“Lincoln” is an extraordinary movie which will get a small pile of Oscars if there’s any justice in Hollywood. Yet, one monologue, the central speech in the movie, that lays out why it is so important to Lincoln to get the 13th Amendment passed before the war ends, is fascinating and worrisome. Daniel Day-Lewis delivers the following as Lincoln to his cabinet:
I decided that the Constitution gives me war powers, but no one knows just exactly what those powers are. Some say they don’t exist. I don’t know. I decided I needed them to exist to uphold my oath to protect the Constitution, which I decided meant that I could take the rebels’ slaves from ‘em as property confiscated in war. That might recommend to suspicion that I agree with the rebs that their slaves are property in the first place. Of course I don’t, never have, I’m glad to see any man free, and if calling a man property, or war contraband, does the trick… Why I caught at the opportunity.
Now here’s where it gets truly slippery. I use the law allowing for the seizure of property in a war knowing it applies only to the property of governments and citizens of belligerent nations. But the South ain’t a nation, that’s why I can’t negotiate with ’em. So if in fact the Negroes are property according to law, have I the right to take the rebels’ property from ‘em, if I insist they’re rebels only, and not citizens of a belligerent country?
And slipperier still: I maintain it ain’t our actual Southern states in rebellion, but only the rebels living in those states, the laws of which states remain in force. The laws of which states remain in force. That means, that since it’s states’ laws that determine whether Negroes can be sold as slaves, as property – the Federal government doesn’t have a say in that, least not yet – then Negroes in those states are slaves, hence property, hence my war powers allow me to confiscate ‘em as such. So I confiscated ‘em.
But if I’m a respecter of states’ laws, how then can I legally free ‘em with my Proclamation, as I done, unless I’m cancelling states’ laws? I felt the war demanded it; my oath demanded it; I felt right with myself; and I hoped it was legal to do it, I’m hoping still.
Two years ago I proclaimed these people emancipated – “then, thenceforward and forever free.” But let’s say the courts decide I had no authority to do it. They might well decide that. Say there’s no amendment abolishing slavery. Say it’s after the war, and I can no longer use my war powers to just ignore the courts’ decisions, like I sometimes felt I had to do. Might those people I freed be ordered back into slavery? That’s why I’d like to get the Thirteenth Amendment through the House, and on its way to ratification by the states, wrap the whole slavery thing up, forever and aye. As soon as I’m able. Now. End of this month. And I’d like you to stand behind me. Like my cabinet’s most always done.
There’s a lot to contemplate in this speech. While I doubt Lincoln ever said words to this effect to anyone (I’d be happy to be proved wrong), I think is does capture to a large degree my understanding, such as it is, of his thought process. Lincoln was a big-picture guy, who sought principles first, then backed into actions from those principles. But he chose principles based on, it seems, gut-level intuitions about what was right. Therefore, when faced with complex and contradictory principles – such as the law very frequently presents in practice, and the Civil War presented in perhaps the most spectacular manner in American history – rather than sift through them coolly and rationally and weigh them *as principles* apart from the issue at hand, he would see how principles opposed to his overriding goals could be bent to achieve those goals. This speech seems to capture that very well. (Aside: the use of ‘felt’ instead of ‘thought’ in the above speech sounds anachronistic – I think it unlikely that a 19th century American political leader would expect people to care about how he felt rather than what he thought about legal or political issues. Could be wrong, but it does sound funny.)
Several states had signed the Constitution on the *express* understanding that they could secede if they so desired. At the time – 1789 – no one made a fuss, at least not a big enough fuss to derail approval of the Constitution. Lincoln decided that the Union preceded the Constitution in some cosmic sense – that ‘preserving the Union’ was the highest principle for the President, the man sworn to uphold the Constitution. Therefore, other considerations – states rights, freedom of the press, habeas corpus – could and should be ignored or suspended in pursuit of the highest goal of preserving the Union. So, in effect, the Constitution could be suspended, at least in part, to achieve defense of the Constitution, understood as preservation of the Union. While this view is not unsympathetic, it brings to mind the claim that the village must be destroyed in order to save it.
Certainly, Lincoln was in a tough spot no matter which way we slice it. And, since we all seem to agree with his gut feelings about what is right, we tend to overlook how dubious his logic is in many places. The important thing, we say, is Justice: slavery was such an overwhelming injustice screaming out to Heaven that Lincoln – or any man – is justified in whatever he may do to end it. As the speech above suggests, Lincoln would ‘catch at the opportunity’ even if the mechanism by which he justifies his acti0ns are questionable.
In the hands of a man of deep morals and honor such as Lincoln, perhaps we can hope the powers seized will be used only for good, or at least only toward some ultimate good like ending slavery. But the same concepts, having shed the rhetorical splendor Lincoln vested them in, lurk in the claim: “We can’t wait for Congress to do its job, so where they won’t act, I will.” This is the anthem of the rule of men, not law.