The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Lincoln, Douglas, and the Law
Round II on the moral case for positive law.
Pat Smith comments at Ius & Iustitium on my prior post on originalism and positive law, comparing it to Stephen Douglas's studied neutrality on the expansion of slavery. Smith analogizes leaving the question of abortion to the states (if that's what the original Fourteenth Amendment did) to leaving the question of slavery to popular elections in the Kansas and Nebraska Territories, which Douglas famously supported and Abraham Lincoln famously opposed. To Lincoln, no one could outsource his views to state elections; it was untenable for Douglas to "say that any body has a right to do wrong." Smith argues that abortion, like slavery, is an "intrinsic evil[]," and "[a]law authorizing or commanding such an evil would be no law at all."
Two quick points.
1. The selection of Lincoln as exemplar here is very strange. Lincoln was implacably opposed to slavery, but he also scored very high on the Human Law Respecter scale. I'm not talking here about early positions like his Lyceum Address, which called on his countrymen "never to violate in the least particular, the laws of the country," and argued that "bad laws, if they exist, should be repealed as soon as possible, still while they continue in force, for the sake of example, they should be religiously observed." I'm talking about his mature position—such as his response to the Dred Scott decision, which recognized that state legislatures had once "held the unquestioned power to abolish slavery in their respective States," but that many "State Constitutions [now] withhold that power from the Legislatures," and that Congress had "decide[d] that it will not continue the prohibition" on slavery in the territories. Or consider his First Inaugural, which disclaimed any "lawful right" to "interfere with the institution of slavery in the States where it exists." Or his famous 1864 pronouncement that "If slavery is not wrong, nothing is wrong"—paired with a declaration that, "in ordinary civil administration," his presidential oath "even forbade me to practically indulge my primary abstract judgment on the moral question of slavery." And so on.
Lincoln couldn't have been clearer that slavery was legal in many states, even while it was also wrong. Unlike Douglas, Lincoln was openly opposed to slavery, he wanted to restrain its expansion with the legal tools available, and he hoped that the proper legal authorities would eliminate it where it existed—soon, in our days. But he also recognized, as he had to, that slavery was part of American law at the time. He rejected, rather than endorsed, the view that "a law authorizing [slavery] would be no law at all"—even as he insisted that such laws were morally wrong and ought to be opposed. Law, for Lincoln, was never above moral question, but law and morals were nonetheless distinct.
2. Smith's post helps put into words a longstanding concern of mine, which is that the program of "common good constitutionalism" may put too much emphasis on constitutions. Our polity is one in which almost all of the important subjects addressed by law are addressed by subconstitutional law. Lincoln, for example, likely saw polygamy as an "intrinsic evil" in Smith's terms, and he opposed the admission of Utah as a state so long as the practice was legal there. But he also argued that, as things stood, "[t]here is nothing in the United States Constitution or law against polygamy." Why would there be? A confederation of states united only by a loose treaty, with otherwise complete legal systems of their own, wouldn't have needed any federal law—much less federal constitutional law—for or against polygamy.
The same was true, as of 1788, of abortion. There was no need for the delegates at Philadelphia to say anything on the topic; the U.S. Constitution did nothing to limit it, any more than it did to limit slavery. Those who opposed abortion then, like those who opposed slavery then, had to do so via the legislative or the amendment process.
The Thirteenth Amendment abolished slavery. Some argue that the Fourteenth Amendment, through its guarantee of equal protection, also abolished abortion; others disagree. There's no way to resolve these debates with an argument, maybe even a conclusive argument, as to whether abortion is wrong. Different polities address different wrongs through different legal instruments, if they're fortunate enough to address them at all. I worry that Smith is mistaking attempts at precision of thought in these matters for indifference or weakness of will.