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Obama on Civility and Lincoln on the Rule of Law

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President Obama's memorial speech in Tucson on January 12 delivered a message of consolation and hope about the terrible killings four days earlier. Don't we realize, the president asked, that we Americans are all neighbors, that we are something like the members of a family? And once we recognize that, shouldn't we agree to respect each other and talk gently to each other? A decent sympathy becomes us, even in our disagreements.

This was a reiteration of Barack Obama's Democratic National Convention Keynote Address of 2004. We are not red states and blue states, the president is saying once again. We are all one America. Like a preacher at a service in a parish church, he spoke on Wednesday emphatically, and with familiar affection, of those who had been killed. He spoke more particularly of democratic citizenship and the relation between citizens and their representatives. Yet there was a notable omission. The president's memorial address in Tucson never mentioned the rule of law.

Speculation about the motive of the accused man, Jared Loughner, has run ahead of the evidence, but in common not legal language it seems plain that Loughner was psychotic and that he was a lover of guns: categories that overlap in American life with disturbing frequency. It is a truth familiar to anyone who has lived close to an excitable and mentally unstable person, that such people grow wilder in the presence of violent actions and inflammatory speech. The stimuli work as an incitement, a turn-on. The proximate acts and words heat up these listeners, and bring the idea of actual violence closer. This effect of habituation is known also to the relatively sane. Habit can make the most repulsive ideas appear normal, and the habit of entertaining violent remedies for occult harms may harden us to violence itself.

Abraham Lincoln's first great speech was delivered in 1838 when Lincoln was a state representative in Illinois. The occasion was the civil disorders of the time, and their apparent climax, a recent spate of lynchings in St. Louis and Vicksburg. The young Lincoln addressed his audience at the Lyceum of Springfield, Illinois with a feeling we are again becoming accustomed to: the surprise is that we are not surprised. The atmosphere that made those killings possible was the Panic of 1837. Speculative fever, above all speculation in the sale of lands and the inability of state banks to cover losses from the investments they sponsored, had produced a bubble and then financial collapse. Unemployment reached as high as 10%. Rage (like flood water seeking a path) spread everywhere and picked its targets with feckless velocity. Lincoln spoke of this as a disease of the "mobocratic" spirit.

President Obama, seeking to quiet the public disorders of which he took the Arizona shooting to be a symptom, spoke of the healing value of "civility" -- a general virtue whose desirability no one could fail to endorse. Lincoln, by contrast, used a phrase whose meaning was sharp and whose reference was unmistakable. He spoke of the necessity of abiding by the laws. Indeed, in his Lyceum speech of 1838 he made law-abidingness the condition of the maintenance of democracy. His subject was "the perpetuation of our political institutions" and his message was that the institutions of constitutional democracy cannot survive unless its citizens resolve to abide by the laws; to obey even, and perhaps most of all, when a law is not to our liking. Nineteen years later, he would adhere to that principle in his own reaction to the Dred Scott decision.

Lincoln addressed the future of a free people, and threats to freedom that do not come from external enemies:

At what point then is the approach of danger to be expected? I answer, if it ever reach us, it must spring up amongst us. It cannot come from abroad. If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide.

The financial panic had fomented a savage mood in the people, many of whom, under the cloak of vigilante justice, acted now in utter disregard of the laws. A significant part of the populace had lost their pride of self-restraint:

Accounts of outrages committed by mobs, form the every-day news of the times. They have pervaded the country, from New England to Louisiana; -- they are neither peculiar to the eternal snows of the former, nor the burning suns of the latter; -- they are not the creature of climate -- neither are they confined to the slaveholding, or the non-slaveholding States. Alike, they spring up among the pleasure hunting masters of Southern slaves, and the order loving citizens of the land of steady habits. Whatever, then, their cause may be, it is common to the whole country.

The last sentence makes clear that Lincoln is speaking at a time when it looks as if the violence may grow worse.He now brings up a case in which the actions of a mob obliterated the distinction between suspect and criminal:

Turn, then, to that horror-striking scene at St. Louis. A single victim was only sacrificed there. His story is very short; and is, perhaps, the most highly tragic, of any thing of its length, that has ever been witnessed in real life. A mulatto man, by the name of McIntosh, was seized in the street, dragged to the suburbs of the city, chained to a tree, and actually burned to death; and all within a single hour from the time he had been a freeman, attending to his own business, and at peace with the world.

Such are the effects of mob law; and such are the scenes, becoming more and more frequent in this land so lately famed for love of law and order; and the stories of which, have even now grown too familiar, to attract any thing more, than an idle remark.

For Lincoln, there is something more important than the family feeling a nation may share. Greater than such domestic piety is the respect of free citizens for the laws by which they agree to be governed. He continues by drawing out the principle from the particular instance. The corrosive mischief of lawless conduct -- including the incitement to such conduct -- lies in the power of example:

Abstractly considered, the hanging of the gamblers at Vicksburg, was of but little consequence. They constitute a portion of population, that is worse than useless in any community; and their death, if no pernicious example be set by it, is never matter of reasonable regret with any one. If they were annually swept, from the stage of existence, by the plague or small pox, honest men would, perhaps, be much profited, by the operation. Similar too, is the correct reasoning, in regard to the burning of the negro at St. Louis. He had forfeited his life, by the perpetration of an outrageous murder, upon one of the most worthy and respectable citizens of the city; and had he not died as he did, he must have died by the sentence of the law, in a very short time afterwards. As to him alone, it was as well the way it was, as it could otherwise have been. But the example in either case, was fearful. When men take it in their heads to-day, to hang gamblers, or burn murderers, they should recollect, that, in the confusion usually attending such transactions, they will be as likely to hang or burn some one, who is neither a gambler nor a murderer as one who is; and that, acting upon the example they set, the mob of to-morrow, may, and probably will, hang or burn some of them, by the very same mistake. And not only so; the innocent, those who have ever set their faces against violations of law in every shape, alike with the guilty, fall victims to the ravages of mob law; and thus it goes on, step by step, till all the walls erected for the defense of the persons and property of individuals, are trodden down, and disregarded. But all this even, is not the full extent of the evil. By such examples, by instances of the perpetrators of such acts going unpunished, the lawless in spirit, are encouraged to become lawless in practice; and having been used to no restraint, but dread of punishment, they thus become, absolutely unrestrained. Having ever regarded Government as their deadliest bane, they make a jubilee of the suspension of its operations; and pray for nothing so much, as its total annihilation.

He adds that in such conditions, even good men may grow disgusted with their chaotic state and look for a different system to restore the public peace.

For Lincoln, the heart of democracy is the idea of self-government. And it is the most complex of ideas. Self-government is not the same as the unrestrained pursuit of self-interest -- a word he treated as synonymous with selfishness -- and it does not imply obedience to a government whose laws are inaccessible to and unacknowledged by the people. Strangely, Lincoln observes, the establishment of freedom by the war of independence was a work less intricate than the maintenance of self-government once the threat from external enemies had passed. The danger to orderly freedom remains but now it has a different source:

The question recurs "how shall we fortify against it?" The answer is simple. Let every American, every lover of liberty, every well wisher to his posterity, swear by the blood of the Revolution, never to violate in the least particular, the laws of the country; and never to tolerate their violation by others...

When I so pressingly urge a strict observance of all the laws, let me not be understood as saying there are no bad laws, nor that grievances may not arise, for the redress of which, no legal provisions have been made. I mean to say no such thing. But I do mean to say, that, although bad laws, if they exist, should be repealed as soon as possible, still while they continue in force, for the sake of example, they should be religiously observed.

So Lincoln recommends that obedience to the laws be the civil religion of Americans. I will obey the laws that are now in force (each citizen is asked to think) in order to prove myself worthy of self-government; by that pledge and by that act, I also prove myself fit to participate in the making of different or better laws.

Why should the heroic work of establishing a system of self-government turn out to be easier than the daily work of maintaining that system? The reason, Lincoln says, comes from the charm and availability of the passion for victory, the allure of immortal fame, the excitement of heroic self-sacrifice. Those feelings supported the men and women of 1776 in their battle against the British Empire; but they cannot support us in our arguments with each other:

Passion has helped us; but can do so no more. It will in future be our enemy. Reason, cold, calculating, unimpassioned reason, must furnish all the materials for our future support and defense. Let those materials be molded into general intelligence, sound morality and, in particular, a reverence for the constitution and laws.

Of course, "a reverence for the constitution and laws" presumes an understanding of the constitution and concern with the principles of justice that the laws are meant to embody.

All this is a harder truth to convey than the cultivation of "civility," an idea whose limits so often shift in accordance with self-interest. Suppose a national leader calls for the persecution a man who has not yet been charged with any crime -- as for example Vice President Biden did when he described Julian Assange as a "high-tech terrorist" -- and suppose the leader does so in a pleasant voice and using commonplace words. Such a leader surely commits a trespass against reverence for the constitution and laws. Yet no one will say that his manners are uncivil. The severity of Lincoln's simple words about the constitution brings out the evasiveness of President Obama's fluent words about civility.

For a people that lives by self-government, care for the spirit of the laws is a higher virtue than neighborliness. It was not neighborly virtue in any case but political expedience that made President Obama in his first days in office assert that he would "look forward as opposed to looking backwards" at the possible crimes committed by government officers in the years 2002-08. The new president spoke with indifference about certain laws and their application to the acts of public officials. In doing so, he violated Lincoln's pledge. In Tucson, however, the president offered a stricter standard for private life. He said that "sudden loss causes us to look backward -- but it also forces us to look forward." Why should private loss cause us to look both backward and forward, while public calamity requires a public official to look only forward?

In his words of consolation and exhortation in Tucson, President Obama sought to achieve an effect that many Americans were looking for. He comforted. Yet he did not instruct. To say it civilly: the loss to the integrity of the United States from official defiance of the laws, is a loss to all Americans as surely as the killings in Tucson were. The Arizona killer will be prosecuted. To give assurance as President Obama did, that men who broke laws in the nation's capital would not be prosecuted because to do so might appear uncivil, was a defection from the duty of reverence for the constitution and laws. It is beyond anyone's competence to estimate the power of such an example in a national leader.

President Obama on Wednesday strove most of all to be seen as a moral leader, a coach of the morale of the American people. It is an interesting job, but a job without boundaries, unlike the office of chief magistrate. In a manner reminiscent of Ronald Reagan's speech on the Challenger disaster of January 28, 1986, Obama on Wednesday spoke of feelings not laws. His choice was partly suited to the occasion, and yet talk of feelings, sentiments, goals, so broadly stated that they are impossible not to share, really marks a general preference by this president on all occasions. His resemblance to Reagan in that respect is telling. It is a remarkable fact that at a time of constitutional crisis, Barack Obama, who taught constitutional law for many years, has never chosen to speak with vivid and concrete illustrations about his own understanding of the American constitution.

In the ordinary work of abiding by the laws and knowing their meaning, it can seem that we are leaderless. Yet if self-government implies as much as Lincoln believed, it suggests a constancy and presence of mind in the people themselves. We are living at a time when the people must show themselves better than those we have elected to lead us. We have the constitution, and we have some representatives, if not at the highest level, who care for the constitution and laws as representatives in our system ought to care. (One of them is Gabrielle Giffords.) We have, too, organizations as diverse as the Cato Institute and the American Civil Liberties Union that act with considerable attention to principle. "Dare to think" and abide by the laws that exist. And do not imagine that thinking is either civil or uncivil.

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