July 4, 2011


Harry V. Jaffa, Crisis of the House Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates (Fiftieth Anniversary Edition) (Chicago & London: U. of Chicago Press, 2009) ("There is a view widespread today that the principle of a free society is, in itself, neutral with respect to the differences of opinion which may divide the citizens. According to this view, the processes of constitutional democracy exist for the purpose of allowing differing opinions to compete with each other, and public policy may stand upon the ground of any opinion, so long as these command the support of a constitutional majority. One cannot understand Lincoln's policy in the long course of his debates with Douglas from 1854 until 1860 without realizing that it constitutes a categorical denial of this view. Douglas's doctrine of popular sovereignty, unclear as it was on many points, was nonetheless clert in this: that it conceived of a virtually unrestrained right of local majorities to determine rights according to the interests of the majority. It involved a flat repudiation of the principle laid down by Jefferson's first inaugural address, 'that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate which would be oppression.' This Douglas's doctrine did directly, in making the rights of Negroes solely a matter for determination by positive law, but indirectly it had the same affect upon the rights of white men. It was Lincoln's insistence that this was the character of Douglas's doctrine, and that such a doctrine was both untrue and immoral, which constituted his central contention, both theoretical and practical, in his long exchanges with Douglas. Id. at 304-305. "The work of the Founding fathers was excellent and noble, but it was incomplete. Its incompleteness is no necessary reflection upon the Fathers themselves. In asserting their independence of the British they could not help appealing to passions of revenge and hatred; nor could they, in appealing ti the principles of equal rights, avoid setting in train passions which would resist both just and unjust restraints. The people must be taught, as Jefferson taught them, to assert their rights, The people had not yet learned to respect what they had asserted. The people had not yet learned to be submissive in the presence of their own dignity. That this is peculiarly difficult to learn is easy to see. Whoever sees the law as the product of his own will--whether it be a Louis XIV or the American people--is prone to think that all things are lawful. Yet however easy or inevitable the error, it is still an error. Whoever fulfills the law does not destroy the law. But that the people can destroy themselves, that they can be led by the Pied Piper of Caesarism to their own destruction, was Lincoln's profound conviction. For the people to have the respect to which their rights entitle them they must be made subject to a discipline in virtue of which they will demand only those things in the name of their own supreme authority that are reasonable; i.e., consistent with the implications of their own equal rights. There is only way in which this self-respect on the part of the people can, according to Lincoln, be achieved. The Lyceum speech is designed, as the whole idea of political salvation implies, to give force to the one practical proposal of the the Lyceum speech; namely, the proposal for a 'political religion.' . . . Because of the importance of its [i.e., Lincoln's Lyceum speech] anticipations, we reproduce the following with all its rhetorical flourishes: 'Let every American, ever lover of liberty, every well wisher to his posterity, swear by the blood of the Revolution, never to violate in the least particular, the laws of the country; and never to tolerate their violation by others. As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and Laws, let every American pledge his life, his property, and his sacred honor; --let every man remember that to violate the law, is to trample on the blood of his father, and to tear the charter of his own, and his children's liberty. Let reverence for the laws,be breathed by every American mother, to the lisping babe, that prattles on her lap--let it be taught in schools, in seminaries, and in colleges; let it be written in Primers, spelling books, and in Almanacs; --let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let it become the political religion of the nation; and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues, and colors and conditions, sacrifice unceasingly upon its alter." Id. at 225-227. "The Lincoln-Douglas debates are concerned, in the main, with one great practical and one great theoretical question. The practical question was resolved into the constitutional issue of whether federal authority may, and the political issue of whether it should, be employed to keep slavery out of the organized federal territories. The theoretical question was whether slavery was or was not inconsistent with the nature of republican government; that is whether it was or was not destructive of their own rights for any people to vote in favor of establishing slavery as one of their domestic institutions. . . . Lincoln had said that, in a government like ours, public sentiment could change the government, practically speaking, just so much. I was aware that I was a member of that comparatively small class, the university professoriate, that today is the decisive source of the ruling opinions in our country. [Note: Remember, Jaffa was writing more than fifty years ago, before the decline in quality and influence of American universities and the American university professoriate. Today, though the its over all quality is rather piss-poor, the influence once generated by universities and university professoriate is now generate by network political news, talk radio, and political blogs. How did this happen? Many members of the university professoriate abandoned the notion of objective truth for the notion of truth being relative.] Primary and secondary teachers, the mass media and elected officials are usually the retailers of ideas that come in the first place from universities, and in particular from graduate schools. Here is where the teachers of the teachers are taught. We have become the ultimate source of change in the regime, I might have rejoiced somewhat more than I did in the contemplation of this power had it seemed that its exercise had been salutary. But changes generated by this class have been in the direction of denying the existence of any objective standard whatever. This meant denying that the exercise of political power might be, and therefore that it ought to be, governed by any truths external to the will of the those who wielded power. In short, the traditional idea that political power is to be distinguished from political authority, by the light of the distinction between force and right, had come to be regarded within the academy as obsolete." Id. at 9-10. When values are deemed as merely relative, then few are inclined to see the need to defend their values in the market place of political ideas. Instead, those wishing to have their values more widely adopted see control of the power of governance as both the mechanism and the license for imposing their values on others. That is, and sadly, might makes right. This is very much in evidence late-twenty- and early-twenty-first century America. At all levels of American government controlling factions (of all political stripes) no longer engage in meaningful dialogues with those with whom they disagree. Rather they seek to bulldoze their agendas and values through while they can, only to have things substantially reversed when the opposition someday regains control. "The idea of the rule of law rejects the notion that any individual or any group has sufficient wisdom and virtue to be trusted with the decision of individual cases on their own merits, without regard to general rules established by and through the authority of the whole community. Yet the fact remains, as Lincoln insinuates, that, abstractly considered, the rule of law is inferior to discretionary rule, just because each case would be better decided if it could be decided on its own merits. And it is as important to recognize the abstract superiority of discretionary rules as it is to recognize its practical inferiority." " Why so? Because all law aims at abstract justice, with respect to which it is a means. This end, which is translegal, is a perception of the discretionary judgment of wise men; and the law must be informed by such judgment--or be believed to be so informed--if it is to command respect. Men will will submit to abuses tolerated by the law if they feel these abuses are tolerated rather than enjoined or abetted by the law. In the fifties Lincoln was again and again to refer to the proposition, 'all men are created equal,' as an 'abstract truth,' a truth which was the life principle of American law. The implications of this truth were only partially realized, even for white men, and largely denied as far as black men were concerned, Yet it supplied the direction, the meaning, of all good laws in this country, although the attempt at that time to achieve all that might and ought to ultimately to be demanded in its name would have been disastrous. A law is foolish which does not aim at abstract or intrinsic justice; and so is it foolish to attempt to achieve abstract justice as the sole good by succumbing to the fallacy to which the mind is prone, which regards direct consequences as if they were the only consequences. Those who believe anything sanctioned by law is right commit one great error; those who believe the law should sanction only what is right commit another, Either error might result in foolish laws; and, although a foolish law may be preferable to a wise dictator, a wise law is preferable to both." Id. at 195. "No one who knows anything of the explosive hatred involved in the clash of Americans of different origins, in consequence of the great tides of immigration before and after the Civil War, can doubt that they contained vast possibilities for caste and class oppressions, oppressions which might have been rivaled if they did not exceed those of the enslaved Negro. Indeed, the oppressions that did exist in the later nineteenth century, in the slums of the great cities, in the factories and in the mines, were bade enough. Yet they have proved in large measure transient, and it would be difficult to find any considerable group, unless it be the American Indian, whose position, having once been depressed in relation to others, has not been ameliorated. And no group since the Civil War has been so hopelessly degraded as was the Negro, slave and free., in the decades bore the Civil War. If this is true, it is so because, and only because, although class and caste oppression may have existed in fact, they have never since been defended, or defensible, as a matter of right, before the American people a a whole. That the nation as a whole has never been able to defend inequality as the South defended slavery may be traced, so far as any great political effects can be traced, to Lincoln's success in opposing Douglas as a leader of 'American political public opinion'." Id. at 361-362 "The ugly potentialities of a policy of lebensraum combined with racial supremacy should hardly need explanatory comment today. The accents of sarcasm in the foregoing extract can scarcely escape notice. Of the 'mongrels' to the south Douglas had spoken thus at Springfield, July 17, 1858: 'We are witnessing the result of giving civil and political right to inferior races in Mexico, Central America, In South America, and in the West India Islands. Those young men who went from here to Mexico to fight the battles of their country in the Mexican war, can tell you the fruits of negro equality with the white man. They will tell you that the result of that equality is social amalgamation, demoralization and degradation, below the capacity of self-government.' Douglas's white supremacy, American empire, would have been a very different polity from anything envisaged in the pristine purity of the republican ideal of the Founding Fathers. There would have been precious little 'popular sovereignty' for the natives for whom Douglas had such contempt. And there might be many American states today in which, as in the case of the French in Algeria, a privileged minority would be engulfed in the swirling tides of hatred of an unprivileged majority of a different complexion. The problem of racial adjustment in American today is of an order of magnitude that we could hardly exaggerate. And this problem, as every informed person knows, although dramatized by the struggle of the Negro, is not limited to the Negro. Indians, Mexicans, Orientals have all had a desperate struggle, varying in times, place, and intensity, to achieve the dignity which our fundamental law and principles hold out to all. Aspiration must, as Lincoln implied in his 'standard maxim' doctrine, always transcend fulfillment. Yet it is essential that that the possibility of fulfillment does not fall so far short of the aspiration as to make it not a source of hope but mockery. Douglas's formula for solving the slavery question, in which the nation was already hopelessly entangled, would have made the question infinitely more complicated. It is almost inconceivable that democratic processes could have survived such complications. And we can only shudder to think what the twentieth century would be like if the United States had entered it as first and foremost of totalitarian powers." Id. at 407-408. "The great Enlightenment of the eighteenth century, of which Jefferson was such an ornament, was famous for nothing more than for its cosmopolitanism. And the essence of this cosmopolitanism lay in the conviction that only when the rights of man are secured everywhere will they attain their maximum security anywhere. . . . " Id. at 326. Perhaps reading the Lincoln-Douglas debates should be a core Independence Day ritual. It is not from the British that we must now secure our freed, but from those among us who are more inclined to Douglas than to Lincoln.).