Law Professor Mark Graber Strikes Again

When last we saw law professor Mark Graber, he was celebrating Martin Luther King, Jr. birthday weekend by asserting that Roger Taney's opinion in Dred Scott was sound--an act of judicial statesmanship--and had wedged himself into a position to the right of John C. Calhoun, arguing that the 1787 U.S. Constitution incorporated principle of "concurrent majorities" that made it substantively unconstitutional for legislation affecting slavery to be passed by a section-specific majority.

Now Mark Graber is back: This time it is one of the most bizarre ripping-of-quotations-from-context I have ever seen, asserting that the differences on slavery between Roger B. Taney and Abraham Lincoln were "almost trivial." In making this argument, Graber lets Lincoln speak for one single clause before silencing him and hustling him offstage:

Balkinization: A good case can be made for tearing down the bust of Roger Brooke Taney that stands in front of the city hall in Frederick.... Taney wrote the opinion for the Supreme Court in Dred Scott v. Sandford (1856)... that persons of color could not be American citizens and that slavery could not be prohibited in American territories.... While the bulldozers are rented, we might get our money’s worth and tear down all statues honoring Abraham Lincoln. Lincoln insisted he "never complained especially of the Dred Scott decision because it held that a negro could not be a citizen..."

From a contemporary perspective, the differences between Lincoln and Taney seem almost trivial. The sixteenth president opposed making persons of color citizens of Illinois, advocated federal fugitive slave laws, endorsed slaveholding in the nation’s capital, and insisted that the federal government had no power to interfere with slavery in any state in which human bondage was legal. Their only serious dispute was over whether slaveholders could take their human property to North Dakota, a place few if any slaveholders had expressed interest in settling...

Let us bring Abraham Lincoln back on stage, and let him say more than the nineteen words from his Alton speech that Graber lets him say. Here is what Lincoln said about the "almost trivial" differences between him and the anti-anti-slavery Democrats like Stephen Douglas (let along the pro-slavery Democrats like Roger Taney):

Last Joint Debate, at Alton. Mr. Lincoln's Reply. Lincoln, Abraham. 1897. Political Debates Between Lincoln and Douglas: Judge Douglas... says he “don’t care whether [slavery] is voted up or voted down” in the Territories. I do not care myself, in dealing with that expression, whether it is intended to be expressive of his individual sentiments on the subject, or only of the national policy he desires to have established. It is alike valuable for my purpose. Any man can say that who does not see anything wrong in slavery; but no man can logically say it who does see a wrong in it, because no man can logically say he don’t care whether a wrong is voted up or voted down. He may say he don’t care whether an indifferent thing is voted up or down, but he must logically have a choice between a right thing and a wrong thing. He contends that whatever community wants slaves has a right to have them. So they have, if it is not a wrong. But if it is a wrong, he cannot say people have a right to do wrong.... You may turn over everything in the Democratic policy from beginning to end, whether in the shape it takes on the statute book, in the shape it takes in the Dred Scott decision, in the shape it takes in conversation, or the shape it takes in short maxim-like arguments, it everywhere carefully excludes the idea that there is anything wrong in [slavery].

That is the real issue. That is the issue that will continue in this country when these poor tongues of Judge Douglas and myself shall be silent. It is the eternal struggle between these two principles—-right and wrong—-throughout the world. They are the two principles that have stood face to face from the beginning of time, and will ever continue to struggle. The one is the common right of humanity, and the other the divine right of kings. It is the same principle in whatever shape it develops itself. It is the same spirit that says, “You work and toil and earn bread, and I’ll eat it.” No matter in what shape it comes, whether from the mouth of a king who seeks to bestride the people of his own nation and live by the fruit of their labor, or from one race of men as an apology for enslaving another race, it is the same tyrannical principle...

Mark Graber may think this difference is "almost trivial." I cannot find anybody else who does.

Comments

[don quixote]

My copy of the constitution shows Amendment XIII, ratified December 6, 1865, as making slavery illegal in the USA.

[Barry]

Brad, please e-mail Jack and let him know.

It's disturbing, because I trusted him.

Ah, well, another Brain eaten by the Brain Eater.

[Walt]

That Lincoln was an eloquent fellow.

[kid bitzer]

Here's the more relevant part:

"I have heard the Judge [Douglas] state two or three times what he has stated to-day,—that in a speech which I made at Springfield, Illinois, I had in a very especial manner complained that the Supreme Court in the Dred Scott case had decided that a negro could never be a citizen of the United States. I have omitted by some accident heretofore to analyze this statement, and it is required of me to notice it now.

In point of fact it is untrue. I never have complained *especially* of the Dred Scott decision because it held that a negro could not be a citizen, and the Judge is always wrong when he says I ever did so complain of it. I have the speech here, and I will thank him or any of his friends to show where I said that a negro should be a citizen, and complained especially of the Dred Scott decision because it declared he could not be one. I have done no such thing; and Judge Douglas, so persistently insisting that I have done so, has strongly impressed me with the belief of a predetermination on his part to misrepresent me. He could not get his foundation for insisting that I was in favor of this negro equality anywhere else as well he could by assuming that untrue proposition. Let me tell this audience what is true in regard to that matter; and the means by which they may correct me if I do not tell them truly is by a recurrence to the speech itself.

I spoke of the Dred Scott decision in my Springfield speech, and I was then endeavoring to prove that the Dred Scott decision was a portion of a system or scheme to make slavery national in this country. I pointed out what things had been decided by the court. I mentioned as a fact that they had decided that a negro could not be a citizen; that they had done so, as I supposed, to deprive the negro, under all circumstances, of the remotest possibility of ever becoming a citizen and claiming the rights of a citizen of the United States under a certain clause of the Constitution. I stated that, without making any complaint of it at all.

I then went on and stated the other points decided in the case; namely: that the bringing of a negro into the State of Illinois and holding him in slavery for two years here was a matter in regard to which they would not decide whether it would make him free or not; that they decided the further point that taking him into a United States Territory where slavery was prohibited by Act of Congress did not make him free, because that Act of Congress, as they held, was unconstitutional. I mentioned these three things as making up the points decided in that case. I mentioned them in a lump, taken in connection with the introduction of the Nebraska bill, and the amendment of Chase, offered at the time, declaratory of the right of the people of the Territories to exclude slavery, which was voted down by the friends of the bill.

I mentioned all these things together, as evidence tending to prove a combination and conspiracy to make the institution of slavery national. In that connection and in that way I mentioned the decision on the point that a negro could not be a citizen, and in no other connection."

So Lincoln's stance seems to be: the ground of my earlier complaint against Dred Scott was the fact that it was part of a conspiracy to make slavery national. I said a lot of things about it, in detailing its import and consequences. But my *especial* complaint about it was that it tends towards the nationalizing of slavery.

Brad's basically right on this point, Graber's basically wrong.

BUT, you cannot get very far in making sense of Lincoln's views prior to the war--indeed, you will constantly be met with quotations that cause trouble, like this one--unless you keep in mind that Lincoln was playing a *very* complicated game with what was POSSIBLE.

Lincoln always hated slavery. But he did not always think it possible that it would be ended in his life-time. And he thought that the result of pushing for the nation-wide abolition of slavery might well be worse than the slow and gradual elimination of slavery--worse for the nation, which would descend into mere anarchy, and worse for the blacks, since it is always the worst off who are worst off in a descent into anarchy.

Just listen to him in this speech:
" It may be argued that there are certain conditions that make necessities and impose them upon us, and to the extent that a necessity is imposed upon a man he must submit to it. I think that was the condition in which we found ourselves when we established this Government. We had slaves among us, we could not get our Constitution unless we permitted them to remain in slavery, we could not secure the good we did secure if we grasped for more; and having by necessity submitted to that much, it does not destroy the principle that is the charter of our liberties. Let the charter remain as our standard."

He thought the Constitution was a good of sufficient magnitude that it justified the necessity of tolerating the evil of slavery, until that evil could be eliminated without peril to that very Constitution.

This is the difficult position Lincoln championed, until the opposing side brought the Constitution into peril in any case. Then he was finally free to act on his long-standing hatred of slavery, since it could do no more to imperil the Constitution than the advocates of slavery had already done.

This speech, however, coming from the pre-War years, is still very calculated. Very much couched in terms of the art of the possible.

It is not surprising that parts of it can be alleged against Lincoln, by a reader who is incautious or unscrupulous. It is hard to believe that a professor of law could be an incautious reader.

[Hal]

"He could not get his foundation for insisting that I was in favor of this negro equality anywhere else as well he could by assuming that untrue proposition."--Lincoln

I think Lincoln's position on blacks and slavery (evidently he was not in favor of "this negro equality") is more complex and less "admirable" than contemporaries would now like to make out. If memory serves, the Emancipation Proclamation was a wartime tactic to weaken the South, not a moral decision. Whether Graber is right or wrong when you fine tune it all, I think he has plenty of ammo to muddy Lincoln's position on the issue of black freedom.

[kid bitzer]

well, Hal, that's where we disagree.

Sure, there is "plenty of ammo to muddy Lincoln's position." Because Lincoln had to speak with great care, and walk a very fine line.

But Graber is clearly *wrong* when you fine-tune it. As are you, when you write
"the Emancipation Proclamation was a wartime tactic to weaken the South, not a moral decision."

Lincoln's hatred of and opposition to slavery can be documented from every part of his life. The Emancipation Proclamation was indeed a moral decision, and a decision in line with Lincoln's unswerving moral opposition to slavery.

At the same time, it is also true (as I say above), that prior to the South's attack on the Constitution, Lincoln thought that it would be worse to act on his moral opposition to slavery--worse for the Constitution, and so worse for the 'last best hope of mankind.' As evil as slavery was, it was evil as an instance of the general evil of tyranny. Only the republican form of government, under a constitution like our Constitution, stands a chance of addressing that greater, more general evil of one man's tyranny over others, of which slavery is simply an unusually vivid case.

Whether rightly or wrongly, Lincoln felt that he had to postpone the open war against slavery, as long as there was a hope of keeping the Union intact. It is reasonable to question whether he made the right choice or not; it is simply unreasonable--ignorant or bigoted--to twist that choice into a moral nonchalance about slavery. It's not that he hated slavery less; it's that he loved the Constitution more.

Far from a transient tactic, the Emancipation Proclamation shows us the full flowering of Lincoln's moral position. Once the slave owners rose in rebellion against the Constitution, the specific tyranny and the general tyranny were now visibly aligned, and Lincoln could fight them both at once, without worrying that his attack on slavery would weaken the Union.

Look, I agree that Lincoln said things that can be twisted against him. But that simply increases the importance of looking at the whole record, seeing the accurate account of what he was doing, and protesting against the flagrant distortions foisted on him, generally by apologists for the Old South.

[howard]

so tell us, prof: how does a guy like this become a law professor?

[Hal]

"Lincoln said things that can be twisted against him."

Why is it "twisting" things to repeat what Lincoln said or do you argue that he said things he didn't mean? It is not popular to raise questions about a sanctified national icon almost universally worshiped, and I think Graber is gusty to do it.

[John Emerson]

I have been wronged by history. I am grateful to Prof. Graber for recognizing the justice of my cause. You people are all haters.

[bigTom]

Thanks kid, you make things crystal clear.

Now this brings me to an interesting observation or two about changing times:
The first one, is reading Lincolns refutation of Douglass essentially putting words in his mouth for political purposes. O if only we could have such reasoned discourse in todays political debates. Today Douglass's distortion would very likley stick, because it is easy to say in a sound-bite, and takes longer than that to disprove.

The second has to do with moral judgement of historical figures, particularly about subjects for which the evolution of opinion has taken multiple lifetimes. Lincoln was prepared to take the first step ending slavery, but not the second granting citizenship. Today we rightly see that omission as reprehensible. Back then the former was an important, and audacious step forward, while the later was politically nearly unthinkable.

[Rickster Sherpa]

Dear Hal:

There are a things called anacrohonism and context. Douglas's position was to allow slavery to continue and possibly spread. Lincoln wanted it limited and to mark it for extinction. I take that you are just being anachronistic in trying to judge Lincoln of 1858 with the common and popular opinion of early 21st century America. Lincoln was pushing popular opinion with his position (although he won the popular vote for Senate in 1858, it was only narrowly and the Democrats retained control of the State Legislature, insuring Stephen Douglas would return to the Senate). However, Professor Graber it actually racist in the current contemporary way we judge things and, if he was to run for office, could not be elected dog catcher except in certain parts of Louisiana.

[kid bitzer]

It is of course not "twisting things" to repeat what Lincoln said, and your suggestion that anyone claimed otherwise does not do you credit.

What *is* twisting things is to quote a fragment of Lincoln and then say that this means that the difference between Lincoln and the author of Dred Scott is "almost trivial".

That was the original point at issue, Hal, and unless you put more good-faith effort into following the dispute, you run the risk of sounding merely contrarian.

[howard]

hal, let me also note that when i took my AP history exam in 1970, one of the essay questions was about...Lincoln, slavery, and the emancipation proclamation.

in short, anyone who studies american history needs to come to terms with lincoln as a man of his times (as Rickster Sherpa notes). There's nothing new about this, and there's nothing brave about graber pushing a moronic line as though it were a brave, icon-smashing moment.

[kid bitzer]

in hal's defense, he didn't say it was 'brave',
he said it was 'gusty' [sic], which is a fair way to describe a wind-bag.

[Emma Anne]

Howard: I am sorry to say that the list of complete assholes (excuse my Klatchian) who are law professors is far longer than it ought to be.

Kid Bitzer: Lovely exposition on this. Thanks.

Walt: Yes, Mr. Lincoln was amazingly eloquent, from innate talent, firm grasp of the facts, and strong principals.

[bigTom]

Tis an excellent summary by Chris. When assessing whether a given event was caused by a postulated secular change, we have to consider two things. First how much is the change (climate change in this incident) loading the dice. The second thing is that we have a different statistical throw, then we would have had on a different earth. The first question relates to how much of an effect are we having, the second relates mostly to luck (or lack thereof).

[a former inmate]

don quixote said - "My copy of the constitution shows Amendment XIII, ratified December 6, 1865, as making slavery illegal in the USA."

You're right that it made slavery illegal for most people, "except as a punishment for crime whereof the party shall have been duly convicted." About 2 million or so incarcerated Americans face slavery every day.

[Gwailo]

Graber is doing the exact same thing that Lincoln accused Stephen Douglas of doing:
"In his quotations from that speech, as he has made them upon former occasions, the extracts were taken in such a way as, I suppose, brings them within the definition of what is called garbling,—taking portions of a speech which, when taken by themselves, do not present the entire sense of the speaker as expressed at the time."
So from now on may he be known to the world as "Garbling Graber."

[hack]

Law professors... lowest intellectual standards in all of academia, save possibly for femminist studies and PE.

[rea]

Lincoln beleived in the preservation of the Union and the abolition of slavery--in that order of priority.

"I would save the Union. I would save it the shortest way under the Constitution. The sooner the national authority can be restored; the nearer the Union will be "the Union as it was." If there be those who would not save the Union, unless they could at the same time save slavery, I do not agree with them. If there be those who would not save the Union unless they could at the same time destroy slavery, I do not agree with them. My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery. If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that. What I do about slavery, and the colored race, I do because I believe it helps to save the Union; and what I forbear, I forbear because I do not believe it would help to save the Union. I shall do less whenever I shall believe what I am doing hurts the cause, and I shall do more whenever I shall believe doing more will help the cause. I shall try to correct errors when shown to be errors; and I shall adopt new views so fast as they shall appear to be true views.

"I have here stated my purpose according to my view of official duty; and I intend no modification of my oft-expressed personal wish that all men everywhere could be free."

[kid bitzer]

thanks, rea--do you have a cite for that?

[Jim Bales]

While I am not Rea, I do have the source. It is in Lincoln's letter to Horace Greeley, Friday, August 22, 1862. A scan of the letter as printed in the NY Tribune the next day can be found at:
http://memory.loc.gov/cgi-bin/ampage?collId=mal&fileName=mal2/423/4233400/malpage.db&recNum=0

(Googling "lincoln letter horace greeley" got many good hits.)

[kid bitzer]

many thanks, jim.
i've never read that letter before, but it's the letter i would have predicted he would write.
except better written than my predictions could have made it.

[Dina]

Amazing letter thanks for bringing it here.