Exfoliating a Hero: On Lincoln's Unconstitutional Overreaching

Lest we get carried away and inadvertantly enshrine our leaders with mythic laurals, it is worthwhile to peel back our societal "remembering" of past figures, such as Abraham Lincoln, who have become larger than life.

Lincoln was a moderate, promising merely not to spread slavery. In his address after being sworn in, he promised not to go after slavery where it existed. Accordingly, radical abolitionists complained. Even so, the 1860 campaign had been viewed, at least in the south, as a referendum on the southern way of life. Lincoln received only 40% of the vote; he was not even on the ballot in ten states.  There were just 33 states in the union at the time. Lincoln's victory suffered from a deficit of legitimacy in some quarters. In fact,he was burned in effigy at a state capitol in the south. With free Kansas becoming a state, the slave states felt that their respective abilities to defend their way of life in the general councils of the union would become even more truncated or dilute. Berift of a sense of influence on general matters that concerned themselves, the confederating republics felt they had no alternative other than secession.

On Feb 18, 1861, Jefferson Davis became President of the Confederate States of America. At his swearing in, Dixie, which had been composed by a northerner, was played. The two sides in the continental dispute were closer than they perhaps realized. Both Lincoln and Davis, for example, were from Kentucky originally.  According to the Confederate constitution, Davis had a line item veto and would have had a six year term had the confederacy lasted that long. Astonishingly, international slave trading was outlawed. Even so, there were fundamental differences involved in the dispute. Ironically, had the southern states freed the slaves before firing on Fort Sumpter--depriving Lincoln of his motivational tactic midway through the way--perhaps something resembling the southern way of life in a loose confederacy would have prevailed. The United States would have been left to consolidate to its heart's content.

On the way to his inauguration, Lincoln declared that he would rather be assassinated than to see even one star removed from the flag. Such a stance reflects the "all or none" mentality that accompanies political consolidation. In spite of Lincoln's line in the sand, the War between the Confederated States and the United States began at 4:30am on April 12, 1861.  Technically, it was a war between a federated alliance and a federal government. The opening act was bloodless, even as the war to come was the bloodiest in American history. Siloh alone matched the casualties at Waterloo, and there would be 27 more to come. 51,000 men lost their lives in the three days at Gettysburg alone. The contest between the old and new federal forms exacted a heavy toll in human loss and suffering. Who would have thought that contending distinctions in political theory could be so bloody. Of course, might does not in itself make right, although the passion of the unjustly oppressed can bring about victories disproportionate to the relative lack in number. Furthermore, in this particular case, the respective populations in the federations and the industrialization of several of the union's states gave the forces of modern federalism an advantage not necessarily sourced in the nature of the type.

At the time, the union states had a combined population of 21 million while the confederacy had only 9 million, 4 million of which were slaves and thus not in the fight. In spite of the fact that so many southerners volunteered to enlist that a third of them had to be sent back home, the confederacy was perhaps destined to lose the bellum given the tremendous disadvantage in terms of population. That the conflict lasted until 1865 may point to the extent of resentment that had been allowed to build up throughout the slave states against what was viewed there as an “intrusive” federal government. For example, the devisive tarriff that had nearly caused South Carolina to secede in 1832 was reimposed by the U.S. Government in 1858. As in 1832, the tax was to finance northern industrialization. The states producing cotton and/or rice were left not being able to defend their interests in Washington. Accordingly, that distant government was viewed as encroaching and increasingly foreign. The root of the festering dispute went far beyond the issue of slavery.

To the confederate citizens, the cause involved the rights of their republics as well as their property rights. Slaves, being viewed as property by their "masters"--a decadent conception of slavery unknown to ancient understandings--were thus in play as part of the wider and deeper southern concern with self-determination, which the southerners identified with their respective countries and associated ways of life. Even Lincoln's Emancipation Proclamation, which took effect on January 1, 1863 (almost two years into the war), applied only to slaves in the states that had already left the union (rather than to the five slave states that had remained).

The confederate states were not subject to U.S. law as long as they were part of the confederacy rather than the union. Lincoln's proclamation was thus extra-constitutional, and thus without immediate effect other than to motivate an increasingly weary northern citizenry and armed forces. To be sure, Sherman freed slaves as he blazed a trail to the sea. However, even without the proclamation, he would have deprived the confederates of their "property" along with their other means until they surrendered. Slavery was not outlawed in the United States until 1865, when the thirteenth amendment was ratified by the states (the former confederate states excluded even though they had been re-afixed to the union).  There was some duplicity involved in, "Welcome back to the union! But unfortunately your vote doesn't count yet because you don't agree."

Fundamentally, the "north" and "south" interpreted the United States differently. This is what the war was really about, and the issue went all the way back to the contentious debates in the constitutional convention in 1787. The delegates had hotly debated whether the proposed General Government would consolidate power via "general welfare" spending and the potentially unlimited taxation, irrespective of the question of slavery. The people who wanted to secede viewed the U.S. as more like a confederation than a modern federal government. That is, confederates viewed their states as countries and the U.S. more as an alliance having only strictly defined enumerated powers that a national government. Robert E. Lee, for example, was offered command of the union army. He refused and went with Virginia. He could not draw his sword, he said, against his native country. Virginia had to come first; there was never any question about that. Such a view of Virginia and the other republics was to fade even as they still retained residual sovereignty at least into the twenty-first century.

In general, the southerners feared that the federal government would usurp more and more power from their countries; as things turned out, the fear was not without foundation. Even then, Lincoln declared war against the confederated states even though the U.S. constitution clearly stipulates that Congress is the governmental body in the U.S. Government that declares war.  As the president is the commander in chief, there is a conflict of interest in that office also declaring war. So technically speaking, the war was not constitutional, and thus legal.  Lincoln also suspended habeus corpus, though the constitution allows for this in time of rebellion.  To keep the Maryland from seceding, he locked up thirteen of the state's legislators without trial. 

Chief Justice Taney, who had four years earlier concurred with the Dred Scott decision, said that Lincoln had gone too far beyond the constitution in the powers he was exercising. Taney was on firm ground on the declaration of war. Even so, astonishingly, the president simply ignored the chief justice. From the standpoint of an independent judiciary with teeth, Lincoln was laying a precedent very dangerous to the republic.

Because the judiciary has no means of enforcing its decisions by force, the branch depends on the other branches, and, indeed, the people, resisting the temptation to contravene a judicial decision. The basis of the resisted temptation rests on the court's legitimacy, for the judiciary has no troops of its own. In fact, Bickel refers to the court as the “least dangerous branch” for this reason. Lincoln’s precedent in simply ignoring the court put at risk the system of checks and balances that resides in the separation of powers in the federal government. Fortunately for us, Lincoln’s treatment of the Chief Justice's effort to hold the executive branch within its proper constitutional sphere, as though Taney were a mere bystander, has largely been forgotten.  Yet the expediency of an imperial presidency has indeed been on display since Lincoln as Congress has gradually lost power to the commander in chief. The danger is real, and Lincoln's precedent could yet be used by an ambitious commander in chief who has his or her eye on another country to invade. 

Ironically, Lincoln’s unconstitutional actions at the beginning of the war ironically to save the union could be viewed as confirming the charges made by the confederates against the encroaching nature of the federal government.  Lest we miss the lesson as we remember the bloody war 150 years later in 2011-2015 from the standpoint of the victors, we might take note of the susceptibility of power itself to consolidate, ultimately in one person—indeed, even in a hero. The consolidating proclivity is as much a danger in the modern American empire today as it was in ancient Rome.  

Source: Ken Burns’ The Civil War (PBS)

Second-Term Inaugural Addresses of American Presidents: Of Transformational or Static Leadership?

According to a piece in the National Review, “George Washington might have had the right idea. Second inaugural addresses should be short and to the point. Of course, speaking only 135 words as Washington did in 1793 might be a little severe.”[1] Consider how short, and (yet?) so momentous Lincoln's Gettysburg Address was. The challenge for second-term-presidents, whether Barack Obama or the sixteen two-term presidents before him, is “how to make a second inaugural address sound fresh, meaningful and forward-looking." Almost all of Obama’s predecessors failed at this. Only Abraham Lincoln and Franklin D. Roosevelt made history with their addresses. One stirred a nation riven by civil war; the other inspired a country roiled by a deep depression. All but forgotten are the 14 other addresses, their words having been unable to survive the test of time. Even those presidents famed for their past oratory fell short.”[2] This is a particularly interesting observation: surviving the test of time being the decisive criterion. Even a president whose silver tongue mesmerizes a people of his or her time may not deliver ideas that survive beyond being a cultural artifact of the president’s own time. What of an address that is quite meaningful in its immediate time yet does not pass the test of time so as to be recognized as a classic? 

The full essay is at "Inaugural Addresses: Of Leaders?"

1. George E. Condon, Jr., “The Second-Term Inaugural Jinx,” National Journal, January 20, 2013.

2. Ibid.

The Gettysburg Address: Shaped by Small Pox?

By the time Lincoln was back on the train returning to Washington, he was down with a high fever from Small Pox. I’m thinking the illness did not grip the president the second he stepped on the train. Already distraught over Mary falling off a horse-carriage, his son Tad taken grievously ill, and the old, tired war, the president was almost certainly already stricken when he delivered the address and perhaps even when he wrote it the day and evening before. I suspect that the Gettysburg Address would not have been only 272 words long had Lincoln been well.
I make it point of getting a flu shot every year now. Contracting the illness was particularly costly academically when I was in graduate school. Typically, I would ration any accumulated energy to going to class. Back in bed, I found writing to be quite arduous, and sustained reading to be almost as exhaustive. In terms of writing, editing particular words or sentences was easiest, for it takes far less energy to think than to write on and on.
I suspect that Lincoln wrote such a short speech because thinking up just the right word or phrase was easier than writing a lot. Small Pox is much more serious than the common cold. Lincoln was likely already exhausted and feeling bad on the train to Gettysburg and in the bedroom that night before the day of the address. Lincoln’s emphasis on diction rather than length was likely a function of the illness rather than political calculus.

Lincoln's address was so short that the photographer only caught the president as he was returning to his seat. In the photo, Lincoln's head (below the leafless tree, just above the crowd-level, and facing the camera) is down, perhaps because he was already not feeling well. Image Source: Wikimedia Commons.

By the end of the twentieth century and into the next decades at least, U.S. presidents typically relied on a speech-writing staff to write many speeches, the vast majority of which being long. One effect of this trend is the shift in presidential leadership from broad principles to incremental legislative reform. In this context of technician presidents, the attendant speech-inflation resists any feasible restraint. Strangely, presidents overlook Lincoln’s short address as a precedent and act more like the famous orator who spoke for two hours just before Lincoln. In spite of the obvious lesson from Gettysburg, the notion that a very short speech can be more powerful than a long one has been lost on the American political elite.
The explanation may lie in Lincoln’s address being a function of him being ill rather than any political calculus. Even so, a discovery is a discovery, even if it comes about by accident. That the subsequent political success of the Gettysburg Address did not give rise to an ongoing practice in political rhetoric suggests that such a short, extremely thought-out speech runs against the current of politics at the moment and even out a year or two. Stature achieved by hard-thought reputational management literally by intensely investing in word choice, or diction, is of value nevertheless even within the space of a four-year term, especially if the incumbent has courageously taken on a few vested interests by moving society off a “sacred cow” or two. Even if neither statesmanship nor politics accounts for the severe brevity of Lincoln’s address, I contend that much political gold is waiting for the leader—whether in the public or private sector—who radically alters his or her rhetorical style and preparation.

President Trump: Revisiting Presidents Jackson and Lincoln on their Statesmanship

In an interview in 2017, U.S. President Donald Trump said he wondered why the issues leading to the U.S. Civil War “could not have been worked out” to prevent the republics from exiting the U.S.[1] “People don’t realize, you know, the Civil War, if you think about it, why?”[2] In particular, “People don’t ask . . . why was there the Civil War? Why could that one not have been worked out?”[3] The reigning assumption has been that President Lincoln could not have resolved the dispute short of going to war. Trump then suggested that had President Andrew Jackson been president rather than Lincoln, we “wouldn’t have had the Civil War.”[4] Aside from the point that Jackson was a Southerner, his feat in resolving the Nullification Crisis without a shot being fired suggests that Trump had a point; the war between the C.S.A. and U.S.A. could have been averted. More importantly, the mentality that won the war may not be as salubrious as we suppose.

In 1828, when John Quincy Adams was the federal president, a tariff—a tax on imported manufactured goods that originally went into effect in 1816—was increased even beyond the increase in 1824. The intent was to protect the nascent American manufacturing sector, which was mainly in the Northern states, from cheaper European imports. As a result of the tariff, Southern plantation owners had to pay more for manufactured goods from Europe, and Europeans had fewer dollars with which to buy Southern exports, of which cotton and rice were particularly important to the Southern agrarian economy.

In 1829, Andrew Jackson became the U.S. President and John C. Calhoun became the Vice President. The latter, who was from South Carolina, proposed the doctrine of nullification, wherein a state government could constitutionally nullify any federal law injurious to the state’s interests. Even from the standpoint of a loose federation, or a confederated Union of mostly sovereign republics, the doctrine was specious; for it would eviscerate virtually any federally-agreed-to constraint on the states. The former president John Quincy Adams argued more practically that the U.S. Supreme Court, not the state governments, had the ultimate authority to declare federal law unconstitutional. For his part, President Jackson sided with Adams out of fear that state-nullification could potentially lead to the break-up of the Union.

Meanwhile, South Carolina’s government declared the tariff to be unenforceable in the state. European firms could export their goods to buyers in South Carolina without having to pay the tariff. Hence, the buyers would get the lower prices, and the sellers and their compatriots would have more dollars with which to buy South Carolina rice and cotton. The tariff would remain in effect in the U.S. where the toll on economies was less. Interestingly, Calhoun also argued that the federal government had constitutional authority to use tariffs only as a means to raise revenue for that government, rather than to favor certain economic sectors; such picking and choosing—essentially between states—was going too far, especially as a certain region of states was losing power in Congress as the Union added new states. I submit that South Carolina’s government officials and Calhoun pushed their favored confederal approach or interpretation of American federalism too far in incorporating the nullification doctrine precisely because the plantation economy was becoming less and less, proportionally speaking, of the American economy, and the Southern states, less and less, also proportionately, of the total number of states in the American Union. This dynamic, not its symptom of slavery, was the underlying cause of the war between the C.S.A. and the U.S.A. How this interpretation differs so from the victor’s moralistic, almost apolitical narrative! How bound we are, without even realizing it, to the narrative!—alternatives being deemed nothing short of heresy! Abominations!

President Jackson diffused the changing dynamic—shifting regional power in the Union in the midst of two starkly different preferences of federalism (confederalism and modern federalism, respectively)— by signing tariff legislation in 1832 and again in 1833 that lowered the tariffs even as he stated that South Carolina’s nullification law was null and void and sent federal troops down to the state to enforce the law. The deal, in other words, was a much lower tariff in exchange for the state’s repeal of its nullification law. Because the president pressed Congress to repeal its increased tariff, essentially giving that one to Calhoun’s point on the federal use of tariffs for revenue only, Jackson cannot be said to have been staunchly on the side of the federal government—which is something, considering that Jackson headed one of its three branches! Rather, the president gave something to South Carolina—putting the state’s interests ahead of the other states and the federal government. Yet the state’s government had to pay a price—giving up on its cherished, albeit over-extended, doctrine of nullification.

South Carolina’s legislature had prepared a secession, or “exit,” document—Calhoun himself was involved in crafting it. The same document would be used in 1861 for the “SoCarexit”—to borrow from the E.U. secessionist state’s lexicon. Interestingly, Congress had again just enacted a tariff increase in 1858. It is possible that this old issue, as much as new free states being admitted to the Union, sparked renewed impetus to divorce from the U.S.[5]

The threat to the Southern plantations in 1861 was not the imminent end of slavery there. The threat was indirect and more diffused, coming in the form of new states with different economies being admitted to the Union. The theory of confederalism insists that the enumerated and residual sovereignty of each state is protected—hence the balance of power resides with the states. The Southern fear was that the balance was already shifting in favor of the federal head, and this made the decreasing proportion of the Southern states in the enlarging Union particularly worrisome. In other words, the “nationalist” variant of federalism (modern federalism) was gaining over confederalism, and the interests of the Southern states—political, economic, cultural, religious—were becoming more of a minority in an increasingly heterogeneous, larger empire: the United States. The tariff and slavery were only symptoms.

Jackson’s peaceful resolution of the Nullification Crisis lays in stark contrast to Lincoln’s “take it or leave it” approach to the Southern secessionist states. Whereas Jackson had the federal government retreat voluntarily on its tariff, Lincoln’s approach can be seen as being one-sided because he did not even offer to have the federal government step back at all from its position. When all the political heavy-lifting is put on the other side—for it to do the backing down—it is no wonder that resistance is encountered and a long, bloody war results. I submit that Lincoln could reasonably have compromised and yet save the Union in the sense of retaining all of its existing states.

For example, Lincoln could have assuaged the Southerners’ fears by proposing a qualified majority voting system in the U.S. Senate and perhaps even in the U.S. House of Representatives. Such a system would be designed such that legislation could not pass without at least some Southern support. The federal government would thus not be able to turn on the South—which I submit was the underlying fear. In the E.U., for instance, qualified majority voting in the federal legislative chambers—the European Council and the European Parliament—requires at least 55% of population of the Union and 55% of the states be represented on the yes side of votes for the bills to become law. Lincoln and Congressional leaders could have entertained novel ideas on how to craft such a system. A Council of Regions, for instance, wherein only the major regions of the U.S. were represented—each region having a veto--could have been added as a third legislative chamber, or perhaps even to replace the U.S. Senate! Even beyond Jackson’s fine job in 1832, thinking outside the box in such occasions is invaluable in thwarting violent conflict from engulfing all other possibilities of resolution.

For the slavery-reductionist advocates, I submit that the Southern states were a significant portion of the Union and so were justified politically in wanting to feel that they would not be rolled over in federal chambers—even though the institution of slavery was squalid, especially to our modern sensibility in the twenty-first century. The institution is for us unthinkable, undenkbar, vorbotten even in retrospect (i.e., in a historical context). For us, to think of other human beings as wild animals or property is nothing short of pathological. Even so, we must allow ourselves to admit that because the Emancipation Proclamation did not occur until 1863 (and did not apply to the five slave states that remained with the Union, and had no effect in the rebel states), the immediate point of contention in 1861 was not slavery itself where it existed. The fear was more future-oriented, and generalized, and the anger was informed by political theory—namely, two contending versions of federalism—and declining political power. Accordingly, the conflict at hand could have been resolved short of war without the South having to give up the institution of slavery. The demand that Jackson's approach applied back in 1861 include the abolition of slavery where it then existed is unfair, for not even the new Republican Party was demanding then that the South give up its sordid institution! 

Had Lincoln adopted Jackson’s approach at that time, the South might then have moved years later to put its slavery in play. Perhaps the Southern states would have accepted federal financial help with a new plantation labor system in exchange for a repeal of the 1858 tariff, combined with the region having a veto on federal legislation in a Council of Regions or a stiff qualified-majority voting system in the U.S. Senate—either of which could have been enshrined as a constitutional amendment. To be sure, any of these items could have been used in 1861 to walk back from war. At any rate, ensuing incremental agreements, progress without war, might have been possible once cooler heads could again prevail. My point is that we cannot assume that were Jackson’s approach put in place in 1861, slavery would have endured for decades. But I digress.

Jackson was able to resolve his “either/or” by putting together a deal in which both sides—the federal government and the state—gave something and got something in return. Such an approach is superior to Lincoln’s “my way or the highway” stance—that of making demands of the other side without any accommodation or retreat on his side. Rigidity begets rigidity, and much harm came ensue when two pieces of sandpaper are rubbed against each other. Even beyond Jackson’s paradigm, however, of resolving a seemingly intractable “either/or” within itself is the ability to see a third, fourth, and even fifth alternative that may never be even thought of in holding fiercely onto the typical “either/or” paradigm. In short, I think we make things more difficult than they need be, even in assuming that the Civil War had to be fought. We do not even recognize our own mental cages, so we go on making the same mistakes over and over. To arrest this pattern, revisiting even “sacred cows” can be invaluable.

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[1] Jonathan Lemire, “Trump Makes Puzzling Claim About Andrew Jackson, Civil War,” The Sacramento Bee, May 1, 2017.

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] The use of the term divorce is incorrect as it assumes two equal or equivalent parties. A state is not equivalent to a union of such states, hence the use of the term for the secession of a state involves a category mistake. In the context of “Brexit,” for example, “divorce” can be read as presumptuous for the secessionists.

Narrowing Public Debate: Political Narrative as Fact

For ordering his men at Gettysburg to keep firing at over 10,000 Virginian infantrymen in what is now known as Pickett’s Charge, Alonzo Cushing—who died in the battle—was awarded the Congressional Medal of Honor by President Barack Obama on November 6, 2014. As a result of that charge, Pickett lost his entire division. In the 1984 film, Gettysburg, General Lee tells Pickett after the battle to look after his division. “General Lee,” Pickett declares, “I have no division.” Suddenly Lee is confronted with the true magnitude of his military blunders at Gettysburg. 

From this point of view, Cushing’s military honor looks rather different than from Obama’s point of view. As conveyed by the media, that vantage point enjoyed a virtual monopoly, and thus the interpretation could easily be taken as true rather than relative. I submit that much from the political discourse as sourced or conveyed by the media is projected as truth when it is highly subjective and thus subject to question and debate.

At the ceremony, President Obama said, “I’m mindful that I might not be standing here today as president, had it not been for the ultimate sacrifices of those courageous Americans.”[1] Hardly a partisan comment, the statement is nonetheless partial even if it seems indisputably true. Firstly, whereas Lincoln referred to all of the fallen when he spoke at Gettysburg to commemorate the national cemetery, Obama was likely referring only to the Union troops. What of the courageous men under Pickett who walked more than a mile over open field as canon-fire came from the hills on the sides and from directly ahead where the Union’s artillery fired shots from behind a stone wall? Considering that the entire division was slaughtered during that “charge,” is it even ethical to honor a man who ordered his troops to keep shooting? My point is that what we take as a given may be anything but.

Even the Union’s battle cry during the CSA-USA war that the USA would cease to exist should it lose the war is faulty. The CSA never put a claim on the states that remained with the Union, or the Union itself; rather, the Confederate states formed their own federal system. So it is erroneous to claim that the U.S. would not exist in the twenty-first century had the Union army not beaten the CSA in 1865. So it is odd that Barack Obama thought he would not be president. If he was referring to his multi-racial makeup, the U.S. without the “Southern” states would hardly be more racist in the twenty-first century.

I realize that the winner of a war gets to write the history, but that account should at least be coherent. Even such an account would be partial, but it would be conveyed as tantamount to fact by the source as well as the media. I submit that both elected officials and journalists have an ethical responsibility to represent partial or ideological statements as such. For example, the media could add alternative takes in the reportage, hence widening the window of interpretations held to be viable. In short, I contend that the American political discourse tends to be very narrow, especially when possible policy prescriptions are being debated. Having a duopoly of two major parties contributes to this tunnel vision, but so too does the confounding of partial and full accounts by candidates, elected officials, and the media.

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[1] Gregory Korte, “Union Soldier Honored for Gallantry at Gettysburg,” USA Today, November 7-9, 2014.

Stifling Change: Columbus Day and Thanksgiving

In Canada, Thanksgiving is celebrated at harvest-time, on October 12^th, rather than a week before the first month of winter in the Northern Hemisphere. For the States south of Canada, whether their respective peoples are cold or warm on the third Thursday in November, the holiday’s date is etched in stone, given the illustrious aura of the U.S. president who had enshrined the date in the midst of a horrendous war between the USA and CSA in the 1860s. Few people would dare even entertain the natural assimilation of Columbus Day and Thanksgiving Day on October 12^th. So, well after harvest in most of the States and bunched in with Christmas and New Years—effectively ridding the latter of any left-over enthusiasm—people in the States in the northern climes are consigned to stuff themselves like Turkey birds while the surviving natural turkeys shiver outside. Human nature itself may be hardwired against change, and the massive scale of modern political association may exacerbate the paralysis.

Early October in 2014, the Seattle City Council voted unanimously to replace Columbus Day with “Indigenous People’s Day” as a city holiday, even though Columbus Day would still be celebrated locally as the federally-recognized holiday. Seattle councilman Bruce Harrell explained that he had co-sponsored the resolution because he believed that the city would not be successful in its programs and outreach to Indians until “we fully recognize the evils of our past.”[1] One local resident took offense at an Indigenous People’s Day “coming at the expense of what essentially is Italian Heritage Day.”[2] However, because Columbus was part of a Spanish expedition, Columbus Day is not “essentially” an “Italian Heritage Day.” Rather, the holiday remembers back to the time of Spanish power. It follows that the resistance to the change in Seattle was overblown.

The “indigenous People’s Day” label is itself problematic, as American Indians “only” came to the continent about 15,000 years ago—not long at all for a species that has been around for 1.8 million years. The thorny issues could be obviated simply by moving Thanksgiving from the crowded year-end field of holidays to October 12^th at harvest-time in many of the States. That this change would seemingly ruin the “holiday season” as it has always been and undo the order penned by the iconic Abraham Lincoln pinning Thanksgiving to the third Thursday in November suggests that the chances of moving the holiday are slim to nil even though having Thanksgiving so late (and so close to Christmas and New Year’s) is arguably suboptimal.  

Compounding the problem with effecting change in the U.S., the increasing political consolidation at the federal level stymies a societal change through legislative means because more political energy must be amassed. The “one size fits all” assumption does not help. Even though Seattle can safely contemplate two holidays on one day, the sheer possibility of Thanksgiving being in October in some States and in November in others would likely trigger fears of disunion.

 In the E.U., the subsidiarity principle urges that legislation be done at the lowest practicable level of political organization; in the U.S., the Tenth Amendment seeks to forestall political consolidation at the expense of federalism. As Seattle attests, Congress need not have such a choking power-monopoly on holidays, and Americans need not be so afraid and thus over-reactive as proposals see the light of day.

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[1] Phuong Le, “Columbus Day in Seattle Replaced with a New Holiday,” Associated Press, October 6, 2014.

[2] Ibid.

A Lawyer Comes Up Short on Obama on the U.S. Supreme Court

As president, Thomas Jefferson campaigned against the U.S. Supreme Court in the pivotal 1800 election after the court let the Alien and Sedition Acts stand. The law criminalized criticizing government officials of the U.S. Government. Lincoln announced during his 1860 campaign that he would not enforce the court’s Dred Scott decision upholding slavery in U.S. territories. In saying that invalidating the Affordable Healthcare Act would represent an unprecedented act of judicial activism, Obama was not going nearly that far. In other words, he was not saying he would ignore the decision. Nor did Obama announce anything like Roosevelt’s unsuccessful court-packing scheme.

Even so, a lawyer who teaches law at Samford University in Alabama opined, “It’s virtually unprecedented for a president to criticize the institutional powers of the Supreme Court. I don’t know of any other instance where a president has publically questioned the legitimacy of judicial review.”[1] Apparently the lawyer had not heard of Lincoln’s announcement or Roosevelt’s court-packing.

This example of commentary by the lawyer illustrates why law schools hiring lawyers to teach law classes is fundamentally different than hiring legal scholars to be law professors. A lawyer can become an expert on the technical nuances of a statute or judicial opinion, as well as how to argue such points in a court of law. This is not the same as having scholarly expertise on jurisprudence, which includes constitutional philosophy and history. The difference can be expressed as that which exists between examining individual trees and grasping the contours of the forest. Ironically, as a graduate student in law progresses in the LLM and JSD degrees, the seminars become more specific in coverage (the dissertation of the doctoral candidate in a JSD program being incredibly specific), the level of abstraction increases so a wider perspective is proffered though the narrowing disciplinary focus.

Were law school deans in the U.S. republics to hire scholars as professors rather than lawyers as instructors, the students would benefit immensely from the standpoint of learning the knowledge of law, rather than simply how to practice it.

1. Richard Wolf, “Other Presidents Took on High Court before Obama,” USA Today, April 6, 2012.