Posted on 01/30/2013 4:26:31 PM PST by Kaslin
It's a perilous proposition to insist that a long-dead historical figure would share your politics. It's doubly so when your documentary evidence is thin and you are twisting the proper meaning of the words in that supposed evidence. Take the case of MSNBC.com's Nick Ramsey, who insists that Abraham Lincoln would strongly disagreed with Justice Antonin Scalia that the U.S. Constitution is a dead document rather than a living constitution that can evolve outside the constitutionally-provided mechanism for such evolution: the amendment processes described in Article VII.
"This is an issue that constitutional experts have debated for years and years, but at least one president is firmly on the record on the issue. And this President is one often cited by conservatives, but he is not in agreement with Justice Scalia," Ramsey insisted, going on to quote Abraham Lincoln out of context and seemingly with a misunderstanding of a key word in the passage he cited. Here's how Ramsey dealt with that (emphases his):
In his first inaugural address, Abraham Lincoln referred to the Constitution as “organic law.” Twice. Here are the two passages, emphasis added:
I hold that in contemplation of universal law and of the Constitution the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination. Continue to execute all the express provisions of our National Constitution, and the Union will endure forever, it being impossible to destroy it except by some action not provided for in the instrument itself.
… no organic law can ever be framed with a provision specifically applicable to every question which may occur in practical administration. No foresight can anticipate nor any document of reasonable length contain express provisions for all possible questions. 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.
Of course, we did go on to decide as a nation that a ban on slavery would be included in the Constitution with the ratification of the Thirteenth Amendment. As for whether the document we used to do it, our Constitution, is one that is “dead, dead, dead” or “organic”, that is a question likely to be debated for years and years to come.
There are a few problems with Ramsey's argument. The first is that Ramsey is confusing the "organic" in "organic law" to be the same thing as the term "organic" in the biological sense -- "of, relating to, or derived from living organisms." But according to West's Encyclopedia of American Law, organic law is simply:
The fundamental law or constitution of a particular state or nation, either written or unwritten, that defines and establishes the manner in which its government will be organized.
In other words, the organic law of the United States is the United States Constitution, that written constitution which "defines and establishes" the boundaries and powers of the government. Lincoln's argument in his first inaugural -- addressing the secession crisis -- was that no government organizes itself with a view to its own dismemberment and temporality. Lincoln was defending his intention to continue to execute federal law in the states which had declared themselves seceded from the Union.
Lincoln also argued that "no organic law can ever be framed" in such a way as to address "every question which may occur in practical administration," it being manifestly impossible to "contain express provisions for all possible questions." Of course, that proposition is beyond dispute by any jurist, no matter what their philosophy of constitutional interpretation, but it hardly means Lincoln believed in a "living Constitution" which must evolve in fundamental meaning over time apart from the amendment process.
Indeed, from later on in the very same inaugural address, Lincoln himself sounded quite dedicated to the proposition that the Constitution is "dead," changing in its nature only through the amendment process (emphases mine):
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 can not be ignorant of the fact that many worthy and patriotic citizens are desirous of having the National Constitution amended. While I make no recommendation of amendments, I fully recognize the rightful authority of the people over the whole subject, to be exercised in either of the modes prescribed in the instrument itself; and I should, under existing circumstances, favor rather than oppose a fair opportunity being afforded the people to act upon it. I will venture to add that to me the convention mode seems preferable, in that it allows amendments to originate with the people themselves, instead of only permitting them to take or reject propositions originated by others, not especially chosen for the purpose, and which might not be precisely such as they would wish to either accept or refuse. 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. To avoid misconstruction of what I have said, I depart from my purpose not to speak of particular amendments so far as to say that, holding such a provision to now be implied constitutional law, I have no objection to its being made express and irrevocable.
The Chief Magistrate derives all his authority from the people, and they have referred none upon him to fix terms for the separation of the States. The people themselves can do this if also they choose, but the Executive as such has nothing to do with it. His duty is to administer the present Government as it came to his hands and to transmit it unimpaired by him to his successor.
What's more, were Lincoln a living Constitution advocate, would he not have simply tried to outlaw slavery through an act of Congress -- which would have required a mere simple majority -- rather than lobbying for the requisite 2/3rds supermajority required to send the 13th Amendment to the states for ratification?
Logically and historically, Ramsey's claim makes no sense.
When someone tells you that the Consitution is a “living document”, what they really mean is that they want it to die.
Lincoln also rejected the idea that the Sup Court had the final say on all Constitutional matters. In other words he rejected judicial supremacy.
So even if this guy was right that Lincoln would be a champion of the modern day ‘living Constitution’, it also seems that Lincoln would reject the idea that the nation must obey whatever living Constitution nonsense the Sup Court tried to impose.
Interesting, given that Lincoln had contempt for the Constitution. Which, I suppose, would explain his “projected” acceptance of that august compact as a “living constitution,” whose meaning was whatever anyone in power (him included) wanted it to mean.
I have a suspicion this is a politically motivated piece that hits both Justice Scalia and President Lincoln. Has no good purpose!
The whole thrust of the bogus “living constitution” argument is nothing more than an attempt to get around the very stringent amendment process.
How long ‘til they re-frame Lincoln into Joseph Stalin ...
IMHO, it’s analogous to any lawyer looking for any loopholes in a contract.
Luckily, our Founders were smart enough men to write the Constitution in simple English...simple enough that lawyers and judges today still don’t comprehend (IE: “Congress shall make NO law; Shall not be infringed; nor shall private property be taken for public use, without just compensation; etc.)
But, what do I know, I’m just a publik skool edukated person who enjoys reading about our Founding and such...
Ity is well known that Lincoln was not happy with his emancipation proclamation. He worked long and hard on the document, but later confessed it to be a”poor”document. He was not satisfied with its legality, although it served as an expedient, and he seems to have concluded that whatever force it had would expire with the end of the national emergency. Which is why he pushed the ratification of the 13th Amendment. One can never know, but I think it could be argued that if he had lived that the 14th and 15th Amendments would never have been passed. Johnson simply let the Confederates get away with things that Lincoln never would, just as he squashed an attempt by Judge Campbell to let the Confederate legislature continue to function as the head of Virginia. As a Southerner himself who had been frustrated by intransigence of the slave owners of the border states in rejecting on principle of compensated emancipation, it seems to me unlikely that he would have allowed any but a state loyal to him and his policies to send representatives to Washington in December, 1865.
The Constitution is an instrument of government. It is not a legal code nor an embidiment of eternal principles but a means of establishing and empowering a limited government. The Bill of Rights aimed to reduce its powers without crippling it. One that worked but did not subject the people to its rule as a kingdom might.
The Constitution is an instrument of government. It is not a legal code nor an embidiment of eternal principles but a means of establishing and empowering a limited government. The Bill of Rights aimed to reduce its powers without crippling it. One that worked but did not subject the people to its rule as a kingdom might.
Lincoln went outside the Constitution a number of times, but he never showed contempt for it. Which is why he wanted the 13th amendment.
Lincoln went outside the Constitution a number of times, but he never showed contempt for it. Which is why he wanted the 13th amendment.
I believer you’re partially correct.
Yes, it is an instrument to setup a limited government. But it is as much legal code (IE: sets out what gov’t CAN do) as well as being an embodiment of principles, only ‘eternal’ in that gov’t must use the Amendment process to change.
To look at it any other way allows the distortion of limited gov’t and reduction of Freedom and Liberty by nefarious means.
Contempt? The War itself was contemptuous.
There was no ‘Civil’ War. The South did not wish to rule from D.C. They only wished to rule themselves, as they saw fit, in accordance WITH the Constitution.
It was Lincoln who had the idea of an unbreakable Union, which, to me, flies in the face of the Founders. Our own Declaration states “Free and independent States”; the Constitution only granted D.C. those power DELEGATED to it by the People or States. What is so given can be rescinded.
IE: The South had (has) every Right to take back any/all powers when they felt (feel) the Federal gov’t has overstepped its bounds.
But, I digress. A debate for another thread/time :)
Enforcement of any set of fixed rules “violates” one of the core tenets of the humanist worldview.
The elites alive today are better suited to making ad hoc, arbitrary decisions than anyone that lived in the past and wrote down some rule for future people to live by.
This includes the amendment process. This is part of the “fixed rules”, so it is despised as much or more as any of the other fixed rules.
Fact is that the South fired the first shots of the war. At a federal fort, no less. Jeff Davis, with usual mad judgment, gave the South Carolina firebrands their heads and provoked a war, which made Lincoln look justified in his actions. What’s more, as soon as Virginia seceded, the Confederate government moved its capital to Richmond, pretty obviously expecting to make another move to Washington, once Maryland’s secession forced Lincoln to withdraw to the safety of some northern city.
Well said. Our elites feel entitled to rule. The Tudors swore to uphold magma carta when they were crowned but pretty much made their own rules as it suited them. The most glaring one was the break with the Catholic Church, which Thomas More opposed because he realized how lawless an act it was, how revolutionary. The English got hot and bothered about the Spanosh inquisition, but the king’s “Star-chamber” courts were every bit as arbitrary if not more so.
Aside from the 1st shot, which I think was a BAD first move, the rest is conjecture. Good theory and debate fodder; but I believe the South was more worried about getting the Fed. gov’ts boot off its neck more than were they were to setup after the war.
I once was a Jeff Davis fan. Now I have the same opinion about him that Winfield Scott did and Joe Johnston did. If the Confederacy had had a different President, they might have won.
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