Harvard Law School, in abject surrender to student activists, is about to change its escutcheon because its design was derived from that of Isaac Royall, Jr., who endowed the first chair at the school. Royall’s father made the family fortune from slave plantations in the West Indies and Massachusetts, a fortune that was therefore tainted (as Balzac said that all great fortunes are).
This next edition of Liberty Law Talk is a discussion with Michael S. Paulsen, co-author with his son, Luke Paulsen, of their new book entitled The Constitution: An Introduction. The Paulsens’ book is a thoughtful and probing overview of the foundations and evolution of American constitutionalism. Our discussion focuses on key ideas in the book: What does it mean to be a country that is defined by a written constitution? Is the Founders’s Constitution a pro-slavery document? Has the use of substantive due process in Lochner, Griswold, and Roe corrupted our understanding of the Fourteenth Amendment? Of what worth is the Youngstown decision that…
In his Second Inaugural Address, Lincoln reprises the brevity and complexity that has made his Gettysburg Address so well known and so cherished. He also reprises the Biblical allusions and spirit that animated some of that earlier speech. But the tone is strikingly different. For us, the speech rings tragically in our imaginations because of its author’s fate—known well to us, but as yet unknown to him. Lincoln’s Second Inaugural is framed in terms of eternity and clouded by the inscrutability of God’s mind. It takes this perspective because of his very different aim: unity in the aftermath of approaching victory.
In my previous post, I wrote about a talk that I had recently given about Lincoln. I had not expected it to be terribly controversial – in fact, I wondered whether it was such common knowledge that it was not worth reporting.
But there is something about Lincoln that leads people to react in extreme ways.
Let me start with the long criticism by the first commenter, which is then endorsed by the second commenter. The comment goes on and on, in an extremely intemperate way. The principal complaint appears to be that I took Lincoln at his word and did not conclude that he repeatedly lied to the American people about his views on slavery. For this, I am accused of somehow not respecting Lincoln. I would think if I had accused him of lying, without any foundation, that I would be open to criticism. But apparently the opposite is the case.
The funny thing is that my post did not suggest that Lincoln personally approved of slavery or would not have liked to have eliminated it more quickly. Quite the contrary. As I said, “in Lincoln’s defense, he believed that any stronger position would have been rejected by the American people and therefore this was the best that could be accomplished for the slaves.”
This past week, I gave a talk (along with colleague Maimon Schwarzschild) on Abraham Lincoln at the San Diego Law Library as part of their exhibit on the former President. My talk was entitled “Lincoln: Slavery, Sovereignty, and Secession,” but unfortunately due to time constraints, it was mainly on slavery.
My main point about Lincoln is that his views on slavery were very “moderate” up until the point at which he issued the Emancipation Proclamation. As a matter of policy, Lincoln favored ending slavery, but he wanted such emancipation to be gradual, compensated, popularly enacted, and followed by colonization. In Lincoln’s defense, he believed that any stronger position would have been rejected by the American people and therefore this was the best that could be accomplished for the slaves.
By contrast, there were the abolitionists of the time – people who favored immediate emancipation of the slaves. The abolitionists included William Lloyd Garrison, who believed the Constitution was a deal with the slavemaster devil, and Lysander Spooner, who believed that the Constitution forbade slavery. But the groups associated with both of these men were considered extremists and represented only a small portion of the population.
“In 1700s, impressed seamen became second only to African slaves as the largest group of unfree laborers in the British Empire”: and yet, the appreciation of the historical reality and magnitude of impressment by the British Navy doesn’t go beyond very limited circles.
Press gangs (composed by naval officers and sailors) hit the road and used violence or its threat to recruit the necessary crewmen for British ships. Billy Budd arrived on the HMS Indomitable following this path. In Melville’s novel, and even more so in the Benjamin Britten’s opera (which spares no charge to naval discipline), Billy Budd’s complacent attitude towards his compulsory recruiting contrasts with the very nature of impressment.
This incongruousness is somehow at the heart of a remarkable book, The Evil Necessity. British Naval Impressment in the Eighteenth-Century Atlantic World, written by Denver Brunsman, Associate Professor of History at the George Washington University.
In “If Slavery Is Not Wrong, Nothing Is Wrong,” I proposed that the Civil War was fought to restore the original unity of the Declaration of Independence and the Constitution, and that the Thirteenth Amendment, adopted in 1865, was the culmination of that colorblind restoration. In the antebellum period, opponents of slavery could not specify what would result once slavery was ended. Would free blacks have equal rights? Vote? Intermarry with whites? Thus did Stephen Douglas mock Abraham Lincoln. The post-bellum answer of universal freedom nonetheless preserved much of the antebellum distinction between being anti-slavery and being anti-black. While Black Codes prevailed…
Today, one of the least-discussed aspects of the Emancipation Proclamation is whether it gave rise to a takings claim. The Proclamation was enacted under Lincoln's war powers, whereby he seized property (slaves) in the rebel states, and then emancipated them. Apparently, many southerners sought to raise takings claims against the Federal Government. Similar claims were lodged following the ratification of the 13th amendment. At the time, Congress estimated that the cost of compensating the emancipated slaveowners was somewhere between $1.6 billion and $2 billion, roughly half of the total value of all property (real and personal) in the south. Section 1…
Timothy Sandefur’s The Conscience of the Constitution contributes to the debate over the best way to limit the powers of the United States government in order to secure liberty. Sandefur, a lawyer and legal scholar, believes that “American constitutional history has always hovered in the mutual resistance of two principles: the right of each individual to be free, and the power of the majority to make rules.” (1) For Sandefur adherence to the natural rights theory of Declaration of Independence manages the tension between the two principles.
This quarter, I assigned Liberty, Equality, Power in the U.S. history survey. I might try another book next year because it’s getting to be too expensive for the students. Anyway, it’s a solid book. Reading over the chapter on "The Old South, 1790-1850," I stumbled over this bit, describing the deep South: "Slaves under the task system won the right to cultivate land as ‘private fields'—farms of up to five acres on which they grew produce and raised livestock for market. There was a lively trade in slave-produced goods, and by the late 1850s slaves in the lowcountry not only produced and exchanged…