Let's turn the microphone over to Abraham Lincoln:
Abraham Lincoln: First Inaugural Address: If by the mere force of numbers a majority should deprive a minority of any clearly written constitutional right, it might in a moral point of view justify revolution; certainly would if such right were a vital one. But such is not our case. All the vital rights of minorities and of individuals are so plainly assured to them by affirmations and negations, guaranties and prohibitions, in the Constitution that controversies never arise concerning them. But no organic law can ever be framed with a provision specifically applicable to every question.... Shall fugitives from labor be surrendered by national or by State authority? The Constitution does not expressly say. May Congress prohibit slavery in the Territories? The Constitution does not expressly say. Must Congress protect slavery in the Territories? The Constitution does not expressly say.
From questions of this class spring all our constitutional controversies, and we divide upon them into majorities and minorities. If the minority will not acquiesce, the majority must, or the Government must cease. There is no other alternative, for continuing the Government is acquiescence on one side or the other. If a minority in such case will secede rather than acquiesce, they make a precedent which in turn will divide and ruin them, for a minority of their own will secede from them whenever a majority refuses to be controlled by such minority.... Plainly the central idea of secession is the essence of anarchy. A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism. Unanimity is impossible. The rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left....
One section of our country believes slavery is right and ought to be extended, while the other believes it is wrong and ought not to be extended. This is the only substantial dispute. The fugitive-slave clause of the Constitution and the law for the suppression of the foreign slave trade are each as well enforced, perhaps, as any law can ever be in a community where the moral sense of the people imperfectly supports the law itself. The great body of the people abide by the dry legal obligation in both cases, and a few break over in each. This, I think, can not be perfectly cured, and it would be worse in both cases after the separation of the sections than before....
This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing Government, they can exercise their constitutional right of amending it or their revolutionary right to dismember or overthrow it.... I understand a proposed amendment to the Constitution—which amendment, however, I have not seen—has passed Congress, to the effect that the Federal Government shall never interfere with the domestic institutions of the States, including that of persons held to service.... [H]olding such a provision to now be implied constitutional law, I have no objection to its being made express and irrevocable....
By the frame of the Government under which we live this same people have wisely given their public servants but little power for mischief, and have with equal wisdom provided for the return of that little to their own hands at very short intervals. While the people retain their virtue and vigilance no Administration by any extreme of wickedness or folly can very seriously injure the Government in the short space of four years. My countrymen, one and all, think calmly and well upon this whole subject. Nothing valuable can be lost by taking time.... Such of you as are now dissatisfied still have the old Constitution unimpaired, and, on the sensitive point, the laws of your own framing under it; while the new Administration will have no immediate power, if it would, to change either.... Intelligence, patriotism, Christianity, and a firm reliance on Him who has never yet forsaken this favored land are still competent to adjust in the best way all our present difficulty.
In your hands, my dissatisfied fellow-countrymen, and not in mine, is the momentous issue of civil war. The Government will not assail you. You can have no conflict without being yourselves the aggressors. You have no oath registered in heaven to destroy the Government, while I shall have the most solemn one to "preserve, protect, and defend it."
I am loath to close. We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.
I trust that is fairly clear: Abraham Lincoln says that the Constitution protects minority rights--that for a majority to deprive a minority of any vital constitutional right is just cause for revolution--but that the Constitution must be interpreted according to majority rule, for the alternative to majority rule is anarchy or despotism.
Now comes Sandy Levinson attacking
Levinson: [William] Safire's almost literally thoughtless description of Lincoln's "overriding purpose: to establish the principle of majority rule in the world's most daring experiment in self-government by insisting that the whole country abide by the results of its national election"...
What is Levinson's argument that Lincoln did not believe in the principle of majority rule (with minority rights)? It is this:
Lincoln's election is in almost no sense a vindication of "majority rule"; he received, after all, only 39.8% of the popular vote.... It is absolutely dismaying to me that even somone so generally able as Safire... is unable to engage in the elemental distinction between "majority rule" and the particular system of electing presidents from which Lincoln benefitted.... We will literally never know who might have come out on top if Americans in 1860 had been able to vote either in a runoff election between the two top candidates or cast an alternative transferrable vote.... I put to one side, though many might not, the fact that the electorate in 1860 included only white males, largely because it would be anachronistic to expect Lincoln to share our modern sensibilities about the prerequisites of "majority rule"...
I call an intellectual foul: Levinson's attack on Safire as "almost literally thoughtless" is in its turn completely literally thoughtless.
Abraham Lincoln got 39.8% of the white vote in 1860. Add in the African-American vote and he gets 49.9% of the popular vote. Surely he would have picked up an extra 0.1% in any runoff process--and thus beaten Bell, Breckinridge, or Douglas in any runoff. The most that Levinson can claim is that Lincoln's election was contrary to the principle of rule by the majority of white guys. And that was not a principle that Lincoln believed in:
Lincoln at Lewison: Wise statesmen as they were, [the founders]... established these great self-evident truths, that when in the distant future some man, some faction, some interest, should set up the doctrine that none but rich men, or none but white men, were entitled to life, liberty and the pursuit of happiness, their posterity might look up again to the Declaration of Independence and take courage to renew the battle... that no man would hereafter dare to limit and circumscribe the great principles on which the temple of liberty was being built. Now, my countrymen... if you have been inclined to believe that all men are not created equal in those inalienable rights enumerated by our chart of liberty, let me entreat you to come back. Return to the fountain whose waters spring close by the blood of the Revolution. Think nothing of me—take no thought for the political fate of any man whomsoever—but come back to the truths that are in the Declaration of Independence. You may do anything with me you choose.... I do claim to be actuated in this contest by something higher than an anxiety for office. I charge you to drop every paltry and insignificant thought for any man's success. It is nothing; I am nothing; Judge Douglas is nothing. But do not destroy that immortal emblem of Humanity, the Declaration of American Independence...
There is something in the air of the weblog Balkinization that leads to a number of really strange and bizarre posts around the King-Washington-Lincoln Birthday holidays. This year we have Levinson stating that somehow the installation of Lincoln rather than Breckinridge in the White House in 1861 was a defeat for the principle of majority rule.
Back in 2007 we had Mark Graber, writing in defense of Southerners' moral and legal right to forbid the election of a Republican president in 1861 via an extended analogy:
Dred Scott v. Sanford Blogging for Martin Luther King Jr. Holiday Weekend!: Suppose two tribes who have some reason to cooperate but whose members do not like each other very much ratify a constitution that grants the northern half of their territory to Tribe A and the southern part to Tribe B. Each party is rather happy with the bargain. Each believes that, in the next hundred years, climate changes are likely to enhance the value of their land and make the other tribe’s land nearly uninhabitable. As a result of this constitutional bargain, members of both tribes are able to form an army that provides for the common defense and make mutually beneficial trade agreements with other nations. After 100 years of no apparent changes, evidence conclusively indicates that Tribe A has won the constitutional bet. The soil on the northern half of the continent is becoming increasingly fertile, while the soil of the southern half of the continent (for natural reasons) is slowly killing the members of Tribe B...
To which I commented:
There are two parties to the American constitutional contract in Mark Graber's imagination. There is Tribe A--the North. There is Tribe B--the slaveholders of the South. Notice anybody missing? Yep. There is no Tribe C--there are no slaves at the table.
One of the most ancient principles of any law worthy of the name is that, at some appropriate level, quod omnes tangit ab omnibus approbari debet. And in 1861 the slaves of the United States America were certainly within the scope of the direct object of the verb tangit as far as contemplated revisions of the 1787 constitutional order were concerned. Any just revision of the constitutional bargain thus must win their approbari as well.
Mark Graber says that if changes in circumstances greatly disadvantage how a constitution impacts some group, that constitution should be revised and amended so that the losers should not have to pay up the full amount of the constitutional bet that they have lost. Well, there were powerful changes in circumstances from 1787 to 1860. In 1787, with the exhaustion of tobacco soils, Thomas Jefferson believed he would someday free all his slaves. In 1860, with the cotton gin and the industrial revolution boosting the profits of cotton and making it king, Jefferson Davis was damned sure he would not free any of his slaves. These changes in circumstances greatly, greatly disadvantaged Tribe C. Does not Graber's argument that the free-soil North should not have collected on its victorious bet from the slavemasters entail much more strongly that the slavemasters of the South--transformed by the profits of cotton from seeing slavery as a temporary evil to seeing slavery as a permanent good--should not have collected on their victorious bet from the slaves?
But in the world of Mark Graber's imagination there is no "Tribe C." They are socially dead. They, you see, have not made a constitutional bet because they are not parties to the constitution. They are not and never can be citizens of the United States. They are not among the people who have inalienable rights. Governments are not instituted to secure their rights to life, liberty, or the pursuit of happiness: they have none. Their claim that they are among the "we the people" for whom the constitution is supposed "to secure the blessings of liberty" is null and void, if not simply laughed out of court. We don't have to think about the impact on Tribe C. For, as Roger B. Taney wrote, African-Americans are:
beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.
I maintain the contrary. I maintain that we do have to think about Tribe C. I maintain that everybody doing politics and law in the United States--today or in the 1850s, whether Roger B. Taney or Mark Graber--ought not to pretend that Tribe C is absent from the table. Tribe C has a seat at the table, for as Abraham Lincoln said in 1858:
I agree with Judge Douglas that [the Negro] is not my equal in many respects, certainly not in color--; perhaps not in intellectual and moral endowments; but in the right to eat the bread without the leave of any body else which his own hand earns, he is my equal and the equal of Judge Douglas, and the equal of every other man.
UPDATE: I had forgotten Mark Graber's claim that the differences in constitutional interpretation between Abraham Lincoln and Roger Taney were "almost trivial." Where do they make these law professors, anyway?
Law Professor Mark Graber Strikes Again: Taney wrote the opinion for the Supreme Court in Dred Scott v. Sandford (1856)... that persons of color could not be American citizens.... 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.... [His] only serious dispute [with Taney] 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: Judge Douglas... says he “don’t care whether [slavery] is voted up or voted down” in the Territories.... 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.... You may turn over everything in the Democratic policy from beginning to end... 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...
UPDATE 2: Ooh boy. And ooh boy boy.
