Abraham Lincoln as Constitutional Theorist

Abraham Lincoln as Constitutional Theorist

Professor Sanford Levinson
Fall 2020 reading group
T 5:00pm - 7:00pm
1 classroom credit

Prerequisites: None

Exam Type: No Exam

Abraham Lincoln is not only regarded (by most analysts) as very definitely one of our most important presidents. He is also equally regarded as perhaps the only president after James Madison whose reflections about the United States Constitution and his responsibilities as a citizen and then office-holder are really worth taking very seriously. What actually constitutes “the Constitution” to which one pledges fidelity, especially in times of emergency? How does one resolve the tensions between what might be termed “constitutional evil,” e.g., the protection of slavery, and adherence to the aspirations set out in the Preamble to the Constitution and, for Lincoln, in the Declaration of Independence? What, exactly, is the problem with secession, especially if one accepts the importance of “consent of the governed”? What might “malice toward none and charity toward all” have meant with regard to the actualities of Reconstruction (and did “reconstruction” mean “restoration” or “regime change”? Readings will be taken almost entirely from Lincoln’s own corpus, primarily speeches, letters, or “messages” to Congress. The “method” of the course will consist of very close readings, sometimes (as with, say, the Gettysburg Address, readings aloud) of the assigned material, which may be deceptively short in terms of numbers of pages. Each student will be asked/required to write a single “response paper” during the semester addressing the assigned readings for that particular week and, importantly, setting out some questions for general class discussion. Although the materials will obviously be America-centric, I hope that they might be of interest to at least some LLM students inasmuch as the problems addressed will be challenges facing almost any enduring constitutional order. Consider only that Carl Schmitt defended the Nazi takeover of the socialist Prussian government by the national state by quoting Lincoln and his House-divided speech. Holmes once said that the U.S. Constitution was written for people “with fundamentally different views.” Can any such society really be successfully tamed, as it were, by a constitution?

Note: This reading group will meet on the following dates: TBD.

Subject Areas: Legal History, Government Structure & Function, Legal & Political Theory