Honor the Man, Not the Demi-God

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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.

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Reacting to Lincoln

In my previous post, I wrote about a talk that I had recently given about Lincoln.  I had not expected it to be terribly controversial – in fact, I wondered whether it was such common knowledge that it was not worth reporting.

But there is something about Lincoln that leads people to react in extreme ways.

Let me start with the long criticism by the first commenter, which is then endorsed by the second commenter.  The comment goes on and on, in an extremely intemperate way. The principal complaint appears to be that I took Lincoln at his word and did not conclude that he repeatedly lied to the American people about his views on slavery.  For this, I am accused of somehow not respecting Lincoln.  I would think if I had accused him of lying, without any foundation, that I would be open to criticism.  But apparently the opposite is the case.

The funny thing is that my post did not suggest that Lincoln personally approved of slavery or would not have liked to have eliminated it more quickly.  Quite the contrary.  As I said, “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.”

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Lincoln: Slavery, Sovereignty, and Secession

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.

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The Thirteenth Amendment as a Conservative Counterrevolution

  In “If Slavery Is Not Wrong, Nothing Is Wrong,” I proposed that the Civil War was fought to restore the original unity of the Declaration of Independence and the Constitution, and that the Thirteenth Amendment, adopted in 1865, was the culmination of that colorblind restoration. In the antebellum period, opponents of slavery could not specify what would result once slavery was ended. Would free blacks have equal rights? Vote? Intermarry with whites? Thus did Stephen Douglas mock Abraham Lincoln. The post-bellum answer of universal freedom nonetheless preserved much of the antebellum distinction between being anti-slavery and being anti-black. While Black Codes prevailed…

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Section 4 of the Fourteenth Amendment and Compensation for Emancipation of Slaves

Today, one of the least-discussed aspects of the Emancipation Proclamation is whether it gave rise to a takings claim. The Proclamation was enacted under Lincoln's war powers, whereby he seized property (slaves) in the rebel states, and then emancipated them. Apparently, many southerners sought to raise takings claims against the Federal Government. Similar claims were lodged following the ratification of the 13th amendment. At the time, Congress estimated that the cost of compensating the emancipated slaveowners was somewhere between $1.6 billion and $2 billion, roughly half of the total value of all property (real and personal) in the south. Section 1…

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This Republic of Federalism

Timothy Sandefur’s The Conscience of the Constitution contributes to the debate over the best way to limit the powers of the United States government in order to secure liberty. Sandefur, a lawyer and legal scholar, believes that Conscience“American constitutional history has always hovered in the mutual resistance of two principles: the right of each individual to be free, and the power of the majority to make rules.” (1) For Sandefur adherence to the natural rights theory of Declaration of Independence manages the tension between the two principles.

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Slave Property in the Old South

This quarter, I assigned Liberty, Equality, Power in the U.S. history survey. I might try another book next year because it’s getting to be too expensive for the students. Anyway, it’s a solid book. Reading over the chapter on "The Old South, 1790-1850," I stumbled over this bit, describing the deep South: "Slaves under the task system won the right to cultivate land as ‘private fields'—farms of up to five acres on which they grew produce and raised livestock for market. There was a lively trade in slave-produced goods, and by the late 1850s slaves in the lowcountry not only produced and exchanged…

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Friday Roundup, December 6th

What should be the purpose of the for-profit corporation? Debate over this question has ignited yet again, and is the subject of this month's Liberty Forum. George Mocsary's lead essay "The Future of Shareholder Wealth Maximization" argues both that shareholder wealth is the bedrock of corporate law and for the efficacy of shareholder wealth as the norm for corporate activity in that it affords individuals the best possible latitude and security for entering into productive association with one another. Alexei Marcoux has the first response essay "For Shareholder Wealth Maximization, Against Corporate Purpose." Cynthia Williams, co-editor with Peer Zumbansen, of…

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Slavery, Abortion, and the Politics of Constitutional Meaning

Slavery, Abortion, and the Politics of Constitutional Meaning

This Liberty Law Talk is with political scientist Justin Dyer on his latest book, Slavery, Abortion, and the Politics of Constitutional Meaning (Cambridge University Press, 2013). In debates over the legality of abortion common opinion has focused on the connections between the legal treatment of slavery in the nineteenth century and the contemporary status of abortion as a fundamental right. Dyer takes this debate as his starting point but goes much deeper by showing the layers of constitutional, political, and philosophical meaning linking slavery and abortion in the American experience. This conversation covers the ground of the Dred Scott opinion,…

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The Peculiarity of the Three-Fifths Rule

The three-fifths rule of the Constitution treated slaves as three fifths of a person for purposes of representation and direct taxation. This provision is puzzling in many ways (above and beyond its connection with slavery). One common way it has confused people is that people often regard the Clause as problematic because it did not treat slaves as 5/5 of a person. But if the Clause had treated slaves in that way, it would not have harmed but benefited slave states, since slave states would have enjoyed more representation in the Congress and the electoral college. But I am puzzled by…

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