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Lincoln Would have Had an Answer for the "Originalists"

Editor's note: this is the first part of a two-part series. Part 2 is available here


That’s the touchstone of constitutional jurisprudence over which Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett obsess.

It makes them feel righteous to do it, because for people like themselves the doctrine is faith. 

They presume that the words of the Constitution possess essentially one “original” meaning.  And they also presume they have the power to determine this meaning and then lord it over everyone else.

They believe this.

The creed of “originalism” has the power of a Platonic Idea for them:  it seems immutable, unchanging, intellectually pure.

They regard themselves as the bringers of order, protectors of the nation’s golden words, and the guardians of meaning

They say that every word in the Constitution means just what it meant when it was written — a proposition that might sound good enough at first blush in the minds of the gullible.

But historians, linguists, and anyone possessing an ounce of intellectual integrity must groan the more they examine it.  Because it’s nothing but a simple-minded dogma.

There are excellent reasons for strengthening the public’s allegiance to our nation’s highest law, but originalism is not the way to do it.  It is not the right way to maintain the vitality of a living Constitution.

It could make the Constitution moribund and undermine the fabric of what we take our nation to be.  It is subversive.

One of the conclusions of Roe v. Wade was that the right to abortion emanates from the right to privacy — a right the Supreme Court established in the 1965 decision of Griswold v. Connecticut.  In Griswold, the court overturned an idiotic Connecticut law prohibiting married couples from using contraceptives.

In the aftermath of overturning Roe, Justice Clarence Thomas exulted that Griswold should also be challenged, as should other court-created constitutional rights that the “original” language of the Constitution does not contain.

If Thomas has his way, how far would this unravelling go?  How many of the rights we take for granted would be swept away?

Justice William O. Douglas, who wrote the majority opinion of Griswold, reasoned that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”  From the right to free speech, for example, flows a freedom to associate, a freedom to read, and many other associated rights.  Among them, said Douglas, was a fundamental right to privacy.

Louis Brandeis pioneered the arguments supporting the right to privacy as early as the 1890s.  In the 1927 case of Olmstead v. United States, he declared that “the right to be let alone is the most comprehensive of rights and the right most valued by civilized men.”[i]  The right to privacy was a concept developed over many years.

Thomas would love to question these judgments and perhaps take away some rights that are part of our culture, like the right to privacy.  So how far could he go?

 Consider one of our basic rights — free speech.               

We know where the right originates:  in the First Amendment.  This amendment was added to the Constitution with the rest of the first ten amendments that were written by James Madison and that would constitute the Bill of Rights.

We take our “First Amendment rights” for granted, but throughout the nineteenth century — indeed, until 1925 — the right of free speech was suppressed in America, suppressed by the states.

Before the Civil War, almost every slave state criminalized anti-slavery speech.  Denouncing slavery was sometimes a felony punishable death under the repressive “slave codes” enacted by these slave state legislatures.

Wasn’t that a violation of the First Amendment?  No:  read the amendment as Madison drafted it, and you will see that it only protects free speech against acts of Congress.

The First Amendment would not be applied to the states until 1925, when the Supreme Court did it in the case of Gitlow v. New York.  The Court expanded the First Amendment by applying the language of a later amendment, the Fourteenth, which forbids the states from depriving any person of “life, liberty, or property, without due process of law,” and which also forbids states from depriving any person of the “equal protection of the laws.”

This technique — the expansion of earlier constitutional text in light of later amendments — became known as the doctrine of “incorporation.” It is fundamental to the “free country” that most of us take for granted.

But originalists — presuming they accept the doctrine of incorporation — would say that First Amendment jurisprudence must be grounded in the Fourteenth Amendment’s meaning as of 1866, when it was drafted by Republicans during Reconstruction.

In other words, the ways and the customs of 1866 must determine how we live our lives today.  Moreover, nothing can be taken for granted when it comes to our understanding of 1866.  Before we make a move, Clarence Thomas would say, we must be sure that Americans in 1866 would approve of the way that we understand the rights that we used to take for granted.

In Gitlow, the Supreme Court’s majority stated the following:  “We may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress — are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States.”

“We may and do assume.”

We make lots of common-sense assumptions by the lights of our contemporary culture.

We assume we have the right to be left alone if we are not harming anyone else.   We take this to be a constitutional right.  The Ninth Amendment to the Constitution indeed states that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Like the right to be left alone if we are minding our own business.

William Douglas chose to ground the right to privacy in the “penumbra” of the First Amendment as extended by the Fourteenth.

Oh no, would say Clarence Thomas, it doesn’t matter what the Fourteenth Amendment means to us.  We must prove that the people who drafted the Fourteenth Amendment, the people who passed it in Congress, the people who ratified it in the state legislatures, and the public generally understood it that way in 1866.

Did people reason in the manner of William O. Douglas in 1866?

If not, Clarence Thomas will be able to give the states back their old power to ban the use of contraceptives.

And that was probably what was going on in his mind when he gloated — in the aftermath of overturning Roe — that Griswold and all the other court-granted rights of the “equal rights revolution” should be challenged.

One senses in him an ill-disguised penchant for promoting division for the sheer hellish mischief of doing so.  The experience for him is good fun.  And so much for the Constitution’s goal of insuring domestic tranquility.

How much more of this mischief could originalists perpetrate before their self-indulgent binge runs its course?

Here’s the gossip:  they intend to legitimatize the gerrymandering of congressional districts through the “Independent Legislature Theory.”  It goes like this:  since the Constitution says that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,” only the legislatures can have a say in these matters — and not the courts.

And get this:  a court — the Supreme Court — will be the tribunal handing down the decree that prohibits court action!

Some of our existing protection against gerrymandered electoral districts comes from the “one man-one vote” doctrine that the Supreme Court handed down in the 1964 cases of Reynolds v. Sims and Wesberry v. Sanders.  The Court did it by applying the equal protection clause of the Fourteenth Amendment.

But the Fourteenth Amendment doesn’t say that its equal protection clause must include the one man-one vote principle — does it?  And is there any proof that people understood it that way in 1866?

And now the story gets worse, so brace yourself.

The “Electors Clause” of the Constitution says that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” — meaning of course presidential electors — and the Independent Legislature Doctrine could be applied to this clause as well.

That means that Thomas and Alito and Gorsuch and Kavanaugh and Barrett could give the legislatures power to do what Trump and John Eastman and Rudy Giuliani tried to do in 2020:  override the voters and appoint their own slates of electors.

Even state constitutions giving governors and state courts the power to scrutinize the fairness of decisions by state legislatures in appointing presidential electors could be voided by the “Independent Legislature Theory.”

Due to gerrymandering, the composition of many legislatures is at odds with the wishes of the voters.  In the 2020 election, for example, the voters of Georgia, Arizona, Pennsylvania, Michigan, and Wisconsin picked Biden over Trump, and yet these states were all governed by GOP-controlled legislatures.

So Thomas and Alito and Gorsuch and Kavanaugh and Barrett could make the results of the next presidential election completely illegitimate.

How can it be that American democracy has become such a rickety construction?

It has always been rickety because our “Founding Fathers” were divided about what kind of a nation they were creating.

They weren’t even certain that they were creating a nation.  They called it a confederated “union” of states in the “Articles of Confederation and Perpetual Union,” which was our first constitution.  Some of them regarded this Union as a mere alliance between thirteen separate polities.  The Articles called the Union a “firm league of friendship.”

The leaders of other nations often referred to “the United States” in the plural.

The Articles were scrapped less than ten years after their adoption.  In 1786, Madison called for a meeting of delegates in Annapolis to discuss the Union’s multiplying crises.  They recommended that the Confederation Congress call a convention that would draft amendments to the Articles.  The result was the Constitutional Convention of 1787.

One of the first things the Founding Fathers did at the Philadelphia convention was exceed their authority.  They had been authorized to draft amendments to the Articles, but instead they wrote a new Constitution.

The author of the Declaration of Independence was not there.  Jefferson was far away in France on diplomatic duties.  But he presumed that whatever constitution might emerge would prove to be inadequate.  “The earth belongs always to the living generation,” he would write years later, and the constitution should be given “periodical repairs” every “nineteen or twenty years” so that the “majority” can “make the Constitution what they think will be the best for themselves.”[ii]

Madison, who took the lead at the convention by proposing the “Virginia Plan” — which, among other things, would have given Congress the power to veto state laws — was not satisfied with the Constitution as written.

George Washington, who presided at the convention, told his nephew that even “the warmest friends” of the Constitution “do not contend that it is free from imperfections” and that “if evil is likely to arise therefrom, the remedy must come hereafter.”[iii]

The Constitutional Convention almost broke up on several occasions, and the results of the final document fully satisfied no one.  Some of the most prominent Founding Fathers — Patrick Henry and Samuel Adams, for instance — opposed the ratification of the Constitution.

The “original intent” of the Founding Fathers is a slogan that resounds through the years in conservative jurisprudence.  It first appeared in 1796, when the Supreme Court invoked the “intention of the framers” in the case of Hylton v. United States.  In the recent past, the creators of originalism — like the late Antonin Scalia — have struggled to disentangle their creed from the notion of “original intent,” and for very good reason.

Because in some respects — though not in others — the doctrine of original intent is largely untenable.

The movers and shakers of the American Revolution clearly agreed about some things.  Almost all of them had come to oppose monarchy.  Almost all of them wished to safeguard certain basic liberties — at least for white people.

But in other respects, they were a motley group, and it was not at all surprising that they veritably went to war with each other in the middle of the 1790s, when the first political party system took shape.  The leaders of the rival parties came to view one another as scoundrels — or even traitors.  By 1799, Jefferson and Madison were convinced that their dear old friend President John Adams was ready to put them behind bars when they violated the terms of the repressive Alien and Sedition Acts, which Adams cheerfully signed. These acts abridged free speech.

In light of these facts, it is amusing to contemplate generalizations about the “original intent” of the Founders, since they changed their minds so often and they disagreed with each other so angrily.

Madison, for instance, had opposed the inclusion of a Bill of Rights in the Constitution.  Then he changed his mind and wrote it himself.  At the Philadelphia Convention he proposed to give Congress a veto over state laws.  Ten years later, he turned about-face and proposed to give the states the power to veto federal laws — like the Alien and Sedition Acts.  He and Jefferson endorsed that principle in their 1799 Virginia and Kentucky Resolutions, which they authored in secret.  These resolutions proclaimed the Alien and Sedition Acts null and void within the states of Virginia and Kentucky.  In doing so, Jefferson and Madison introduced the concept of state nullification.

Of the utmost importance, the Founders were completely at odds with each other in the 1790s when it came to interpreting the Constitution.  The result was the seminal debate regarding “strict” versus “broad” construction.  According to the former theory, Congress and the Federal Government have no power whatsoever that is not granted to them explicitly by the Constitution.  This compares in certain ways with the originalist doctrine of today.

But supporters of “broad construction” — among them George Washington and Alexander Hamilton — argued that Congress and the Federal Government are free to do anything at all that the Constitution does not prohibit.

They invoked the doctrine of “implied powers,” citing the “necessary and proper” clause (which gives Congress the “power to make all Laws which shall be necessary and proper for carrying into execution” the general purposes of the Constitution), and the “general welfare” clause in the Constitution’s Preamble, which implies a broad sweep of Federal capabilities.

That would also be the opinion of Chief Justice John Marshall, who later wrote the unanimous Supreme Court opinion in the 1819 case of McColloch v. Maryland.   Marshall decried the “baneful influence of . . . narrow construction.”

But where did the Supreme Court get the power to hand down pronouncements regarding what the Constitution ought to mean?

The Court gave the power — the power of judicial review — to itself in the 1803 case of Marbury v. Madison.  John Marshall accomplished this legerdemain by using the tradition of English Common Law — the tradition of “judge-made law” or “case law” by which precedents are handed down by judges — to give a constitutional power to the Supreme Court that is nowhere mentioned in the Constitution.

The Constitution itself says nothing about giving the Supreme Court the right to review matters of constitutional interpretation.

Jefferson was outraged at what Marshall had done:  he said that if the Constitution’s framers intended the Supreme Court to have power to interpret the Constitution, they should have said so distinctly.

In other words, in the view of the author of our nation’s founding document — the Declaration of Independence — originalism if carried to the point of strict construction (the doctrine that no institution of government possesses any power that is not explicitly conferred upon it by the Constitution) would deprive the current Supreme Court majority of their power to think up and implement doctrines like originalism in the first place because the Supreme Court itself would have no power to interpret the Constitution since the Constitution itself doesn’t grant it.

Throughout the first half of the nineteenth century, a significant movement in the American legal profession challenged the validity of “judge-made” law, and insisted that only statute law — “civil law” — had validity.  One attorney, Robert Rantoul, Jr., argued in 1836 that the Supreme Court’s practice of striking down laws as “unconstitutional” amounted to practicing “ex post facto” law, which the Constitution prohibits Congress from doing.[iv]

The most prominent legal reformer who advocated a complete conversion to a system of civil law was David Dudley Field, who crusaded for this reform in the 1850s.

“Judges,” he said, “should no more be permitted to make laws than the Legislature to administer them.  All experience has shown that confusion in functions leads to confusion in government.  Judges are not the wisest legislators, any more than Legislatures are the wisest Judges.  And if it were otherwise, there is this difference between the two modes of legislation, that legislation by a Legislature is made known before it is executed, while legislation by a court occurs after the fact, and necessarily supposes a party to be the victim of a rule unknown until after the transaction which calls it forth.”[v]

In 1857, the judicial commentator Theodore Sedgwick wrote that because of the “feebleness and imperfection of language, and the sad facility with which it lends itself to the various interpretations put upon it by ambition, fraud, or even honest differences in judgment . . . some tribunal is necessary” to adjudicate these issues:  i.e., the Supreme Court.

But Sedgwick also cautioned that if the Supreme Court should go too far and take too many liberties, “the boundary between the legislature and the judiciary would be gradually effaced, and the most valuable parts of the law-making power practically fall into the hands of that branch of the government which is not intended to have any share whatever in the enactment of laws.”[vi]

The year when Sedgwick made that statement — 1857 — was the year of the Dred Scott decision, a Supreme Court action so disgusting that it led no less a figure than Lincoln to the brink of recommending the abolition of the Supreme Court’s power of judicial review.

If Lincoln had succeeded, Justices Thomas and Alito and Gorsuch and Kavanaugh and Barrett would be scattering their worthless and discredited scribblings to the four winds.

They would have no power over the rest of us, and our hard-won equal rights would remain intact.

Except that many of our hard-won rights have come from judge-made law — like Gitlow v. New York and Griswold v. Connecticut.

In the Dred Scott decision, Chief Justice Roger Taney proclaimed that blacks have no rights at all — because, he said, the Founding Fathers believed that blacks were only “merchandise” — and not people.  He also contended that Congress possessed no power to stop the spread of slavery.

He based that particular finding on a twisted reading of the Constitution’s Fifth Amendment. 

For almost a quarter century, the operative clause of the Fifth Amendment — “nor shall any person . . . be deprived of life, liberty, or property without due process of law” — was given completely opposite readings by defenders and opponents of slavery.  According to John C. Calhoun, any act of Congress that prohibited the spread of slavery into federal lands deprived slave owners of their property without due process of law.  But according to Salmon P. Chase, the spread of slavery into federal lands deprived slaves of their liberty without due process of law.

In 1857, the Supreme Court sided with Calhoun by adopting his racist interpretation of the Fifth Amendment in the Dred Scott decision.

Among the foremost Americans to denounce the decision was Lincoln, who viewed it as obscene.

In the Lincoln-Douglas debates of 1858, Stephen Douglas asked Lincoln how he would go about overturning Dred Scott, which was now “the law of the land.”  Was Lincoln prepared to advocate mob rule, or total lawlessness?

No, said Lincoln:  what he advocated was to pack the Supreme Court just as soon as a Republican President and Congress could do so, and then try the case again.

In his answer to Douglas, which drew laughter from the crowd, Lincoln called his opponent “Judge Douglas” in order to remind the citizens of Illinois of what Douglas himself had done to their own state’s supreme court when he served in the Illinois legislature:

[Lincoln]:  “He is desirous of knowing how we are going to reverse the Dred Scott decision.  Judge Douglas ought to know how . . . . Didn’t Judge Douglas find a way to reverse the decision of our [state] Supreme Court, when it decided that Carlin’s old father — old Governor Carlin — had not the constitutional power to remove a Secretary of State? (Great cheering and laughter.)  Did he not appeal to the “MOBS” as he calls them?  Did he not make speeches in the lobby to show how villainous that decision was, and how it ought to be overthrown?  Did he not succeed too in getting an act passed by the Legislature to have it overthrown?   And didn’t he himself sit down on the bench as one of the five added judges, who were to overslaugh the four old ones — getting his name of “Judge” in that way and no other? (Thunderous cheers and laughter).”[vii]

In Lincoln’s “Cooper Union” address of February 27, 1860, he took aim at the Supreme Court’s reading of the Fifth Amendment by presenting the results of some historical research that he performed himself.

Here was an interesting exercise in the exploration of “original intent,” and for once, the original intent of the Founders was easy to fathom.

According to Taney, the language of the Fifth Amendment prohibited Congress from restricting the spread of slavery.  Such an act, according to Taney, would deprive the owners of slaves of their property without due process of law.

Well, said Lincoln, at the very same time the First Federal Congress was passing the Fifth Amendment it was also restricting the spread of slavery!  It was passing a law to forbid the spread of slavery into the Northwest Territory.

This act reaffirmed a policy that had first been enacted in the Northwest Ordinance of 1787, which was passed by the Confederation Congress.  The members of the First Federal Congress re-affirmed it at the very same time that they were passing the Fifth Amendment.

In other words, the very same members of Congress who passed the Fifth Amendment did something that Taney and his friends claimed the Fifth Amendment forbade.

Lincoln took great pleasure in pointing out that the members of the First Federal Congress were doing these things at the very same time — on the very same days of the week, in fact.  His research in congressional records revealed this clearly.

So who knew better what the Fifth Amendment ought to mean:  the men who passed it or Roger Taney?

It was interesting that Lincoln recommended the political strategy of court-packing and he also invoked the original intent of the Founding generation in his bid to overturn the malevolent Dred Scott decision.

It is even more interesting to wonder what Lincoln might think about the current doctrine of “originalism” as propounded by the packed Supreme Court that threatens us today.

Regardless of Lincoln’s court-packing recommendation — akin in our own day to Elizabeth Warren’s recent call to expand the size of the current Supreme Court for the purpose of counter-packing it — Lincoln had a simpler way to overturn Dred Scott, and he explained it in his first Inaugural Address:  he would strip the Supreme Court of its power of judicial review.

He would strip the court of this power by simply ignoring its decisions.

As simple as that.

He would limit the effect of Supreme Court decisions to the issues concerning the immediate case before them.  Beyond that, he would not allow their decisions to possess any precedential standing as case law.

Listen to the words of Abraham Lincoln, our greatest president, and compare them to the views of David Dudley Field.  As Lincoln delivered his first Inaugural Address, Roger Taney, the chief justice who had just sworn him in, had to listen to the following words:

I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case, upon the parties to a suit, as to the object of that suit . . . .  And while it is obviously possible that such a decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be over-ruled, and never become a precedent for other cases, can better be borne than could the evils of a different practice.   But at the same time the candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made . . . the people will have ceased to be their own rulers [emphasis added].[viii]

In other words, Lincoln was prepared to overturn the precedent of Marbury v. Madison.  Even more importantly, his words were followed by his deeds, for he overturned the Dred Scott decision by ignoring it.

In June, 1862, the Civil War Republican Congress passed an act prohibiting the spread of slavery into federal territories.  That was just what the Dred Scott decision said Congress was powerless to do.

Lincoln cheerfully signed the new law and then enforced it.

Moreover, at Lincoln’s behest, his attorney general Edward Bates issued an opinion on November 29, 1862, that stripped the Dred Scott decision of its broadest precedential significance, namely its proclamation that blacks possess no rights.

 Bates proclaimed in his opinion that all free blacks were perforce American citizens, dismissing the Dred Scott ruling as having “no authority as a judicial decision” beyond the individual case in question.

The Supreme Court’s reputation was so battered by the Dred Scott decision and its aftermath that some Civil War Republicans called for a brand-new judiciary act that would restructure the court completely.  In 1861, Republican Senator John P. Hale of New Hampshire introduced a bill to abolish the existing Supreme Court and replace it with a different one.  The court, said Hale, “is bankrupt in everything that was intended by the creation of such a tribunal.  It has lost public confidence; it does not enjoy public respect, and it ought not.”[ix]

Article III, Section 1 of the Constitution states that “the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may, from time to time, ordain and establish.”  The specifics were left up to Congress, which addressed them via the Judiciary Act of 1789.

In Hale’s opinion, Article III, Section 1 gives Congress the power to “ordain and establish” any new courts “from time to time,” including a completely new Supreme Court whose size, nature, and powers would be spelled out in statute law.

In other words, the Supreme Court as it was formally structured in the Judiciary Act of 1789 could be swept away and replaced by a different kind of Supreme Court, one that was newly “ordained and established” — and perhaps prohibited from making pronouncements on constitutional interpretation.

Eventually, of course, the Thirteenth Amendment, which Lincoln championed, overturned the Dred Scott decision and rendered it moot.  The Thirteenth Amendment abolished slavery.

Lincoln sought to elevate the Declaration of Independence above the Constitution as the source of the nation’s organic law.

As an anti-slavery leader, he exalted the principles enshrined in the Declaration — the equal rights to life, liberty, and the pursuit of happiness — as embodying the purpose of the nation, a purpose that the two successive constitutions of the United States (the Articles of Confederation and the later Federal Constitution) were created to uphold and put into effect as the circumstances of life might dictate.

The text of the Federal Constitution proclaims it the “supreme law of the land.”  But Lincoln pointed out that the Declaration of Independence came first and is of greater importance.   It preceded the Constitution in the statute books, and it ought to be regarded as the nation’s first statute.

In 1858, he challenged an audience in Chicago with the following words:   “If that declaration is not the truth, let us get the Statute books, in which we find it, and tear it out!”[x]

The statute books.

In 1857 — in a speech attacking the Dred Scott decision — Lincoln told a rapt audience in the Illinois state capitol building that the Declaration’s statement that “all men are created equal” set forth a goal and a standard that was meant to be striven toward over time and that the nation’s entire development must pass the test of the Declaration’s principles.  According to Lincoln, when Jefferson and the signers declared that all human beings deserve equality of treatment when it comes to basic human rights, they meant to

declare the right, so that the enforcement of it might follow as fast as circumstances should permit.  They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere.[xi]

This was the purpose of the nation, Lincoln said, and the Constitution, important though it was, was subsidiary:  it was nothing more than a mechanism of implementation, flawed and amendable, ambiguous enough to be twisted one way or another by packed Supreme Courts.

In other words, the highest purpose of American law was to enshrine and approximate the goals of the Declaration, and any constitutional provisions, any laws, any court decisions to the contrary must be fought using any means that were appropriate.

Thus spoke Lincoln the lawyer.

He believed in “original intent” when it came to human rights, but he vested this original intent in the Declaration of Independence, and not in the Federal Constitution.

Lincoln the visionary stood in bold opposition to those who try to use any sort of constitutionalism — whether it should happen to be “strict construction” or “originalism” — to stand athwart America’s progress in extending the nation’s founding ideals, extending them, broadening them, bringing them up to date by the standards of the present, up to date in their real application to the needs of real people in real life just “as fast as circumstances should permit.”

All else was pettifoggery, the sort of tricks that Lincoln the lawyer knew perfectly well as one of the craftiest and trickiest trial lawyers in the state of Illinois.

He used plenty of legal tricks to out-maneuver his opponents in the White House.  But it was all in the service of fulfilling transcendent ideals.

One of the supreme believers in a “living Constitution,” he would make short work of the current Supreme Court majority if he were alive.

By delivering equality in liberty — equality in the right to be free — he set in motion the “equal rights revolution” that would culminate a century later in the achievements of the Warren court, the achievements that today’s originalists would like to wipe out.

Lincoln would probably have smiled in approval when Theodore Roosevelt quipped in 1902 that the Constitution was created for the people — and not the other way around.

Editor's note: this is the first part of a two-part series. Part 2 is available here


[i] Louis Brandeis, dissent in Olmstead v. United States (1927).

[ii] Thomas Jefferson to James Madison, March 27, 1789, in Julian P. Boyd, ed., The Papers of Thomas Jefferson (Princeton: Princeton University Press, 1958), XV, 392-398, and Thomas Jefferson to Samuel Kercheval, July 12, 1816, in Albert J. Lipscomb and Albert Ellery Bergh, eds., The Writings of Thomas Jefferson (Washington, D.C.: Thomas Jefferson Memorial Association of the United States, 1903), XV, 43.

[iii] George Washington to Bushrod Washington, November 10, 1787, in John C. Fitzpatrick, ed., The Writings of George Washington from the Original Manuscript Sources (Washington, D.C.: United States George Washington Bicentennial Commission, 1939), XXIX, 311.

[iv] Robert Rantoul, Jr., Oration at Scituate, Delivered on the Fourth of July, 1836, in Perry Miller, ed., The Legal Mind in America (Garden City, New York: Anchor Books/Doubleday, 1962), 223.

[v] David Dudley Field, “Reform in the Legal Profession and the Laws, Address to the Graduating Class of the Albany Law School, March 23, 1855,” in Ibid., 292-293.

[vi] Theodore Sedgwick, “A Treatise on the Rules which Govern the Interpretation and Application of Statutory and Constitutional Law,” New York, 1857, in Ibid., 305-306.

[vii] Abraham Lincoln, “Mr. Lincoln’s Rejoinder,” October 13, 1858, in Roy B. Basler, ed., The Collected Work of Abraham Lincoln (New Brunswick, N.J.: Rutgers University Press, 1953), III, 278.

[viii] Abraham Lincoln, First Inaugural Address — Final Text,” March 4, 1861, Ibid., IV, 268.

[ix] Congressional Globe, 37th Congress, 2nd Session, 26 (1861).

[x] Abraham Lincoln, “Speech at Chicago, Illinois,” July 10, 1858, Collected Works, II, 500-501.

[xi] Abraham Lincoln, “Speech at Springfield,” June 26, 1857, Ibid., II, 405-406.