Moral Wrongs and Legal Rights
What should we do about bad laws? I'm not talking here about simply ill-conceived laws or poorly drafted ones, but about laws that we think are fundamentally immoral. Should we follow them? Ignore them? Try to overturn them? Break them and accept the consequences? Or something else? It is one of the most fundamental questions in philosophy and political theory. Discussions of the question date back, as seemingly every important question in life does, to Socrates.
Your answers to the question might turn on other factors, like just how bad the law is, why it is bad, how realistic your chances of overturning it are and many other things.
The history of slavery presents the problem of moral wrongs and legal rights in its starkest form and offers lessons on the nature of justice and how we pursue it. Human bondage was obviously an immoral institution. And yet, for much of human history, it was legal. How did societies confront it and eventually defeat it?
Abraham Lincoln had no choice but to face the problem head on. Rising to power in the newly formed Republican Party in the 1850s, just before the outbreak of the Civil War, Lincoln saw the nation falling apart over the slavery issue. His eloquent speeches on the nature of freedom and the union would propel him to the presidency.
Lincoln never harbored any doubts about the wrongfulness of slavery. It offended every tenet of his ethical belief system. "I am naturally anti-slavery," Lincoln wrote. "If slavery is not wrong, nothing is wrong."
But Lincoln was a lawyer, and he believed that the Constitution protected the right of states to determine for themselves, without federal government interference, whether to permit slavery within their territories. While the Constitution never explicitly mentioned the word "slavery," it conspicuously referenced it in several places. The infamous Three-Fifths Clause stated that all non-free persons counted as three-fifths of a person for the purpose of Congressional representation. The equally infamous Fugitive Slave Clause required states to return persons "held to service or labour" in another state to the state from which they fled. And the Slave Trade Clause prohibited Congress from banning the "importation" of persons before 1808.
Lincoln had sworn to uphold the Constitution, but he also had a moral obligation to a higher power. How could he reconcile these two conflicting duties?
Lincoln's struggle with the question led him to return over and over to the problem of immoral law. Why could the south not see the evils of slavery as clearly as he did? His conclusion was that the law distorted people's ethical compasses. The possession of a legal right changed the way that people viewed moral wrongs. Here is how he described the problem in a speech in New Haven in 1860, shortly before he launched his campaign for the presidency:
The owners of these slaves consider them property. The effect upon the minds of the owners is that of property, and nothing else – it induces them to insist upon all that will favorably affect its value as property, to demand laws and institutions and a public policy that shall increase and secure its value, and make it durable, lasting and universal. The effect on the minds of the owners is to persuade them that there is no wrong in it. The slaveholder does not like to be considered a mean fellow for holding that species of property, and hence he has to struggle within himself and sets about arguing himself into the belief that slavery is right.
Over time, Lincoln's opinion on how to fight immoral law evolved. Initially, he focused primarily on "containing" slavery, arguing that it should be prevented from spreading to new states and territories, while carefully observing constitutional limitations. Then he turned to carrots and sticks, incentivizing slaveholding states to voluntarily end slavery on their own. And finally, after the crucible of war, he turned to constitutional amendment. The law simply had to change. Lincoln spent his final months pushing for the enactment of the Thirteenth Amendment, which abolished slavery in the United States. Eight months before its ratification, he was assassinated in Ford's Theater in Washington, D.C.
Lincoln would not live to see the Thirteenth Amendment made the law of the land. But if you want to understand where he stood on the eternal questions of justice and freedom, there is no better place to start than his Gettysburg Address, the greatest speech in history. I present it here in full:
Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this. But, in a larger sense, we can not dedicate – we can not consecrate – we can not hallow – this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us – that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion – that we here highly resolve that these dead shall not have died in vain – that this nation, under God, shall have a new birth of freedom – and that government of the people, by the people, for the people, shall not perish from the earth.
