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A Legacy of Liberty Dialogue on Lincoln DialogueOnLincolnPart1.indd 1 3/27/09 11:37:02 AM A Legacy of Liberty How to Do a dialogue on lincoln If you are a lawyer or j udge interested in leading a Dialogue on Lincoln at a school or in your community, p lease follow these steps to help ensure a meaningful experience for you and your audience. A note for educators: Please review these suggestions with legal professionals who you invite into your classroom. Step 1. Identify a school. Contact a school in your community or a school where you know members of the teaching staff. Many educators contact their local bar associations looking for legal professionals who might come into classrooms, so your local bar association might know teachers in your community with similar requests. Friends and co-workers might also recommend a school that would like to participate in the Dialogue program. Step 2. Set up an appointment for your visit. Contact the school principal or relevant department head—i.e. social studies, history, government, political science, civics, or language arts. Explain the program to them and offer a copy of the Dialogue materials. Ask if they or another teacher in their school would be willing to devote a class session to the Dialogue and schedule a day and time. You will need 45-90 minutes to make the Dialogue a meaningful experience. Step 3. Discuss your visit with the teacher. Discuss the ages and experiences of the students. Determine what part of the Dialogue you would like to focus on and provide the teacher with a copy of the materials you wish to discuss. Also, consult with the teacher about additional background materials that might help the students. Request that the teacher have name tags or tent cards printed with the students’ first names, and ask for any other equipment you might need, such as a blackboard or flipchart. Step 4. Prepare the class for your visit. Ask the teacher to distribute any materials or assign any background readings you want the class to discuss at least one day before your visit. Step 5. Prepare yourself for your day in class. Know your subject. Review the Dialogue materials before you go to class and consider additional questions you think will help students explore the issues raised by the Dialogue. Have a planned outline of where you would like the discussion to go, but prepare to be flexible. Personalize the topic by thinking of examples and anecdotes from your own practice that you can relate to the students. Step 6. Follow up after the Dialogue. Write a thank-you note to the teacher and class. Make yourself available to answer questions the class may raise following the Dialogue. 2 DI ALO GU E O N L IN C O L N : A L EGA CY OF L IB ERTY DialogueOnLincolnPart1.indd 2 3/27/09 11:37:03 AM Ti m eline of Abra h a m L incoln ’ s L ife TABLE OF CONTENTS G etting S tarted I . (PAGE 4) L incoln : O ur Greatest President ? (PAGE 5) 1816 Family moved from Kentucky to Indiana, settling near present-day Gentryville. 1818 Nancy Lincoln died of “milk sickness,” an illness caused by the consumption of milk contaminated with the white snakeroot poison tremetol. 1830 Family moved from Indiana to Illinois, settling near present-day Decatur. 1831 Moved at age twenty-two to New Salem, Illinois, where he worked as a store clerk and, later, postmaster. 1834Elected to the Illinois General Assembly, representing Sangamon County for four terms, and began to study law. B. Lincoln the Legislator 1836Licensed by the Illinois Supreme Court to practice law. C. Lincoln the President 1839Traveled the Eighth Judicial Circuit, practicing law. D. Lincoln the Memorialized L incoln and the C onstitution (PAGE Born in log cabin in present-day Hodgenville, Kentucky, to Thomas and Nancy Lincoln. 1819Thomas Lincoln remarried, to Sarah Johnston, who adopted the Lincoln children as her own. A. Lincoln the Lawyer I I . 1809 1842Married Mary Todd. 1844 8) A. Union and Secession B. Lincoln and Slavery: The Thirteenth Amendment C. Civil Liberties During Wartime 1. Suspending the Writ of Habeas Corpus 2. When Does Freedom of Speech Threaten National Security? 1846Elected to the U.S. House of Representatives and served only one term, during which he opposed the Mexican War and proposed legislation abolishing slavery in Washington, D.C. 1858Nominated by the Republican Party for the U.S. Senate and eventually lost to Democratic incumbent Stephen Douglas. Engaged in debates with Douglas during the campaign; became a national political figure. 1860 Selected by the Republican National Convention in Chicago as its candidate for president of the United States. Won the election with running mate Hannibal Hamlin. 1861 Inaugurated as president shortly before the Civil War begins. By this time, seven (of the eventually eleven) states seceded from the United States to form the Confederate States of America. I I I . L incoln in Me moriam (PAGE 16) A. The Lincoln Memorial B. Lincoln and Obama 1. Abraham Obama 2. High Five DialogueOnLincolnPart1.indd 3 Established law practice with partner, William Herndon, in Springfield, Illinois. 1863Issued the Emancipation Proclamation. Delivered the Gettysburg Address. 1864 Re-elected to the presidency, defeating Democratic candidate George McClellan. 1865 Assassinated just days after the end of the Civil War and months before the ratification of the Thirteenth Amendment to the U.S. Constitution. 3/27/09 11:37:04 AM I G e t t i n g S ta rt e d P r o g r a m O v e rv i e w Dialogue on Lincoln: A Legacy of Liberty is designed for use by lawyers, judges, and teachers in school classrooms and with community groups. The Dialogue offers numerous perspectives on Abraham Lincoln, from lawyer to president to his legacy, giving you different options for different audiences or classrooms. Part I presents an overview of Lincoln’s life, career, and legacy. Part II looks at Lincoln and the U.S. Constitution— focusing on secession, the Thirteenth Amendment, and civil liberties during wartime. It offers historical background and connections to the present day. Finally, Part III considers the impact of Abraham Lincoln on American culture, examining the Lincoln Memorial, and recent political advertising and cartoons. All three parts provide options for discussion with students and adult audiences. We encourage you to be open to the new directions that the Dialogue may take you and your group celebrate Law Day, Lincoln’s Bicentennial, and the legacy of America’s quintessential lawyer-president. T h e A B A D ia l o g u e P r o g r a m The Dialogue on Lincoln: A Legacy of Liberty is the seventh installment in the ABA Dialogue Program. The Dialogue Program provides lawyers and judges with the resources they need to engage high school students and community groups in discussion of fundamental American legal principles and civic traditions. Supreme Court Justice Anthony Kennedy introduced the first Dialogue program, the Dialogue on Freedom, at the 2002 ABA Midyear Meeting in Philadelphia. In 2003, the ABA introduced the Dialogue on Brown v. Board of Education to commemorate the 50th anniversary of the Supreme Court’s landmark ruling. In 2005, the Dialogue on the American Jury complemented the ABA’s American Jury Initiative. In 2006, the Dialogue on the Separation of Powers was introduced, followed by the Dialogue on Youth and Justice in 2007 and the Dialogue on the Rule of Law in 2008. For more information on these Dialogues, visit http://www.abanet.org/publiced/ features/dialogues.html. Additional copies of Dialogue on Lincoln may be ordered from the ABA Division for Public Education by calling (312) 988-5735; or emailing abapubed@ abanet.org. The Dialogue on Lincoln is also available for free download in PDF format from the Law Day website, www.LawDay.org. Please contact the ABA Division for Public Education for permissions and photocopying information. Cover: Abraham Lincoln, photograph by Alexander Gardner, February 5, 1865. Print courtesy of the National Portrait Gallery. Right: Lawyer Lincoln defending Colonel Matthew Rogers. Print courtesy of the National Archives and Records Administration. 4 DI ALO GU E O N L IN C O L N : A L EGA CY OF L IB ERTY DialogueOnLincolnPart1.indd 4 3/27/09 11:37:14 AM I Lincoln O ur G reatest President ? L incoln’s legacy is more enduring than that of any other president in American history. He consistently ranks as one of our greatest leaders, guiding the nation through its greatest crisis. As a young lawyer, he ably represented his clients. As president, he authored some of our nation’s foremost documents of freedom, including the Gettysburg Address and the Emancipation Proclamation. These documents help fulfill the political promise of the Declaration of Independence, in which “all men are created equal.” Abraham Lincoln was an unlikely presidential candidate. He was tall and awkward, with a shrill, nasally voice, and seemingly nothing like the noble statesmen of the founding era. Born in rural Kentucky to a carpenter and his wife, Lincoln received only one year of formal education. He worked on the family farm and famously split rails, but all the while cultivated a love for books. Lincoln read everything he could, eventually teaching himself the law. Politically, he seemed to come from nowhere. Lincoln had served four terms in the Illinois state legislature and only one term in Congress. He was truly a self-made American, proud of the freedoms availed to him from his country, and determined to guarantee the same liberties to his clients and the public he served. BELOW: Abraham Lincoln, photograph by Alexander Hesler, June 3, 1860. Image courtesy of the National Archives and Records Administration. ABOVE: Inauguration of Abraham Lincoln as President of the United States, 1861. Photo courtesy of the Library of Congress. Li n c o l n t h e Law y e r Lincoln accepted a variety of legal cases. Divorces, rapes, wills, patents, debt collection, railroads’ right-ofway, fugitive slaves, and murders were all part of lawyer Lincoln’s caseload. The most money he ever made from a case was $5,000, earned from representing the Illinois Central Railroad in a right-of-way case. One of his cases, Bailey v. Cromwell (1841), involved a fugitive slave, Nance, whom Lincoln represented in a suit for her freedom. He won the case, and Nance effectively became the first slave Lincoln freed prior to the Emancipation Proclamation. In perhaps his biggest case, Lincoln defended William “Duff” Armstrong, accused of murder, in 1857. When the prosecution’s witness claimed to have seen Armstrong at the crime scene in the moonlight, Lincoln produced an almanac showing that, on that particular night, there was no moonlight, thus discrediting the witness. Lawyer Lincoln gained a reputation for honesty, logic, precision, and integrity. Colleagues described him as having “courtroom finesse to an extraordinary degree.” Another warned, “Any man who took Lincoln for a simple-minded man would very soon wake [up] with his back in a ditch.” DIA L OGU E ON L IN COL N : A L EGA C Y O F LI BERTY DialogueOnLincolnPart1.indd 5 5 3/27/09 11:37:21 AM Li n c o l n t h e L e g i s l at o r During his term in Congress (1846-48), Lincoln spoke out against the Mexican-American War as an unjustified abuse of power and warmongering and proposed legislation abolishing slavery in Washington, D.C. As a state legislator in Illinois, he fought for improved infrastructure and building a strong state capital in Springfield. He also supported suffrage rights for all tax-paying Illinois immigrants in the face of nativist attitudes from some of his colleagues. Li n c o l n t h e P r e s id e n t Above: “The First Reading of the Emancipation Proclamation of President Lincoln, 1862,” by Francis Bicknell Carpenter, 1864. Print courtesy of the U.S. Senate. RIGHT: Reward poster seeking Lincoln’s assassin. Facsimile courtesy of the National Archives and Records Administration. Lincoln was president during our nation’s most serious crisis, the Civil War. The U.S. Constitution, Lincoln argued, did not allow for secession of individual states from the Union. He vowed to preserve the union that the founders worked to establish nearly a century earlier. In doing so, he redefined the roles of president as chief executive and commander in chief. To guarantee what he regarded as matters of national security, he issued orders to suspend the writ of habeas corpus, restrict free speech, and control the free press, while still mindful of the importance of protecting individual personal freedoms and civil liberties during wartime. Lincoln looked to end the institution of slavery, which had divided the country since its establishment. With the Emancipation Proclamation, Lincoln freed an enslaved population four million strong. With the Gettysburg Address, he “[resolved] that this nation, under God, shall have a new birth of freedom,” alluding to emancipation, but also setting forth a broader vision of national unity that has truly become part of Lincoln’s legacy of American liberty. Li n c o l n m e m o r ia l i z e d When Lincoln was assassinated in 1865, just days after the end of the Civil War, his life was tragically cut short. He was unable to lead the nation in “the new birth of freedom.” People began honoring him immediately following his death. The memorialization of Lincoln has only grown stronger since. He was the first American president to be assassinated. Lincoln was widely seen as a political martyr, sacrificing his own life for the nation he fought to preserve. Lincoln has since become the subject of myth and legend, portrayed in movies, featured in television, and lauded in poetry. He is also the subject of monuments. The Lincoln Memorial opened in 1922 as a testament to his life’s work 6 DI ALO GU E O N L IN C O L N : A L EGA CY OF L IB ERTY DialogueOnLincolnPart1.indd 6 3/27/09 11:37:25 AM and has since evolved into both a national gathering place and an American icon. The legend of Lincoln continues to evolve, undoubtedly affecting our perceptions of him as an historic lawyer-president. Join the Dialogue 1. Lincoln often serves as a role model for lawyers and politicians. How did Lincoln’s career as a lawyer and legislator prepare him for the presidency? 2. In 1909, Americans celebrated the centennial of Lincoln’s birth. The author Leo Tolstoy wrote on that occasion: The greatness of Napoleon, Caesar, or Washington is only moonlight by the sun of Lincoln. His example is universal and will last thousands of years … He was bigger than his country—bigger than all the Presidents together … and as [a] great character he will live as long as the world lives. A century later, is Tolstoy’s quote still applicable as we celebrate Lincoln’s bicentennial? There have been twenty-eight presidents since Lincoln. Compared to them, do you think Lincoln is still our greatest president? What does it mean to be great? What does it mean to be a great president? 3. Research what other American presidents, after Lincoln, were assassinated. How was Lincoln protected? How are contemporary American presidents protected? What are possible drawbacks that result from the need to ensure the safety and security of our presidents? 4. Read “The Martyred Patriot” poster depicted above. What is a martyr? Do you think it is proper to regard Lincoln as a martyr? Can you think of other examples of martyrs in our country’s history? above: “The Martyred Patriot Grand Funeral March,” composed by J.W. Porter, 1865, sheet music facsimile courtesy of the Library of Congress. RIGHT: Abraham Lincoln, photograph by Alexander Gardner, February 5, 1864. Photo courtesy of the National Archives and Records Administration. Back page: Abraham Lincoln statue inside the Lincoln Memorial, by Daniel Chester French, 1922, image ABA stock photo. DIA L OGU E ON L IN COL N : A L EGA C Y O F LI BERTY DialogueOnLincolnPart1.indd 7 7 3/27/09 11:37:38 AM II Lincoln A N D T H E C O N S T I TUT I O N Union and Secession Lincoln is the only president in American history who was forced to grapple with the fundamental Constitutional question of national union, as eleven states seceded from the United States at the beginning of the Civil War. His response to the Civil War secession crisis ultimately formed the nation as we know it today. More broadly, the secession crisis raised significant questions about federalism, states’ rights, and national sovereignty. Li n c o l n a n d S l av e r y : T h e T h i rt e e n t h A m e n d m e n t While every U.S. president before Lincoln wrestled with questions about slavery, Lincoln was the only one to offer an answer: emancipation. On this question, it took time—and circumstances—to enable Lincoln to align his political decision-making with his moral values. In 1863, Lincoln issued the Emancipation Proclamation, which freed four million slaves. He set in motion legislation 8 that would become the Thirteenth Amendment to the U.S. Constitution, which forever abolished the institution of slavery in the nation. Ci v i l Lib e r ti e s D u r i n g Wa r ti m e President Lincoln recognized the importance of preserving the Constitution and rule of law during the Civil War. He was also keenly aware of the need to maintain the sometimes delicate balance between preserving civil liberties and ensuring national security. Still, Lincoln took action, necessary in his view, to meet the national crisis of rebellion by suspending the writ of habeas corpus, and arresting approximately 38,000 American citizens as threats to national security. BELOW: Members of the 2nd New York Artillery, outside Fort Smith, near Washington, D.C., 1864. Photo courtesy of the National Archives and Records Administration. DI ALO GU E O N L IN C O L N : A L EGA CY OF L IB ERTY DialogueOnLincolnPart1.indd 8 3/27/09 11:37:58 AM Union and Secession When President Lincoln was inaugurated on March 4, 1861, he inherited a crisis in the United States: a nation on the brink of dissolution. Eleven individual Southern slave states would declare independence from the United States of America and ally to form the Confederate States of America. Leaders of the seceding states viewed Lincoln’s election—Republican leadership that wanted to strengthen the federal government, restrict slavery, increase taxes, advance industrialization, and implement tariffs—as a threat to their states, their agrarian economies, and their plantation lifestyles. As the nation’s founders nearly a century earlier had fought for independence from Britain, claiming rights to “life, liberty, and the pursuit of happiness,” the secessionists claimed they were protecting their rights. The Confederate states were invoking what they believed to be their rights to sovereignty, or the authority to govern themselves as states free and independent of federal control. Tensions intensified for decades prior to 1860 between free and slave state representatives over the congressional balance of power. The seceding states were no longer certain that they should consent to government under the United States. Georgian John Cochran explained, “We hold to the principle among others that this government is not solely the government of a majority but that the minority have rights that must be respected … we will not submit to having our rights taken from us.” Such was the basis of secessionist state resolutions claiming to protect natural rights guaranteed by the Declaration of Independence and U.S. Constitution. In doing so, however, the Confederacy threatened the national union that was the United States of America. President Lincoln resisted the Confederate States’ secession from the Union. On August 16, 1861, he declared them to be in rebellion against the United States. He called their actions “an insidious debauching of the public mind,” and simply unlawful. He rejected their claims to independent sovereignty, believing that: While the Constitution of the United States neither explicitly prohibits nor denies states’ rights to secede from the larger United States, its absence from the document RIGHT: Charleston Mercury extra, printed December 20, 1860, minutes after the South Carolina delegation voted in favor of secession. Broadside courtesy of the Library of Congress. was significant. He believed that the historic union of states under girds Constitutional law, and that since neither the Confederacy nor its constituent states enjoyed sovereign status prior to their inclusion in the United States, they were not in positions to [re]claim it. In his Second Inaugural Address, Lincoln explained: We find the proposition that, in legal contemplation, the Union is perpetual as confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured, and the faith of all thirteen States expressly plighted, and engaged that it should be perpetual, by the Articles of Confederation in 1778. And, finally, in 1787, one of the declared objects for ordaining and establishing the Constitution was “to form a more perfect Union.” (March 4, 1861) Lincoln, a lawyer with respect for the rule of law, compared the Confederate States’ secession to anarchy, a fundamental disordering of American government. He argued that a “minority rule” among the secessionists, making decisions for residents of their states, and the “minority rule” of the Confederacy making decisions DIA L OGU E ON L IN COL N : A L EGA C Y O F LI BERTY DialogueOnLincolnPart1.indd 9 9 3/27/09 11:38:09 AM for the rest of the United States, was tyranny. Lincoln acknowledged the “most sacred right” of citizens to “rise up, and shake off the existing government, and form a new one that suits them better.” He refused to believe, however, that a majority of voters in the Confederacy supported secession, where formal declarations “could scarcely be considered as demonstrating popular sentiment.” Lincoln argued that secession was incompatible with the republican form of government. The Declaration of Independence and the Constitution provided legal outlets for governmental change: revolution, or elections and constitutional amendments, respectively. Lincoln believed such mechanisms made secession unconstitutional and prohibitive. Finally, Lincoln feared that if the Southern States were allowed to secede, the United States would no longer serve as an example of law, order, and liberty for the world. He felt the whole American experiment that was democracy—deliberately and self-consciously creating a government “of the people, by the people, for the people”—would be destroyed. ABOVE: “Signing of the Constitution,” by Howard Chandler Christy, 1940. Image courtesy of the Architect of the Capitol. 10 ABOVE: Abraham Lincoln, photograph by Alexander Gardner, 1863. Photo courtesy of the National Archives and Records Admnistration. Join the Dialogue 1. Were the Confederate states constitutionally justified in seceding from the Union in 1861? Why or why not? Do you think states today should be able to secede? Why or why not? If so, could they do so democratically? How? 2. Lincoln believed that accepting secession would violate the “perpetual union” of the United States established by the nation’s founders. Do you believe that we are truly one nation today? Why or why not? 3. Why was the Civil War a national crisis? What other crises has our country faced? How did we address them? What do you think has been our greatest crisis? Why? 4. Inherent to our federal system of government—in which political power is shared—is a tension between the powers of the federal and state governments. Do you think the federal government has too much or too little power today? Why? Do you think the federal government should have greater power in times of national crisis? Why or why not? DI AL OGU E ON L IN C OL N : A L EGA CY OF L IB ERTY DialogueOnLincolnPart1.indd 10 3/27/09 11:38:19 AM L incoln and S lav ery: Th e T h irteent h A m endment Slavery in the United States had never been more protected than it was on the eve of the Civil War. The U.S. Constitution outlined protections for slavery, most notably in Article I, where the Three-Fifths Clause allowed slave states to gain enhanced congressional representation by counting each slave as three-fifths of one person. Although Thomas Jefferson outlawed the African slave trade in 1808, those slaves who were imported prior to that date, and their descendants, remained enslaved. In the decades leading up to the Civil War, slave states lobbied for stronger fugitive slave laws, as protections outlined in the Constitution were largely unenforced. The Fugitive Slave Act of 1850 provided stronger property protections to slaveholders and strict punishments to violators. It mandated that every American, including those in free states, protect slaveholder property rights by aiding in the return of runaway slaves. It also threatened the safety of free blacks who could be mistaken for slaves. Northern abolitionists were faced with the immediate choice of breaking the law or violating their own values. Persons found guilty of aiding fugitive slaves were subject to six months imprisonment and a $1,000 fine. Ending slavery, however, was not President Lincoln’s priority at the beginning of the Civil War. He saw the primary struggle as a fight to preserve the Union. In an 1862 letter to Horace Greeley, he explained: If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that. (August 22, 1862) Early on, Lincoln was reluctant to make the Civil War about emancipation of the slaves. He wanted to preserve the slaveholding border states’—Kentucky, Missouri, Maryland, and Tennessee—allegiance to the Union. As the war dragged on, however, Lincoln came to realize that emancipation was indeed essential to preserving the Union, for both moral and practical reasons. Lincoln maintained that emancipation was part of the Union military strategy, meant to stymie the Confederate war effort. ABOVE: Fugitive slaves fording the Rappahannock River, Rappahannock, Virginia, 1862. Photo courtesy of the National Archives and Records Administration. DIA L OGU E ON L IN COL N : A L EGA C Y O F LI BERTY DialogueOnLincolnPart1.indd 11 11 3/27/09 11:38:20 AM On January 1, 1863, the Emancipation Proclamation took effect, issued by Lincoln under his constitutional authority as commander-in-chief. Lincoln biographer Allen Guelzo has called it “the single greatest social revolutionary document in American history.” It freed “all persons held as slaves within any State or designated part of a State … in rebellion against the United States … thenceforward and forever.” Lincoln’s policy position on emancipation developed over time. He evolved into the Great Emancipator. While Lincoln was long morally opposed to slavery, he initially believed, that, as long as it was contained, it would eventually grow extinct. As tensions increased before the Civil War, however, he came to believe that slavery would not simply wither away, but rather would require active abolition. He explained his complex views about slavery in an 1864 letter to Albert Hodges: I am naturally anti-slavery. If slavery is not wrong, nothing is wrong. I can not remember when I did not so think, and feel. And yet I have never understood that the Presidency conferred upon me an unrestricted right to act officially upon this judgment and feeling. (April 4, 1864) Lincoln was concerned that, as an executive order, the Emancipation Proclamation might be viewed as a temporary wartime measure. In order to permanently abolish the institution of American slavery, Lincoln pushed for congressional approval of a proposed constitutional amendment. It was not an easy fight, but, in January 1865, Congress passed what would become the Thirteenth Amendment. Lincoln would not live to see it ratified by the states and become incorporated into the U.S. Constitution: Neither slavery not involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. 12 ABOVE: Harriet Tubman with former slaves. Photo courtesy of the National Archives and Records Administration. JO IN T HE DIALO GUE 1. President Lincoln used his executive power as commander-in-chief to issue the Emancipation Proclamation. What is the source of this power? Do you think Lincoln appropriately exercised his presidential powers to take this action? What checks and balances does the Constitution provide to restrain the exercise of executive power? Can you think of recent examples where this has occurred? 2. Lincoln was morally opposed to slavery, but long felt it his obligation to enforce pro-slavery laws and policies. Why do you think he felt this way? Do you think it is sometimes important for political leaders to separate their moral values from their political and legal positions? Why? Can you think of situations where this has happened? 3. It took the crisis and upheaval of the Civil War to bring a dramatic end to the legally sanctioned institution of race slavery in the United States. Do you think the Civil War was required to accomplish this? Might the institution of American slavery have simply disappeared over time? Is it better for political change to happen quickly or slowly? Why? 4. Did the abolition of slavery resolve the issues of race and racism in American society? Why or why not? DI AL OGU E ON L IN C OL N : A L EGA CY OF L IB ERTY DialogueOnLincolnPart1.indd 12 3/27/09 11:38:21 AM Ex Part e Merryman, 1861 Many people responded to Lincoln’s suspension of the writ of habeas corpus with protest. The New York Tribune C i vil Liberties During Warti me called it “lawless despotism.” One person particularly incensed was Chief Justice Roger Taney, who in 1861, had an opportunity to express his opinion with the The Civil War presented President Lincoln with the difficult challenge of how to balance national security concerns during a time of extreme national crisis with the preservation of civil liberties. In a civil war, Americans were not fighting external enemies, but rather one another. Inflammatory editorials and speeches were fueling support and opposition on both sides of the Mason-Dixon Line: the imaginary demarcation between the Northern and Southern states. In this climate, Lincoln took actions that unquestionably resulted in restrictions on Americans’ civil liberties. Such actions were not new. Prior to the American Revolution, New York printer John Peter Zenger made headlines when he was charged with seditious libel and assailing the royal governor of New York, who he had declared corrupt. In 1798, President John Adams signed the Sedition Act during the Quasi-War with France, making it a crime to publish “false, scandalous, and malicious writing” against the government or its officials. Lincoln was following a line of historic decisions as commanderin-chief. Moreover, he understood himself to be fighting an unprecedented Civil War, which he claimed called for unprecedented presidential war powers. decision in the federal case Ex Parte Merryman. John Merryman was a wealthy Maryland landowner and lieutenant in a secessionist cavalry company, which had destroyed telegraph lines outside of Baltimore. Arrested and detained at Fort McHenry, he petitioned the federal court for a writ of habeas corpus. At that time, Supreme Court justices still traveled to federal circuit courts to hear cases, and the justice stationed in Merryman’s circuit happened to be none other than Chief Justice Taney. He ordered the commanding officer at Fort McHenry to show cause for Merryman’s detention. The officer refused, citing the president’s suspension of the writ of habeas corpus. Taney immediately issued a ruling denying the president’s authority to do so. He insisted that only Congress, not the president, had the power to suspend the writ, since the suspension clause in Article I of the Constitution delegated powers to the legislative branch of government, not the executive branch. Taking direct aim at Lincoln in his ruling, Taney declared that “the President, under the Constitution and laws of the United States, cannot suspend the privilege of the writ of habeas corpus, nor authorize any military officers to do so.” In his capacity as federal circuit court judge, Chief Suspending the Writ of Habeas Corpus. Lincoln suspended the writ of habeas corpus during the Civil War. Habeas corpus is a Latin term, “meaning you have the body.” The right to habeas corpus allows a person who has been arrested to appear before a court, hear why they were arrested, and seek relief from unlawful detention. It is often celebrated as the most effective safeguard of freedom against arbitrary state actions. Lincoln was not the first president to suspend the writ. It was also suspended during Shays’ Rebellion in 1787 and again during the War of 1812. Lincoln was, however, the first president to suspend the writ of habeas corpus without prior congressional approval. Article I of the U.S. Constitution affirms habeas corpus protection, but allows for its suspension in extraordinary situations: The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it. Under the suspension, any U.S. citizen, soldier, or civilian, can be arrested “for giving aid and comfort in Justice Taney had little power to enforce his decision, so Lincoln essentially ignored it. In 1863, Congress subsequently passed the Habeas Corpus Act, which finally gave Lincoln legislative sanction for suspensions. various ways to the insurrection,” and subject to “martial law, and liable to trial and punishment by courts-martial or military commission.” Though the Constitution authorizes such actions, it does not, however, outline specific procedures for suspending the writ. Every instance prior to Lincoln’s had been authorized by state or federal legislatures. Many of Lincoln’s contemporaries thought him a tyrant, but he defended his actions before Congress, citing his inaugural pledge to protect the country. In the twenty-first century, President George W. Bush issued a presidential military order in November 2001, shortly after the September 11 terrorist attacks against DIA L OGU E ON L IN COL N : A L EGA C Y O F LI BERTY DialogueOnLincolnPart1.indd 13 13 3/27/09 11:38:22 AM the United States. This order concerned the “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.” During the ensuing years of the Bush Administration, a number of legal and judicial challenges were brought against their policies and practices in fighting the “war against terrorism.” Central to many of them was the constitutionality of efforts to effectively suspend the use of the writ of habeas corpus by suspected terrorists, especially those detained at the Guantanamo Bay facility in Cuba (see Boumediene summary on this page). Some have compared President Bush’s actions, resulting in an effort to suspend habeas corpus rights, to Lincoln’s. Both presidents cited wartime crises as justifications for suspension. Both sought to preclude only those being tried in military, not civilian, courts, from challenging the lawfulness of their detention through habeas corpus appeals. Both were challenged by the federal courts. In American history, suspension of the writ of habeas corpus has been an extraordinary action, typically reserved only for extraordinary circumstances. The Civil War and September 11, 2001, terrorist attacks have been regarded by the executive as serious emergencies. The question, however, of whether one or both of them warranted the suspension of habeas corpus is open to debate and has been the subject of much controversy. When Does Freedom of Speech Threaten National Security? Clement Vallandigham, a former congressman from Ohio, delivered an antiwar speech in Mount Vernon, Ohio, on May 1, 1863. He described the Civil War as “wicked, cruel and unnecessary,” and encouraged soldiers to desert their posts and citizens to abandon the Union war effort. Following the speech, Vallandigham was arrested, charged with making “treasonable utterances” and B o ume dien e v. Bu sh, 2008 In June 2008, the Supreme Court declared portions of the Military Commissions Act of 2006 unconstitutional in Boumediene v. Bush. Lakhdar Boumediene was arrested in October 2001 by local Bosnian police on suspicion of plotting to attack the U.S. embassy in Sarajevo after American intelligence agents became suspicious of “increased chatter” between Boumediene and five other Bosnian nationals and the al Qaeda terrorist group. He was 14 promptly tried and convicted by a military commission, which sentenced him to prison for the remainder of the war. Mass demonstrations against Vallandigham’s detainment erupted across Northern U.S. cities. President Lincoln faced a dilemma: allow Vallandigham to exercise his First Amendment right to free speech, or risk undermining the Union war effort. Lincoln justified the arrest in a letter to protest leader Erastus Corning as necessary for national security during war: Mr. Vallandigham … was laboring, with some effect, to prevent the raising of troops, to encourage desertions from the army, and to leave the rebellion without an adequate military force to suppress it. (June 12, 1863) This was not the first time, nor would it be the last time, that a president restricted speech in the interest of national security. In 1798, during war with France, President John Adams issued the Sedition Act, which punished any person writing, printing, BELOW: Lincoln’s Executive Order suspending habeas corpus, May 15, 1863. Facsimile courtesy of the Library of Congress. taken to Guantanamo Bay, detained in the American prison there, and never formally charged with a crime. Boumediene petitioned the United States government for a writ of habeas corpus to determine why he was being detained, and if his detention was lawful. The Supreme Court ruled that Boumediene’s detention, as it stood, without rights to habeas corpus, was unconstitutional. The Court ruled that enemy detainees in the custody of the United States were entitled to habeas corpus rights and that if Congress were going to suspend the writ, as they did with the Military Commissions Act of 2006, they must supply an adequate substitute. DI AL OGU E ON L IN C OL N : A L EGA CY OF L IB ERTY DialogueOnLincolnPart1.indd 14 3/27/09 11:38:24 AM ABOVE: Sedition Act of 1798. Facsimile courtesy of the Library of Congress. uttering, or publishing “false, scandalous, and malicious writing or writings against the government of the United States,” with a fine of up to $2,000 and a prison term of up to two years. Alexander Hamilton called the legislation “tyranny.” The Sedition Act was expanded during World War I to include prohibition of language intended to bring the United States “into contempt, scorn, contumely, or disrepute.” President Wilson declared disloyal Americans worthy of arrest, and supporters of the act warned of “even greater evils” if it were not adopted. The House Committee on Un-American Activities continued similar efforts during World War II and the Cold War. During the Vietnam War, questions about the meaning of “speech” arose as young men burned their draft cards as a form of anti-war protest. More recently during the war against terrorism, Congress passed legislation that established guidelines for wire-tapping and email monitoring to detect “suspicious” behavior patterns among American citizens. One legislator criticized the policy as “a chilling threat to civil liberties.” LEFT: Allan Pinkerton. Abraham Lincoln, and General John McClellan at Antietam, October 3, 1862. Photo courtesy of the Library of Congress. JO IN T HE DIALO GUE 1. In a July 1861 speech to Congress concerning his suspension of habeas corpus, Lincoln asked, “Are all the laws, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated?” Do you agree with his argument? What circumstances, if any, would make it necessary? Do you think Lincoln’s position is consistent with the rule of law? What does the “rule of law” mean? 2. Should presidents, acting alone, have the power to suspend the writ of habeas corpus or should such powers be exercised with the approval of Congress? Why? Do you think it is sometimes necessary and appropriate to suspend the writ of habeas corpus and detain certain individuals without giving them an opportunity to challenge their detentions in court? When and why? 3. Do you think the arrest of Vallandigham during the Civil War was justified? What about the actions of draft-card burners during the Vietnam War? Can you think of recent actions involving the war against terrorism when speech has been restricted by the government? Do you think the government should have the right to restrict speech in the interests of national security? Under what circumstances? 4. Some people claim that Americans have a duty to protect freedoms and maintain a patriotic vigilance. How do we as individuals protect liberty in our schools, communities, and in the nation? What are some of the challenges to exercising a “patriotic vigilance?” DIA L OGU E ON L IN COL N : A L EGA C Y O F LI BERTY DialogueOnLincolnPart1.indd 15 15 3/27/09 11:38:28 AM III Lincoln IN MEMORIAM sitting, with one hand clenched and the other relaxed. Inside the memorial’s columned walls, there are no references to the divisive Civil War, race, slavery, or other controversial policies of Lincoln’s administration. On one side of the memorial is the Second Inaugural, and, on the other side, the Gettysburg Address. In his Second Inaugural Address, on March 4, 1865, Lincoln spoke of mutual forgiveness in the face of the Civil War: With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation’s wounds; to care for him who shall have borne the battle, and for his widow, and his orphan — to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations. The Second Inaugural Address is remembered as one of the greatest speeches in American history. Historian Ronald White called it Lincoln’s “Last Will and Testament” to the nation, calling for reconciliation and rebuilding after the Civil War. ABOVE: Lincoln sculptor Daniel Chester French assembles the Lincoln statue inside the Lincoln Memorial, prior to its dedication in 1922. Photo courtesy of the National Park Service. A braham Lincoln’s image remains widely visible across America, from Mount Rushmore to television ads to the Lincoln penny. There are towns and cities named after him in many states, monuments depicting every stage of his life, photographs, paintings, sculptures, and the list goes on. T h e Lincoln Me m orial One of the reasons the Lincoln Memorial is so iconic has to do with the symbolism within the monument itself. The Memorial, designed by Henry Bacon, is 190 feet long, 119 feet wide, and 100 feet tall. It is surrounded by columns that represent citizens from the states. The Lincoln sculpture inside was sculpted by Daniel Chester French. It is 19 feet tall and weighs 175 tons. French intended for Lincoln to represent “one of the people.” He is 16 The Gettysburg Address is also regarded as one of the most important speeches in American history. Lincoln gave his Gettysburg Address on November 19, 1863, at the dedication of the National Cemetery at what is now Gettysburg National Park, in Gettysburg, Pennsylvania. Lincoln was not the featured speaker that day, but followed a two-hour speech from former Secretary of State Edward Everett. The Gettysburg Address lasted just two minutes, and called upon Americans to contribute to “a new birth of freedom” in the wake of emancipation. Lincoln harkened back to the fundamental values espoused in the Declaration of Independence, asking Americans to preserve a government “of the people, by the people, and for the people” lest it “perish from the earth.” Historian Gabor Boritt has described the Gettysburg Address as a modern “secular gospel:” It sums up for Americans who we are; it has a sacred quality to it. It is the good news of America. It is America at its best. It’s America as it hopes to be—not quite what it is but what it hopes to be—and Lincoln expressed it beautifully. DI AL OGU E ON L IN C OL N : A L EGA CY OF L IB ERTY DialogueOnLincolnPart1.indd 16 3/27/09 11:38:29 AM The tradition of gathering at the Lincoln Memorial began in 1939, when First Lady Eleanor Roosevelt offered African American opera star Marian Anderson the steps of the Lincoln Memorial as a public concert venue. Anderson had been denied the right to perform at Constitution Hall because of her race. The concert drew a live audience of 75,000 people, and was broadcast to millions of Americans through radio. In 1963, the Lincoln Memorial was the site of Martin Luther King’s “I Have a Dream” speech during the historic March on Washington, when 300,000 people converged on Washington, D.C., rallying for equality, civil rights, and racial harmony. Demonstrators gathered again at the Lincoln Memorial in 1970 to protest the Vietnam War. President Nixon famously met with the protestors before sunrise, and explained that he was “trying to build a world where people do not have to die for what they believe in.” The Lincoln Memorial was also the site of the 1995 Million Man March, where approximately one million AfricanAmerican men pledged responsibility to their families, communities, and nation in an effort to solve community and national crises. In 2004, American workers met at the Lincoln Memorial to protest Bush administration policies. The Lincoln Memorial was also the site of pre-inaugural celebrations in 2009 to honor Barack Obama. A NAT IO NAL GAT HERING P L A CE LEFT: Marian Anderson performing at the Lincoln Memorial, 1939. Photo courtesy of the National Archives and Records Administration. LEFT: March on Washington, 1963. Photo courtesy of the Library of Congress. L I N C OLN A N D OBA MA During the recent presidential campaign, many people made comparisons between Abraham Lincoln and Barack Obama. Both presidents came from Illinois, grew up from humble beginnings, were lawyers, had relatively little national political experience prior to moving into the White House, and were considered improbable winners of their presidential campaigns. President Obama, during his campaign, made numerous references to Abraham Lincoln. A professed Lincoln enthusiast, Barack Obama used historic imagery, quotes, and themes in all of his speeches throughout his campaign. He began his presidential campaign in February 2007 in front of the Old State Capitol Building in Springfield, Illinois, just as Lincoln did in 1858. He retraced Lincoln’s route to the White House before his inauguration, traveling from Philadelphia to Maryland via train, and took the oath of office for the Presidency on the same Bible that Lincoln used over one century ago. Both President Lincoln and Obama used LEFT: Protestors speak against the Vietnam War at the Lincoln Memorial, 1970. Photo courtesy of the National Park Service. LEFT: Americans celebrate Barack Obama’s inauguration at the Lincoln Memorial, 2009. Photo courtesy of the National Park Service. DIA L OGU E ON L IN COL N : A L EGA C Y O F LI BERTY DialogueOnLincolnPart1.indd 17 17 3/27/09 11:38:37 AM LINCO LN IN T ELEVISIO N A ND MO VIES Abraham Lincoln appears as a character in many episodes of television shows and in many Hollywood films: Young Mr. Lincoln (1939) This classic film by John Ford, and starring Henry Fonda, chronicles Lincoln’s life as a young lawyer in Illinois. In the movie, Lincoln agrees to represent two brothers accused of murder. When the townspeople riot and threaten to lynch his clients, Lincoln intercedes, faces down the crowd, and calms the mob with his words and his commitment to the rule of law. The film ends with lawyer Lincoln walking away into the sunset, presumably to fulfill some hidden potential or destiny. ABOVE: Abraham Obama installed in Boston, 2008. Image used with permission from the artist. the power of media and images to communicate with Americans during their campaigns. Abraham Obama. In the summer of 2008, New Yorkbased street artist Ron English was commissioned to do a mural in downtown Boston. He produced Abraham Obama, a fusion of the faces of Abraham Lincoln and Barack Obama. He enlarged the image into thirteen-feet tall frames, and lined the image along a city block in a series of rainbow rectangles. English, an Illinois native known for his controversial creations, intended for the portrait to inspire dialogue, which it did. One city resident claimed that Abraham Obama was not art, but propaganda. Other city residents filed vandalism complaints after enthusiastic supporters began plastering miniature Abraham Obama prints on public and private property. English defended his art as his contribution to the conversation around President Obama’s presidential campaign: “I believe Obama will take up Lincoln’s challenge of uniting the country … This is the most excited I’ve ever been about a presidential candidate and I’m looking for ways that I can contribute as an artist and a citizen.” 18 DI AL OGU E ON L IN C OL N : A L EGA CY OF L IB ERTY DialogueOnLincolnPart1.indd 18 Dick Van Dyke Show, “The Great Petrie Fortune” Original air date October 27, 1965 In this episode, Rob Petrie inherits an old roll-top desk and a clue from his great-uncle that leads him to look inside. He finds an old photograph in the desk of his great-uncle as a baby, with Abraham Lincoln from the back, purportedly taken by Matthew Brady in 1863 at Gettysburg. Rob realizes that his great-uncle left him something of great value, but not monetarily. Rather, the inheritance conveys a sense that Lincoln and his photographic image are something to be greatly treasured, an icon and representative of America at its best. Star Trek, “The Savage Curtain” Original air date March 7, 1969 Lincoln appears in this episode of Star Trek as a symbol of “good” prepared to struggle with “evil” with Captain James Kirk and Mr. Spock. He materializes in space, and then sacrifices his life to help Kirk and Spock win the battle. Afterwards, Kirk asks Spock, “Why Lincoln?” Mr. Spock explains that since Lincoln has always been a personal hero to Kirk, he was an appropriate form to “titillate [his] curiosity” and serve as a comrade during the battle. Lincoln’s death at the end of the episode classifies him as a martyr to a greater cause, similar to memorials following his assassination at the end of the Civil War. Bill and Ted’s Excellent Adventure (1989) High school slackers and time travelers Bill Preston and Ted Logan retrieve Abraham Lincoln and other historical figures for a school assembly presentation in this goofy but popular movie. At the assembly, Lincoln is introduced as one of America’s greatest presidents, then offers his own version of the Gettysburg Address, and concludes with: “These two great gentlemen are dedicated to a proposition which was true in my time, just as it’s true today. Be excellent to each other. And … party on, dudes!” 3/27/09 11:38:46 AM High Five. On November 5, 2008, following the 2008 presidential election, cartoonist Chris Britt, from the Springfield JournalRegister, in Springfield, Illinois, published this cartoon of Abraham Lincoln slapping hands with Martin Luther King, Jr. The cartoon joins two iconic figures in American history in celebration of an historic election. RIGHT: “High Five,” by Chris Britt for Springfield Journal Register, November 5, 2008. Cartoon used with permission from the artist. J O I N THE DIA LOG U E 1. The Lincoln Memorial was dedicated in 1922. When it was built, it was somewhat controversial. Architect Frank Lloyd Wright called it “one of the most ridiculous, most asinine miscarriages of building material that ever happened.” When you look at the Lincoln Memorial, what do you think? What feelings does it evoke? Does the 1922 design honor Lincoln’s legacy? 2. What do you think made the Lincoln Memorial an appropriate site for Marian Anderson’s concert in 1939? Why has it continued to serve as a public gathering place? 3. Ron English wanted his painting, Abraham Obama, to inspire discussion. Does it? What messages does the painting convey? What does it tell us about the vitality of the Lincoln myth, today, as we celebrate the bicentennial of his birth? 4. Abraham Obama inspired much enthusiasm, some of which resulted in complaints of vandalism. Some people blamed the artist and the museum that commissioned the painting. Should artists be held responsible if their art inspires controversy? 5. President Lincoln was aware of the power of images and media in communicating to the American people, just as President Obama is today. How did President Lincoln communicate to the American people? How does President Obama communicate to the American people? How have communications media changed, or remained the same, since Lincoln’s time? 6. Look at the political cartoon by Chris Britt. What makes it a political cartoon? What do political cartoons contribute to American culture? What message is the artist trying to convey? What does the cartoon suggest about Lincoln’s legacy? DIA L OGU E ON L IN COL N : A L EGA C Y O F LI BERTY DialogueOnLincolnPart1.indd 19 19 3/27/09 11:38:47 AM Dialogue onLincoln Partici p ating in a One of the hallmarks of a democracy is its citizens’ willingness to express, defend, and perhaps reexamine their own opinions, while being respectful of the views of others. If you plan on leading a Dialogue in a high school classroom, here are some ground rules for ensuring a civil conversation: Show respect for the views expressed by others, even if you strongly disagree. Be brief in your comments so that all who wish to speak have a chance to express their views. Direct your comments to the group as a whole, rather than to any one individual. Don’t let disagreements or conflicting views become personal. Name-calling and shouting are not acceptable ways of conversing with others. • Let others express their views without interruption. Your Dialogue leader will try to give everyone a chance to speak or respond to someone else’s comments. • Remember that a frank exchange of views can be fruitful as long as you observe the rules of civil conversation. • • • • Note to Dialogue leaders: Before beginning your Dialogue, distribute these ground rules and review them with the students. The ABA Division for Public Education provides national leadership for law-related and civic education efforts in the United States, stimulating public awareness and dialogue about law and its role in society through our programs and resources and by fostering partnerships among bar associations, educational institutions, civic organizations, and others. The Dialogue on Lincoln: A Legacy of Liberty is available in PDF format on the ABA Division for Public Education website at http://www.abanet. org/publiced/features/dialogues.html. The views expressed in this document have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the policy of the American Bar Association. 20 DI AL OGU E ON L IN C OL N : A L EGA CY OF L IB ERTY PC# 2350254 DialogueOnLincolnPart1.indd 20 American Bar Association Division for Public Education 321 N. Clark Street Chicago, IL 60654 (312) 988-5735 Email: [email protected] www.abanet.org/publiced © 2009 American Bar Association 3/27/09 11:38:50 AM