Slippery Slope Counterarguments in History: Abraham Lincoln

[In 1863, Clement Vallandigham—a prominent Democratic politician and former Congressman—was arrested for making an anti-Civil-War speech, and tried before a military court on the charge of: "Publicly expressing, in violation of General Orders No. 38 … sympathy for those in arms against the Government of the United States, and declaring disloyal sentiments and opinions, with the object and purpose of weakening the power of the Government in its efforts to suppress an unlawful rebellion." Lincoln defended the arrest in part on the grounds that such measures during wartime were so obviously unpleasant to the general public as to be self-limiting, and to resist slippage:]

Nor am I able to appreciate the danger … that the American people will by means of military arrests during the rebellion lose the right of public discussion, the liberty of speech and the press, the law of evidence, trial by jury, and habeas corpus throughout the indefinite peaceable future which I trust lies before them, any more than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness as to persist in feeding upon them during the remainder of his healthful life.

Comments

[DaivdBehar]

Although, lawyer Lincoln was the non plus ultra very worst President, in a class alone, he did good in this instance. He also issued an arrest warrant for Taney, to try and hang him for treason. A lawyer persuaded him to take it back from the hand of the federal marshal. Sad.

[David Nieporent]

I like how you combine racist opinions with fictional history.

[Archibald Tuttle]

"more than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness as to persist in feeding upon them during the remainder of his healthful life."

Wow, what graphic examples he used. A modern politician would not have chosen that.

That's a great example of how language habits change.

[Krayt]

Far be it for me to disagree with Abraham Lincoln, but human history has numerous and major examples of freedom being lost when the legislature or The People give the leader emergency powers, and he never gives them up. A few choice examples: ancient Greece, ancient Rome, 1930s Germany, Venezuela, Russia, and Turkey a few years back.

It was pervasive enough George Lucas used it as the political background for the Star Wars prequels, the Phantom Menace was a ruse to get the Galactic Senate to grant the Chancellor (after appointment to top galactic executive) emergency powers, who then what?

Anybody? Dissolves the Senate.

Granted, Lincoln didn't have the examples of 1930s onward, but the writing was on the wall for emergency power grants, for anyone who had their eyes open. There must have been tons of contemporary or even ancient writings of such dangers available to him.

[Krayt]

Indeed, that these power grants had the full-throated support of The People was reflected in Star Wars with Padme's statement, "So this is how Liberty dies, with thunderous applause."

The People are no such bullwark against the slippery slope. They are the dupes who cause it!

[apedad]

One (potential) difference in your examples and Lincoln might be; were those other countries in the middle of a large scale rebellion?

It's not like Lincoln was being pro-active and started taking these actions in 1861.

[Brett Bellmore]

"It's not like Lincoln was being pro-active and started taking these actions in 1861."

"It can't be a slippery slope, last year we were up there, and now we're down here, does that sound like a slope to you???"

[Brett Bellmore]

It's far from clear to me that Lincoln himself intended to give up those powers. He himself serves as somewhat of a demonstration that slippery slopes are real, and the people who tell you they're not are just hoping you'll slip.

[bernard11]

Slippery slopes are undoubtedly real, but not everything is a slippery slope.

The problem is figuring out which is which. Too often - virtually always, I'd say - the argument ignores the need to show that that the slope is slippery, or that there is even a slope to begin with.

You can oppose anything by pointing to some more extreme idea.

[wreckinball]

Interesting point. John Wilkes Booth was the reason he gave them up. Andrew Johnson wasn't so inclined I surmise?

[Brett Bellmore]

Johnson was something of a ticket balancing choice, I gather. He wasn't nearly as enthusiastic about the war.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Seems like a conflict there. First arguing it is such dangerous speech that it must be curtailed lest it incite the greater public, then insisting it is such a minor curtailment that the public is in no danger of tolerating the abuse for long enough to lose their freedoms entirely.

[OtisAH]

It’s a direct line between that decision and Ilya Shapiro toiling and languishing in the asbestos mines of The Manhattan Institute.

[rsteinmetz]

Not the subject of this article, but a more recent example might have been FDR. He broke one of the unwritten traditions of the US by running for a third and fourth term. Had he not died at the relatively young age of 63 he could have continued in office for several more terms, as it was he would have stayed in office at least until 1949. He could have essentially become President for Life. The effects of that on the US would have been profound.

[wreckinball]

So FDR was super popular but yet 22A was ratified in 1951. 6 years after his death while Truman was president who was not as popular.

I'm thinking we dodged a bullet by getting 22A thru

[Brett Bellmore]

FDR genuinely scared the political establishment. The longer he stayed in office, the more of the federal government's power was in his own hands. So once he was out of the way, they were eager to make sure nothing like that ever happened again.

[wreckinball]

Makes you wonder when today's president says a constitutional amendment really doesn't mean what it says.

Although Biden I think has zero shot at even a second term

[Syd Henderson]

Truman was exempt from the 22nd Amendment and actually ran in the New Hampshire primary in 1952 where he was upset by Estes Kefaufer. Truman sensibly dropped out shortly afterward. He had a 66% disapproval rating around that time.

[Syd Henderson]

By the way, the Amendment did apply to Herbert Hoover, who theoretically could have been elected once more, but not twice more. As it was, Eisenhower was the first president who could not run again.

[wreckinball]

Russia's path to Putin being President for Life is cautionary

[wreckinball]

Moral of the story. Just respect 1A.

[wreckinball]

Relevant from another aspect. We apparently now have a gun crisis and a lot of the congress critters have implied and I think a few have outright said they don't care about the constitution.

We had 2 years of a Covid crisis where I have been told the constitution ca ne suspended. No worry about politicians using crisis they declare as a means to violate rights. They'd never do that !

Slippery

[mydisplayname]

Awesome Lincoln quote. I am reminded that previously an indictment for sedition might result from the proclaiming in print "Mein Gott was wird endlisch nicht von den Tories fur hochverrath erklaret warden." ["My God what will not the Tories finally declare to be treason."]

[The seditious (1799?) op-ed continues to say "Tell me friends of the Constitution is it High Treason in me to empty a wassel of hot water on an assessor or to refuse my consent to his counting the glass in my windows or to his measuring or searching my house? Forbid it Justice. Good Jesus forbid it. Who is tyrannical enough to maintain that it is?", with a metaphorical look askance at James Iredell.] So perhaps Lincoln was merely a restorationist. [grin]

[Alan Vanneman]

By the standard Lincoln enunciates here, the attacks that Lincoln made as a congressman on President Polk's war with Mexico would have landed him in jail. This has been pointed out by many historians. I'm a little surprised that a man as learned as Professor Volokh is not aware of this well-known example of presidential hypocrisy. Well, live and learn.

[DaivdBehar]

Good comment, Queenie. You are so well spoken.

[DaivdBehar]

Queenie, to quote Biden, articulate and bright and clean.

[DaivdBehar]

Lawyer Lincoln did not disappoint. He was by far, the very worst President in history, in a class alone, an order of magnitude of greater badness, then the ordinary terrible President like Biden. He killed 600000 Americans by his lawyer mistakes. He blew up government. He invented the income tax, the draft, industrial grade prisons. Never mind what he did to freedom. He did have a judge pistol whipped on the bench. That was cool.

[Brett Bellmore]

Lincoln freed the slaves, yay. Genuinely yay.

He also reduced the liberty of free men substantially.

So, huge gain for the slaves, a loss for everybody who hadn't been a slave. I can't help but think that the slaves could have been freed without reducing the liberties of the already free.

[M L]

Lincoln is the kind of President who is going to be celebrated by all who like a stronger more centralized imperialistic government, and disliked by those who don't. Simple as that.

[Brett Bellmore]

He violated both freedom of speech, and freedom of the press. Again, in parts of the country where things were otherwise functioning normally, he did it to shut up opponents of his rule.

He usurped from Congress the power to suspend the writ of habeus, and did so in areas where the civilian court system was fully functional. In fact, he did it to imprison the people who were publicly dissenting from his rule.

Maybe he would have given up all that power after the war, we'll never know because somebody shot him first.

[wreckinball]

I guess that solution probably won't work now. Biden's successor is Harris whose successor is Pelosi

[Brett Bellmore]

That's for sure. OTOH, once the new Congress takes office, Harris would be well advised to stay as far away from Biden as possible.

[DaivdBehar]

Mr. Please Do Not Sue Your Neighbor was offered many alternatives to war. Buy the slaves. Free the newborn. Let the states go. They will be back. He chose tyranny and war. That is the way of the lawyer.

[mydisplayname]

Lincoln freed the slaves? Well, kinda, some of them, a little: his Proclamation was dependent upon Union victory, applied only to states that had seceded from the United States, expressly exempted parts of the Confederacy that had already come under Northern control [interestingly, the Union used slaves to load ships in Norfolk & elsewhere], left slavery untouched in the loyal border states, and required an odd "negro neutrality" ("And I hereby enjoin upon the people so declared to be free to abstain from all violence, unless in necessary self-defence;").

The Proclamation reversed many Union Generals' orders [most Union Generals actively favored freeing slaves via the mercy of death] while capturing the hearts and imaginations of millions of anti-constitutional abolitionists whose support Lincoln desperately needed. Great political theatre!

https://www.archives.gov/exhibits/featured-documents/emancipation-proclamation/transcript.html

[OtisAH]

You’re just ridiculous. So amazingly, consistently ridiculous.

[David Nieporent]

So, huge gain for the slaves, a loss for everybody who hadn't been a slave. I can't help but think that the slaves could have been freed without reducing the liberties of the already free.

I can't help but think that a white guy who pretends he was a libertarian at one time in his life but doesn't know anything about government, law, or history, might not be the right guy to be discussing this.

[wreckinball]

Everything Biden isn't actually

[wreckinball]

Panties twisted! The subject was Lincoln in case you missed it

[wreckinball]

Afterwards he was dead.

[Brett Bellmore]

"Very limited"? He was imprisoning newspaper editors who wrote editorials he didn't like, in military prisons. Sure, it's "limited" in the sense he could have had them summarily executed instead, but it was hardly a mild deviation from the rule of law.

[OtisAH]

During wartime, Brett. A war waged on US soil.

[OtisAH]

How would buying slaves end slavery, numpty?

[Brett Bellmore]

Yes, during wartime, he violated multiple provisions of the Constitution to jail his political enemies. In an area of the country where the war was NOT taking place, let us remember.

You think "during wartime" makes that OK?

[Brett Bellmore]

Noticing that, even as the slaves were freed, free men were losing rights, IS nuance. The un-nuanced would contrive to ignore one or the other.

[OtisAH]

As I say, completely and unalterably ridiculous.

[M L]

Remember the war part of the Constitution. It says if you declare war on someone who tries to lawfully secede then the Constitution may be temporarily or permanently suspended, in whole or in part, at your discretion. Or something like that?

[M L]

You left out one thing. The Proclamation was also contingent and of future effect, and gave them 101 days to rejoin the Union. This represented yet another offer by Lincoln to preserve slavery if the seceding states would just submit to paying the taxes. And yet again those states chose to try for independence rather than preserve slavery (even constitutionally by the Corwin amendment that Lincoln supported) while remaining in the Union.

[M L]

Lincoln freed zero slaves.

[Brett Bellmore]

It's quite clear that Lincoln's primary goal was proving that the US was a roach motel: You could check in, but you could never check out. To this end he was willing to sacrifice the nation's blacks into generations of slavery.

He eventually found the cause of ending slavery motivated people better, and adopted it, with the side effect that slavery WAS ended. That was a good thing, even if it wasn't his actual goal in waging the war.

[David Nieporent]

Lincoln is the kind of president who is going to be celebrated by all decent people, and disliked by those who aren't. Simple as that.

[David Nieporent]

I mean, Lincoln ended slavery. There were 4 million Americans enslaved in 1860. 4. Million.

Lincoln could have snuck out of the White House every night and killed and eaten people a la Jeffrey Dahmer, and the scales would still be massively unbalanced in his favor.

People here who whine about having to wear masks in WalMart or sell wedding cakes to gay couples as intolerable impositions on their freedom are utterly cavalier about actual, real live chattel slavery.

[M L]

Lincoln didn't end slavery, don't be silly. It's true that the end of the terrible practice of slavery was, in large part, a wonderful, unintended side effect of Lincoln's terrible bloody war -- a war that was more horrific and killed more Americans than every other American war throughout history combined.

So there is a difference I guess between celebrating unintended results of the man's actions, and celebrating the man himself or the intended results of his actions, which in the latter case includes a government fundamentally transformed to be far more powerful and centralized and antithetical to founding principles. That first order of effects, separately from the matter of slavery, was intended and is specifically embraced and advocated by many people to this day, and is specifically given as a reason to celebrate Lincoln. That's what I was getting at.

But to your point about engaging in some kind of "balancing the scales" of history, that could certainly be a way of judging the results of actions independently of individual merit or intent. I'm trying to think of more extreme examples to illustrate where someone with (at least arguably) bad intent unwittingly produced good effects.