Lincoln trusted our ‘better angels,’ but pushed for real world solutions

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Is there a lawyer with soul so dead he doesn’t feel a bit of Abraham Lincoln flowing through his veins?  If not the Great Emancipator, then surely the self-taught country lawyer of Carl Sandburg’s classic biography, who reasoned from first principles and almost always got it right? And yet how hard it was then and still is to get from first principles to practical justice in the case at hand.

Stephen Spielberg got it right in his great movie. Any lawyer can understand Lincoln’s bedrock reasoning about the need for the 13th Amendment. Freeing the slaves as Commander in Chief under the theory they are property assets of rebels in combat with federal authorities was, entirely apart from moral judgments, an adroit military move, on a level with blockading Southern ports and refusing to exchange prisoners of war. But the authority to blockade and hold prisoners of war, like the authority to confiscate cotton, ended with Lee’s surrender. Lincoln knew how vigorously outraged Southerners would argue, even as they laid down their arms, that they were entitled to reclaim their soldiers, their cotton, and their slaves once such wartime authority expired. 

“Quo warranto” is the name of one of the greatest writs in the history of law.  “By what right” free men demand, “do you in power do this thing?” As soon as peace returned, Southerners could be counted on to attack the Emancipation Proclamation as overreach – something beyond a president’s authority. Lincoln knew politics and the law well enough to see that as the Southerners reclaimed political power the day would not be long before they persuaded the courts they were right, and would pass federal legislation as soon as they got back control of Congress re-establishing those freed slaves as wrongly-withheld property, for which they were entitled to restitution or return.

Nor were his concerns unfounded. Less than five years before, the US Supreme Court had infamously ruled that, in the words of Chief Justice Taney (who still sat in July of 1862 when Lincoln first disclosed the Emancipation Proclamation to his cabinet), that no African-American was or ever could be a citizen of the United States, and that, as he bluntly put it, blacks had “no rights which a white man was bound to respect.” In July of 1862, four of the justices who decided that 1857 judicial horror were still sitting on the court, enjoying tenure for life. A fifth was an avowed pro-slavery Northerner, making at least five of nine justices who might ultimately be asked to decide whether the Emancipation Proclamation had life beyond the Civil War. 

From Lincoln’s point of view, it was all well and good to hope for “the better angels of our nature” to prevail, but the hard reality was that Southerners must eventually return to Congress, where on what could fairly be considered their home turf they could craft legislation to reestablish slavery, with the comforting knowledge that the Supreme Court would probably sustain it against challenge. Even with the passage of the “Reconstruction Amendments” including the Thirteenth, they were able to work incredible mischief for generations after the war. “Black Codes” were enacted in Mississippi and throughout the old Confederacy, including making vagrancy a crime warranting imprisonment. Once blacks left their old plantations to wander the roads in search of work or better living, they were vulnerable to charges of vagrancy, the punishment of which was jail time, at a time when the jailers could rent out the labor of their prisoners to the plantation owners desperate for pickers of cotton. For a quarter century after Lincoln’s death, such peonage replicated slavery without the need to buy the slave. Even before the withdrawal of federal troops from the South at the end of Reconstruction, rifle-toting night riders and the hooded terrorists of the Klan and the Knights of the White Camelia suppressed the black vote, insuring that the white supremacy of slavery days continued unabated.

This is an era on which I spent years researching and writing my book “The Speaker Who Locked up the House in a fight against White Supremacy,” about the epic battles in Congress in 1890 when Speaker Tom Reed defied a howling mob of angry Southern Confederate combat veterans who had returned to Congress; determined to undo Lincoln’s great deed.

The consequences of such passions live a long time. Even today tens of thousands of Southerners are signing petitions to secede from the Union. Lawsuits abound trying to emasculate the Voting Rights Act even as states, most but not all Southern, pass laws designed to suppress the black and now the Hispanic vote.

I believe, with Lincoln, that the better angels in our nature may one day prevail, but that day is not yet. He was right to push for the 13th Amendment. Go see the movie and remind yourself what our democracy is all about.

Joe Wilkins is an author, semi-retired lawyer and former municipal judge who lives in Smithville. You can email him at This e-mail address is being protected from spambots. You need JavaScript enabled to view it , see his website at , or follow him on Twitter   @jtwilkins001.

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