Judge Dennis Davis
Abraham Lincoln: The Law and Democracy
Judge Dennis Davis | Abraham Lincoln: The Law and Democracy
- Thank you and good evening to everybody, from a freezing rainy Cape Town where our awful winter continues. This lecture on Abraham Lincoln, which I’ve entitled “The Law and Democracy” is part of a series that Trudy asked me to do about lawyers. She asked me, would I mind lecturing to you on those lawyers who’ve, in some ways, changed the world. Pretty obvious that there were two really great names immediately that struck home to me, one was Abraham Lincoln, tonight’s topic, the other was, of course, Mahatma Gandhi, who we will deal with too. And I thought I couldn’t, as at this time, coming up to the American election and with everybody’s attention on the United States of America and on the Supreme Court of the United States of America, I couldn’t resist having a third lecture on somebody who is one of my judicial heroes, Thurgood Marshall. And so he will be the third. There may be others but those are the three planned. And, of course, in dealing with Lincoln, I can’t possibly give you a comprehensive lecture on Lincoln. There’s just too much to be said. It is said that there are 16,000 books which have been published in relation to Abraham Lincoln and related topics. So, as it were, one has to sort of be very selective. And what I wanted to do was not just give you a biography of Lincoln, but to sort of look at him, this great American president, iconic figure in history, and ask, what does he tell us about today? And particularly, what does he tell us about the law and democracy? Because he was really in the midst of a crisis in which both of these particular concepts, both law and democracy, were clearly focal points of his career and the crises which he faced. And I’ve spoken at some length over many sessions of Lockdown University, about the concern in relation to the erosion of commitment to the rule of law and to democracy.
It’s interesting, for example, on this topic that the very, very fine chief economist of the “Financial Times,” Martin Wolf, has been running a series of podcasts on the future of democracy in various countries. So it seemed to me to be totally opportune to talk a little bit about Abraham Lincoln’s concept of law and democracy. But I’m going to start with, well, perhaps one of the most famous speeches ever delivered, certainly one of Lincoln’s great speeches, certainly ranks with the other great speech of 1858, “A house against itself cannot stand.” But this, of course, is the Gettysburg Address. And so can we have the text? It’s worthy just looking at the text yet again. And so the text reads: Fourscore and seven years ago, our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war, testing whether that nation or any nation so conceived and so dedicated, can long endure. We are met on a great battlefield of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that the nation might live. It is altogether fitting and proper that we shall do this. And then he goes on: But in a larger sense, we cannot dedicate, we cannot consecrate, we cannot hollow, this ground. The brave men, living and dead, who struggled here, have consecrated it, far beyond that power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here.
It’s for us, the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It’s rather for us to be here dedicated to the great task remaining before us, that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion, that we here highly resolve that these dead shall not have died in vain, that this nation, under God, shall have a new birth of freedom, and that government of the people, by the people, for the people, shall not perish from the earth. Just a bit of context before we go into the obvious. Battle of Gettysburg was fought between the 1st of July and the 3rd of July 1863, which is one of the bloodiest battles of the United States Civil War. Some 51,000 casualty, soldiers killed, injured, otherwise lost action, combined. 3,100 US troops were killed. 3,900 Confederates died. The US victory there marked, unquestionably, a turning point of the Civil War. President Lincoln was asked to deliver a message at the dedication of the Gettysburg Civil War Cemetery on November 19, 1863. The featured speaker for that occasion wasn’t Lincoln. It was Edward Everett, former dean of Harvard University. He was regarded as one of the famous orators of his day. He spoke for two hours. Then came Lincoln with 272 words which took two minutes. As we see in the text, he tied the current struggle to the days of the signing of the Declaration of Independence, speaking of the principles that the nation was conceived of, in liberty and the proposition that all men are created equal. And he tied both the abolition of slavery, the new birth of freedom, and the maintenance of representative government.
Despite its brevity, since the speech was delivered, we all know that it’s one of the most powerful statements in the English language. Maybe one of the most powerful statements in relation to expressions of freedom and liberty in any language. Indeed, Everett afterwards wrote to Lincoln, and he said, “I wish that I could flatter myself that I’d come as near to the central idea of the occasion in two hours as you did in two minutes.” It is an utterly remarkable speech. I mean, I remember we had to learn, some of us had learn this up at Harvard School even in South Africa. And when I read it now again in preparation for this lecture, it just struck me, as we fight in the world for democratic principles and for a government that doesn’t, as it were, serve a few selfish people but actually the nation as a whole, country as a whole, the citizens as a whole. Just how, in 1863, Lincoln could have captured that? “Government of the people, by the people, for the people,” they’re simple words, but what do they mean? And they certainly mean this, that if you’re going to have a democracy, as the American founders thought it should be, with all the imperfections of their thought and with all the qualifications that you have to deliver in relation to the context in which they’re conceived of the Declaration of Independence, know this, that what they had in mind was a government which was going to be staffed by the ordinary people of the land, that it would serve the people, and it was basically for them.
And you have to ask, how far have we gone from that and how much threat is that particular concept under at the moment? Seems to me, as I listen to so much of the debates on various elections around the world, when I listen to, for example, to Wolf podcasts and read about democracy and law, you’ve got to ask yourself, to what extent that which was said all those years ago, over 160 years ago, is still too modern for our modern world? So who was this man who ultimately uttered these immortal words? He had a relatively short life because of course his life was quite short in 1865 when he was assassinated. But his dates were 1809 to 1865. He was the 16th president from 1861. It’s very important, I think, to understand that Lincoln was born into poverty in a log cabin in Kentucky. It was a central feature which I shall come back to. He became a Whig leader and a lawyer, initially, and only reentered politics in 1854 at the age of 45 because of what was called the Kansas-Nebraska Act, which had promoted the concept of slavery and which enraged him. Just of interest, the Whigs, of course, just for clarification, were a very, very powerful force in the 1830s. They were in opposition to then President Andrew Jackson. They were committed to the rule of law, to meritocracy. They advocated far weaker presidential powers, certainly not the presidential powers that would’ve allowed the president to be immune from all sorts of actions which had nothing to do with this presidency. They were in favor of protective tariffs, and they were particularly concerned to have federal subsidies for infrastructure. They didn’t last long because by 1852, effectively, they had collapsed as a political force of any import, particularly over the question of slavery, with the Northern Whigs, very much anti-slavery, and Southern Whigs in favor.
Lincoln emerges in this context, moves out of the Whig as it were, party, and of course, then becomes the president from 1861. He became really famous because of seven debates which he had with Stephen Douglas for the Senate seat in 1858. They mainly focused on slavery, and flowing therefrom, the famous speech of “The House Divided” was actually delivered by Lincoln. And the point I’m trying to make here, and by the way, those speeches, which are of course available, are very, very well worth reading. And if I had more time, I would sort of devote time to discussing them. But my theme this evening is to say, well, before, as you’ve said, before he became president, before he reentered politics 1854, Lincoln was essentially a lawyer. And what was it about the law which ultimately characterized Lincoln? What was it about the law that shaped the approach that Lincoln had to the crises which unfolded under his 16th presidency? Now he became a lawyer in 1837, right, and effectively, despite the fact that they’d gone to politics, rarely was a lawyer until 1860 when he was nominated for president, there’s no doubt that the Douglas-Lincoln debates had much to do with his ascendancy. One of his biographer said, quote: Although a good lawyer, it’s doubtful if Lincoln held the law in any higher esteem than his colleagues; in fact, it looked, sometimes, as if he lost sight of its standing or value as a profession and viewed it rather as a vocation, simply as a means of gaining a livelihood. Judges Stephen T. Logan and David Davis were far more deeply absorbed in it in a profession, but it was only that it might yield them greater financial returns, because both of them were careful and ambitious men, both accumulating comfortable fortunes in contrast to Lincoln.
One of his partners was quoted to say: I easily realized that Lincoln was strikingly deficient in the technical rules of law. Although he was constantly reminding young legal aspirants to study and “work, work,” I doubt if he ever read a single elementary law book through his entire life. It seems to me, to be honest, some of the experience I get among some of the lawyers that appear in front of me, but let me read on: In fact, I may truthfully say, I never knew him to read through a law book of any kind. Practically, he knew nothing of the rules of evidence, of pleading, or practice, as laid down in the textbooks, and seemed to care nothing about them. He had a keen sense of justice and struggled with it, throwing aside forms, methods, and rules, until it appeared pure as a ray of light flashing through a fog-bank. It’s the keen sense of justice rather than the technical aspects of law which I want to just emphasize, if I may. And, of course, the fact that he’d been a Whig, as I described it, before he had ascended the Republican party, was said that he was a Whig before he was a lawyer. His law practice paralleled his affiliation with a Whig party from the time he was licensed to practice law until 1855. He shared the Whig enthusiasm for market capitalism. He endorsed Whig programs of internal improvements and tariffs that have encouraged economic development.
“The Whig Party,” said another biographer, “attracted lawyers because of the congruence between the Whig commitment to order and tradition and the lawyers’ attachment to order and precedent.” Understandably, Mr. Lincoln’s closest associates were not only lawyers but who were also Whig politicians who became Republican leaders, men like William H. Herndon, David Davis, Leonard Swett, Henry Clay Whitney, Stephen T. Logan, et cetera. Law and politics were closely intertwined for all of them. But what is interesting is that, again, Lincoln as a Whig politician favored a developmental economic agenda, developmental state, if you want to use the modern term. But he’s a Whig lawyer, he did not advance this agenda. His primary focus was this concept of justice for which clearly Lincoln had a very, very strong sense. The sense of justice was captured in the following passage where a Springfield resident, A. F. Lord, remembered being told by a client, and I quote: Mr. Lincoln was seated at his table in court, listening very attentively to a man who was talking earnestly in a low tone. After the would-be client had stated the facts of his case, Mr. Lincoln replied, “Yes, there is no reasonable doubt, but that I can gain your case for you. I can set a whole neighborhood at loggerheads. I can distress a widowed mother and her six fatherless children and thereby get for you $600 which you seem to have a legal claim to, but which rightfully belongs, it appears to me, as much to the woman and her children as it does to you. You must remember that some things that are legally right are not morally right. I shall not take your case, but I will give you a little advice for which I’ll charge you nothing. You see, to be a sprightly, energetic man, I would advise you to try your hand at making $600 in some other way.” I wonder how many lawyers today would hold to that view, but the point of what I’m trying to say is Lincoln had worked in the law, but it was a sense of justice. It was a sense that law was not there for exploitation.
Law wasn’t there to use the problem term to employ as a law firm in order to gain that which morally you were not entitled to. In short, Lincoln, to use the jurisprudential term, was very much captured by the concept of natural law, the idea that there was a congruence between law and morality. And if the law and morality were distant cousins which hadn’t met for a long time, he was very reluctant to take the case where the law might dictate one answer but morality wouldn’t, and the famous example I’ve given you is testimony to that precise point. Let me say, then, something about Lincoln and democracy. I’m told by some of the reading I have done that the word democracy doesn’t appear very often in the collective writings of Abraham Lincoln. One author that I consulted suggests that you’ll only find 137 references in all of Lincoln’s writing, to the concept of democracy. But the fact of the matter is that when you say that government of the people, by the people, for the people shall not perish from the earth, you effectively already saying that, which is central to the democratic vision and enterprise. And his confidence in democracy was based in three kinds of evidence. First was his own experience of the opportunities made possible by America’s commitment to equal opportunity and hostility to rigid hierarchies, his perception of how that openness enables others whom he admired to rise and contribute to American life. Secondly was natural law, the notion that law had a moral content to it. Many of you who’ve studied law will have indeed come through those particular debates, the extent to which morality infuses the law and that if there is a fundamental divergence between core moral values and the law, the law must give way.
And of course, in this particular set of lectures we’ve had over a long time now in Lockdown, many of you would’ve heard lectures on the Nuremberg Trials. I myself have given about international human rights law, and we’ve dealt with the case of judgment in Nuremberg. All of you will know that some of the debates there were the extent to which even if the German judges and lawyers could rely during a Nazi period on the precepts of Nazi law, of the text of Nazi law, the fact was to what extent, if that law was so, so distant from any common conception and morality of humankind, could you argue that it was law? The famous German philosopher Gustav Radbruch who argued that when it simply took the form of law without the content thereof because there was no moral content, it wasn’t law. And Lincoln’s conception of law was certainly based on natural law, which required a kind of democratic equality, which required a dignity of all human beings, and which required respect for all human beings. And thirdly, his third commitment to democracy was based on the American story, past and indeed the future, which seemed plainly to him to describe a movement towards a democratic conception of social and political life. Again, the text which is staring you in the face tells us exactly that, that we were a new nation conceived in liberty and dedicated the proposition that all men, I know that there’s only men there, the language was somewhat sexist in those days and for probably more than 150 years thereafter, but then all people are created equal and again, that the society we wanted was that government of the people, by the people, for the people. And so those were the three fundamental concepts that Lincoln held onto.
So even if the word democracy only appeared 137 times, that and of course its congruence as well with his career as a lawyer and his reluctance to take cases which would’ve given a result, which might be favorable to his client but certainly wasn’t favorable to the conception of justice. And then there was something else about Lincoln, and I’ve mentioned this already, which again is absolutely vital to understand in so far as he was concerned, which is that for Lincoln, the fact hat he himself had come from an absolutely poor background and he was able to arise the way he did, it was an absolutely central feature of his philosophy and of his life. For that, it was absolutely very, very important. He said this in 1864. He told an Ohio regiment outside the Executive Mansion: I am living witness that any of your children may look to come here as my father’s child has. It’s in order that each of you may have through this free government which we have enjoyed, an open field and a fair chance for your industry, enterprise, and intelligence; that you may all have equal privileges in the race of life, with all its desirable human aspirations. And he often said that, you know, he was “not ashamed to confess that 25 years ago,” talking in 1860, “I was a hired laborer, mauling rails, at work on a flatboat, just what might happen to any poor man’s son.” And therefore, in America, he argued there was no artificial restraint of class or state, “every man can make himself.”
He’d been “a strange, friendless, uneducated, penniless boy,” but in a democratic air of America, the “prudent, penniless beginner in the world, labors for wages awhile, saves a surplus with which to buy tools or land for himself, then labors on his own account another while, and at length hires another new beginner to help him. ” So he really did encapsulate, certainly with a capitalist idea, that everybody should have a fair chance and that he himself was evidenced to that particular fundamental proposition that the United States was not to be predicated on some kind of inheritance elite, but rather on a meritocracy. And for him, the reason why natural law was so important is because he source of that in the Declaration of Independence, the sense that natural law had hardwired certain natural rights into every human consciousness and “amongst these are life, liberty, and the pursuit of happiness.” The “love of liberty” was an instinct, he said, “which God planted in our bosoms.” It’s a love that is “a heritage of all men, in all lands, everywhere.” For Lincoln, the enjoyment of these rights could only exist fully within democratic framework of self-government. Natural rights were, quote, “a standard maxim for free society, which should be familiar to all, and revered by all; constantly looking to, constantly labored for”; they rendered “a doctrine of self-government, right, absolutely and eternally right,” and effectively therefore. Even during the war, even during this extraordinary civil war in which he was centrally involved, he said a number of things which are worth repeating, “is not slavery universally granted to be a gross outrage on the law of nature? Have not all civilized nations, our own among them, made the slave trade capital, classed it with piracy and murder? Is it not held to be the great wrong of the world?” Right? He then went on to say that as far as he was concerned, there would always be a vindication of democracy.
He said, the “popular principle, applied to government,” said this in December 1861, has produced an increase in everything “which men deem desirable” to continue to do so “if firmly maintained for the future.” Americans must “diligently apply the means,” he wrote like an old-school Presbyterian exhorting his congregation said, to use “the means of grace” to obtain salvation, “never doubting that a just God, in his own good time, will give us the rightful result.” But that result, if achieved, would, “we hope and believe liberate the world.” It’s very, very interesting that in this kind of religious natural rights conception of law and democracy that Lincoln had, that he’s argument was that essentially, we had to fight for it. I’m reminded of something which is repeated often on CNN, which is a quote from Barack Obama when he’s asked by Christiane Amanpour, will democracy survive, and he said, yes, but only if we fight for it. And it seems to me that that’s what Lincoln was saying and my goodness was he in a fight for it because of the Civil War. Now, it’s also interesting in relation to the Civil War and I think this is the other set of points I wanted to draw out. And here I rely very heavily on a wonderful book by one of my favorite historians Eric Foner, F-O-N-E-R, “The Fiery Trial: Abraham Lincoln and American Slavery” in which Foner explores Lincoln’s role in the ending of slavery in the United States. It’s an extraordinarily wonderful book which is well worth the read and which I reread again because I wanted to refresh my memory on certain things.
And what Foner says in this book which is so important, is that Lincoln came into office not expecting to be the great emancipator of the United States of America. Yes, he was deeply anti-slavery. Yes, as I’ve indicated in so far in this lecture, he had spoken many times before the Civil War of the ultimate extinction of slavery. There’s no doubt about that. But Lincoln wasn’t effectively, when he started off as president and certainly in his earlier days, he wasn’t entirely certain as to what the line of march should be. And there’s no doubt that for all sorts of reasons, Lincoln starts to change as the war ensues. In other words, as the war ensues, Lincoln, who still had that Whig idea of improving the economic development of all, believing in the market, believing in the fact that a slave who is a labor has being denied the fruits of his labor, all of that obviously central to Lincoln. But it is also true that when he starts, he’s not 100% certain as to what the end result should be. And I think why I’m trying to emphasize this, because what Foner says is the following: When Lincoln died, he was a very different man intellectually, politically, even emotionally than he was at an earlier time in his career. It’s not that surprising, I suppose, given the monumental crisis he and the nation gone through. In the 1840s, we remember the Whig party, he hated slavery. There’s absolutely no question in my mind that Lincoln hated slavery, but it wasn’t a priority to him. He certainly wasn’t an abolitionist. Right, Foner.
Right. In other words, he was opposed to the westward expansion of slavery, hence the Kansas and Nebraska Act to which he opposed. But he saw no way within the national political system that a politician like himself could actually do anything about slavery with a state institution. The Constitution did not give Congress any power over slavery in the states where existed, moreover sought as a disruptive issue, as a threat to the stability of the Union. But by the 1850s, he changed. The issue of the westward expansion of slavery had become the number one question in American politics. He sees the expansion of slavery as a disruptive question threatening the Union. It’s during this particular time that he makes a series of brilliant speeches in exchange with Steven Douglas, who of course was in favor of slavery and he was against it. And that’s when, of course, he argues that if we’re going to be a house divided, we’ll never, ever actually survive. And then it’s during the Civil War when he has to act on slavery, not talk about it. He starts to move very rapidly. And of course, he starts by virtue of the fact that he issues the Emancipation Proclamation, which of course has a logic to it ‘cause it puts Black men in the army, the Black people are going to become citizens of the United States. He accepts this and therefore, he certainly, by the end of his life, talked about at least some Black men, especially former soldiers, having the right to vote in a reconstructed South.
So what is astonishing about Lincoln is the extent to which we find somebody not frozen in time, someone who hated slavery but it wasn’t the priority, someone who, as he becomes president, gets more and more consumed by it and moves away from this extraordinary idea that the American society should not be predicated in colonization, which means what you want to do is expatriate all Black people back to Africa rather than have them in your country. And then as a sort of dabbling in that idea, which Clay also had, until such time as Lincoln, the true Lincoln, if you wish, the Lincoln before his death is of course somebody who’s now moving towards the idea of Black citizenship, particularly for those in the South, and had incorporated Black soldiers in a fairly dramatic move. So all of that is really remarkable. Now, of course, when we get towards the end of the war, Lincoln is now deeply committed to ensuring that this Emancipation Proclamation, which he had issued and which ultimately, was a proclamation which did away with slavery but only by virtue of proclamation, was itself vulnerable. Because in January 1865 is of the view that as the war’s going to end, the courts might well set aside the Emancipation Proclamation and so much of the fighting, which had been done precisely for the dedication, which is in the text of the Gettysburg Address, would ultimately be rendered nugatory.
And it’s because of that that Lincoln now institutes a whole range of initiatives in order to pass the 13th Amendment to the United States Constitution, thinking beyond the wall, so as to make sure that constitutionally, slavery could no longer darken the doorsteps of the United States, whether it be north or south. And what I want to play for you, if I may, since this has been far too long a monologue by me and not giving you some breakup of other stuff, is I want to refer to two clips from that remarkable 2012 film “Lincoln,” where Lincoln is played by Daniel Day-Lewis, who won another Oscar, and deservingly so, for that extraordinary performance in “Lincoln,” a film that if you haven’t seen, you must see and in which of course was directed by Steven Spielberg. So can we just look at the first of the clips, the two clips I have, where they are actually debating now this extraordinary battle to move beyond the Emancipation Proclamation, which was a temporary relief against slavery, to a permanent conception of a constitutional amendment, that the 13th Amendment, which would’ve ensured for all time that slavery could not be part of the American fabric. And of course, it was not an easy, it was not an easy fight. So let’s just listen to this one, the first of the two clips I have for you.
Our members to a fare-thee-well. You’ve had no defections from the Republican right to trouble you, whereas as to what you promised. Where the hell are the commissioners?
Oh, my God. It’s true. You, you lied to me. Mr. Lincoln, you evaded my request for a denial that, that there is a Confederate peace offer because, because there is one! We are absolutely guaranteed to lose the whole thing and we’ll be discredited.
We don’t need a goddamn abolition amendment!
The amendment itself-
Leave the Constitution alone!
What if the peace commissioners appear today or, or worse, on the morning-
State by state, you can-
I can’t listen to this anymore. I can’t accomplish a goddamn thing of any human meaning or worth until we cure ourselves of slavery and end this pestilential war! And whether any of you or anyone else knows it, I know I need this! This amendment is that cure! We are stepped out upon the world stage now. Now! With a fate of human dignity in our hands. Blood’s been spilled to afford us this moment. Now, now, now! And you grousle and heckle and dodge about like pettifogging Tammany Hall hucksters! See what is before you. See the here and now. That’s the hardest thing, the only thing that accounts. Abolishing slavery by constitutional provision settles the fate for all coming time, not only of the millions now in bondage but of unborn millions to come. Two votes stand in its way. These votes must be procured.
We need two yeses, three abstentions, or four yeses and, and one more abstention and the amendment will pass.
You got a night and a day and a night and several perfectly good hours. Now get the hell out of here and get 'em!
Yes. But how?
Buzzards’ guts, man. I am the President of the United States of America, clothed in immense power! You will procure me these votes.
Okay, great. Thank you, thank you. The extraordinary thing about this is, as I indicated to you, Lincoln had come from a Whig background which of course was circumspect about the power of the precedence. But as I indicated, he changed considerably throughout the enterprise. And to a large extent, yes, he started off, I noticed this looking at some of the questions, he started off thinking that the preservation of the Union was a paramount because as I indicated earlier, his commitment to slavery was there but it wasn’t quite what it was at the end. And here he is, using the full authority of the presidency to basically bulldoze the members of his party, get out and get the votes to ensure that we actually can win. It’s interesting. Of course, he’s not the only president who ever did that. In fact, a lot of the criticism of some of the president in United States of America but they didn’t use it enough, and the one who did so brilliantly, particularly in getting the Civil Rights Act passed, was of course Lyndon Johnson. That’s a story of its own. It is interesting as we reflect on this, by the way, that the time all this was happening, particularly the Emancipation Proclamation, somebody who I’ve spoken about before, Karl Marx, writing in the “New York Tribune” in London that time, said about the Emancipation Proclamation, that the constitutional war is over, the Revolutionary War has now begun.
What he really meant was the war changed from one of army against army to a war to fundamentally transform southern society of which slavery was the foundation. And again, then, to refer to Foner, quote: If you are going to abolish slavery, that opens up all these other questions. What system of labor is going to replace slave labor? What system of race relations is going to replace the race relations of slavery? Who is going to have power in the post-war South? The emancipation doesn’t answer that question. It throws, it’s open and therefore the amendment becomes absolutely important to say we now have a consensus in our society about what our society should look like. And there’s no doubt that as I’ve indicated in this lecture, Lincoln’s conception of law promoting the dignity of all, conception of democracy that it was supposed to be of the people, not just of some of the people, not just of a few of the people, all the people, that was central to his enterprise. And I’m going to close this lecture then with a second quote, a second clip from, again, from this remarkable performance by Daniel Day-Lewis, what an actor, you have to admit, which essentially perhaps summarizes so much of what I’ve been trying to say. We can have the next clip?
We have no legal basis for that discussion. But I don’t want to deal falsely. The Northern states will ratify, most of `em. As I figure, it remains for two of the Southern states to do the same, even after all are readmitted. And I been working on that.
Tennessee and Louisiana.
Arkansas too, most likely. It’ll be ratified. Slavery, sir, it’s done. If we submit ourselves to law, Alex, even submit to losing freedoms, the freedom to oppress, for instance, we may discover other freedoms previously unknown to us. Had you kept faith with democratic process, as frustrating as that can be-
Come sir, spare us at least these pieties. Did you defeat us with ballots?
How’ve you held your Union together? Through democracy? How many hundreds of thousands have died during your administration? Your Union, sir, is bonded in cannonfire and death.
It may be you’re right. But say all we done is show the world that democracy isn’t chaos, that there is a great invisible strength in a people’s union. Say we’ve shown that a people can endure awful sacrifice and yet cohere. Mightn’t that save at least the idea of democracy, to aspire to? Eventually, to become worthy of? At all rates, whatever may be proven by blood and sacrifice must’ve been proved by now. Shall we stop this bleeding?
With that point he makes, if we lose one freedom, what is left for us?
Q&A and Comments:
Q: Now there’s a question asked of me, which I need to answer, which is of course quite right. Question was posed was how do you reconcile the notion of Lincoln’s commitment to natural law and his suspension of the writ of habeas corpus, of course, which also gave rise to a massive further showdown between the then Supreme Court Justice Roger Taney, a dreadful human being who had written the majority opinion in Dred Scott in 1857, which Lincoln, of course, had attacked publicly in all his debates with Stephen Douglas. And of course the question was, how do you actually rationalize the notion of suspension of habeas corpus?
A: And it’s very difficult for me to answer that, I mean, is it right that he should have done that? Well, the answer is, of course in war, one is entitled to do certain extreme things. If you look, for example, at the South African Constitution, which just gives you, which is a modern progressive constitution committed to all sorts of rights and freedoms, I should tell you that we have a state of emergency clause in which if the proper procedures are followed, rights can be suspended in the case of a state of emergency. All democratic countries would have that. Whether in fact Lincoln was correct to do that, of course, has been debated. And it’s a difficult question, but I just want to say, because of course you’re balancing rights on both sides, but I think there is a primary responsibility at some point when the very fabric of the society is being threatened to the extent whereby our violence is going to ensue and people are going to destroy the society of which you’re part, that exceptional powers under very restrictive circumstances should be permitted. And I think that’s the context in which the Lincoln suspension of the habeas corpus is justified.
And that basically, I think I’ve answered the questions. Thank you very much. Our next lecture will be, we’ve got two on Marshall and we’ve got one on Gandhi. And of course, interesting enough, at Gandhi, we’ve also got a film which can show us quite a lot. Now, I want to end by saying, I want to end by saying that I wasn’t giving this lecture just to give a biography. I was trying to reflect on the notion that can we really say that in our politics today, that discourse is such that the defense of democracy and the rights of all people, in fact, in a society are being sufficiently articulated? And there’s no doubt about it. There’s an article today that I read in the “New York Times” about how desperately divided the American society is between if you wish, those who susceptible to the Trump rhetoric as opposed to those who sort of increasingly embraced more and more progressive rights.
And the tragedy about it is that it just reminded me that a house divided ultimately is a house that will fall. And I suppose Lincoln’s answer to that and what we take from Lincoln here is that politicians should have the courage to understand that there are foundational values upon which a society is based, which is that all are created equal and that you should have a government by the people, for the people, of the people, and that if you start to assume autocratic and authoritarian tendencies, as Lincoln said in that clip, before you look around, you’ll destroyed better than you know. Thank you very much to everybody.