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The 19th century stood witness to the rapid change, near-suicide, and the rough re-healing of our nation. Throughout such, the interpretation and implementation of the rule of law was at the forefront. Henry David Thoreau, a prominent member of the Transcendentalist movement, posed the question, “What does an individual do when faced with an unjust law?” Thoreau suggested that an existing rule or law could either be obeyed, amended, or transgressed. Over time, Thoreau had not only grown weary of what he believed was the perversion of the peoples’ will by men such as Chief Justice Roger Taney, but Thoreau also saw strict adherence to law as submitting to the evils of majority rule. Hence, Thoreau believed that the moral action was to trust the heart and peacefully transgress the law as an individual. Other 19th century Americans, such as Abraham Lincoln, echoed Thoreau’s sentiments of conflict between law and morality. However, Lincoln viewed equality and liberty as the backbone of the nation and argued for strict obedience of the law as the way to preserve the United States.
When faced with injustice, both Lincoln and Thoreau recognized the occasional conflict between morality and law. Because Thoreau exhibited an inherent distrust of institutional government, he saw a clear and consistent distinction between moral justice and the existing rule of law, and, as a result believed that disobedience of law was justifiable and socially acceptable. Thoreau viewed the American government as the embodiment of hypocrisy. How could a country such as America form the basis of its identity around liberty while simultaneously allowing for “a sixth of its own [population] to be [held as] slaves?” Why would the same nation that had freed itself from the clutches of tyranny less than a century prior then invade and subject foreign countries to “military law” without a second thought? (Civil Disobedience, pg. 4). According to Thoreau, one reason for the occurrence of this social hypocrisy was the American government itself. By placing “power [into] the hands of the people,” to “allow for [execution of] their will” (Civil Disobedience, pg. 1), majority rule was allowed free reign. Once the majority realized that it could promote its interests with little to no opposition, consideration of morality fell by the wayside. Thoreau thought it likely that the government could fall victim to complete “abuse and perversion” before the “peoples’ will” could be executed (Civil Disobedience, pg.1). Therefore, in Thoreau’s view, the best government was one that “[governed] least,” and ideally, “not at all.” (Civil Disobedience, pg.1)
Thoreau did concede that when it came to obedience for the law, he was a “bad subject,” but not a “bad neighbor” (Civil Disobedience, pg. 14). When it came to improvement of the nation’s infrastructure and education system, Thoreau was willing to contribute his fair share. However, Thoreau believed other laws, such as the Mexican War’s poll tax, served as an act of governing with “sheer force.” In those instances, Thoreau was not compliant, seeing the tax as support towards the spread of slavery. Thoreau regarded those who blindly obeyed these laws as “cogs in a machine,” acting as “agents of injustice.” To Thoreau, obedience of the law signified “resign[ation] [of] conscious” to a legislator (Civil Disobedience, pg. 2), leaving the individual at the mercy of some “unscrupulous man in power,” (Civil Disobedience, pg. 2), and therefore unable to act with free will. When in disagreement with the law, Thoreau saw opposition solely “in opinion” (Civil Disobedience, pg. 5) as no more effective than remaining idle. To him, voicing displeasure was a passive act, and accomplished nothing other than placing the burden of “remedying the evil” on the shoulders of one’s fellow citizen.
Thoreau believed acts such as voting to be just as futile, regarding such as attempts to right injustice as passing the chore to the majority. To Thoreau, these “efforts” were for the weak-minded, and had “little virtue” (Civil Disobedience, pg. 5). Even when one chose to vote for “the moral right,” the result was ultimately left to chance; hence, the individual had no real “stake in the outcome.” In addition, Thoreau saw formal change in the law as much too slow. Instead, Thoreau stressed the importance of acting as an individual, trusting the heart and soul and peacefully transgressing the law. To Thoreau, change was natural, “like birth and death, which convulse the body” (Civil Disobedience, pg. 8) However, the State’s stubbornness and refusal to act as a catalyst for change had left him with little choice. In some instances, Thoreau understood that it was necessary to let injustice run its course. However, if there was opportunity to act as “the agent of injustice to another,” (Civil Disobedience, pg. 8) then he saw no reason for hesitation.
Abraham Lincoln also saw potential conflict between morality and the rule of law. However, unlike Thoreau, Lincoln frowned upon transgression. Instead, holding the law in good faith and high regard, Lincoln viewed obedience and amendment as best courses of action. Lincoln’s reverence for the law was best understood in the context of his 1837 Lyceum Address. To him, the nation was built upon pillars of “unprofaned liberty and untorn equal rights.” (Lyceum Address, pg. 1) These civil and religious liberties were able to flourish because of America’s political institutions and the laws that these institutions, in turn, enacted. Lincoln saw it as a civic duty to both oneself as well as the ancestors “whose toils the country was founded upon,” to ensure these liberties remained present.
Nevertheless, Lincoln was often forced to choose between morality and obedience of law. One instance of this selection appeared in a letter to his good friend Joshua F. Speed. In the letter, Lincoln dismissed the notion that the Constitution permitted slaveholders to be “deprived of their slave property” (Letter to Joshua F. Speed, pg. 21), which was a fear of many Southerners, including Speed himself. Through his writings, it was clear how the moral wrongs of slavery pained Lincoln; “I confess I hate to see the poor creatures hunted down, and caught, and carried back to their stripes [whippings], and unrewarded toils.” However, Lincoln’s loyalty to the Constitution and Union took precedence over morality; instead of breaking the law, he simply “[bit his] lip, and [kept] quiet” (Letter to Joshua F. Speed, pg. 21). To Lincoln, upholding civic duty meant sacrificing feelings in exchange for the preservation of the Union.
Yet, unlike Thoreau, who saw the Constitution and law as the threat to the nation, Lincoln believed the Constitution was under attack. According to Lincoln, mob law acted as the “abstract root of the obliteration of the nation’s political institutions” (Lyceum Address, pg. 5). In the Lyceum Address, Lincoln describes recent acts of violence against “gamblers, negroes (both enslaved and free), and white citizens.” (Lyceum Address, pg. 3). Although Lincoln believed many of those attacked to have been themselves “violators of law,” he acknowledged their deaths as the effects of mob law. But, of much greater consequence was to let these lawless acts go unpunished. If such was the case, “the lawless in spirit [would become] the lawless in practice…[and] become completely unrestrained,” (Lyceum Address, pg. 5) allowing for the “innocent” to fall victim to mob law. Lincoln saw the solution as obedience of the law under all circumstances. Even if a law was regarded as morally wrong, Lincoln believed in the inevitability of legal amendment, and argued that such unjustness should be tolerated for the time being.
In retrospect, Lincoln was more “human” than the dominate thought in the southern United Sates at the time as demonstrated by the progression of his writings and speeches over time. However, whether intentional or not, his inability to address the nation’s lack of racial equality and liberty as “elephant in the room” allowed for parallels to be drawn between him and the “hypocritical State mindset” criticized by Thoreau. Overall, Lincoln and Thoreau’s difference in views seems to be largely due to the fact that Lincoln, as a politician, associated morality as with “cold, calculating, impassioned reason” (Lyceum Address, pg. 11) In contrast, Thoreau was a transcendentalist who saw morality as originating from the heart, and driven by passion. In addition, Lincoln regarded the State as a protector, whereas Thoreau believed that the State ruled with nothing other than “superior physical strength” (Civil Disobedience, pg. 12) and acted as the antithesis to both intellectual and moral sense.
Lincoln and Thoreau’s differences also stemmed from their opposed definitions of “transgression of the law.” Thoreau saw transgression as akin to “peaceable revolution, if any such is possible.” (Civil Disobedience, pg. 10) Thoreau references the poll tax as context; a thousand men could refuse to pay and support an evil war, and “spill no blood” in the process. If the same thousand men paid their tax, they were in practice “[enabling] the state to commit violence and shed innocent blood.” (Civil Disobedience, pg. 10) However, Lincoln saw transgression as “[trampling] on the blood of [one’s] father and tearing the charter of [oneself] and children.” (Lyceum Address, pg. 6)
While men such as Lincoln justified Thoreau’s concern over the futileness of obedience and passive amendment of law, others such as Chief Justice Roger B. Taney embodied Thoreau’s apprehension for the doctoring of the peoples’ will. In 1857, Dred Scott, an enslaved African American, traveled with his slave master from Missouri into “free territory” and back. Scott, viewing this trip into as representative of his emancipation, sued in state court. The case worked its way through the justice system and was, eventually, heard by the United States Supreme Court, which ruled against Scott by a 7-2 majority. In his majority opinion, Chief Justice Taney first addressed the issue of Scott’s status. According to the Court, State law dictated such that because Scott had originally resided in Missouri, he was to remain enslaved. Taney then referenced two Constitutional provisions and argued that slaves were classified as property; therefore because “the negro race [was] a separate class of person,” their rights were not protected as citizens of the U.S. As a result, “the circuit court had no jurisdiction of the case” as Scott was not a citizen entitled to bring suit in the United States courts (Scott v. Sandford, pg. 3) Additionally, in what is now considered dicta, Taney ruled the Missouri Compromise unconstitutional; because enslaved Blacks were considered private property, it was unlawful to “encroach upon” such. (Scott v. Sandford, pg. 4)
In examining the American history of the rule of law, it is important to understand the gravity of the Dred Scott decision. The Constitution placed the Supreme Court as “the highest court in the land;” and its justices were regarded as the ultimate arbiters of law. Therefore, the founders likely intended that political fashion be kept separate from interpretation of the intent of the Constitution. Through the lens of history it is thought that Chief Justice Taney went beyond addressing the legal issue at hand and demonstrated blatant disregard for the rule of law. It is also relevant to understand the extent to which Taney chose to interpret the law. For example, when analyzing the Declaration of Independence, Taney references the phrase, “We hold these truths to be self-evident, that all men are created equal…” (Scott v. Sandford, pg. 3) as indisputable proof that African Americans were not meant to be included as citizens. Taney believed that the founding fathers were distinguished intellectuals, and “unable to contradict” their moral principles; “embracing men who were not meant to be” (Scott v. Sandford, pg. 3) would have done such. In addition, Taney argued that it was of “public opinion that…beings of an inferior order…were not acknowledged as people, nor included in the general words used in [The] Declaration of Independence.” (Scott v. Sandford, pg. 2) While the majority of the American Southerners, as well as Northern Democrats, did view those of African descent as inferior to Caucasians, the subsequent backlash to the Court’s decision served as evidence that Taney’s personal beliefs did not truly represent the people’s will.
Ultimately, Chief Justice Taney’s opinion acted to subvert the rights of African Americans in the United States, and further polarize the nation. Over time, the consensus of American thought supported faithfulness to the rule of law, but movements of civil disobedience remained and, despite this particular interpretation of the Constitution, in 1868, the Fourteenth Amendment, in essence, overturned the Dred Scott decision by granting citizenship to all those born in the United States, regardless of color.
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