Balkinization  

Thursday, October 05, 2006

Abraham Lincoln as Myth and Symbol

Sandy Levinson

Bill Moyers has published an eloquent denunciation of the current political scene in a piece called "Lincoln Weeps," and another law professor has asked "Where is Today's Lincoln" with reference to Lincoln's willingness, at the cost of his nascent political career, to challenge the legitimacy of the Mexican War in 1847. This is all fine and good, but we should be extremely wary about embracing Abraham Lincoln as the potential cure for the most truly fundamental debate we are having today, which concerns the very shape of the American constitutional system. The central danger to American constitutionalism does not come from pedophiles or people who are on the take from corporate interests, objectionable as both are; it comes from dedicated patriots--think John Yoo and David Addington, for starters--who have a radically different conception from many of the rest of us as to how to respond to genuine problems posed by genuinely evil people.

So we should be prepared to address the possibility that "today's Lincoln" is in the White House, i.e., a president determined to use every conceivable power at his disposal, including extravagant interpretations of the "Commander-in-Chief" power, to impose his vision of politics and justice on the nation and world. I have long believed (and written) that Lincoln is the most important single figure in the entire tapestry of American constitutionalism, and he presents an endlessly complcated, often contradctory, set of images. I have described him also as the most "Nietzschean" figure in our history, using his powers to "trasnvalue" the basic meaning of the American experiment (see, e.g., the Gettysburg Address and Garry Wills's book on same). In any event, one should not embrace Lincoln as a role model without being prepared for people like Michael Stokes Paulsen, who uses Lincoln as the main source for his depiction of what he terms "The Constitution of Necessity," 79 Notre Dame L. Rev. 1257 (2006). One can, of course, defend Lincoln on the grounds of his substantive commitment (eventually) to anti-slavery, but, then, George W. Bush constantly invokes the values of "liberty" and "freedom" as the justification for the war on terror that certainly does involve some people who are every bit as evil as any of the slaveholders could have been thought to be. And it was Lincoln who basically initiated, as Commander-in-Chief what we today have come to call "total war," including the devastation wreaked by Sherman's march through Georgia.

Indeed, why shouldn't we be hoping that judges today will display the courage that the despised Roger Brooke Taney manifested in Ex parte Merryman, which, of course, involved Lincoln's unilateral suspension of habeas corpus? Or is it thinkable that we might even find a model for our present time in the even more despised James Buchanan, who believed that secession was unconstitutional but also believed that the national government was without power to prevent it by the exercise of armed force. Thus he wrote in his final message to Congress, "The fact is that our Union rests upon public opinion, and can never be cemented by the blood of its citizens shed in civil war. If it can not live in the affections of the people, it must one day perish."

This ultimately raises the question, of course, of whether the conflagration of 1861-1865, caused as much by Lincoln as by the secessionists, was "justified." The initial justification, of course, was maintaining the Union. I confess to having serious doubts about the legitimacy of Union preservation per se, though Michael Lind, in What Lincoln Believed (2005), makes the best case for the proposition that in the immediate years after the brutal suppression of liberal movements in Europe, maintenance of the American Republic really was perceived as "the last best hope" of the republican experiment world wide. The other justification for the war is what we would today call "humanitarian intervention," i.e., the desirability of eradicating the brutal and immoral regime of chattel slavery. I'm more drawn to that justification for the War, but it should be obvious that proponents of the Iraq War could and did make similar arguments with regard to the equal desriability of eradicating the brutal and immoral regime of Saddam Hussein. To condemn the invasion of Iraq as incompetent, as Tom Friedman is now willing to do at every opportunity, is altogether different from condemning that use of American power in the first place, which he supported and continues to find reasonable.

In any event, it should be obvious that worshippers at the shrine of the Lincoln Memorial may come up with radically different messages from the legacy of their Holy Figure.

Comments:

The fact that "George W. Bush constantly invokes the values of 'liberty' and 'freedom' as the justification for the war on terror" obviously does not mean that we must accept his invocations as legitimate. One can support Lincoln without supporting Bush; certain means are justifiable for some ends but not for others, even if the proponents of the latter ends falsely attempt to conflate them with the former ends.

Also, we play into Bush's hands by using the phrase "war on terror." We are fighting a war in Iraq that was not motivated by an attempt to fight terror, and that now increases terror. We may be doing other things that do fight terror, although I haven't read about any laterly. In any case, Bush is the world's leading terrorist, so we'd be better off dropping the word entirely.
 

I agree with Sandy about taking Lincoln as he was. His abridgments of habeas corpus and total war, not his eloquent but only eventual opposition to bondage, are what neocons like Yoo and Addington as well as the Straussians admire. But to compare the current crowd to Lincoln and the Civil War strikes me as confusing, to put it in the old phrase, tragedy with farce. Sandy gets carried away with the comparison to slaveholders; Al Qaeda, he says, is every bit as evil as owners "are thought to be".

I don't like calling people evil (for the simple reason that many practice evil deeds, even our own leaders, and one might still think, if they are stopped, that there are possibilities of healing or recovery even there). But American bondage was the prototype of genocide. The slaughter of 25% of the slaves in a good "middle passage" was the high point of decency. There was recently an exhibit on slavery in New York at the New York Historical Society; in a slave cemetery, it turned out that 50% of the buried were under 15 years old - starved to death by their owners. I have completed a manuscript on slavery in the American Revolution - and had been under the illusion that whippings and more inventive forms of torture were a main way of "motivating" blacks. But murder was also very effective and massively practiced - and you might ask the slaves and their descendants whom the "nice" slaveowners (not even the Quaker Robert Pleasants, let alone the great democratic theorist Jefferson...). Al-Qaida has murdered some thousands of innocents here and slesehwere and declares its enmity to Jews and Christians - but I would be very careful before saying that these are worse or more serious opponents, in terms of the harm that they have done, than the American system of slavery.

Secondly, it is interesting that the Bush crowd never uses the phrase "humanitarian intervention." It might be a useful, attempted justification for a war of lies for military bases, oil and control of the Middle East, but it is no real one. Saddam's greatest horrors were promoted by American aid, and apologized for by Rumsfeld (he blamed Saddam's use of American poison gas on the Kurds on Iran, and shook hands famously with Saddam). Perhaps there is an analogy with pre-Civil War Democrats, and perhaps even with Lincoln who wanted to preserve the Union with American aid to Saddam but it isn't strong. Thomas Friedman is a foolish critic - though it is good that he has finally arrived at something critical- about the War in Iraq, but the deeper problem here is American empire (cf. Chalmer's Johnson, Blowback and the Sorrows of Empire). What we have done in Iraq is unfortunately a more interventionary form of what Republicans and Democrats have done for a long time in many places in the world (and Clinton's continuation of the UN boycott caused the deaths of perhaps half a million Iraqi children in the 1990s). For the United States to speak believably of humanitarian interevention would take a dramatic and basic shift in course which is not - outside of Johnson who was far inside the Establishment - being suggested by anyone now prominent in Congress and the media. To compare the Iraq intervention to the Civil War is empirically and morally implausible. I can see why Sandy was concerned to do it - some people believe there's an analogy - but it needs that kind of distancing. They are fantasists...

More importantly, the Civil War came about because of the militant multiracial abolitionist movement led by John Brown, and defended by Thoreau, Douglass, Emerson, Whitman, and thousands of others. The American Revolution had sold out on slavery (the gravest defect in the Constitution) as the Congress has now sold out on torture. But that isn't the end of the story. Brown's speech when he was captured at Harper's Ferry is the paradigm of humanitarian intervention.(cf. David Reynold's new biography as well as W.E.B. Dubois's). Ordinary people who became abolitionists - as well as the military necessity to recruit black soldiers and the truth of his own words - compelled Lincoln finally to issue the Emancipation Proclamation in 1863. That act - one democratically instilled despite his political instincts - made for Lincoln's greatness. Greatness is the ability to learn from one's own mistakes and harms, and finally do something decent, at least for most politicians, in most countries, most of the time. And Lincoln was great - and we have need both of the democratic movement below and some serious leadership even now.

Alan Gilbert
 

Some times it seems to me that we might have been a lot better of if we'd just let the South go or the Confederacy had won the Civil War. Southern rascism, hubris, and gangsterism are still poisoning us today -- most recently, as the life-blood of the Republican Party.

But that was then and this is now, and like Dan Jenkins said in Semi-Tough: "What could have happened, did."
 

I confess to being a worshipper at the shrine of Abraham Lincoln. Have been my entire educated life. The fact that Lincoln's heavy-handed invocation of presidential authority during the Civil War is now cited so eagerly by the Yoos and Addingtons of the world distresses me sometimes, I admit it. But in the end it is only evidence of their historical illiteracy. Lincoln's invocation of commander-in-chief powers was justified and necessary, to the country and the world, and Bush's attempts are the morally repugnant maneuvers of a wannabe tyrant. Does that mean I have double standards? Perhaps it means that I can accept a necessity doctrine at some point, but I see a very high threshhold for it, and I expect it to be used briefly - and then relinquished. The truly menacing aspect of the Yoo-Addington claim is that they do not claim a temporary suspension, rather they seek to change the constitutional order altogether. On the other hand, maybe Sandy's upbringing in North Carolina and many years in Texas are showing through...
Lincoln was in a struggle to the death for preservation of the nation. Conversely he was skeptical of foreign entangelements and wars of convenience, insisting that those seeking to wage them justify themselves in the democratic process called accountability. He is right about this in a very fundamental way. And the fact that he went to war surrounded with a army of veterans of the '48 revolution like Carl Schurz (not to mention the revolutionaries of the prior generation, like Francis Lieber) speaks volumes. They saw in America the sole vessel of democracy on earth. They were right.
 

What Scott said.
 

My good friend Sandy Levinson and I have been discussing the issue of Lincolnian intervention ever since I argued, in an essay several lifetimes ago, that we’d probably be better off if everyone had sat out the Civil War. I’m not sure I still believe that, but then I’m also not sure Sandy still disagrees.

In any event I have had (or at least taken) several occasions to discuss on my blog some recent uses of Lincoln, and I encourage any of you interested in such matters to take a look at them:

What Would Lincoln Do? What Lincoln Did (Criticizing Robert Kuttner’s clumsy attempt to use Lincoln as a Bush-bashing tool)

Cuomo Praises Lincoln But Sounds Like Douglas (Title is self-explanatory)

Secession, Then And Now (Arguing that Lincoln was no better than Gorbachev, or George III, and criticizing Eric Foner for arguing that Gorbachev was no worse than Lincoln)
 

As a Lincoln lover, I must say that just because he has the misfortune to be cited by Yoo and Addington for their wrongheaded ideas does not mean that what he did was wrong. I do not think that just because the habeas suspension is in Article I means that Lincoln could not, in a time of actual rebellion, suspend the writ in order to fulfill his duty to defend the Constitution during a time when Congress was not in session, and could not, it being the 19th Century, show up the next day. Further, when the Congressional session did begin, he asked Congress to approve what he did and authorize his future authority to do the same as opposed to this administration's refusal to seek any Congressional authority. Had Congress legislated that Lincoln could not suspend, then that would have been binding on him I believe but Congress did not do that. It is also my understanding that Lincoln's suspensions were limited in both time and place and, therefore, truly suspensions. His actions do not serve to justify that actions of an adminstration that denies that there is a rebellion in Iraq and is not going to assert that we are in the midst of an ongoing invasion or rebellion, barring which actual legislated finding, the constitutional Writ, I believe, remains in effect.
On the total war issue, it is fair to say that Lincoln believed that was necessary to win the war, but he was clearly troubled by it in a way that this president seems not to be by any of his actions and he was also correct that it probably was necessary to victory and inherent in the decison to defend the Union although it took over half of the war to find generals who would do it, by which time the war was clearly a war to end slavery and not just to defend the Union. And slavery was a total war on the body, soul and dignity of the slaves which justified his actions.
 

To put it mildly, I am no fan of George W. Bush! But I must say that I don't think we have any good reason to believe that he is indifferent at least to the loss of American lives in Iraq--I have more doubts about the loss of Iraqi lives--and I think there is something sentimental about saying that Lincoln is necessarily off the hook for the consequences of his actions because he anguished about the costs. It may be that the 1861-1865 war was worth it because of its consequences in getting rid of the legal institution of chattel slavery, but, as John Rosenberg valuably reminds us, even that is not a self-evident proposition, not least because the North utterly failed in its dedication to "regime change" during the period we call Reconstruction. The Ku Klax Klan "insurgency" ultimately proved stronger, both literally and metaphorically, than the willingness of the Grant Administration to pay the price of ruthlessly suppressing all of its supporters. (Aside: I have said in print that every supporter of our venture in Iraq should have been required to read Lou Faulkner Williams' marvelous book The Great South Carolina Ku Klux Klan Trials, 1871-1872 (U. Ga. Press), a 160-page monograph that explains the difficulty of imposed "regime change" better than any other single work I can think of.)

I also believe that Lincoln behaved indefensibly in failing to call Congress back into session until July 4. It allowed him to rule in a quasi-dictatorial manner--as was argued by Clinton Rossiter in his great book Constitutional Dictatorship, not to mention Carl Schmitt's admiration for Lincoln--in the interim. Even if one takes travel-time into account, there was no justifiable reason to hold Congress away for a full four months after his inauguration.
 

It seems to me - and perhaps I speak out of turn - that comparisons to Lincoln are being made almost as a plea to sacred icons. These things are nearly always two-sided swords. And evil, all evil, has only the power we choose to give it. If we think it can influence our thoughts, it does so only because we have attributed to the it ability to do so. If we believe it can influence behavior, that very belief fosters an idea that must then be suppressed. If we rush to collide with it directly, we have already assumed it has the power and substance to resist, and it will have more power by our choosing. To attempt to defeat evil by force is to fight oneself - the harder you push, the more powerful your opponent becomes. Evil never wins, really, its only that at some point one inevitably grows weary of fighting oneself.

That's not to say that people and groups who choose to do horrible things don't have the power to cause harm, but to posture the situation as our struggle against evil will give such people and groups even more power, while critically draining our own.

Perhaps the wise thing to do is to cast aside idealistic icons and ideological struggles against evil, and frame the fight against new forms of terrorism as an act of cooperative adapting, not a struggle between nations and groups. As a generation with a capacity to destroy ourselves as never before - an ability that will likely never diminish - we will either adapt as a species or we won't. It is tempting to simplify things by creating heroes and villains and conflicts between good and evil, but its just not as useful as taking each situation uniquely.
 

I certainly did not mean to imply that Lincoln was off the hook because he anguished about his decison and I especially do not think he would have thought it let him off the hook. Rather, I was trying to convey that Lincoln understood and accepted his responsibility for the consequences of his decisions in a way that I do not think the current administration does, although I do agree that President Bush is certainly anguished about the loss of soldiers' lives. My ultimate point is that Lincoln was trustworthy of exective power in a way that the current administration is not because he did understand his own responsibility and acknowledged what he was doing while this administration does not accept responsibility for its actions and tries to hide what it is doing.
I also agree that Reconstruction is a perfect example of the difficulties of regime change and should rightly be considered as demonstrating that most such attempts will not work although I doubt that any American politician would be willing to use the experience of Reconstruction in that way. In fact, the entire Civil War/Reconstruction process demonstrates that Americans have long had a limited capacity to accpt the costs of regime change and takes me back to my earlier differentiation of this administration which only got this war going by using false reasons for going to war and false expectations of success in the occupation. I acknowledge that I was a little intellectually lazy in the 19th century travel bit and that Lincoln clearly chose not to call Congress into session as early as he might have, and that he did so because he was concerned that it might interfere with actions he thought necessary. I also happen to think he was right and that his temporary limited suspension of the writ was constitutionally justifiable in a time of actual rebellion. I do not think that he abused his power in the wait and I do not think his actions justify what the current administration tries to justify. I also acknowledge that those of us who do admire Lincoln have a special obligation to explain why his actions do not support those of the current administration.
 

"The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master – that's all."


I respect Lincoln without worshiping him. Maybe this is why I have no difficulty either in admiring his legacy warts and all or in laughing (when not weeping) at his contemporary parrots.

Lincoln's opposition to slavery ran far deeper than is generally recognized. He gave it moral thrust by calling slaveholders curse-dodgers who sought to get around the human condition by earning their bread with the sweat of another's brow. He thus made hash of the Southern preachers' recourse to the "curse of Ham," in quotidian terms that any worker could grasp. It was as compelling as it was simple.

His ideal of free labor had ramifications. For Lincoln, wage labor was markedly inferior to self-directed work. He knew the difference between labor and capital and thus supported the right to strike and was troubled by the ascendancy of the corporation during the Civil War. On August 18, 1864, he said this: "The world has never had a good definition of the word liberty, and the American people, just now, are much in want of one. We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men's labor. Here are two, not only different, but incompatible things, called by the same name – liberty."

He was only restating old truisms. By then the 13th amendment was more than a gleam in the eye, and suspicions of a felt penumbra are not unreasonable. However that may be, Lincoln's view of the Constitution's promise of liberty coming out of the Civil War can hardly be compared to that of our current administration, which preserved just one Baathist law, the denial of public workers' right to strike, and which saw unions as so grave a threat to national security that it held up HSD over the issue.

As for Lincoln's "slow start out of the abolitionist box," he relaunched his political career after Dred Scott with a containment theory. Was George Kennan less a cold warrior for having such a view? He kept a draft of the Emancipation Proclamation at his ready until, with what he saw as God's help, its time had come. Was Lyndon Johnson any less committed to civil rights for seizing on the Kennedy assassination to get laws on the books? Does history ever take such strides any differently? When I hear complaints about Lincoln on slavery I wonder whether the fault-finders aren't guilty of the very hagiography of which they accuse others.

As for the parrots, if I saw in John Yoo's arguments for a generalissimo one hundredth of the constitutional grasp seen in Lincoln's Cooper Union Address, I would forget all the Straussian revisionism and see the parroting as something other than a parody. But I do not, and it's not for lack of effort. Even if we settled on a constitutional formalism, what Yoo says is not even formally sensible. His gibberish is Dumptian. That goes double for the unamiable Addington.

I prefer to be on this side of the looking glass. There's more than enough for me to see.
 

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