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“If Slavery Is Not Wrong, Nothing Is Wrong”

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Could anything be clearer than the Thirteenth Amendment? A model of succinctness, it reads in full:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

From its modest yet revolutionary text some contemporary legal commentators have derived governmental power to address every category or practice that involves a form of discrimination or inequality: racial profiling, poverty, migrant workers, pregnant women (for abortion rights), and more.[1] Such a Thirteenth Amendment might devour the rest of the Constitution, marking the demise of constitutional government that protects individual rights, as any means would be justified to attack every ill that might have some relationship to freedom. The fight to end slavery would have become the fight to end freedom.

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Is Putin a New Hero of the Right?

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Silvio Berlusconi Meets With Vladimir PutinWhich President advocated the following conservative notions in his State of the Union Address? Restoring local government, reviving charities, freeing business from regulation, denouncing the education bureaucracy, tightening the borders, and strengthening “the values of traditional families.”

Contrast this with a more progressive President whose State of the Union Address emphasized raising the salaries of academics and doctors; calling for frank discussion of race relations, declaring a “year of culture,” and increasing trust in the government—while never mentioning God.

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The Sacred Sounds of Lincoln’s Gettysburg Address

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On the afternoon of November 19, 1863, President Abraham Lincoln delivered a brief address at the dedication of a national cemetery on Gettysburg’s battlefield. The solemn ceremony took place four and a half months after Union forces turned back the army of the Confederate States on July 1-3 in the bloodiest engagement of the Civil War. The battle claimed the lives of nearly eight thousand soldiers. Lincoln’s carefully crafted address was barely 272 words in length and required approximately two minutes to deliver. It is widely acclaimed as one of the most poignant and eloquent speeches in American letters.

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Twilight of the American Republic

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Twilight of the Republic

This next Liberty Law Talk is a conversation with Justin Litke on his new book, Twilight of the Republic. Our conversation focuses on the book's attempt to situate twentieth century claims of American Exceptionalism within the context of the political symbols and public meanings that are revealed in significant political documents stretching back to the Mayflower Compact and forward to Albert Beveridge's 1900 Senate speech "In Support of American Empire." Along the way, we discuss the Declaration of Independence, Federalist Papers, the Constitution, and the presidency of Abraham Lincoln in order to better understand Litke's powerfully argued claim that the…

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Fomenting Crisis, Forsaking the Constitution

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Of all the vapidities behind the claim that President Obama can invoke the 14th Amendment to raise the debt ceiling unilaterally, the crowning asininity must be the comparison of this to the Civil War and of him to Lincoln.

Lincoln himself tried to warn us that the greatest threat to liberty in future generations would be demagogues trying to play Lincoln when the times did not require it. Burke, for his part, tried to tell us that exceptions—and the Civil War was most certainly that—were not rules.

Sean Wilentz evidently got neither memo before writing an op-ed in the New York Times urging the President, who to his credit has rejected such calls, to “invok[e] the Constitution in this emergency.” By this Wilentz at first seemed to mean the debt clause of the 14th amendment—except that, to pay careful attention to his argument, he didn’t.

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Does the President Possess the Prerogative? Part III: The Constitution’s Limited Substitute

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In my first two posts on the presidential prerogative, I discussed the nature of the prerogative and then argued that the text made the prerogative illegal. In this third post, I want to discuss what powers the Constitution does confer on the President to deal with extraordinary situations.

Imagine that one is in the situation that Abraham Lincoln faced in the early days of the Civil War, when Lincoln felt the need to suspend the writ of habeas corpus while Congress was not in session, even though the Constitution pretty clearly allows only the Congress to suspend the writ.  In this situation, there are three potential liabilities that the President has to worry about.  First, the President will be subject to impeachment for acting unconstitutionally.  Second, the officer who the President orders to arrest and/or imprison the individual may be subject to a civil suit for damages.  Third, the President himself might be subject to a civil suit for damages.  (It is true that in modern times caselaw has provided qualified immunity for officials and absolute immunity for the President but these have been invented by the courts and therefore are legally problematic.)

In the case of impeachment, the President can have the person arrested and imprisoned, and then simply take the risk that the Congress will impeach him.  The President knows that he has done something illegal, but he argues that it was necessary for the good of the nation. There is no immunity for the President here, but if he makes a convincing case, the Congress may choose not to impeach him.  He will have violated the law, but there will be no action taken by Congress to discipline him.  In this way, the Constitution allows him to take extraordinary actions, but forces him to bear the risk that his action will be seen as illegitimate and will be sanctioned.  The Constitution therefore gives the President a strong incentive to make sure he is taking an action that will be seen as legitimate.

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Does the President Possess the Prerogative? Part I: Characterizing the Power

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I recently was at a Liberty Fund Conference where the issue of whether the President – in particular, Abraham Lincoln – enjoyed a prerogative. Some of the other participants argued that the President possessed a prerogative. My basic position is that the President does not have this power, but that he possesses a substitute which can serve the same function in a superior way.  I plan to address this question in three related posts.

In the Second Treatise, John Locke describes the prerogative as:

This power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it, is that which is called prerogative: for since in some governments the lawmaking power is not always in being, and is usually too numerous, and so too slow, for the dispatch requisite to execution; and because also it is impossible to foresee, and so by laws to provide for, all accidents and necessities that may concern the public, or to make such laws as will do no harm, if they are executed with an inflexible rigour, on all occasions, and upon all persons that may come in their way; therefore there is a latitude left to the executive power, to do many things of choice which the laws do not prescribe.

One set of questions involving the prerogative is whether it is legal, illegal, or some how distinct from the question of law. That is, does the Constitution legally authorize the violation of other laws in special circumstances? Or does the Constitution require the President to follow such laws, in which case his prerogative actions are illegal. Or finally is the prerogative somehow distinct from the Constitution and laws in some unspecified way?

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Obama as Originalist Orator

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obama lincolnMuch of President Obama’s speech commemorating the 1963 civil rights March on Washington deserves praise–or at least admiration. Speaking from the Lincoln Memorial, he began by reciting the most famous lines from the Declaration of Independence. He reminded his cynical audience that the cause of civil rights comes from the heart of our national existence. And he reinforced that principle by later quoting Lincoln, in his brief speech on the meaning of the Declaration, that “the weights should be lifted from the shoulders of all men, and that all should have an equal chance.”

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War by Fiat: A Response to Stephen Knott

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A Reply to Stephen Knott’s “War by Lawyer”

Proponents of the Global War on Terror are often quick to instruct us that terrorism represents a new threat demanding new thinking—both tactically and legally—except, that is, when it better suits their argument to invoke precedent, in which case terrorism becomes just another act of war to be fought like wars always have been. Steve Knott is one of the few advocates of a militarized terrorism policy to whom we can look for consistency: He believes terrorism is an act of war and that our response to it is war, simply. The problem is that terrorism is different.

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The Necessity of Memorial Day

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Most of our national holidays have some connection with the Civil War. Memorial Day has the most direct relationship, as an expression of national unity between North and South. The remembrance reminds us that a nation cannot be reduced to an army nor to a marketplace. Plato in the Republic and human experience show how the political community embraces those necessary purposes and others beyond them, which fulfill the higher purposes of life. As individuals and as nations we live for those higher purposes.

On the eve of the Civil War Abraham Lincoln plead with the Southern States to renounce secession and remain in the Union. He concluded his First Inaugural with these haunting lines:

I am loth to close. We are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection. The mystic chords of memory, stretching from every battle–field, and patriot grave, to every living” heart and hearthstone, all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.

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