Sunday, February 12, 2017 marks the 208th birthday of perhaps the greatest statesman in American history: Abraham Lincoln.
More scholarly tomes have been written about Lincoln than double sausage and egg McMuffins have been consumed by Michael Moore, but Lincoln’s legacy is actually simpler than many might realize it to be. Lincoln understood the political principles undergirding the American Founding better than perhaps anyone else to ever inherit the Oval Office, and was thus uniquely well positioned to be the leader who could finally effectuate the Founding generation’s lofty ideals into governing reality. The Great Emancipator demonstrated a masterly command of each of the four classical virtues: he was temperate in his rejection of the quixotic Thaddeus Stevens-led anti-slavery Radicals, self-evidently just in his pursuit of eradicating chattel slavery—one of the dreaded “twin relics of barbarism”—from our polity, courageous in his willingness to take any measure necessary to preserve the exceptional Union he inherited from his forebears, and deeply prudential insofar as his understanding of the relationship between a transcendental natural law and the dictates of quotidian presidential leadership far surpassed that of any other man to hold his high office.
Lincoln was also the first President to be elected under the partisan aegis of the Republican Party. With the White House now occupied by a Republican less renounced for his mastery of the Aristotelian virtues than for his fondness of speaking about human genitalia (both on the defensive and, um, offensive fronts, that is), it is well worth considering lessons that President Lincoln might share for his fellow Republicans if were he still alive today. Here are five of them.
1. Never Doubt the Union. Lincoln believed with all his heart in American exceptionalism. A man of piety, he truly believed in the abstract ideals Thomas Jefferson had promulgated in the Declaration of Independence, and that America was therefore uniquely exceptional due to its philosophical—as opposed to tribal—underpinning. Lincoln did more to make Jefferson’s lofty rhetoric a reality than any President before or after him, and he did so whilst positioning himself as an anti-slavery moderate. Lincoln famously warred with the Radical Republicans within his own party, who sought punitive vindictiveness on the secessionist South and urged a very broad draftsmanship of the Fourteenth Amendment that would have fundamentally transmogrified the original federalist construct James Madison outlined in The Federalist No. 45: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” Had Lincoln lived long enough to see the nation grapple with the Fourteenth Amendment debate, he would have assuredly urged a firm yet, paradoxically, also rather restrained provision that is at odds with Leftist-libertarian Fourteenth Amendment orthodoxy today. Finally, Lincoln would have thoroughly lamented public polls that invariably show large swaths of states like California urging secession in the aftermath of President Trump’s victory. If Lincoln could keep the Union together in the context of waging a bloody war to extinguish America’s original sin, then there is no excuse for states today that may boast of secession.
2. Judicial Supremacy Is a Lie. It is both ironic and tragic that, considering Lincoln’s lofty status as the most revered statesman in the history of the republic, contemporary admirers tend to neglect what is arguably the most distinguishing feature of his legacy. It’s a bit like an art history student surveying the brilliant works of Michelangelo whilst conveniently ignoring that whole statue of David thing in Florence. Lincoln’s 1858 debates with Democrat Stephen Douglas centered around the scope of binding authority of the U.S. Supreme Court’s monstrous diktat in the Dred Scott case more than they did anything else. Lincoln, in his debates with Douglas and ultimately in both his First Inaugural Address and in presidential practice itself, subscribed to a theory of constitutional interpretation that today we would call “departmentalism”: the Great Emancipator respected (usually) the power of the Court to issue an ad hoc judgment in a given case or controversy, but passionately rejected the alleged ability of the Court to be the final and sole arbiter of constitutional disputes for the entire republic. Lincoln vowed not to enforce Dred Scott, and both he and the Republican-led Congress under his stead subsequently treated the decision as if it had never been rendered. Lincoln understood, as so few lamentably do today, that the Marbury v. Madison decision of 1803 (properly) established a very mild form of judicial review, but that it did not establish judicial supremacy. And that makes all the difference in the world.
3. “Substantive Due Process” Is Not a Thing. As my good friend Prerak Shah memorably phrased it in his planned remarks at a Texas-wide Federalist Society confab in Austin this past September, the Fifth/Fourteenth Amendment constitutional doctrine known as “substantive due process” is “not a thing.” It just isn’t. Lincoln did not live long enough to see the debate unfold over Section 1 of the Fourteenth Amendment, which contains the ostensibly anodyne phrase, “No state shall make or enforce any law which shall…deprive any person of life, liberty, or property, without due process of law,” but we can glean his thoughts on the federal judiciary’s future transmogrification of the clause into an all-encompassing power grab from the fact that he treated the Dred Scott decision with less regard than Bill Clinton might treat a cheap hooker in Little Rock. At the federal (i.e., Fifth, not Fourteenth, Amendment) level, the first invocation of a claim to “substantive due process” came in that very Dred Scott case. Lincoln properly viewed Chief Justice Roger Taney’s decision in Dred Scott as not just monstrously inhumane, but as an egregious assault on the underlying republican precepts of our Lockean/Jeffersonian social compact that severely undermined that very government “of the people, by the people, for the people.” At a time when many on the revanchist (and, frankly, Stockholm Syndrome-induced) libertarian “Right” seek to make détente with de facto oligarchists on the pro-judicial supremacy Left, Republicans should double down on their party’s roots and treat this fabricated doctrine as incorrigibly illegitimate. As I and others have noted, this has particular heft in the context of Roe v. Wade—both the legal and moral successor to the Dred Scott abomination promulgated over a century before it.
4. Presidential War Powers Are Vast. Long derided as a tyrant by his paleoconservative and “Lost Cause” skeptics, Lincoln undeniably made firm and unapologetic use of his Article II Executive Branch war powers in his campaign to quash the Southern insurrection. As constitutional scholars such as Saikrishna Prakash have noted over the years, “[t]he executive power” that is vested to the President in the first clause of Article II of the Constitution was originally understood as creating strong powers to direct foreign affairs—and, in particular, to control war. Many conservatives who long understood this lamentably seemed to forget it during the Obama years. Like many hawks, I opposed the feckless Obama/John Kerry-planned “unbelievably small” strike against Bashar al-Assad in 2013; but I also never questioned that the President has inherent Article II power to issue such a strike absent a formal congressional declaration of war. The Constitution’s basic separation of powers framework is, in reality, deceptively simple: Congress has the most control over domestic affairs, the President has the most control over foreign and military affairs, and the federal judiciary is unquestionably the “weakest” of the three branches. Lincoln would urge this reminder of separation of powers fundamentals upon his successors in today’s Republican Party.
5. Just and Righteous Causes Are Worth Fighting For. Naturally, this final lesson is the most important of them all. Lincoln was tragically assassinated a mere five days after General Lee’s surrender to General Grant at Appomattox Court House. He gave his life to preserve the Union and to help that Union better realize its annunciated Founding ideals: “We hold these truths to be self-evident: That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness.” For millennia, historians have debated whether it is the situation or the man that makes the leader. For Lincoln, it was both: antebellum secessionist fervor had reached the point of no return, but Lincoln himself rose to the occasion and fought a long and bloody war to preserve and protect a cherished—indeed, timeless—ideal. For that, the Great Emancipator paid the ultimate price. John Wilkes Booth’s bullet may have taken down the man, but today, all Americans ought to be thankful for the “more perfect Union” which that man helped elevate from hitherto prose into concrete reality. To his fellow Republicans today, Lincoln would urge not to back away from a fight when defining principles are on the line.