Monday, October 01, 2007

When American Law Law Went South

One of the blessings of working at a Christian law school that is part of an evangelical Christian university is the sort of discussions we have. I recently had a really good discussion with several friends about one of the turning points in the development of law in the United States. One of my friends brought to the conversation a great knowledge of political philosophy including knowledge of the works of Leo Strauss and Harry Jaffa. I had just finished reading Peter Marshall and Peter Manuel’s book Sounding Forth the Trumpet about American history from the 1830s to the 1860.

Prior to 1830, slavery was regarded as morally wrong by pretty much everyone in the United States even though the southern states continued to own slaves even as the northern states eliminated slavery and recoiled in horror from southerners attempting to bring their slaves into the northern states or to recover runaway slaves. Prior to this 1830 juncture, the dominant jurisprudential view in the United States accepted the view common in reformation England that natural law was the basis of human law and an integral part of the “the rule of law.” This Protestant natural law philosophy believed that everyone is endowed by God with the ability to know the difference between right and wrong, to reason, and to communicate. Some people are more talented or gifted in these areas than others, but virtually everyone has the basic general revelation they need to get by and to provide an objective though imperfectly applied basis for laws and interpretation of law for society.

But around 1830, the attitude of the South began to change. Partially in response to radical northern abolitionists and partially in response to the economic pressure to continue to expand slavery, Southerners went from viewing slavery as an evil to which they were economically addicted, and which required mitigation, to a claim that Southern style slavery was actually a positive good. The South was led in this by the famous Southern senator, Calhoun. Calhoun had a materialistic world view. It manifested itself in the legal sphere as an aggressive legal positivism—a belief that human laws are whatever humans agree to irrespective of the claims of morality or natural law. Calhoun insisted that slavery was actually a moral good. He also hedged his bet by insisting that even if there were any moral law, it could not undermine the contractual constitutional compromise made by the framers that allowed for slavery to continue in the United States.

Calhoun and his southern allies pressed vigorously for the expansion of slavery. This constant pressure for expansion contrasted with the growing realization in the North that slavery was fundamentally immoral, and led to the Civil War. But it also resulted in the twisting of American law. More and more Americans came to believe in this positivistic view of law either because they sided with Calhoun in the South, or because they sought a ground for compromise that enabled them to ignore the immorality of slavery as a matter of law.

The foremost advocate against this positivist view of the law was Abraham Lincoln. In Lincoln’s speeches he made clear his belief that God has made it possible for us to have knowledge of right and wrong. Lincoln also believed that we had to act on that knowledge and make laws based upon that knowledge rather than upon mere self interest. He recognized that the best laws are always those that are right, not merely those that we think expedient. We should in law treat others the way we ourselves hope to be treated, otherwise we may find ourselves being treated according to the way we have mistreated others. Lincoln “preached” against slavery, using a series of strong but simple natural law arguments. It is true that for practical purposes Lincoln was willing to compromise about slavery’s existence while working for its gradual abolition in the southern states. His main political goal was to prevent the expansion of slavery and to banish the effects of slavery from the northern states and the new federal territories. Because of Lincoln’s practical political approach, many revisionist historians today have tried to say that he was not opposed to slavery. But you can’t actually read the details of his speeches, letters, and statements without concluding that he was, in fact, very much opposed to slavery and to the unequal treatment before the law of individuals based upon race, color, ethnicity and other natural characteristics. Lincoln wanted to end slavery without a civil war or the bankruptcy of the Union. In the end a gradual solution proved unobtainable. By the 13th amendment, Lincoln would have slavery ended in the US even though it took the civil war and the occupation of the South to make it possible.

While Lincoln was pragmatic in seeking solutions, he was extremely principled in his philosophy. Lincoln realized that there could never be a fundamental right to do something that was fundamentally wrong. He also realized that American laws needed to reflect the right as God gives us to see the right. Though political compromise may be necessary, incremental work toward our goal and constant moral opinion and moral pressure toward our goals should always be exercised in the political sphere with the utmost perseverance. Sadly, Lincoln’s approach did not completely succeed. Lincoln won the Civil War, but when Lincoln was assassinated, in the absence of this foremost advocate, Lincoln's approach to jurisprudence slowly went into eclipse. Through the work of men like Oliver Wendell Holmes, the social influence of Darwinist propaganda, and the returning fortunes of the Democrat Party (which was the pro-slavery and anti-civil rights party up until the 1970s) even though the North won the war, southern attitudes about law (i.e. radical positivism) came to dominate both parties, the country, and American jurisprudence. In a very real sense, American law was broken as a result of Lincoln’s assassination.

Following the time of Lincoln, there have been those who believed in the same fundamental principles. To some degree, this would include Teddy Roosevelt. To a large degree, it would include Calvin Coolidge. But no one had the practical influence or the central use of natural law arguments the way Lincoln did. And our courts and law schools ceased to teach a Protestant Reformed view of natural law. Instead, if they used natural law at all, it was not the natural law of the Protestant Reformation but the co-opted and twisted “natural law” of the Sophists of ancient Greece and the Darwinists of the 1800s. It was an excuse for applying evolutionary principles to human law and public policy rather than a heart-felt search for God’s moral order or a recognition of the applicability of that moral order to human affairs.

In a very real sense, American continues to suffer from the effects of condoning slavery. Slavery led to the rise of radical positivism, and radical positivism has had a profound affect on American law encouraging American judges to create rights that not only do not exist in the Constitution, but are contrary to reason and to the laws of God. Today both political parties are dominated by pragmatists and American realists who have little or no interest in natural law except as one of many arguments for legislation. They condone the positivist view of law in the courts. Instead of a question of whether or not American law must correspond to reason, truth, justice and the divine order, we have instead a question of whether or not the “evolution” of law based on “evolving social standards” will be fast (the left) or slow (the so-called strict constructionists). Until the Republican Party reclaims the legacy of Lincoln or until the Democrat Party becomes something other than what it has always been philosophically, American judges are likely to continue to find strange, non-existent rights in the Constitution and to ignore the intents of our founders and legislators in order to carry out their own perceptions of evolving social will. The one thing that may help that happen is if America has more Christian law schools like Trinity that teach students not only about the prevailing positivist and pragmatist views of law, but also argue for the heritage of the Reformation, our founding fathers, and Abraham Lincoln.

9 comments:

Vance Esler said...

Excellent article. I love this kind of insight. Hope you don't mind if I link to this article in my blog.

Dean McConnell said...

Dr. Esler,

Please feel free to link this or anything else anytime. thanks.

Anonymous said...

Donald, I hate to disagree with you! But in terms of of the roots of the out of control shredding of the Constitution we have seen for decades, the two worst Presidents we ever had were FDR and . . . Lincoln.

Lincoln, by the way, was by today's standards a racist, as were the vast majority of Americans, north and south of the Mason-Dixon. Southerners must collectively bear the guilt for slavery, but they don't bear it alone. Who brought the slaves into the colonies/states? Northern shipping companies! Again, most northerners were as racist as southerners. To wit: what about all the racial problems in northern cities between blacks and whites among "morally superior" northerners?

I know you have disagreed with me before about a state's right of secession. Again - and I say this with all due respect, dear Donald -that's simply not debatable. During the ratification process of the Constitution, three states, New York, Virginia and Rhode Island, agreed to sign on to the ratification provided their right to withdraw from this new Union was honored should they deem it necessary. And since no state can have more rights than others in our Union, by implication, all states have that right of secession.

Now, I will agree that one can argue that secession isn't wise, but its Constitutional right coming down from the Framers is unassailable. Lincoln's best argument, in my opinion, (from his first inaugural address?) was when he said that no nation ever established itself with the capacity for its own dissolution.

The problem is, that's precisely what they did! It is evident from our Founders that, while they regarded the necessity of establishing a union of paramount importance, it was nonetheless not to be a union preserved at the price of tyranny over the sovereign states.

Once the first seven states, led by SC, left, it was not until Lincoln's outrageous call for 75,000 volunteers to supress the "rebellion" that TN, VA, NC and AR decided to follow suit.

There is no argument from me that legal positivism, "living-breathing" nonsense is damnable, but we need to be careful who we hold up as paragons of originalist thinking. I have a great deal of respect for the brilliance and strength of Mr. Lincoln, but - and as politically incorrect and outrageous as this sounds - he does not deserve his place in the "pantheon" of our country's greats. While the Confederacy's taproot into Strict Constructionism may be tainted by slavery, Lincoln's illegal and unConstitutional waging of war against the South, thus cataclysmically increasing the power of the central government is at least equally sullied.

And I won't even get into FDR! That's the subject of another rant, beating of a dead horse, . . . whatever! =)

Dean McConnell said...

Anonymous,

I have nothing against the South or for the North per se. I am just explaining what I think happened.

I don't think though that any of your points undermine the argument I am making. There is plenty of moral guilt to go around. Racism was common in both North and South, and there were pro-slavery advocates on both sides, as well as the closet "pro-choice" on slavery advocates like Stephen Douglas, and the do-nothing moderates who would not do anything to stop slavery or its expansion.

As for secession, people talk a lot about tariffs and such today, but the speeches and articles of the time make it clear that slavery, the expansion of slavery to the federal territories, the fugitive slave law, and the underground railroad were the real issues behind session, and had been since the 1830's when the threat to succeed came up every time slavery was criticized.

As Southerner and President Andrew Jackson stated, the South was wrong about nullification and the other legal issues that bolstered the "States Rights" claims. And, as Southerners George Mason and Henry Clay would have agreed, God's plan of Union for America was not justly undermined to save a fundamentally unjust institution like slavery.

Sure there were bloody, racist, and unreasonable people among the abolitionists, who goaded and bated the Southerners, but that does not make the clear moral wrong of slavery right.

Most of the slaves in the South were owned by well less than a thousand big plantation owners. Most of the poor and middle class people of the South, who had little or no real stake in the slavery debate, were the victims of the poor moral and economic choices of these influential moguls who dominated Southern politics and the Southern imagination.

Had Southerners built there own cotton mills and factories, and trained and slowly freed the slaves, turning them into trained factory laborers, much of the sad and tragic history of the United States might have turned out very differently.

But none of this changes the facts about the affect slavery had on the law and legal philosophy.

It is ironic that now, today, the North is largely inhabited by people who want to keep and expand the moral evil of dehumanizing and intentionally killing humans at early stages of development through abortion, cloning research, and embryonic stem cell research. By contrast, a majority of the people with moral clarity on this issue reside in the South. So this is more evidence that there is no long term superiority of one region over another. But to find the way out of the legal wilderness, the country needs to eventually get over utilitarianism, contractual ism, and radical positivism and realize there are divine moral limits on the proper scope of human laws and institutions while not forgetting our sinfulness, fallibility, and human weakness make a case for not requiring all virtue or forbidding all vice (as Thomas Aquinas and J. Budzizewski would be quick to point out), but rather, for limited government under the rule of law, and freedom with as much earthly justice as is possible for mere mortals.

Right now, lots of good pro-life people want just the same sort of attitude toward law that caused Roe v. Wade in the first place, and will make homosexual marriage legal soon if things do not change. I think we have to re-evaluate how we got here and how to get someplace else.

Dave Smith said...

Once again, I couldn't agree more with your ultimate conclusion!

For the record, I also happen to disagree with Old Hickory in his position on nullification.

Dean McConnell said...

I certainly disagree with a lot of what Jackson did and said myself. His biggest problem was his treatment of the Indians. He certainly was not diplomatic in his approach on nullification. He threatened to personally hang the chief advocates of nullification himself.

Dean McConnell said...

This comment came in and did not post properly, so I am posting the text here:

"Anonymous has left a new comment on your post "When American Law Law Went South":

I think you mean Harry Jaffa (not Joffa). This article more or less summarizes Jaffa's claims about Lincoln in Crisis of a House Divided and its sequal, The New Birth of Freedom, and will no doubt be reflected in the yet-to-be-named third Lincoln book in the series Jaffa is currently working on.

I'm sure there must be a Biblical version of this problem, but I'm more familiar with the Greek versions in Sophocles' Antigone, and Plato's Republic. Creon claims that as king, he makes the laws (i.e. laws are a purely human creation), but Antigone claims that the law, at least laws having to do with burial rights, come from the gods (i.e. there is a transcendent standard of justice).

This is replayed by Plato when he has Thrasymachus argue that justice is the will of the stronger (and in a democracy that will be the majority) whereas he has Socrates argue that there is a transcendent standard ("form") of justice that could well conflict with the majority. This is Jaffa's claim about the Lincoln-Douglas debates. Douglas says that we should let the people decide by a vote whether they want slavery or not. What could be more democratic! Lincoln claims that slavery is moral wrong that no majority can legitimately sanction.

We sympathize with Antigone as she confronts a rather nasty monarch, and Thrasymachus turns us off because of his demeanor. But doesn't he make the argument for democracy? This becomes clear with Douglas -- let the people decide! The problem with moral-religious claims is that people disagree about them. There were many Southern Christians, for example, who felt comfortable with the view that their faith allowed for slavery. And then wasn't Lincoln's view vindicated, not by its transcendt truth-value, but by the fact that he was elected by a majority (or a plurality), and then was in a position to raise an army and impose his views by force. Wasn't Thrasymachus (and Calhoun) right after all?"

In response: Yes, you are right about Jaffa, my typo.

As for Thrasymachus and democracy and Calhoun, no they are wrong. What any government or people does is only right when it is within the boundaries of the divine order. Sure people disagree about it in application because we are all sinful and selfish human beings. But the objective standard exists and is not inaccessible. The basic moral principles are known to all. Logic is available to all. The facts may be hard to come by but are also objectively available. Making good decisions is hard (but not as hard as people make out). But that does not make making bad decisions right because we do it by majority vote. A Republic is simply the best way of trying to come up with the best results. Democracy is a part of any sound republic. But the human laws and choices are not made right by the authority of the state, they are right if they are right. All the deeds of all will one day be brought for judgment before the higher court of God himself. In the meantime we cannot excuse evil because it is democratically approved.

Dean McConnell said...
This comment has been removed by the author.
Dean McConnell said...

Here is another comment from Anonymous that failed to post properly, along with my response:

"Anonymous has left a new comment on your post "When American Law Law Went South":

"As for Thrasymachus and democracy and Calhoun, no they are wrong."

I'm sympathetic with much that you say here and I don't necessarily mean to defend Creon, Thrasymachus, Douglas, or Calhoun (though I'm not sure he belongs in this company). What I do want to defend, however, is the issue or problem.

"What any government or people does is only right when it is within the boundaries of the divine order."

But aren't disagreements more than just a matter of application? I mean some people, for example, deny that there is a divine order? Isn't that precisely the issue? If there is no divine order then the only order we can obtain is created by human beings. Can a person who thinks there is a divine order ever convince a person who thinks that there isn't? Or vice versa? Socrates manages to silence Thrasymachus, but he does not defeat him in argument.

I also think you underestimate the stark differences that can result even among those who recognize a divine order. Radical Muslims, for example, who certainly recognize a divine order claim that violent jihad is well within the boundaries of that order.

But even just within a Christian context you can get dramatically conflicting views. In the case at hand, many Southern Christians thought that slavery was perfectly consistent with their faith and could no doubt give you good logical arguments for their views. Christian abolitionists in the North could do the same. How do we decide who's right? We decided through violence, not logical or heartfelt argumentation. After the Southern view was defeated militarily, it is very easy for us to look back and say that of course they were wrong (an error due to their fallen nature). But could we have said that at the time?

There's a reason why the finest expression of this conflict is in a Greek tragedy -- it's a tragic dilemma built into human existence. Living with the tension, and making the best choices we can under the circumstances may be all we can hope for."

In response I say:

There is a divine order and it is accessible to human beings. The argument on this point however is far larger than what will fit in a blog. Ironically the Muslims do not really believe in a divine order per se, but in a series of arbitrary divine commands. As a result the most radical muslims are at home with fascism, but not with any sort of natural law or even natural rights theory. In the final analysis, those who cannot be persuaded may have to be fought and deterred. But that does not mean that the winner with arms is inherently right. I think Lincoln was right and Holmes was wrong. Might does not make right, but right does make might. There are times when the good lose, and they are no less good for losing.

I agree with you that this problem has a tragic dimension. We all have make the best choices we can and to argue for the truth as God gives us to see the truth. But in practice, because of human sinfulness and imperfection, some of us will indeed be wrong in our positions most of the time, and all of us will be wrong in our positions some of the time. And in some areas of life, there are only bad choices about how to mitigate or make the best of a bad situation.

It is also true that some people will never be persuaded of the truth in certain areas.

Success in life and law and government is not all based on factors within our control. But to the degree it is, basing decisions on the true, the good, and the beautiful, has better results than the erroneous, the vicious, and the ugly. So to the degree you can, you need to base your choices on accordingly.

Even though practical politics and real legal practice will require us to accept laws and arguments and policies that are second or third best, in the realm of the theory and doctrine behind our own starting point arguments and positions we must start out with the truth of the divine order as best as we can make it out. To start with a compromised position, and then work from there will result in further loss and distortion and compromise.

So, among friends, who believe in Christ and God and take the Bible seriously, I think it proper to argue that legitimate law must correspond to the divine order. I would also insist on general obedience to illegitimate human laws so long as they do not require what God forbids or forbid what God requires, because we need to encourage law abiding in general and avoid giving our enemies a ground for criticizing us. I would also say that even most silly, wasteful, and foolish laws are still about indifferent matters, and not strictly contrary to he divine order.

Law and force can restrain evil to an extent, but they cannot make people believe the truth or change their fundamental nature or beliefs. To do that actual persuasion about some truths (the more the better)is needed. In a strange way, persuasion is more important than force. And so that is how even though the north won the civil war, it is the southern position that has dominated American law for most of our history. So, the might of the north did make the nation do what Lincoln wanted in a very fundamental way. They got rid of slavery and nullification, but not radical positivism or a legal system changing, for the most part, based on conflicting interests instead of on the common good.

So I see your point, and seek humility and caution in political and legal affairs, but I do not feel checked by the dilemma.

4:27 PM


One of the blessings of working at a Christian law school that is part of an evangelical Christian university is the sort of discussions we have. I recently had a really good discussion with several friends about one of the turning points in the development of law in the United States. One of my friends brought to the conversation a great knowledge of political philosophy including knowledge of the works of Leo Strauss and Harry Jaffa. I had just finished reading Peter Marshall and Peter Manuel’s book Sounding Forth the Trumpet about American history from the 1830s to the 1860.

Prior to 1830, slavery was regarded as morally wrong by pretty much everyone in the United States even though the southern states continued to own slaves even as the northern states eliminated slavery and recoiled in horror from southerners attempting to bring their slaves into the northern states or to recover runaway slaves. Prior to this 1830 juncture, the dominant jurisprudential view in the United States accepted the view common in reformation England that natural law was the basis of human law and an integral part of the “the rule of law.” This Protestant natural law philosophy believed that everyone is endowed by God with the ability to know the difference between right and wrong, to reason, and to communicate. Some people are more talented or gifted in these areas than others, but virtually everyone has the basic general revelation they need to get by and to provide an objective though imperfectly applied basis for laws and interpretation of law for society.

But around 1830, the attitude of the South began to change. Partially in response to radical northern abolitionists and partially in response to the economic pressure to continue to expand slavery, Southerners went from viewing slavery as an evil to which they were economically addicted, and which required mitigation, to a claim that Southern style slavery was actually a positive good. The South was led in this by the famous Southern senator, Calhoun. Calhoun had a materialistic world view. It manifested itself in the legal sphere as an aggressive legal positivism—a belief that human laws are whatever humans agree to irrespective of the claims of morality or natural law. Calhoun insisted that slavery was actually a moral good. He also hedged his bet by insisting that even if there were any moral law, it could not undermine the contractual constitutional compromise made by the framers that allowed for slavery to continue in the United States.

Calhoun and his southern allies pressed vigorously for the expansion of slavery. This constant pressure for expansion contrasted with the growing realization in the North that slavery was fundamentally immoral, and led to the Civil War. But it also resulted in the twisting of American law. More and more Americans came to believe in this positivistic view of law either because they sided with Calhoun in the South, or because they sought a ground for compromise that enabled them to ignore the immorality of slavery as a matter of law.

The foremost advocate against this positivist view of the law was Abraham Lincoln. In Lincoln’s speeches he made clear his belief that God has made it possible for us to have knowledge of right and wrong. Lincoln also believed that we had to act on that knowledge and make laws based upon that knowledge rather than upon mere self interest. He recognized that the best laws are always those that are right, not merely those that we think expedient. We should in law treat others the way we ourselves hope to be treated, otherwise we may find ourselves being treated according to the way we have mistreated others. Lincoln “preached” against slavery, using a series of strong but simple natural law arguments. It is true that for practical purposes Lincoln was willing to compromise about slavery’s existence while working for its gradual abolition in the southern states. His main political goal was to prevent the expansion of slavery and to banish the effects of slavery from the northern states and the new federal territories. Because of Lincoln’s practical political approach, many revisionist historians today have tried to say that he was not opposed to slavery. But you can’t actually read the details of his speeches, letters, and statements without concluding that he was, in fact, very much opposed to slavery and to the unequal treatment before the law of individuals based upon race, color, ethnicity and other natural characteristics. Lincoln wanted to end slavery without a civil war or the bankruptcy of the Union. In the end a gradual solution proved unobtainable. By the 13th amendment, Lincoln would have slavery ended in the US even though it took the civil war and the occupation of the South to make it possible.

While Lincoln was pragmatic in seeking solutions, he was extremely principled in his philosophy. Lincoln realized that there could never be a fundamental right to do something that was fundamentally wrong. He also realized that American laws needed to reflect the right as God gives us to see the right. Though political compromise may be necessary, incremental work toward our goal and constant moral opinion and moral pressure toward our goals should always be exercised in the political sphere with the utmost perseverance. Sadly, Lincoln’s approach did not completely succeed. Lincoln won the Civil War, but when Lincoln was assassinated, in the absence of this foremost advocate, Lincoln's approach to jurisprudence slowly went into eclipse. Through the work of men like Oliver Wendell Holmes, the social influence of Darwinist propaganda, and the returning fortunes of the Democrat Party (which was the pro-slavery and anti-civil rights party up until the 1970s) even though the North won the war, southern attitudes about law (i.e. radical positivism) came to dominate both parties, the country, and American jurisprudence. In a very real sense, American law was broken as a result of Lincoln’s assassination.

Following the time of Lincoln, there have been those who believed in the same fundamental principles. To some degree, this would include Teddy Roosevelt. To a large degree, it would include Calvin Coolidge. But no one had the practical influence or the central use of natural law arguments the way Lincoln did. And our courts and law schools ceased to teach a Protestant Reformed view of natural law. Instead, if they used natural law at all, it was not the natural law of the Protestant Reformation but the co-opted and twisted “natural law” of the Sophists of ancient Greece and the Darwinists of the 1800s. It was an excuse for applying evolutionary principles to human law and public policy rather than a heart-felt search for God’s moral order or a recognition of the applicability of that moral order to human affairs.

In a very real sense, American continues to suffer from the effects of condoning slavery. Slavery led to the rise of radical positivism, and radical positivism has had a profound affect on American law encouraging American judges to create rights that not only do not exist in the Constitution, but are contrary to reason and to the laws of God. Today both political parties are dominated by pragmatists and American realists who have little or no interest in natural law except as one of many arguments for legislation. They condone the positivist view of law in the courts. Instead of a question of whether or not American law must correspond to reason, truth, justice and the divine order, we have instead a question of whether or not the “evolution” of law based on “evolving social standards” will be fast (the left) or slow (the so-called strict constructionists). Until the Republican Party reclaims the legacy of Lincoln or until the Democrat Party becomes something other than what it has always been philosophically, American judges are likely to continue to find strange, non-existent rights in the Constitution and to ignore the intents of our founders and legislators in order to carry out their own perceptions of evolving social will. The one thing that may help that happen is if America has more Christian law schools like Trinity that teach students not only about the prevailing positivist and pragmatist views of law, but also argue for the heritage of the Reformation, our founding fathers, and Abraham Lincoln.