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.”]

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 19^th 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 20^th 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.”

April 13, 2020:

Recently, I found still more support for these ideas in two books by noted historians Joseph J. Ellis and H. W. Brands. Ellis’s “The Quartet” (Knopf Doubleday Publishing Group), is devoted to Washington, Hamilton, Madison and Jay, the four Founding Fathers who were most responsible for the Constitution, the document that saved the republic from an early death. "Heirs of the Founders" by H.W. Brand (Knopf Doubleday), follows the next generation of leaders, including Calhoun, Clay and Webster. [All quotes are from these books.] 

The new nation was on the verge of collapse because the Articles of Confederation had created a federal government that was too weak to keep the states together. 

Washington, the hero of the war for independence, clearly grasped the central idea: namely, that the American Revolution had happened at a truly pivotal moment in history: It provided Americans with an unprecedented opportunity to become the world’s first successful republic. 

After Independence, it soon became clear to Washington, and a few others, that there was a fundamental flaw in the new nation. The fact was that the Articles of Confederation had not created a united  nation. The 13 colonies that had joined together to fight the British insisted on maintaining their sovereign status. After declaring themselves United, the States, fearful of tyrannical rule, denied real power to a central government, even a democratic one.  

Washington saw clearly that the weakness this caused would be fatal to the dream that he and other founding fathers had, that they could “construct a society according to political principles that maximized the prospects for personal freedom and happiness more fully than ever before.” 

He understood that the time in history was ripe for this experiment in democratic republicanism, that is, a nation in which the people ruled themselves without a monarch or aristocracy. 

He also understood that if the states refused to yield power to a central authority - that is, with the power to tax, to legislate, to settle disputes, to make treaties, and to defend with an army and navy, then it would soon fall apart and fall prey to European states that craved an empire in the new world. 

Washington foresaw that “the Articles were a recipe for anarchy in postwar America, destined to dissolve his legacy of American independence into a confused constellation of at best regional sovereignties, vulnerable to the predatory plans of hovering European powers.” 

As early as 1783, he had expressed his fear that the promised future of a continental nation would be thwarted by these events. “…[H]is expansive vision, which eventually came to be called Manifest Destiny, was continental in scale.” 

He hoped that the dream of western expansion was what would unite the states, or rather re-unite them after most had begun to abandon the idea of unity as soon as independence was won. 

Once the common goal of independence had been achieved, the fractures between states and between northern and southern sections widened. South Carolina objected to Vermont’s entry as a state because it would weaken the South vis-à-vis the New England. 

Washington was not alone in this realization. His wartime deputy, the young genius, Alexander Hamilton, had the same vision. Even during the war, foreseeing a post-war nation, Hamilton wrote a series of essays titled, “The Continentalist,” arguing that a strong central government was needed to insure westward expansion, with its promise of freedom, upward mobility, and wealth. 

The core mistake was to vest sovereignty in the states rather than in a federal government empowered to oversee the economy, including collecting taxes and regulating commerce, and to manage the inevitable expansion of a continental empire. As Hamilton put it, “Americans needed to think continentally.”

Another American leader saw it, too. John Jay, in 1782 was in Paris negotiating the end of the war with Britain. Representatives of Spain and France which had supported the war for independence, mostly in order to weaken England, were there to mediate. One issue was where to define the borders of American vs. British territory on the American continent. Jay forcefully argued to draw the western line at the Mississippi River, which at the time was far further west than any state’s border. In doing so, he was challenging not just England’s claims, but also those of Spain and France. The English agreed to the boundaries largely to weaken Spain and France. 

As signed, it was widely seen as a major victory for the new nation. It doubled its territory, making it larger than any of the three European nations involved. Smart Europeans foresaw that it laid the foundation for an American Empire, one with nearly unlimited resources. 

Thomas Jefferson also foresaw the inevitability of westward expansion. But contrary to the notions of Washington, Hamilton, and Jay, he wanted government, especially a federal government, to stay out of the way. He thought that, left alone, the free market would solve any problems. 

“None other than George Washington was the first to sound the warning. ‘To suffer a wide extended country to be overrun with Land Jobbers, Speculators, Monopolizers, or even with scatter’d settiers,’ Washington declared, ‘is, in my opinion inconsistent with the wisdom and policy which our true interest dictates.’ A policy of unregulated ‘diffusion’ would be sure to generate Indian wars up and down the frontier, the kind of legal confusion over land patents that had already produced vigilante violence in Kentucky, and the likelihood that some settlers would move so far west that they would repudiate their American citizenship and set up independent states or seek support from foreign powers like Spain or Great Britain.”

This argument persuaded Jefferson to go along with the Ordinances of 1785 and 1786 that strove to protect the western lands from unbridled exploitation. The problem was that the Confederation Congress had little power to enforce its laws. 

“Unless there was a viable American nation-state to join, Washington worried that the western territories would drift into the orbit of lurking European powers or go off on their own to form independent states. Washington’s great fear was that North America would become a version of Europe, a collection of coexistent sovereignties rather than a coherent nation of its own. All the evidence seemed to support the conclusion that the very term United States was becoming a preposterous illusion.”

“[The] apocalyptic scenario was anarchy, the complete collapse of the confederation leading to civil wars between the states and predatory intrusions by European powers, chiefly Great Britain and Spain, eager to carve up the North American continent in the conventional imperialistic European mode. The more realistic scenario was dissolution into two or three regional confederacies that created an American version of Europe. New England would become like Scandinavia, the middle states like western Europe, the states south of the Potomac like the Mediterranean countries.

In fact, each time there was a dispute among the states, voices were raised – in the press – that urged disunion, or withdrawal of a section of states that had more common interests than those in a foreign section. 

Although they succeeded in persuading the states to send delegates to the Constitutional convention in the summer of 1787, the document it produced didn’t completely solve the problems. It was a compromise, in which the states, subject to stringent check and balances, surrendered any claims of sovereignty to the federal system - for the greater good. As the Preamble says:

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

The Preamble was written by Gouverneur Morris as head of the Committee on Style and Arrangement, that had been appointed to organize the final document. Significantly, the first draft of the first sentence was much different:

“’We the people of the states of New Hampshire, Massachusetts, Rhode Island…’ and then down the Atlantic coast on a state-by-state basis. Morris single-handedly chose to change that to ‘We the People of the United States.’ 

“This was not just a stylistic revision, for it imposed, at least verbally, a crucial and clear presumption that the rest of the document was designed to finesse: namely, that the newly created government operated directly on the whole American citizenry, not indirectly through the states.”

The Constitution, for all its defects, did not include any provision for secession of any of the states or dissolution of the whole. Between 1787 and 1861, there had been several crises in which the specter of secession had been raised, not just in the press, or rabble rousing speeches in state legislatures, but in the U.S. Senate and House as well. 

The disruption of trade caused by the War of 1812, led some New England leaders to the Hartford Convention, in which some firebrands murmured threats of secession. Before the Missouri Compromise in 1820, southerners again raised the specter of secession on the issue of westward expansion. The delicate balance of power in the Congress was maintained by Maine / Missouri as new states. But it was the future of the west that loomed dangerously. 

In 1830 it was the issue of tariffs that led to a severe crisis. South Carolina, led by VP John Calhoun, asserted the right to “nullify” the federal law. Calhoun’s rep, Sen. Robert Hayne, made a stirring speech asserting state’s rights, arguing that the Constitution was a creation of sovereign states but that “liberty” was stronger than “union.” 

Sen. Daniel Webster of Massachusetts responded with a powerful rebuttal. He argued that without the Constitution was created “by the People” not the states. (“Heirs of the Founders”), quoting Webster’s speech:

“’If the government of the United States be the agent of the state governments, then they may control it, provided they can agree in the manner of controlling it. If it be the agent of the people, then the people alone can control it, restrain it, modify, or reform it.’ 

“Webster took his stand with the people. ‘It is, sir, the people’s Constitution, the people’s government; made for the people; made by the people; and answerable to the people.’ 

“The people of America had created the national government and made it sovereign. ‘The people of the United States have declared that this Constitution shall be the supreme law. We must either admit the proposition, or dispute their authority.’” 

Webster cited the sad history of the Articles of Confederation, and the reasons why the strong “general government” was needed. The federal judiciary, not any of the states, had the power to declare a law unconstitutional. Moreover, prosperity and liberty depended on the unity of the states, that there could be no individual liberty without a strong union. Daniel Webster had deterred it by his oratory: “liberty and Union, now and forever, one and inseparable.”

Lincoln knew his history, and could easily foresee the future. His arguments against the right of the Southern states to secede had clear precedents and an unimpeachable rationale. He foresaw what a tragedy the dissolution of the Union would be for the future of continent. It was not merely a political or economic crisis, but a struggle for the hope of humankind, that a government of, by and for the People could survive internal strife. 

Take this Constitution from my cold dead hands

From the perspective of The Left, the virulent hatred of Obama and so- called Obamaism and ObamaCare is puzzling.

He and they seem so moderate, so centrist, so tame. What are the lions of The Right getting so worked up about? Is it Gays in the military (which was delayed until a consensus of military brass including Defense Secretary Gates approved)? The threat (unfulfilled) to close Guantanamo? The continuation of the wars in Iraq and Afghanistan?

Okay, he is a Black Man. But not exactly a Jesse Jackson. His wife and children are also black, but they seem more into fashion, vegetables, and puppies than radical politics. Compare Michelle to Hilary.

Which of his policies are Marxist? Bailing out banks, General Motors, homeowners? Giving insurance companies an enormous pool of additional customers? What’s so revolutionary, so dangerous to right wing values in all of that?

The New Yorker this week contains a piece that made me nod in recognition and say, “Oh, now I get it.”

Jill Lepore, in “The Commandments ... The Constitution and its worshippers”, was about the analogy between constitutional originalism and biblical fundamentalism.

 The common article of faith in the two belief systems is that change is bad. The authors of both documents are viewed as infallible and their products immutable.

 So, when some of us got all gooey eyed hearing the ringing words about time for change we can believe in, many others were terrified to the point of rage by the same words and images.

To those of us who have been appellate court opinion watchers all of our professional lives, the originalist issue is ludicrous, some new clothes for an old emperor.

Back in the golden (or dark - depending on your perspective) age of the 60's and early 70's, the Warren court (and later, even the more timid Burger court) issued a series of opinions that marked serious change in constitutional interpretation. They struck down a hundred years of segregation, defined an array of rights for the accused, ended school prayer, recognized abortion rights and womens’ right to equality.

The backlash was immediate and vicious. The Right, from “The Minutemen” to “The John Birch Society” to William Buckley and Barry Goldwater and Ronald Reagan, ranted about liberal judges who were twisting the constitution to fit their own agenda. Legal scholars then molded this complaint into the originalist doctrine — no interpretation, just reading.

Liberal judges were accused of being result oriented which is a judicial sin. Judges are supposed to be philosophically neutral, objective, letting the chips fall where they may, even if they personally disagree with the result. The Law is the thing.

Over the next thirty years, Nixons, Reagans, Bushes, (and in California, a succession of similar governors) have appointed so-called conservative judges.

In this sense, conservative is a term of art, intended to be literal — their philosophy was to conserve the Constitution, based on the original intent of the founders.

Amazingly enough, this supposed insistence on strict interpretation and asserted revulsion against judges making law has led to results that conform to the political philosophies of the judges and those who appointed them.

The conservative judges proved to be just as result oriented as their liberal predecessors. In the last term the U.S. Supreme Court ruled struck down campaign contribution limits on corporations on First Amendment grounds --- although the Bill of Rights clearly was intended by and understood by the framers to apply to "The People", not businesses. The court also declared D.C.'s gun control law violated the Second Amendment, despite clear language and 250 years of precedent that its purpose was to insure "A well regulated militia ...." 

In law school I was taught that legal opinions were supposed to begin with the facts, proceed to defining the issues, and then an analysis of the law and precedents, followed by a ruling and explanation of the reasoning.  A corollary was that if the reasoning did not support the ruling, then judicial integrity required abandonment or modification of the ruling.  

Intellectually dishonest judges begin opinions with the ruling they wish to make. They relate the facts that support it and ignore or rationalize away those that diminish their view. The issues are defined in ways that insure the preferred result.  The reasoning consists of little more than rationalization, distinguishing opposing precedent without convincing analysis.

In a real sense, originalists are fundamentalists whose faith bars belief in evolution, whether as a science explaining the nature of the world, or as a metaphor for social progress ... that is, change. Their religion will not permit this.