an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Many American political and constitutional arguments have something close to the following structure. 1) The following political action/constitutional understanding is wise, benevolent, and prudent. 2) Abraham Lincoln must have favored that political action/constitutional understanding because Abraham Lincoln was a wise, benevolent, and prudent leader. 3) We ought to adopt that policy because Abraham Lincoln favored that policy. I take it that premise 1) does all the work in this argument and that 2) and 3) are just window dressing, accoutrements of American political rhetoric. Just as I teach my constitutional law students to cite BROWN in support of their arguments whenever possible and insist that their rivals are repeating whatever Taney did in DRED SCOTT, so strategic political actors in the United States will always invoke Abraham Lincoln in support of such claims as the president must have sole authority to control the war against terrorism, President Bush was wrong to invade Iraq, and the designated hitter rule is ruining baseball. Sometimes the social science/amateur historian in me says "big deal." As long as what we are really fighting about is premise 1) who really cares about ritual invocations of 2) and 3). Sometimes, I think we need better education. A good deal of Part III in the Dred Scott book details how, taking Abraham Lincoln too seriously as the politician who best articulated American constitutional aspirations, we fail to understand the antebellum constitutional order and our political regime in general. But let me play with a different problem, inspired by FEMA and Marty's post below.
Lincoln's administration had corruption and cronyism problems. In particular, the Secretary of War from 1861 to 1862, Simon Cameron, was both incompetent and on the take. Cameron's performance was hardly surprising. He was known as incompetent and corrupt. Lincoln appointed him as part of a bargain to obtain Pennsylvania votes in the 1860 Republican convention. Of course, because we all know Lincoln was a wise, benevolent, prudent, and honest leader, we never learn about or let slip from our consciousness the Cameron deal and all the other shenanigans that enabled Lincoln to wrest the nomination from William Seward at the 1860 convention (or insist that Lincoln knew nothing of them, but being "honest Abe" felt obligated to adhere to corrupt bargains made by others). Those who cannot avoid knowing about the 1860 Republican convention conclude that because Lincoln was a wise, benevolent, prudent, and honest leader, there is a wise, benevolent, prudent and honest justification of his behavior. Lincoln recognized that only he could defeat the Democrats in the 1860 election and so had to defeat the more radical Seward to prevent slavery from expanding. Personal ambition played little role in his decision to strike a corrupt bargain with Cameron. All morally decent, prudent politicians would do so. Or so the behavior of Lincoln and his supporters during the 1860 Republican convention is excused.
What reason exists for thinking this analysis sound? Given the popular fallout from the Lecompton fiasco, corruption in the Buchanan administration, and an economic recession in Pennsylvania, might a reasonable case be made that any prominent Republican would have won the 1860 election. Granted Lincoln was more moderate than Seward, but Seward was better known. Are we that confident that Lincoln was the stronger candidate to excuse his deal with Cameron. I suspect outside of, say 15 historians in the United States, no one who excuses Lincoln's behavior during the 1860 nomination convention really has a clue as to how Seward would have done, that the only reason they excuse Lincoln is their faith that Lincoln would never engage in such corrupt bargaining merely for personal ambition.
Recognizing that Lincoln probably did strike bargains merely for personal ambition might prove more instructive than excusing away all his suspicious acts. Seward and his political machine were never in danger of winning "Mr. Clean awards." Perhaps the lesson of 1860 is that all politicians, Lincoln, Seward, Bush, Clinton, whomever, make deals to gain office. That Lincoln made a number of deals demonstrates that we should not condemn politicians for making deals. Politics is the art of the possible even when practiced by politicians with good causes. Moreover, personal ambition in a politician is part of the job description. There is much truth to that. Still, not all deals are created equal. Just as we might criticize politicians for being unwilling to deal, we need standards for determining when a corrupt bargain has been made. The danger of the Lincoln myth is that the legitimacy of the Cameron bargain becomes axiomatic, so that any future bargain no worse than Cameron (or any future crony appointment no worse than Joshua Speed) is legitimate. Neither Abraham Lincoln nor George Bush should be judged by that standard. A great many persons died in the first years of the Civil War because of Cameron's corruption and incompetence. We will be in a better position to evaluate corruption and cronyism in the Bush Administration by recognizing that the Cameron deal was wrong and should not have been made. Posted
by Mark Graber [link]
Excellent post, and as a Lincoln admirer who falls short of worship, I look forward to your biography ... what?
Professor Graber: We will be in a better position to evaluate corruption and cronyism in the Bush Administration by recognizing that the Cameron deal was wrong and should not have been made.
Sir, I am with you on the questioning, but am not sure I can stick along for the conclusions, neither the one about the Cameron deal nor the evaluation of the current administration at the present moment.
The "Lincoln Trope," as you call it, is really just the genetic fallacy; while one might use such strategically it cannot be maintained in good faith by anyone hoping to construct a sound argument (i.e., a valid conclusion drawn from true premises.)
As for the Cameron deal and the extant corrupt administration, the sooner we gather our true premises and apply to them principles of valid inference the sooner we can make wise choices for our future. The current administration came to power with an agenda for the Middle East authored by PNAC, and with an agenda to expand the powers of the intelligence community. On a platform of conservatism it has steadily encroached on citizen liberties, entangled us in losing wars and run the government deficit to record heights. I am certainly not one of the 15 historians to whom you refer, and so have no thoughts on the pragmatics of the Cameron deal; maybe it's cost was worth the gain of ending slavery; maybe not. But I have seen no positive mitigating factors to support absolving even the least of this administration's moral shortcomings.
Since I am a Lincoln admirer whose admiration is not based on a belief that he was a saint who would never make a corrupt bargain, but instead is based in part on my admiration of his adroit political skills which I believe were necessary to Northern success in the Civil War, I will take on the Cameron deal. I will acknowledge that Seward might have won since the Fremont and Fillmore vote in 1856 exceeded that of Buchanan. However, I think Seward might well not have won Illinois and Indiana from Douglas. Those two states had 24 electoral votes and Lincoln only won them by 12,000 and 24, 000 votes respectively and I think Seward would have had a lot more problem in those two states than did Lincoln. Without them Seward's electoral total would have been just 156 (with 152 needed). Lincoln won the small poplulations of California and Oregon by about 1,000 votes each and it is hard to say that Seward would not have done as well but if he had lost them too then his electoral vote would have been only 149. Ohio (23 electoral votes then) is usually the other state cited where Seward might have had a problem, and a loss there, combined with either Illinois or Indiana would also have prevented Seward from winning the election but Lincoln's margin over Douglas was about 44,000 votes and 10% and I think Seward probably would have held enough of that so I think its probably at least 50/50 for Seward also winning. However, more importantly than whether he was the better candidate, I think Lincoln was the better President as I do not think Seward had Lincoln's political skills to succeed if he had chosen to fight the Civil War and I also am not sure he would not have just let the south go, especially if he had come into office with a much closer margin over Douglas. I understand that many may think it would have been better to let the south go but I am not one of them. Finally, I think it is fair to say that Cameron's corrupt incompetence cost some lives and the loss of each of those lives should have been avoided if possible. However, he was gone in early 1862 and the loss of life in the Civil War was so great, and that loss of life inevitably increased by human mistakes of various kinds, that ultimately one has to believe that great loss of life was justified by the cause anyway which takes us back to whether Lincoln was the necessary man (of the choices available) to fight and win a just war, which I lean to believing he was, and then, of course, whether Cameron's brief tenure as war secretary was unavoidable to Lincoln's nomination and election, which it may well have been. Admittedly, there is a danger in that but I do not think that inherently legitimizes any other similar seeming corrupt bargain and I think we probably have to adopt the position that you cannot use one possibly historically necessary corrupt bargain to justify another but have to take the position that the deal is wrong and should not have been made and one that appears to have been historically necessary should not be classified as right but as unavoidable.
I'm no expert on Lincoln, but I own his collected writings and turn to them whenever I feel the need for a standard-setter, which is to say increasingly. So allow me to weigh in.
The appeal of Douglas's popular sovereignty slogan and the barbarity of slavery made Lincoln necessary in 1861. He timed his reentry into politics well. The invalidation of the Missouri Compromise turned a chronic constitutional problem into a crisis. His public case about the original intent to put slavery on a course of ultimate extinction and about the logic of Dred Scott has no parallel in our political history. His moral argument based on the right to work free still has a resonance that, sadly, is ignored.
Had Eisenhower drawn a line around the military-industrial complex at the start of his tenure rather than at its end, we would be a different nation today. Had a single Democrat foreseen the design of the Bush-Cheney administration at its outset -- not so very hard to do -- we could say the same.
I cannot see gain in "letting the South go." Why would the Confederate States have let the territories go when it needed them as members of the United States? Secession did not change the economics or rob the South of opportunities to stir trouble.
As for Cameron, he would distress me more were it not for the succession of incompetent generals that survived his tenure in office to Lincoln's unending distress. But, further, not all cronyism is created equal. The Bush administration's is off the charts. It is not just a means of gaining power but an assault on the commonwealth, government, and sound policy-making, in three respects:
(1) It corporatizes governance, not just greasing the revolving door but replacing it with a privatized runway. Being a fox is now a prerequisite for guarding hens.
(2) It doles out entire areas of government to firms, turning the spoils system into a way to shrink government a la Grover Norquist.
(3) It is so ideology-driven as to mock the professionalism of civil servants seen simply as fact-finders.
If Lincoln is guilty of so much as an ounce of any of (1)-(3) I will downgrade my view of him. I somehow doubt it, even allowing for the maxim that nothing is harder to predict than the past.