Lincoln at 200: On Lincoln's Statemanship, Dred Scott and Constitutional Evil
Lincoln at 200: On Lincoln's Statemanship, Dred Scott and Constitutional Evil
Harry F. Tepker Jr. 0 1 2
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1 Harry F. Tepker Jr., Lincoln at 200: On Lincoln's Statemanship, Dred Scott and Constitutional Evil , 61 Okla. L. Rev. 785, 2017
2 University of Oklahoma College of Law , USA
Follow this and additional works at: http://digitalcommons.law.ou.edu/olr Part of the Constitutional Law Commons Recommended Citation
HARRY F. TEPKER*
February 12, 2009, was Abraham Lincoln’s 200th birthday. Just over one
hundred and fifty years ago, the Lincoln-Douglas Senate race captured the
attention of the republic because of celebrated “debates that defined
America.”1 Until 2015— the sesquicentennial of the Civil W ar’s end— we will
witness renewed attempts to remember, reconstruct, and reconsider almost all
the lessons of the nation’s greatest and most costly moral conflict. Central to
the debate is the reputation of Abraham Lincoln.
Few men suffered as much mockery in life as Lincoln. Even after
martyrdom, historian David Donald wrote it took time for his heroic reputation
to capture the imagination. However, by the middle of the twentieth century,
“everybody was for Lincoln.”2 As Donald writes,
[Strom Thurmond’s] Dixiecrats remembered that Lincoln, as a
fellow Southerner, preferred letting the race problem work itself
out. Henry W allace’s Progressives asserted that they were heirs of
Jefferson, Jackson, and Lincoln. Thomas E. Dewey, according to
his running-mate, [California Governor and future Chief Justice
Earl W arren,] bore a striking resemblance to Lincoln— spiritual
rather than physical, one judges— and President Truman claimed
that if Lincoln were alive, he would be a Democrat. . . . Lincoln
has become a nonpartisan, nonsectional hero. It seems, as
Congressman Everett Dirksen solemnly assured his Republican
colleagues, that these days the first task of a politician is “to get
right with . . . Lincoln.”3
© 2009 Harry F. Tepker
* Calvert Chair of Law and Liberty and Professor of Law, University of Oklahoma. This
essay is an expansion of several talks, including a Constitution Day speech to the Honors
College of the University of Oklahoma. The author thanks Dean Robert Con Davis of the
Honors College for the invitation and opportunity and Michael Brooks for his assistance in the
research and editing of this essay.
1. ALLEN C. GUELZO, LINCOLN AND DOUGLAS: THE DEBATES THAT DEFINED AMERICA
(2008).
2. DAVID DONALD, Getting Right with Lincoln, in LINCOLN RECONSIDERED: ESSAYS ON
THE CIVIL WAR ERA 3, 17 (2d ed. 1972).
3. Id.
Mr. Dirksen, of course, was talking politics. Less clear was Lincoln’s
importance as a shaper of the Constitution. Talk of “framers’ intent” often
focuses on 1787 and 1791, so he is not usually mentioned in the same way as
Madison or Hamilton, or even Jefferson, as a “framer” of the Constitution. Of
course, he is acknowledged as the man who “saved the Union,” and his role
in the enactment of the Thirteenth Amendment and his inspirational influence
for the constitutional traditions of the Fourteenth and Fifteenth Amendments
are real. He still carries weight in debate, though.
As the Second World War was beginning, two feuding Supreme Court
justices squabbled over what Lincoln would do about state laws requiring
school students to recite the flag salute. In 1940, going where no judge had
gone before— or since— Justice Felix Frankfurter claimed the issue was one
of national security, and to prove it, he invoked Lincoln’s memory and his
famous reply to critics.4 Lincoln had suspended the writ of habeas corpus, and
he had urged federal authorities to prosecute copperhead Democrats who
seemed to incite resistance to the draft, as well as a policy of yielding to the
demands of southern quest for independence. In reply, the President invoked
a principle of national security in a famous question: “Must a government of
necessity be too strong for the liberties of its people, or too weak to maintain
its own existence?”5
Three years later, after Pearl Harbor, as America joined the fight to preserve
western civilization against Germany, Italy, and Japan, Justice Robert H.
Jackson wrote an opinion holding that governments may not compel patriotism
or flag salutes.6 He offered a more prudent perspective of Lincoln: “It may
be doubted whether Mr. Lincoln would have thought that the strength of the
government to maintain itself would be impressively vindicated by our
confirming power of the State to expel a handful of children from school.”7
If everyone wanted to “get right” with Lincoln in the past, today America
suffers from “[t]he great historical amnesia.”8 Honest Abe’s birthday is no
longer a holiday. (...truncated)