Pat Smith comments at Ius & Iustitium on my prior post on originalism and positive law, comparing it to Stephen Douglas’s studied neutrality on the expansion of slavery. Smith likens leaving the question about abortion to the States (if that was what the original Fourteenth Amendment does) to leaving slavery up to people in Kansas and Nebraska Territories. Douglas is famously supportive of Smith, while Abraham Lincoln is famously against it. Lincoln believed that no one can outsource his views on abortion to the states. Douglas couldn’t “say any body has a wrong right to.” Smith claims that abortion is like slavery an “intrinsic sin.”[]” und “[a]”A law authorizing and commanding this kind of evil is not law.”
Two quick points.
1.Lincoln’s selection as an exemplar is It’s very bizarre. Lincoln stood firm against slavery. However, he was also very highly on the Human Law Respecter Scale. This is not about his early position, such as his Lyceum Address which called upon his countrymen to “never violate in any way the laws of this country” and suggested that bad laws should be repealed while in effect, but should still be respected religiously. I’m talking about his mature position—such as his response to the Dred ScottDecision, in which it was acknowledged that the state legislatures once had “the unquestioned power to abolish slavery within their respective States”, but that there were many “State Constitutions”. [now]to withhold this power from the Legislatures,” and that Congress had made “decide[d]It is. It will not continue the prohibition” on slavery in the territories. Consider his First Inaugural. It disclaimed any legal right to interfere with slavery’s establishment in States that it is. Or his famous 1864 pronouncement that “If slavery is not wrong, nothing is wrong”—paired with a declaration that, “in ordinary civil administration,” his presidential oath “even forbade me to practically indulge my primary abstract judgment on the moral question of slavery.” So on.
Lincoln could not have stated it better: slavery is slavery LegalIn many states it is also It is wrong. Unlike Douglas, Lincoln was openly opposed to slavery, he wanted to restrain its expansion with the legal tools available, and he hoped that the proper legal authorities would eliminate it where it existed—soon, in our days. As he was forced to recognize, he recognized that slavery was part and parcel of American law. He opposed rather than supported the notion that “a law authorizing slavery” was a valid view. [slavery] would be no law at all”—even as he insisted that such laws were morally wrong and ought to be opposed. Lincoln saw law as a moral issue, although it was still distinguishable from morals.
2.Smith’s blog helps to put in words my long-standing concern, that “common good constitutionalalism” might place too much emphasis upon. Constitutions. Our society is composed of almost all the major subjects covered by law. UnterConstitutional law. For example, Lincoln likely saw polygamy in Smith’s terms as an “intrinsic sin” and opposed Utah being admitted to the Union so long as it was legal. However, he also maintained that as it stood, polygamy was “internal evil”.[t]There is no law or provision in the United States Constitution that prohibits polygamy. There wouldn’t be any. A confederation of states united only by a loose treaty, with otherwise complete legal systems of their own, wouldn’t have needed any federal law—much less federal Constitutive law—for or against polygamy.
Same was true of abortion as it existed in 1788. The delegates in Philadelphia did not have to speak on this topic. The U.S. Constitution didn’t limit abortion any more than it did slavery. Like those opposing slavery, the people who opposed abortion in the 1960s had to make their case via either the legislative or amendment process.
Slavery was abolished by the Thirteenth Amendment. The Fourteenth Amendment guarantees equal protection. Others disagree. It’s impossible to solve the problem. TheseDebates that include an argument (or even a conclusive argument) about abortion. It is wrong. Different political systems address different wrongs with different legal tools, if any are available. Smith’s attempts to be precise in thinking in these areas is mistaken for weakness or indifference.
Reason.com first published the post Lincoln, Douglas, and the Law