An overflow crowd of high school students from across Massachusetts jammed the chamber of the House of Representatives to hear Dr. Michael Burlingame and Professor Akhil Reed Amar deliver our third annual James Otis Lecture.   They were joined by several dignitaries, including Associate Justice Robert Cordy of the Supreme Judicial Court, ABOTA national president Craig Lewis from Texas and past national president Donna Melby from California.  All were treated to an exceptional discussion of how Lincoln’s view of the the law and the Constitution helped him steer the country through the Civil War and how, in turn, Lincoln’s careful but decisive use of executive power in several key events helped transform both the scope of the executive branch and federal-state relations.

    Professor Burlingame explained how Lincoln was always careful to use executive power in a manner consistent with the Constitution, even while appearing to expand the reach of the presidency.  Military necessity was never a good enough reason for the president to do something that the Constitution did not authorize him to do. 

To do otherwise would be to undercut the very principle the Union was fighting to uphold: government by the People.

    Professor Burlingame used two examples to highlight his point.  First, Lincoln suspended the writ of Habeas Corpus after the outbreak of hostilities, allowing the arrest and imprisonment of citizens suspected of aiding the secessionists without charge or arraignment.  Article I of the Constitution specifically gives that right to the Congress, not the President.  However, Congress was not in session and was not scheduled to reconvene for several months.  Lincoln was afraid that, given the military situation early in the War, the Congress might not be able to meet before the fall of Washington, and because the Executive was the only branch always on duty, his action was necessary to preserve the Constitution.  He also called the Congress back into emergency session and asked for (and received) Congressional approval of his suspension measure, emphasizing that, ultimately, the Constitution gave this right to Congress when it was feasible for the Congress to decide upon the measure.

    Lincoln’s approach to slavery in office formed another focal point of Professor Burlingame’s talk.  Professor Burlingame reminded the audience that Lincoln did not free the slaves even though he always felt slavery an abhorrent institution.  He proposed a number of plans for gradual emancipation, including a 100 year plan, that tried to balance his desire to advance human freedom with a wish not to be punitive to those who held slaves often as a result of a system they inherited.  Lincoln recognized that neither the president nor the federal government had power to eliminate slavery in the states where it existed in 1860, even if the institution was morally reprehensible. 

     Lincoln issued the Emancipation Proclamation, Professor Burlingame pointed out, as a war measure under his authority as Commander in Chief.  It was issued specifically to detract from the ability of the states then in rebellion from waging war on the government.  Therefore, it applied, and could only apply, in those areas not under Union control.  As much as he might have wanted to do otherwise, the Constitution gave him no power to free slaves in the states that were not in open rebellion, including the three border states and even southern states then under Union military control.  For Lincoln, winning the War was not enough - it had to be won without abrogating the Constitution.

    Professor Amar picked up on this theme.  He stressed the Lincoln’s firm grasp of the central point of the succession crisis:  that in a democracy, those who lose in an election cannot simply decide to leave the body politic;  otherwise a freely elected government by The People will cease to exist. “yesterday’s losers are tomorrow’s winners”, Professor Amar explained.  But that only works where both winners and losers remain loyal to the concept of a freely elected representative government, where the majority enacts laws subject to criticism from others and ultimately approval or rejection at the ballot box by the by voters in the next election.   Lincoln  was able to steer the North through some dark hours by remaining true to that constant.

    Professor Amar emphasized for the audience

how uniquely democratic the Constitution was at the time it was ordained and established.  He reminded everyone that the document, itself, had no effect when it was signed in Philadelphia.  It became effective (ordained and established by We The People) only after nine states had ratified it through ratifying conventions in which a broad range of male citizens voted on it, making the ratification of the  U.S. Constitution the most democratic process up to that point in human history. Professor Amar recognized that the original document was by no means perfect - and still is not- but that the course of American history has been to expand the rights and citizens and the equality of opportunities and obligations to more Americans.

    Professor Amar also offered one piece of practical advice for the students in the crowd:  learn how to write and practice the skill often.  “If you can write, I know you can think” he stated.  He described his own experience reading papers written by President Ronald Reagan which, Dr. Amar said, showed President Reagan was a thoughtful man who had developed a consistent and well-reasoned philosophy of government based upon a more profound understanding of events that is often recognized.  This seemed like good advice for students about to enter the college application process.

    Both speakers pointed out how Lincoln’s 24 year career as a trial lawyer heavily influenced his view of and impact upon  the use and limits of presidential power under the Constitution.  They also pointed out that Lincoln’s extensive experience as a jury trial lawyer provided him with a deeper understanding of, and faith in, the common citizen when making momentous decisions, and helped sharpen his ability to express important themes in terms understandable to the people.  Not only were these skills instrumental in helping Lincoln persuade the people to persevere through the darkest hours of the War, but they also left the America with a legacy of brilliant statements of our national philosophy, including the Gettysburg Address and the Second Inaugural. 

    Craig Lewis gave a splendid introductory talk ABOTA, the right to trial by jury and  Edward Bushell’s Case.  Craig told the gathering that ABOTA proudly stands for the preservation and promotion of the right to trial by jury, and why the jury is the necessary foundation for American civil liberties.

Craig brilliantly unfolded the story of Edward Bushell and his fellow jurors who refused to find William Penn guilty of holding an illegal Quaker assembly in Philadelphia  despite being ordered by the trial judge to do so.  The judge insisted that the jurors find Penn guilty, and imprisoned the jurors depriving them of food, water and other necessities until a guilty verdict was returned.  This courageous jury still refused, risking even their lives for the principle of justice.  The Court of Common Please finally held that jurors could not be punished for rendering a verdict as the jury saw fit, because the very act of rendering a verdict is a judicial act, left exclusively to the jurors, not a judge.  Bushell’s Case, 6 State Trials 999 (1670).  The students, and the adults were captivated by the story and, Craig’s delivery.

    For a brief description of Bushell’s Case and the events leading up to the decision establishing the independence of jury deliberations and findings, click Bushell's.Case.pdf.  For a much better and more entertaining explanation of the case, read Craig’s remarks to the students by clicking on the link at the bottom of the page.

    Following the formal talks, there was a lively question and answer session that lasted for about an hour.  The students had come prepared with some very challenging questions for the speakers.  One asked if the panelists thought Lincoln’s handling of Habeas Corpus found echoes in provisions of the Patriot Act.  Another asked what one question each of the panelists would like to ask President Lincoln today.  A third questioned whether, in this day of sound bites and telegenic candidates, Lincoln could be elected to the presidency - expressing an obvious concern about the quality and depth of candidates in the modern age.

    All of the speeches were recorded by stenographer David Arseneault of Farmer, Arseneault & Brock, and are linked on this page below.  Photographs of the program and of the students are available by clicking on the links below.  All photographs are courtesy of MASS ABOTA’s official photographer, Mireille Nicholson.

ABOUT OUR SPEAKERS

   

Professor Akhil Reed Amar is the Sterling Professor of Law at Yale University and is one of the nation’s leading Constitutional scholars.  He teaches courses at both the college and Law School.  He is the author of America’s Constitution, a Biography among numerous other works, and is currently finishing a sequel, America’s Unwritten Constitution.   Dr. Amar is frequently cited in opinions by the United States Supreme Court.  He has written that the Preamble to the Constitution is a critically important, and too often neglected, section of the document.

   

Dr. Michael Burlingame, currently holds the Naomi B. Lynn Distinguished Chair in Lincoln Studies at the University of Illinois, Springfield.   He is probably American’s most prolific living Lincoln scholar, having published more than a dozen books on Lincoln over the course of a long and distinguished career as the  Sadowski Professor of American History at Connecticut College, a post he held for 33 years.  Dr. Burlingame recently published a highly acclaimed, two volume biography of Lincoln entitled Lincoln, A Life.  According to one critic:  “Never perhaps has there been such a masterful account of the man’s failures—and successes—in this country’s most taxing job.”