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Saturday, September 14, 2019

LINCOLN: THE LAWYER AS PRESIDENT




I have written about Abraham Lincoln’s career as a criminal defense lawyer. When he became president there were many occasions when he had to exercise his skills and training for that profession. His approach to problems as reflected in his speeches and writings was “lawyerly.” First, he articulated the issues, and then he fairly stated the evidence and arguments from each side of the case. Finally he would eloquently give his point of view, and support his decision, often citing precedent, but always relying on the force of the evidence that persuaded him.

            As president, he had to decide whether to pardon individuals who were condemned to death. The Constitution (Art. II, Sec. 2) gives the President plenary power to grant a pardon for federal offenses. There is no appeal from his final decision. He is the court of last resort. This power was granted to the executive by the Founding Fathers despite its historical association with monarchs, and its obvious anti-democratic implication. (Hamilton, in Federalist Papers, No. 74, explains that the severity of the criminal law (which at the time provided for death for many offenses) needed to be mitigated. The “Chief Magistrate” as a “man of prudence and good sense” is in the best position to determine whether mitigation exists; his judgment should not be fettered by fears of being overturned.

            During the Civil War, Lincoln almost invariably pardoned soldiers who were condemned to death by military courts martial. He was susceptible to appeals from family members, especially women pleading for their sons, husbands, or brothers, and even for friends and acquaintances.  Most generals opposed as harmful to military discipline his grants of mercy to soldiers condemned to death for violations of military rules. Desertion was the most egregious offense to the militarists, but Lincoln found mitigation in most cases. He cited the “soldier boy’s” youth, inexperience or some other human defect to justify his order to reduce a sentence.
            In the first year of the war, a soldier who slept while on guard duty was sentenced to die as an example to other volunteers about the discipline of military life. Lincoln first sought the expertise of military advisors, learning about the traditional harshness of such rules. Then he received a letter from a woman on behalf of the soldier, a fellow Vermonter. She cited as mitigation several factors, including his youth, his unfamiliarity with the rigors of army life, his recent illness that had weakened him, and his fatigue resulting from his exposure to the enervating heat and humidity of Washington, D.C., so different from his native Vermont. Her most persuasive argument was that, contrary the notion that his execution would deter other soldiers, pardoning him would be praised by the other raw volunteers, encouraging them to greater loyalty.
            Lincoln, at this early time in his presidency, was eager to follow military protocol. He asked General McClellan if he might review the case and issue the pardon. This plea from the president tickled McClellan’s ego and he did it.
            The story of this soldier was widely reported. When in 1863, he died in battle, a poem dramatizing the events was published, inspiring a legend that added to Lincoln’s saintly image.
            But Lincoln was no saint. There were times when he denied pardons and let executions go on. Some soldiers deserted multiple times, re-inlisting over and over so that they could profit by the money paid new recruits. He allowed sentences to stand for those who committed egregious crimes, such as rape.
            And then there were the cases relating to crimes committed by civilians. Adding to enormous burden of his role as commander-in-chief during the war, he had to deal with these cases as well.
            In one case, a slave trader was caught with slaves chained below deck in miserable conditions. By then the slave trade had been illegal for many years. The law said it was punishable by death. BUT by 1861, no slave trader had ever been caught, tried and executed in the United States.
            Just as he did in all other such cases, Lincoln ordered the trial transcript, read it and all the letters and pleas from the man’s lawyers and family, and gave a reprieve of one week for the condemned to make his peace with God before his execution. That was the extent of the mercy he granted in that case.
            In another case, a resident in Norfolk, Virginia, watched “colored” Union troops marching in the street near his home. He vocally protested their presence as “a provocation.”  A white officer ordered his arrest. He then drew a pistol and shot the officer two times, not intending, he later claimed, to kill him. One bullet nicked an artery and the officer died.
            In his trial before the military tribunal, he was represented by counsel who called witnesses in his defense. However, the judges refused to allow them to argue “temporary insanity.” (In a recent notorious case, Dan Sickles, a New York congressman, had shot his wife’s lover and had been acquitted on the argument that “the unwritten law” permitted revenge for the outrage to his “property,” i.e., his wife, and that the provocation caused his temporary insanity.)   
            After the plea was rejected, the defense lawyers withdrew and the defendant gave the closing argument himself. As often the case, this was a bad idea; in this case it was a disaster for him. After denying any intent to kill, he explained his behavior: the colored troops were walking on his sidewalk in broad daylight. Just a year ago, one or more of them might have been in his “N----- yard.” Now, he was expected to bow before them? And when he protested and was arrested, the officer ordered two of “them N-----s” to take him to jail. What was he to do? What would any “man of honor” (!) do?
            Lincoln thoroughly examined the trial transcript. He rejected all arguments, but was troubled by the possibility that a viable defense might have been denied. He hired an “alienist,” the term then used for a mental illness expert. The doctor examined the prisoner and gave his opinion that he was sane, both at the time of the crime, and now. Lincoln then denied the pardon, but as in the other case, granted a week’s reprieve to permit him to “prepare himself.”


            In another infamous case, Lincoln permitted the execution of 38 Native Americans, an act that damages his image for many modern critics. The case is complicated. In Minnesota, a number of young braves rebelled against white authority, protesting the corruption of the Bureau of Indian Affairs, which had long been guilty of denying promised food and support to the tribes, and had treated them miserably in many intolerable ways.  Fed up, the young men went on a rampage. Others joined them. Some attacked whites. Three hundred fifty (350) whites were killed and a few white women were raped. Hundreds of the young men were captured, and 303 were sentenced to be hanged for “killing and other outrages” (meaning rapes). 
        Lincoln reviewed every trial — most of which barely met minimal due process standards. He narrowed the list of condemned men down to 38, eliminating 275 names from the list. Even though most of the braves who were spared still had to suffer imprisonment under very harsh conditions, his action still enraged the white population of Minnesota. Lincoln was under extreme political pressure to reverse himself. In fact, he nearly lost the state in his re-election campaign of 1864. When told about it, Lincoln said: “I could not afford to hang men for votes.”

[Miller, William Lee (2008). President Lincoln, The Duty of a Statesman.”]

Thursday, August 29, 2019

THE MORAL ISSUES OF THE CIVIL WAR

THE MORAL ISSUES OF THE CIVIL WAR

     Ten years ago I wrote a blog post titled, “Was Preservation of the Union a Moral Issue?” I knew that slavery was the gigantic moral issue that the war resolved. I knew, of course, that although slavery had been ended, the great issue of race was not at all solved.

     Now, I have come across a book that makes the same point — that preservation of the Union was, for Lincoln — a moral cause worthy of fighting the Civil War. 

     Modern historians take the position that the trigger for the Civil War had been a political dispute about power and sectionalism, about states rights versus centralized government, about economic and social differences between North and South, about the balance of power in Congress, about territorial expansion. But, they insist that these issues would not have justified the terrible carnage of the war; there had to be a higher, nobler cause to fight and die for. That had to be the fight to free millions of enslaved human beings. Thus, only until the Emancipation Proclamation (January 1, 1863) did the war find its true moral cause.

     Of course, that seemed to me to be obvious. And yet, something nagged at me. Abraham Lincoln had a long history of opposing the institution of slavery and he had foreseen it as the issue that divided North from South. In his debates with Douglas, he famously warned that the divided house could not long endure “half slave and half free,” that it must some day become all one or all the other.

     But when he became president he, in his inaugural address, promised that he would not interfere with the status quo, including a vow to enforce the Fugitive Slave Law that the Supreme Court had upheld in the notorious Dred Scott decision. Then, when “secession fever” struck, he said that even if the price for preserving the union was perpetual continuation of slavery, he would favor it.

     In fact, even after he was persuaded to issue the proclamation to free slaves, he did it for the purpose of prosecuting the war: it purported to declare free only those slaves in the rebelling states, not those in the slave states that had remained in the union — Missouri, Kentucky, Maryland and the newly recognized West Virginia.  

     So, I wondered, how could Lincoln, the deepest thinker of his age, think that preserving the union was so crucial? He must have felt that preservation of the union was a “moral” imperative.

     Why? 

     The first dictionary definition of the word “moral” is “of or relating to principles of right and wrong in behavior.”

     What was the great principle involved in preserving the Union?

     At the time I wrote the blog, I surmised that Lincoln must have believed that if the states were allowed to break the union apart, it would lead to a greater calamity than that of the Civil War itself.
    
     What could be worse than civil war? I looked at a map. In 1861 the North American continent contained Canada, Mexico, and the USA. The 13 southern states left the Union over the crisis about the territories: would new states be slave or free?

     Thus, the newly independent nation of Confederate States (CSA) would surely wish to expand into the western territories. So would the US. The CSA was based on a “sovereign” state’s right to secede. Therefore, nothing would prevent the CSA to disintegrate when another “critical” issue arose. And there might well be European powers to seek a foothold on the continent now that the USA was so weakened. Mormons might seek with their territory to be an independent nation.
    
     Certainly there would be conflicts, border disputes, probably many small and maybe larger wars – to defend or to expand territory. (Remember “bleeding Kansas,” the newspapers’ title for the misery that followed the “popular sovereignty” law.)

     Lincoln knew Europe’s history: continual wars among neighbors, empires challenging each other, eventual militarism, despotism, Napoleons trying to unify states by force.

     I found evidence for this awareness in the then popular notion of “Manifest Destiny.” In the 19th Century, white Christian and European ancestry was presumed to be superior to any other race, culture, or people — the only race worthy of dominance on the continent.

     It justified for many the expulsion of native tribes from lands that the “pioneers” wanted. It supported a vision of a united continent. (Ambitions in Canada were thwarted only by Great Britain’s power, but weaker Mexico was forced by war to cede great chunks of its empire to ours: Texas, New Mexico, Arizona and California.)

     I found further evidence of Lincoln’s understanding and acceptance of this idea in the fact of his western pioneer roots, his legal history defending the business of the frontier, including the railroads; and during his presidency, his support for the continental railroad, the homestead acts, the land grant colleges of the western states; and his avowed dream that after his terms he would take Mary to see California.

     The century following the re-union after 1865 was the most prosperous era for the nation. While Europe continued to struggle with dictators and wars (two of which we were forced to enter in order to secure world peace) we remained relatively untouched by these wars. The continental US escaped the devastation that most of the rest of the world suffered in the 20th century and we emerged the most powerful and prosperous nation in history.

     We also preserved – for the most part – the nature of our form of government; whether called a republic or a democracy, whatever the issues that divided us from then on, we  never resorted to dictatorship, monarchy, or anarchy.

     There were other prophetic words from Lincoln – these in the address he gave in December, 1863, at the cemetery for the soldiers who fell at Gettysburg. They died, he said, to give the nation “a new birth of freedom” and that government of, by and for “the people” would survive.

     By “a new birth of freedom” Lincoln certainly was referring to the end of slavery, and the people’s government he thought worthy of fighting for was certainly the republican democratic one.

     Now, ten years later, I began to read another of the many books I have read about the war and about Lincoln. The book is “President Lincoln: The Duty of a Statesman” by William Lee Miller. (This book was published in 2008, but I didn’t know about it when I wrote my blog post. Miller died in 2012. He was a historian and college professor who specialized in issues of ethics and morality, from a religious and historical perspective.)

     In that book, I found many quotes that support my thesis, but for a subtly different rationale far more articulate.

     As early as July 4, 1861, Lincoln in his State of the Union message to Congress, explaining the causes of the war that had begun in April, expressed his motives:

     “I consider the central idea pervading this struggle is the necessity that is upon us, of proving that popular government is not an absurdity. We must settle this question now, whether in a free government the minority have the right to break up the government if they choose.”

     “[T]he real question involved . . . was whether a free and representative government had the right and power to protect and maintain itself. Admit the right of a minority to secede at will, and the occasion for such secession would almost as likely be any other as the slavery question.”


     “[This issue] presents to the whole family of man, the question, whether a constitutional republic, or a democracy — a government of the people, by the same people — can, or cannot, maintain its territorial integrity, against its own domestic foes.”

     “Can ‘discontented individuals,’ too few in numbers to control administration . . . break up their government, and thus practically put an end to free government upon the earth?”

     Lincoln was, by education and inclination, a lawyer. He believed in the rule of law, its spirit and letters. His speeches read like oral arguments or written briefs. They use the form lawyers are still taught to follow: State the cause (the issues), give the evidence for and against the proposition, take a side and explain the rationale for the choice.

     In his July 4, 1861 message (delivered in writing rather than orally as was the tradition then) Lincoln first explained his (“the executive”) actions taken while Congress was in recess. He had kept his inaugural promise to not assail the seceding states, but when South Carolina rebels assaulted Fort Sumter (and federal property in other states was seized), he was forced to fight by his oath of office.

     Lincoln observed that he had taken an oath to “preserve, protect, and defend the constitution.” This presidential oath that is specified in the constitution is more specific than the oath administered to other federal employees (“I will support and defend....”). By adding the words “preserve” and “protect,” the document gives the president a special duty as commander-in-chief of the armed forces, a great responsibility toward the Constitution. 

     Secession is by its nature, he argued, unconstitutional. Lincoln recited history to show that the states were not “sovereign,” but only existed as part of the United States. Before that, they all were English colonies. (The only state that had been “sovereign” was Texas, for the brief time it declared a republic until it begged for admission into the union as a state.) Thus, the entire basis of the notion of “States rights” as support for secession is a false pretext.

     Lincoln next addressed the Jeffersonian notion expressed in the Declaration of Independence that justified the Revolutionary War against England. Reciting the basis of the current dispute, Lincoln argued that the complaints did not rise to the level that justified revolution. They had been subjects of negotiation, compromise, and debate since the founding, and were indeed included in the Constitution — by insuring checks and balances of branches, by giving states equal representation in the Senate (and by going to the extraordinary and outrageous length of giving the slave states added votes for those human males among their population who had no right to vote because they were deemed to be “property”).

     As Miller puts it:

     “Republican government — democracy, we say now — requires a tacit understanding between majorities and minorities. Majorities rightly prevail, but they respect the liberty of minorities to agitate to try to replace them; minorities have the right to express and organize in behalf of their view, but when the votes are counted, they must acquiesce. That did not happen in this case, and the implication was immense. 
    
     “From the start, Lincoln saw a sweeping, drastic, universal consequence to this assault upon government in the United States. This American case presented the universal issue: 

Was there, in all republics, this inherent and fatal weakness? 

Could such a government be maintained against a ‘formidable’ attempt to overthrow it from within? 

Could it demonstrate to all the world that such a government could have the strength to prevent a successful appeal from ballots back to bullets?

     “Put negatively, defending such a government against destruction, for the whole family of man and for the ‘vast future also,’ was the moral purpose of Lincoln’s war.”




Wednesday, June 05, 2019

"THE MARCH OF FOLLY" By Barbara Tuchman

I began to re-read this book (originally published in 1984, now available as an e-book on Bookbub for $1.99) and realized that its theme fits in nicely with the one that I blabbered about (maybe it should be “bloggered”); that is, the common folly of people who act against their best interests. [See my posts on this blog relating to "Borenstein's Law."]

In trying to explain to my colleagues in criminal defense why our clients act so recklessly, not just in committing crimes, but in doing so in a manner making it likely that they will be caught, and then dealing with the police and their lawyers in the same foolish, self-destructive way, I concluded that it was not abnormal human behavior — but rather, quite common — to act that way. The innocent, too, often act in ways that make them appear to be guilty, usually out of distrust, fear, or ignorance of the system.

Using well-known examples, I proved that even people who are intelligent, worldly, successful and rich fall prey to the human frailty of acting contrary to their best interests, often resulting in their downfall.

In studying the problem, I came across several theories intended to explain this behavior. One was an ancient Greek concept, called Akrasia . Another was the theory of Type “T” personality, relating to the craving for thrills. A third, related cause, was lust: sexual desire for some involves a need to dominate and to humiliate others. Literature is full of examples of characters who risked marriages, careers, and their very lives just to insert a bit of drama into their routine existences.

Tuchman’s book gives examples of governments that pursued policies that were clearly contrary to their nation’s best interests, often with disastrous effects. Whether by starting a war or other committing “wooden-headed” actions, there are so many examples in history (as well as the quasi-history of the Bible’s descriptions of the follies of some Hebrew kings; and the Greek "historical / mythical tale of the Trojan Horse) that Ms. Tuchman concludes that instances of wise decision-making are harder to find. (She does cite the example of Anwar Sadat / Menachem Begin in 1979; even though Sadat paid for it by his assassination, it ensured peace between Egypt and Israel after 30 years of belligerence.)

Tuchman poses the hypothesis this way:

“A PHENOMENON noticeable throughout history regardless of place or period is the pursuit by governments of policies contrary to their own interests. Mankind, it seems, makes a poorer performance of government than of almost any other human activity.

 “In this sphere, wisdom, which may be defined as the exercise of judgment acting on experience, common sense and available information, is less operative and more frustrated than it should be.

 “Why do holders of high office so often act contrary to the way reason points and enlightened self-interest suggests? Why does intelligent mental process seem so often not to function?”
[Tuchman, Barbara Wertheim, “The March of Folly” (Kindle Locations 157-161)]

“Folly or perversity”, she finds, is one kind of misgovernment, often combined with three other kinds: “tyranny or oppression;” “excessive ambition;” and “incompetence or decadence.”

She defines self-interest as “whatever conduces to the welfare or advantage of the body being governed; folly is a policy that in these terms is counter-productive.”

This definition is the same in my thesis: the welfare or advantage to the client defines his/her self-interest, and whatever action the client commits or decision he/she makes contrary to that is folly.

As a scholar, Tuchman disciplines herself when she requires that to qualify as folly, the policy must have been perceived as counter-productive in its own time, not merely by hindsight. For her, this means judging it by the values of its own time and place. So, she seeks evidence that contemporaries saw the problem.

Second, she demands evidence that a “feasible alternative course of action must have been available.” This also finds a parallel in my sphere. For example, my client insisted on testifying even though I advised against it. His best chance of acquittal was to rely on the weaknesses of eyewitness identification. But by claiming self-defense, he had to admit his presence at the scene, thereby removing all doubt about the ID’s and placing his dubious credibility on the line, thus assuring his conviction.

Just as I noticed that degree of intelligence, social class, culture, or ethnicity has no bearing on whether someone will act against his self-interest, Tuchman concludes that the same holds true for governmental folly. Democracies may act just as foolishly as communist regimes or fascist regimes or monarchies; all classes are susceptible to these missteps.

She acknowledges that “folly or perversity is inherent in individuals” but she does not shrug her shoulders to accept it in government because, she argues, the consequences of governmental folly are so dire for humankind . . . and the planet that we should not accept it as the norm.

The practice of “self-deception” is common in governments. “It consists in assessing a situation in terms of preconceived fixed notions while ignoring or rejecting any contrary signs.”
Military planners have been guilty of this many times, at the cost of millions of lives. The First World War is a prime example. Most of Hitler’s blunders in The Second are due to his wooden-headed refusal to adapt to the evidence of changing conditions.  

Of course, the parallels to criminal cases are clear: I can’t count the numbers of clients who went down in flames because they refused to accept a plea offer of a lesser crime after being confronted with overwhelming proof of their guilt of the greater one. “It is,” Tuchman writes, “acting according to wish while not allowing oneself to be deflected by the facts.” Tuchman adds: “The refusal to benefit from experience” is also a hallmark of this kind of wooden-headedness.

I agree with that. My client who shoplifted at the same May Company department store in which he had been arrested six months before and was caught by the same security personnel who remembered him is but one example in my memory.

Tuchman also has some examples that do not find easy parallels in my business, but are interesting nonetheless.

She mentions the case of Montezuma who led the Aztecs to their destruction by adhering to his delusion that Cortez and his soldiers were omnipotent aliens sent by the gods to fulfill a prophesy even after there was ample proof that they were mortals who could be easily outnumbered and defeated by his armies.

“One cannot quarrel with religious beliefs, especially of a strange, remote, half-understood culture. But when the beliefs become a delusion maintained against natural evidence to the point of losing the independence of a people, they may fairly be called folly. The category is once again wooden-headedness, in the special variety of religious mania. It has never wrought a greater damage.”
 [Tuchman, “The March of Folly” (Kindle Locations 347-350). Random House Publishing Group. Kindle Edition.]

Although she doesn’t cite it, I wonder if Prohibition could be seen as another example of “religious mania” defining policy in the face of logic, common sense, and understanding of human behavior. The impulse to enforce morality by legislation is certainly folly. 

In one respect I found a chance to quibble with the historian.
She rightly expresses her admiration for the class of men who we call our “founding fathers.” 

“[T]hey were fearless, high-principled, deeply versed in ancient and modern political thought, astute and pragmatic, unafraid of experiment, and — this is significant — ‘convinced of man’s power to improve his condition through the use of intelligence.’” [Tuchman, (Kindle Locations 429-430)].

She accounts for this amazing “burst of talent from a base of only two and a half million” by citing their exposure to values of The Age of Reason. During their time, there was:

“a wide diffusion of education, challenging economic opportunities, social mobility, training in self-government — all these encouraged citizens to cultivate their political aptitudes to the utmost. With the Church declining in prestige, and business, science and art not yet offering competing fields of endeavor, statecraft remained almost the only outlet for men of energy and purpose. Perhaps above all the need of the moment was what evoked the response, the opportunity to create a new political system. What could be more exciting, more likely to summon into action men of energy and purpose?” [Tuchman, (Kindle Locations 433-437).

Two things occurred to me. First, I recalled that the man who is thought to be one of the greatest of the founding fathers, the epitome of all the values Tuchman ascribes to them, is Alexander Hamilton. Despite his rationality when it came to the needs of government, he made foolish decisions in his personal life that were disastrous to his career ... and to his very life.

Second, most of the founding fathers were lawyers or at least had training in the English Common Law, as well as experience in legislating as members of town councils or colonial legislatures. They came from a tradition of respect for the law, and when it came to stating their case for independence, they framed their argument in rational terms, eschewing the hate-speech of violent revolution. 

Once independence was gained, they approached the task of governing with the same lawyerly care, devising a Constitution and Bill of Rights that has lasted ... until now. 

In concluding her first chapter of her book which was published in 1984, Barbara Tuchman warned us about the danger of incompetent governance.

“For two centuries, the American arrangement has always managed to right itself under pressure without discarding the system and trying another after every crisis ... Under accelerating incompetence in America, this may change. Social systems can survive a good deal of folly when circumstances are historically favorable, or when bungling is cushioned by large resources or absorbed by sheer size as in the United States during its period of expansion. Today, when there are no more cushions, folly is less affordable....” [Tuchman, Barbara Wertheim (2011-07-20). The March of Folly (Kindle Locations 442-444). Random House Publishing Group. Kindle Edition.]


Sadly, enough Americans in 2016 voted against their own best interests to empower a foreign country to manipulate our political system so as to cripple the democracy, perhaps irrevocably.