucial concern of Taney’s, no matter how essential it was to its logic.  It was this idea of individual liberty which informed Taney’s jurisprudence and which led him to conclude that government’s role under the Constitution was a limited one.  In Dred Scott Taney had memorialized his most fundamental political inclinations and, in doing so, brought constitutional jurisprudence to the head of a movement that began under Jackson in the 1830s.

            Conversely, Lincoln had built his political career in opposition to Dred Scott.  Lincoln’s view of the Constitution was that it provided government the authority and duty to engage in internal improvements to maintain internal equality and that the Founder’s had written the Constitution with the purpose of suffocating slavery over a period of time.

            Thus, Dr. Huebner concluded, when Taney swore Lincoln in he was anointing as President the man who would undue everything Taney worked for in his public life.

            Dr. Huebner went on to explain just how Lincoln came to the constitutional understanding that made this undoing possible.  Lincoln had three fundamental political convictions.  The first was that the role of government was to improve the lives of Americans and furnish and protect equality of opportunity; the second was a deep respect for the rule of law; and the third was an abiding belief in the Declaration of Independence as the penultimate articulation of American values.  When it came to slavery, it was the second two convictions that created problems.  Dr. Huebner characterized Lincoln’s ideological conundrum as that of reconciling the Constitution’s clear endorsement of slavery with the ideals of equality espoused in the Declaration.   He resolved these by the argument just mentioned: that the Founders had only included slavery in the Constitution as a compromise and that they had maimed the institution via the Constitution so that it would eventually simply disappear.  Dr. Huebner concluded that this reconciliation, while it made sense constitutionally, caged Lincoln’s opposition to slavery within an argument purely against the rights of slaveholders to own slaves and prevented him from being able to argue that slaves themselves had a right to freedom.

            This is why Lincoln’s steps against slavery were that of the government taking property away from people and were not the pure emancipation of human beings from a state of slavery.  This further explains the temerity of the Emancipation Proclamation insofar as it declined to free slaves in slave states which had not joined the confederacy.

            The culmination of Lincoln’s second two convictions met his first in Merryman[2], a case in which a Lieutenant in Maryland’s Cavalry challenged the government’s suspension of habeus corpus.  Here, we had Lincoln’s belief in a pro-active government empowered to circumvent individual liberty to correct injustices coming up against Taney’s[3] belief in a limited government which was not empowered to so act, all arguments about injustice notwithstanding.  The result is a legacy of Lincoln’s which Dr. Huebner stresses as having a significant effect on our view of government and the Constitution today.  

            Lincoln’s victory on the point in Merryman (though he lost the case, but merely ignored the ruling) manifests itself in America’s government’s proactive role in race relations in the past 100 years.  By imbuing American politics with the consensus that government has the power to enforce and shape the liberties of individuals in the interests of justice, Lincoln committed American politics to nearly 150 years of pro-activity as opposed to the passivity that Taney and the jurisprudence he represented would have preferred.

            Dr. Thomas C. Mackey’s talk was entitled Civil War Era Constitutional Amendments and their Impact Today.  Dr. Mackey referred to the Civil War Amendments (the Thirteenth, Fourteenth, and Fifteenth) as a second constitution unto themselves.  They marked the ascendancy of the political convictions outlined in Dr. Huebner’s comments and constituted a radical reorientation of America’s promise to its citizens.

            This promise, Dr. Mackey said, was best articulated in a speech Lincoln gave to Midwestern soldiers who were passing through Washington D.C. on their way home during the height of the Civil War.  In the speech, Lincoln thanked them for their service and outlined exactly for what it they had sacrificed.  The purpose of the war, Lincoln argued, was the maintenance of America’s government as a free one.  The essence of a free government, Lincoln went on to say, was its reduction of artificial obstacles to people’s rising in American society according to their ability.  This kind of emphasis on a free society was informed by Lincoln’s own experience as someone who grew up without any advantages and who by sheer force of will and hard work became the most powerful man in the country.

            This prioritization of equal opportunity and the government’s role in fostering it were enshrined in the Thirteenth, Fourteenth, and Fifteenth Amendments.  In the Thirteenth we have the first empowerment clause, as Dr. Mackey pointed out.  The Thirteenth gives Congress a blank check when it comes to enforcing the Amendment’s prohibition of slavery.  The Fourteenth Amendment established a federal floor for citizen’s rights, a line which, if crossed, would trigger federal authority to intervene in the interest of the equalization of opportunity.  We see the same augmentation of governmental authority in the Fifteenth Amendment, though the Fifteenth Amendment marks the limits of Lincoln’s constitutional revolution.  Instead of establishing that all Americans are entitled to the right to vote, it merely forbids states to deny the right to vote based on race, one of many artificial obstacles.  Lincoln’s belief in the reduction of artificial obstacles is furthered, but not to the extent of forbidding states from denying the right to vote by some other means.

            The end result of Lincoln’s revolution, Dr. Mackey concluded, was a “new birth of freedom”, one which truly marked a new era in American history, but which did so while maintaining the forms of government which had ultimately led to the outbreak of the Civil War.  It was incomplete, in this sense, and so inconsistent and it is an inconsistency which we grapple with to this day.

            Professor Farley was the third and final speaker.  His talk was entitled Obama’s Election and the Emancipation Proclamation.  He set out to interpret Lincoln’s Emancipation Proclamation in way that would inform President Obama’s efforts to address racial inequality in America. 

            Prof. Farley began with the statement that “the Emancipation did not take place.”  He stressed the difference between legal and human emancipation, the first being a mere change in law and the second being an appreciable freedom on the part of those supposedly emancipated.  As a corollary to this argument, he posited that Americans were still not truly free.  As the Black Panther George Jackson put it — if you can’t fly to Paris tomorrow, you’re not free.  The point being that economic forces have retained a system of economic slavery which persists to this day.

            This is evidenced by the lack of “freedom dreams”, a documented and realizable understanding of freedom, which Prof. Farley contends would exist had slaves truly been emancipated.  Instead, slaves exchanged traditional slavery for an economic slavery which manifested itself in two ways.  The first was in the law of contract.  Prof. Farley notes that after slavery was made illegal, slaves were taught to contract and insodoing largely resumed work for the same people who had enslaved them.  Abiding by the law of contract, it was said, was the duty former slaves owed the nation for the blood sacrifice made for their freedom.  Thus it was that ex-slaves traded one set of chains for another. 

            The second form was in the nature of criminal law.  It was on this point that Prof. Farley rested much of his discussion.  One of the ways in which ex-slaves were managed after the Civil War was through vagrancy laws which essentially made being poor and landless a crime.  These laws allowed the State to enslave ex-slaves for their own purposes.  This was typified by the gangs of imprisoned blacks who were chained together and forced to make roads during Reconstruction.  The criminal justice system, Prof. Farley points out, enslaves more blacks now than were enslaved at the time of independence and it does so largely through the use of property and contract crimes.

            The criminal justice system subsists today in the same way it subsisted during Reconstruction: on the fear of citizens.  Prof. Farley dismisses the argument that prisons provide a practical value by pointing out that most prisoners leave prison worse criminals than they had been when they entered and that, as such, prisons make us only more prone to crime.  Instead, they exist in service of a fetish of fear which is bound up in other evil fetishes, the root of which is the belief in the inevitability of capitalist inequality which permits some of us to fly to Paris tomorrow, as George Jackson put it, while forbidding others.

            This is a point that President Obama and many of his supporters among the black elite fail to get, Prof. Farley argued.  This was most evident in the arrest of Henry Louis Gates.  Prof. Gates is one of President Obama’s staunchest and most prominent supporters among the black intellectual elite.   As Prof. Farley noted, in the days after President Obama’s inauguration Prof. Gates stated in a radio interview that the years of slavery, struggle, and pain suffered by American blacks was a worthwhile price to pay for the inauguration of a black president.

            The ridiculousness of this argument is apparent, Farley notes, and only possible if Prof. Gates fails to identify with those black who actually suffered the injustices which Obama’s inauguration is alleged to have defied.  Prof. Gates is among Marxist historian W.E.B. Du Bois’s “talented tenth”, an upper crust of blacks who would provide an example and goal for the remaining nine tenths and would lead them to a true Emancipation from slavery.  Those, like Prof. Gates and President Obama, in the “talented tenth” have only two options with respect to the remaining nine tenths when considering the failure of Emancipation in the proliferation of the criminal justice system and the reigning property regime.  They may either move to abolish the criminal justice system or merely distinguish themselves from the remaining nine tenths and attempt to avoid their own enslavement.  It is the fact that the “talented tenth” so often settle for distinguishing themselves which constitutes the failure of the “talented tenth” idea, a failure which Du Bois himself acknowledged in the final ten years of his career.

            This failure is evident in both Prof. Gates’ arrest and in Obama’s speeches to the remaining nine tenths.  In the first case, we see Prof. Gates’ being mistaken for one of the other nine tenths.  Thus, social parity with whites is not achieved even through their efforts to distinguish themselves.  It has become not merely “driving while black” but “being while black” which draws the suspicion of society.  President Obama’s speeches to the remaining nine tenths (which Prof. Farley described as “moving on up” speeches) encouraging blacks to rise out of the ghetto and join the “talented tenth” mark another side of the failure.  The problem with this sentiment, Prof. Farley noted, is that it does not address the fact that we have ghettos in the first place.  In both cases we see the failure of emancipation and the continued enslavement of blacks.

            The solution, Prof. Farley argued, is not merely a rejection of slavery, but a rejection of the property regime which made slavery possible and which exists to this day.  This, in turn, would require us to reconstitute our economic relations and to abandon our fear of crime and insodoing abolish prisons.  This abandonment of fear is the lesson of Lincoln’s presidency that Prof. Farley laments President Obama and the “talented tenth” has failed to recognize.

Edited by Marisa Floriani


[1] Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857).

[2] Ex parte Merryman, 17 F. Cas. 144 (1861).

[3] Though the case was heard in the Federal District Court of Maryland, Chief Justice Taney sat for the case and authored the opinion in it.

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Filed under 1983 Litigation, Constitutional Law, Criminal Law, Equal Protection, Federalism, Human Rights, Legal History, Lincoln's Legacy, Uncategorized

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