Lincoln at 200: On Lincoln's Statemanship, Dred Scott and Constitutional Evil

Oklahoma Law Review, Dec 200

By Harry F. Tepker Jr., Published on 01/01/00

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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 0 This Special Feature is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in Oklahoma Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information , please contact , USA 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)


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Harry F. Tepker Jr.. Lincoln at 200: On Lincoln's Statemanship, Dred Scott and Constitutional Evil, Oklahoma Law Review, 200, Volume 61, Issue 4,