Between the breathless whispers that Judge Neil Gorsuch intends to impose either medieval Catholicism or, worse, Oxford sensibilities from the bench through the mechanism of natural law and the fear that he might otherwise glide into the legal positivism of which Justice Scalia was unreasonably accused lies another possibility: The Constitution can neither be interpreted through natural law nor reduced to positive law. It is more profitably understood as fundamental law.
What is American civil religion? And has it been distorted to the extent that it has undermined our nation's foreign policy? The eminent historian and scholar Walter McDougall, author of the new book, The Tragedy of U.S. Foreign Policy, joins this edition of Liberty Law Talk to discuss these questions.
Americans are united in professing respect for the Constitution, but they are deeply divided over what it actually means and how it ought to be interpreted. These disagreements have roiled our public life for decades. Everybody who follows politics knows about the clashes between the liberal proponents of judicial activism and the conservative defenders of judicial deference. These arguments go on and on, with neither side succeeding in persuading the other of the superior merits of its theory. Faced with this ongoing deadlock, we wonder if there is any way to achieve unity on the meaning of the Constitution.
On the centennial of Lincoln’s birth, February 12, 1909, Booker T. Washington delivered an important speech before the Republican Club of New York City. His “Address on Abraham Lincoln” deserves to be better known. Not only does it provide an astute assessment of the Great Emancipator’s virtues and legacy, but it demonstrates the ability of a talented statesman to deploy the memory of Lincoln to meet pressing needs of the moment.
My previous posts for Law and Liberty examining Abraham Lincoln’s use of the Bible in the Gettysburg and Second Inaugural addresses generated interest that far exceeded my expectations (and those of the editor). These were primarily descriptive rather than critical assessments of the propriety of Lincoln’s references or allusions to Scripture in these celebrated orations. Space constraints did not allow me to explore other issues of interest to me, such as the perils of deploying religion in political—often partisan—rhetoric.
Lincoln died 150 years ago today. Some time ago, I visited a jeweler’s shop in Northern Virginia and noticed that all the wall clocks were set at 7:22. The shopkeeper had done this because that was the time of the morning on April 15, 1865 when Lincoln expired.
People honored, and honor, his memory for having saved the Union but also for what he might have done to bind up the nation’s wounds after the war was over. For during the war Lincoln had developed an approach that had the best chance of meeting the challenge of Reconstruction, what he called “the most difficult question of practical statesmanship.”
The death last month of Leonard Nimoy reminds me of the time when Nimoy’s great character, Mr. Spock, met Abraham Lincoln. It was in 1969, in the third season of Star Trek, and the episode was called “The Savage Curtain.”
A bizarre race of rock-like creatures, the Excalbians, stage “spectacles” with other life forms, to study the effects on them and to glean their philosophies. They reincarnate history’s bad guys and pit them against two creatures who have wandered into their ken, the captain of the starship Enterprise, James T. Kirk, and Spock, the Enterprise’s science officer.
Team Evil is an assemblage of ruthless conquerors: Genghis Khan, Zora of Tiburon, Kahless the Unforgettable (said to be “the Klingon who set the pattern for his planet’s tyrannies”), and Colonel Green, a charismatic master of deceit responsible for the genocide of 37 million people in World War III (and a clear stand-in for Corporal Hitler). They have been promised their hearts’ desire—power—if they win.
In his Second Inaugural Address, Lincoln reprises the brevity and complexity that has made his Gettysburg Address so well known and so cherished. He also reprises the Biblical allusions and spirit that animated some of that earlier speech. But the tone is strikingly different. For us, the speech rings tragically in our imaginations because of its author’s fate—known well to us, but as yet unknown to him. Lincoln’s Second Inaugural is framed in terms of eternity and clouded by the inscrutability of God’s mind. It takes this perspective because of his very different aim: unity in the aftermath of approaching victory.
This past week, I gave a talk (along with colleague Maimon Schwarzschild) on Abraham Lincoln at the San Diego Law Library as part of their exhibit on the former President. My talk was entitled “Lincoln: Slavery, Sovereignty, and Secession,” but unfortunately due to time constraints, it was mainly on slavery.
My main point about Lincoln is that his views on slavery were very “moderate” up until the point at which he issued the Emancipation Proclamation. As a matter of policy, Lincoln favored ending slavery, but he wanted such emancipation to be gradual, compensated, popularly enacted, and followed by colonization. In Lincoln’s defense, he believed that any stronger position would have been rejected by the American people and therefore this was the best that could be accomplished for the slaves.
By contrast, there were the abolitionists of the time – people who favored immediate emancipation of the slaves. The abolitionists included William Lloyd Garrison, who believed the Constitution was a deal with the slavemaster devil, and Lysander Spooner, who believed that the Constitution forbade slavery. But the groups associated with both of these men were considered extremists and represented only a small portion of the population.
American political science has lost a significant contributor with the demise of Harry V. Jaffa (1918-2015). We mourn the death of Professor Jaffa, and acknowledge that there will be many celebrations of his life and scholarly achievements to appear, especially from his epigones. Important contributions from Ken Masugi and Peter Lawler have already appeared in this space. As a mentor, Jaffa inspired a large number of graduate students who have assumed posts in the academy and government. We call many of these scholars our friends, and continue to appreciate their interpretative approaches and defense of the American political tradition.
He should also be remembered by those of us who disagreed with him.