In his sane and thought-provoking Liberty Forum essay about immigration, Richard Samuelson argues that “America’s very essence” may well be “at risk” because of “two challenges to our status as a nation of immigrants.” They are “the rise of the mega-state” favored by Progressives, and “the rise of a post-national ideal” that “threatens to undermine the understandings that have made assimilation a duty and an obligation.”
David Brooks’ recent column on the relative friendlessness of Americans’ lives captures something of the way we live now. But his idea of establishing summer camp-like meetings of diverse people to plant the seeds of friendship seems clumsy. Abraham Lincoln had civil society thoughts, too; Brooks quotes philosophers but misses out by not referencing Lincoln, who saw the potential in such get-togethers as county fairs, lyceums, and Fourth of July gatherings. Whereas Brooks focuses on the here and now, Lincoln thought of this socializing as rooted in a past that deserves veneration.
Three hundred and seven years ago, Englishmen and Scotsmen brought forth, upon the British Isles, a new Union, conceived in English insecurity and Scottish impecuniosity, and dedicated to the proposition that the two peoples, if not equal, at least had more in common than either did with the French.
The original Anglo-Scottish Union of 1707 was a “political necessity for England, a commercial necessity for Scotland,” as one historian put it. For contemporary champions of Union, the necessities that were the mother of its invention are as pressing as ever.
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. 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.
Which 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.
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.
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…
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.
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.
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?