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. Continue reading “Panel 2 The Lawyer Presidents: Lincoln, Obama & the Rule of Law”

Panel 1 Lincoln, Executive Power & The Modern Presidency

Marisa Floriani, Managing Editor of the Government Law Review Fireplace Blog

Lincoln and Executive Power — Hon. Frank J. Williams, Chief Justice, Rhode Island Supreme Court 

          Hon. Frank J. Williams opened the symposium with “the U.S. suffered an unexpected attack.”  As he described the state of America during war time, he drew parallels between Abraham Lincoln and George W. Bush.  As a member of the audience, I couldn’t help but think – the more things change, the more things stay the same.  Hon. Williams highlighted the difficult legal position any president is placed in during war time.  He brilliantly stated that a doctor gives a sick man medicine that he would not give a well man, and the same logic should be applied for the power a president exerts during war time as opposed to a time of peace.

         During the Civil War, Lincoln increased the army and navy, appropriated money, declared a blockade, and, most controversially, authorized the suspension of the writ of habeas corpus.  These acts required congressional consent; however, Lincoln completely bypassed that requirement.  According to Hon. Williams these were Lincoln’s necessities in order to handle the “northern realities.”  So what was Lincoln’s constitutional basis to suspend the writ of habeas corpus? 

            Hon. Williams described two cases that reflected Lincoln’s view of the Constitution.  First, Lincoln acted then he went to Congress for ratification.  Lincoln had realized he had stretched his power, but Lincoln acted out of necessity.  Second, Lincoln criticized the Albany Democrats for invoking safeguards, for it was Lincoln’s belief that their arguments would have been stronger if the safeguards had been placed during wartime.  Therefore it is clear from Hon. Williams’ discussion that it was Lincoln’s belief that war-time presidents should be allotted certain flexibilities, and Lincoln acted accordingly.

       Although his actions may have eventually been deemed unconstitutional, Lincoln has been forgiven by society.  Does this mean that one day society will forgive George W. Bush for his decisions in war time?  Only time will tell.

  Continue reading “Panel 1 Lincoln, Executive Power & The Modern Presidency”

Lincoln’s Legacy: Sobota Lecture Featuring Lewis E. Lehrman

Marisa Floriani, Managing Editor of Government Law Review Fireplace Blog

           Thomas Guernsey, President and Dean of Albany Law School, gave a brief opening remark to the Government Law Review’s Symposium: Lincoln’s Legacy.  Although he described the connections Albany Law founders had to Abraham Lincoln as “a powerful group of Albany Law attorneys,” it is not a phrase that has to be limited to men and women of Albany Law’s past.  Starting tonight and continuing until 5pm on Thursday, October 1st, “a powerful group of Albany Law attorneys” as well as attorneys and spectators from across the region and country will gather at Albany Law to discuss the expansion of executive power. 

          On Wednesday night, Lewis E. Lehrman, whose educational accomplishments include a B.A. from Yale University and a Masters in History from Harvard University, spoke at the Sobota Lecture as part of the Government Law Review’s Symposium.  He articulated a spectrum of Lincoln’s political career, focusing mainly on Lincoln’s “extraordinary speech” at Peoria, Illinois.  It was at Peoria that Lincoln debated Senator Stephen Douglas about the constitutionality and morality of slavery.  Lehrman told the story of Lincoln’s struggle with America’s hypocrisy – it was the land of the free and home of the brave, but only for white males.  Although present day society can understand the inherent evil in slavery, it took a free, brave white male of the past to argue for those who had no political voice.  Lincoln’s opponent at Peoria, however, believed that his role should merely represent the American popular vote – that slavery was an accepted practice.  But Lincoln believed that slavery was a moral wrong, and he hoped that the American dream could be, in fact, colorblind.  But that is what made Lincoln different; that is what made Lincoln unique; that is what made Lincoln iconic – he saw the integrity in the law and spoke out for the inalienable right that all men were, and are, created equal.

          Lehrman described how farmers, townspeople and visitors gathered to hear the debate between Douglas and Lincoln at Peoria.  Although Lincoln would have felt peace witnessing Martin Luther King, Jr.’s “I Have a Dream” speech or the election of the nation’s first African American President Barack Obama, he probably would have enjoyed the practice that people still gather to discuss the ideologies of politics, government, and law.  Lincoln would have made an honorable lawyer today, for he had a strong moral code with a pure and clear understanding of the law.  Lehrman stated that Lincoln was jealous of those with law degrees; therefore, we owe this symposium to Lincoln and his legacy to freely discuss the controversial issues inherent in the law.  Please join the Government Law Review to observe and participate in the debate panels on October 1st at Albany Law School in the Dean Alexander Moot Court Room at Albany Law School.