I had an opportunity recently to review a small portion of my confirmation hearings. That is not something that I do on a regular basis — I assure you. That is sort of like digging in old wounds. But one of the things that came through loud and clear was the need to protect our Constitution and the principles that underlie our Constitution. It is something that I certainly carry with me to my job and something that I preach to my law clerks.
That is, if the Constitution goes, this grand experiment is over. This is not a game of law review articles. It is not a game of "gotcha." It is not a game of cute phrases and glib remarks in important documents. It is the preservation of this grand experiment and it is a serious endeavor. If there is anything I could convey before I move into my prepared remarks, it would be just how important it is to preserve that document.
Those of you who bother to read my opinions probably see that I rarely venture beyond straightforward opinions. I do not think it is an opportunity to engage in lively prose. It seems to me that it is deadly serious business and should be approached in a deadly serious manner.
We gather here tonight in memory of a great man, a great president whose noble words and selfless deeds enabled this great nation to fulfill its promises of equality and liberty for all — to itself, to all mankind and to the Creator. To borrow a passage from one of that great president's speeches, the world will little note nor long remember what we say here, but the world will never forget what he accomplished for the cause of freedom.
Although our words cannot add to the greatness of the man or the depth of the sacrifice that he made, we can learn from him. It is right and fitting that we should do so. Happily, our task is made all the easier by many people in this room — most notably, our award recipient, Professor Jaffa, whose life work we also commemorate tonight. So, what is it we can learn from Abraham Lincoln and what is it Professor Jaffa has been trying to teach us over these forty years?
Oddly, the Great Emancipator, the man most known for bringing an end to slavery in this corner of the earth, was himself willing to compromise with that heinous institution, that stain on the principle of the nation's founding, in defense of the rule of law. Not just any rule of law, but a rule of law in a regime that was itself good, that was dedicated to the proposition that all men — all human beings — are created equal, that they are endowed with certain unalienable rights, including the rights to "life, liberty and the pursuit of happiness."
How is it that I, a descendant of slaves, could use the word "good" in describing a nation that condoned slavery? Does not the very existence of that peculiar institution give lie to the claim that this nation was founded on the principle of universal human equality? Or, at least, severely undermine the Founders' devotion to that principle? Our Founders, after all, did more than just suffer the existence of slavery. They codified it. They protected it. They inscribed it into the fundamental charter of our government: the Constitution of the United States.
Was the claim in the Declaration of Independence "that all men are created equal" nothing? Nothing but a self-evident lie? Were our Founders just hypocrites, cynics, willing to throw off the rule of British law for something as minor as a tax on tea, while trumpeting the virtues of the rule of American law, in defense of their own claim to property in other men — their slaves? How can Lincoln or I or anyone else dare to call such a nation "good"?
The answer depends on the alternatives that were available to the Founders. For if the Founders had no alternative but to compromise with slavery, we can hardly fault them for failing to accomplish the impossible. That is the first lesson that we must learn from Lincoln. Politics, at its root, is the art of the possible. To be sure, if the Founders had it within their power to abolish slavery and did not do so, then they were either cowards or hypocrites. If they compromised with slavery knowing that the compromise was unnecessary, or compromised with slavery to further some selfish end, then our Founding was truly flawed and not worthy of the respect and the continued allegiance of good men and women.
Did the Founders have it within their power to abolish slavery? By the time of the Constitutional Convention of 1787, nine of the thirteen original states — representing roughly 3/5 of the nation's population — had abolished slavery. The forces of freedom, thus, had a clear majority to prohibit slavery in the national charter itself. By the ordinary measure, therefore, it would appear that the Founders did have it in their power to pay more than lip service to the lofty principles that Jefferson had penned just a decade before.
When one delves a little deeper, however, one learns that the ordinary measure is not adequate to answer the question. As Tom West, a former student of Professor Jaffa's, described in his book, Vindicating the Founders,Had the North refused to compromise with slavery in 1787, the likely, indeed virtually certain, result would have been a failure to establish a national union of the United States.
One's first response might be, "So what? Who cares? Is not the existence of slavery a more serious matter than whether the thirteen original states joined together in a single union, instead of continuing to operate as thirteen separate states loosely joined for common defense purposes?"
That question brings me back to Lincoln's lesson for us, to an understanding of what Aristotle referred to as the "virtue of practical wisdom." For, in the Founders' political judgment, only a union of all the states — even one tarnished by a compromise with slavery — offered the prospect of putting slavery on the course of ultimate extinction.
Without the national union, a confederation of the slave-holding states would have been likely — a confederation based not on the self-evident truth of human equality, but on that awful maxim followed throughout most of human history that it was acceptable for one man to rule another without the other's consent and to live off the sweat of that man's brow.
The South had their slaves anyway. What did the constitutional compromise with slavery accomplish, other than to tarnish the whole nation, rather than merely the southern part? Certainly, from the point of view of the slaves, it did not matter whether they were the slaves in a southern confederacy, proclaiming that slavery was a "positive good," or whether they were slaves in a national union that purported to be based on the equality of all men. In any case, they were slaves. Would it not, thus, have been better for the North to break away clean, to establish a government in the North that was pure in its devotion to the principle of equality?
That answer, too, called for the exercise of political judgment. The North had to ask itself: "What would be the likely result of such an endeavor?" One likely consequence was that neither North nor South would survive — that, once divided, they would prove no match for the European powers that still had envious eyes on the New World — and that all, not just a part, of the continent would be enslaved.
Another possible consequence was that the South would flourish, expanding the hated institution of slavery beyond its borders into the as yet largely unsettled lands beyond the Appalachians, threatening the free states of the North every step of the way. Only through a national union could these principles be avoided and the principles of liberty and equality articulated in the Declaration of Independence given a fighting chance for full vindication.
In other words, the Founders made the political judgment that, given the circumstances at the time, the best defense of the Declaration's principles and, ironically, the most beneficial course for the slaves themselves was to compromise with slavery while, at the same time, establishing a union that, at its root, was devoted to the principle of human equality.
We can question whether they were right in that judgment. I happen to think that they were, without calling into question their devotion to the principles they articulated. For, if they were right about the likely consequences of failing to achieve a national union, then their compromise with slavery was the morally right thing to do.
But what of Lincoln? He also compromised with slavery, after all, rejecting the calls of the Abolitionists and contending, instead, that fugitive slave laws must be obeyed, a half century after the Constitution was enacted. Can a compromise with an evil so fundamentally at odds with the Founding principle of equality extend through not just one generation but two, and do so without calling into question the very character of the regime, even if the initial compromise with slavery was a necessary one?
Was not Lincoln's devotion to the rule of law in a regime that for nearly four score and seven years had not only failed to eradicate slavery, but seemed bent on its expansion? Was not this in reality a defense of a regime that was not longer worthy of a defense? By so defending a bad regime, did Lincoln himself become a bad man?
As with our assessment of the Founders, our assessment of Lincoln must also look to the alternatives that were open to him and the nation at the time and to the prudent assessment of those alternatives. Lincoln, of course, was an opponent of slavery, but he waged a lifelong battle for the rule of law. He urged the Abolitionists time and again to comply with and enforce the law, even the fugitive slave laws.
Early in his career, in an address to the Young Men's Lyceum in Springfield, Illinois, he eloquently pressed the point:Let every American, every lover of liberty, every well-wisher to his posterity swear by the blood of the Revolution never to violate in the least particular the laws of the country and never tolerate their violation by others. As the patriots of '76 did to support the Declaration of Independence, so to the support of the Constitution and laws let every American pledge his life, his property and his sacred honor. Let every man remember that to violate the law is to trample on the blood of his father and to tear down the charter of his own and his children's liberty. Let reverence for the law be breathed by every American mother to the lisping babe that prattles on her lap. Let it be taught in the schools and the seminaries and the colleges. Let it be written in the primers, spelling books and in the almanacs. Let it be preached from the pulpit, proclaimed in the legislative halls and enforced in the Courts of justice. And, in short, let it become the political religion of the nation. And let the old and the young, the rich and the poor, the grave and the gay of all sexes and tongues and colors and conditions sacrifice unceasingly upon its altars.
Lincoln made clear that his admonition applied with equal force to bad laws.When I so pressingly urge a strict observance of all the laws, let me not be understood as saying that there are no bad laws, nor that grievances may not arise for the redress of which no legal provisions have been made. I mean to say no such thing, but I do mean to say that bad laws, if they exist, should be repealed as soon as possible. Still while they continue in force, for the sake of example, they shall be religiously observed.Even on the eve of Civil War, in his First Inaugural Address, Lincoln reiterated his belief that he had no authority over, and, hence, would not abolish, slavery in the existing states. "I have," said Lincoln, "no purpose, directly or indirectly, to interfere with the institution of slavery in states where it exists. I believe I have no right to do so. And I have no inclination to do so."
At first blush, Lincoln's devotion to the rule of law, when the law itself protected an institution as heinous as slavery, would seem not to merit our praise, but rather to deserve our collective condemnation. Devotion to the law in pre-Mandela South Africa meant a defense of apartheid. Support for the law in Stalin's Soviet Union gave strength to a regime bent on oppressing, not just its own people, but peoples throughout the world. And adherence to the law in Nazi Germany meant participation in the Holocaust. Thus, it cannot be the rule of law for the law's sake that merits our support, or Lincoln's.
What was it about Lincoln's support of the rule of law in a nation whose Constitution condoned slavery that distinguishes it from these other examples? It is, again, political judgment — prudence. For Lincoln understood — rightly, in my view — that the old problem with slavery faced by the Founders had not been abated.
In fact, the problem had grown much worse, due in no small part to the Supreme Court's failure in the Dred Scott case to distinguish between the compromises of the Constitution and its principles, and to give effect to the principles whenever the letter of the compromise did not prevent it.
Lincoln understood that if the Constitutional compromises were not enforced, secession would be the probable result. In Lincoln's day, no less than in the Founding era, secession meant the establishment of a regime on this continent, devoted to the perpetuation of slavery, rather than merely one which suffered its existence. And it meant the likely expansion of slavery into new territory, beyond the Mississippi.
The rule of law, on the other hand, as preached by Lincoln, gave effect to the principles of the Constitution as far as possible — permitting the federal government to outlaw slavery in the territories and vindicating the guarantee of a republican form of government in new states, as they were admitted to the union. While it did nothing to interfere with the institution of slavery in the existing states, it did confine it there, where Lincoln fully and reasonably expected it would wither and die.
For Lincoln, as for the Founders, the moral course, the prudent course, the course most likely to lead to the ultimate abolition of slavery was, in fact, not to join with the Abolitionists. Lincoln's lesson for us, however, is even more profound: the realization that prudence is sometimes a compromise with principle, in order, ultimately, to vindicate that principle.
Chief Justice Taney, too, compromised with slavery. In his infamous opinion for the Court in the Dred Scott case, he gave effect to the fugitive slave clause. But he did much more: he gave force to the compromise of 1787 in a way that severely and permanently crippled the principles of the Declaration itself. His compromise with slavery was, thus, a capitulation on the question of principle, not an exercise of prudence and ultimate furtherance of principle.
Chief Justice Taney's opinion was a crossing of the Rubicon for this Republic on the slavery question, and Lincoln well knew it. If that opinion stood, the expansion of slavery would not be prevented or could not be prevented — not in the territories, not in the newly-admitted states, not even in the existing free states — the very thing which for the Founders and for Lincoln made the Constitution's pact with the slave forces palatable.
If the Dred Scott opinion stood, good men such as Lincoln could not continue to support the Constitution or the rule of law. In other words, they would have to become bad citizens and seek to overthrow the existing government, much like the Founders became bad subjects of the English Crown in 1776 and revolted — as it was their right and duty to do so — against what had become a bad government, destructive of their fundamental rights, and instituting in its place a new form of government that seemed "most likely to effect their safety and happiness."
Justice Taney's opinion in Dred Scott brought about a "crisis of the house divided," which Lincoln so presciently described in his debates with Stephen Douglas, and about which Professor Jaffa so eloquently wrote a century later.
But what has this to do with us? I began by urging that we learn from Lincoln and from Professor Jaffa, but learn what? Slavery is no longer with us. Yet, as we stand on the threshold of the 21st Century, many of our fellow citizens have forgotten — or rather, our modern world has rejected — "the laws of Nature and Nature's God," against which the institution of slavery was so self-evidently wrong and against which we must judge our own generation's assault on the unalienable rights to property, to liberty and to life.
We owe a debt of immeasurable gratitude to Harry Jaffa for recovering for us the true Lincoln and for helping us to remember our sacred heritage: Our nation's founding devotion to the truth of human equality and liberty, a truth applicable to all men at all times.
But we cannot stop there. For Lincoln, knowing the wrongness of slavery was only half the battle — the easier half. The Abolitionists got that part right. Even the Southerners got that part right, at least until John C. Calhoun came home. Knowing how to bring about slavery's extinction in a manner that preserved freedom and the possibility of freedom, knowing how to distinguish prudent compromise from cowardly capitulation — that was the tougher piece.
In the present day, we have our own Abolitionists. There are those among us who believe that our nation has crossed a Rubicon in one fashion or another, from compromising on the moral and constitutional issues of our day to tolerating a federal government that, arguably, is little constrained by the limits of its constitutional charter.
Has the time come to join our present day Abolitionists? Or, should we, like Lincoln, pledge our support for the rule of law, having faith that in thus compromising with the nation's principles, we will be choosing the path that affords the greatest prospect for the cause of liberty? That, my friends, is the real question before us.
I urge you, Professor Jaffa, and others in this room, to be ever vigilant in reminding us — me and everyone else who has the privilege of serving our nation through public office — of the principles of our Founding and how they apply to the controversies of our time.
I challenge each of you to help us with the much more difficult task of charting the course that is most likely to vindicate the principles of the Declaration and to lead to the safety and happiness of this great and blessed people. Recognizing that sometimes the wise and prudent course is to compromise with our principles, and even to make alliance with those who have rejected or misunderstood them, help us to know the difference between a prudent compromise that advances the cause of liberty and a capitulation on principle that snuffs it out.
Do that, and 40 years from now, our children and our children's children will still be celebrating Harry Jaffa's life work and the liberty that was so preciously purchased with the lives, the fortunes and the sacred honor of the Founders in 1776 at our nation's birth, and resurrected in 1860 by Abraham Lincoln at its rebirth — its new birth of freedom. We must assume the mantle of the Great Commission from the hallowed grounds of Gettysburg:It is 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 is 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.So let us raise a glass to our Founding Fathers; to Abraham Lincoln, The Great Emancipator; and to Harry Jaffa, who reminds us of their great achievements in the fight for freedom and enables us to pass on their great legacy to a new generation of Americans.
Monday, September 24, 2007
The Virtue of Practical Wisdom
A 1999 speech at the Claremont Institute by Justice Clarence Thomas: