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Historian Charles Sellers characterized the lawyers of Jacksonian America as the “shock troops of capitalism.” Given the tone and perspective of the UC- Berkeley professor’s discourse in his work The Market Revolution,¹ this characterization might not have been meant as a compliment. Nevertheless, there is a great deal of truth to the proposition that the law, insofar as it enforces the obligations of contracts between private persons (in contrast, say, to Tony Soprano’s or Vito Corleone’s methods) is essential to a capitalist free market economy. It is central to the thesis of Adam Smith, and is ensconced in Constitution’s prohibition of States impairing the obligations of contract.² One of the lawyers who practiced during the period Sellers chronicles was also a politician whose legal career ended when he rose to become our arguably greatest President: Abraham Lincoln.

Twenty-seven of our forty-three Presidents have been lawyers, or at least have had a law degree or some formal legal training.³ This should not be surprising. After all, government is a giver of, and in our system, a creature of law, and law is what lawyers do. But as recent publications of Lincoln the Lawyer (University of Illinois Press, Urbana 2007) by Brian Dirck,⁴ and An Honest Calling: The Law Practice of Abraham Lincoln (Northern Illinois University Press, DeKalb, 2006) by Mark E. Steiner⁵ both demonstrate, none of the lawyer Presidents actually practiced law as diversely and continuously for as long as Abraham Lincoln. Until now, however, the details of Lincoln’s law practice have languished in the dusty archives of courthouses and county offices, accessible only by great effort.

Dirck’s and Steiner’s works are based largely upon a massive compilation of public records from courthouses throughout Illinois during the quarter century Lincoln practiced law. The Lincoln Law Papers Project resulted in a searchable database on published in 2000 on DVD-ROM media entitled The Law Practice of Abraham Lincoln,⁶ which, for the first time, made these records easily accessible to researchers as well as to the general public. Integrating these courthouse records with other long available primary and secondary sources, Dirck paints a picture of Lincoln as a practicing lawyer. This author proposes and defends his thesis of how Lincoln’s practice shaped his ideas and honed the skills that made him so effective as the Nation’s leader during its gravest crisis. Dirck’s organizes his work into chapters about Lincoln coming to the bar, the ante-bellum legal climate in Illinois, and the types of cases and clients he handled. He leads up to his contention of what the main contribution that the practice of a “pretty ordinary attorney” brought to Lincoln’s Presidency. Dirck opines that Lincoln’s dealing with the people in his practice – clients, judges, other lawyers, adversaries, – understanding what motivates them in order to facilitate the orderly, if imperfect, resolution of disputes, and the use of rhetoric in its classical sense to effectively advocate a position, made Lincoln the effective President he was.

Steiner’s approach is similar, although with a somewhat different style. While using the same sources as Dirck, he organizes the book into theme chapters and writes identified conclusions at the end of each. This style makes his points clear, if somewhat pedantic. His final concluding chapter contains as summing up of Lincoln’s quarter century law practice and how it changed over time, mirroring the growth of the American Midwest. Steiner’s conclusion about Lincoln’s legal career’s effect on his Presidency emphasizes how the technical aspects of lawyering affected Lincoln’s approach to dealing with Congress, his cabinet and staff, and his generals, rather than the interpersonal skills acquired from that practice.

Stories of Lincoln as a lawyer became the stuff of legend, as did the rest of his life, after his assassination. Those who barely knew him suddenly came forth with their Lincoln stories, a good number of which were apocryphal, or at least embellished. Nearly every American who has stayed awake in history class has heard of the Armstrong murder case where the prairie lawyer discredited a witness who observed a crime by moonlight by producing an almanac that showed the moon was too low at the time to produce enough light for anyone to see clearly. This criminal case was a rare exception to the kind of the cases Lincoln usually handled. Civil law, not criminal defense, was the staple of his practice, and did not often involve much drama or provide an opportunity for legal innovation. The truth is that Lincoln’s practice was rather ordinary, and even humdrum.

If Abraham Lincoln had a legal specialty, it was debt collection, and, to some degree, debt defense. As Dirck explains, Lincoln practice grew in a fledgling market economy which emerged on the heels of the first industrial revolution. The nation’s monetary and banking systems were immature and inadequate to meet the needs of such expanding trade and commerce. The government did not issue paper money as it does today, and in the absence of sufficient specie – gold and silver – promissory notes functioned as currency to furnish an adequate medium of exchange for a burgeoning commercial nation. For merchants and manufacturers in the frontier Midwest to function, notes had to be acceptable as payment for goods and services. In order for the market to accept these notes, they had to be enforceable – not mere pieces of paper. That is where the lawyers and the courts came in. The Lincoln Law Papers reveal that Lincoln had represented creditors in no fewer than 1300 cases during his career. Promissory note cases, then as now, rarely went to trial. Most of the time the case results in judgment by default, and judicial enforcement takes the next step of foreclosure and seizure the debtor’s property. Other times, the cases settle for a compromised sum, which amounts to a discount on the note. Trials occur only when disputes as to the legitimacy of the debt arise, and with written notes, that is not often. Lincoln was not exclusively a creditor’s lawyer. He represented debtors in 713 cases, but, as Dirck points out, creditors and debtors are often both at the same time, as anyone who has ever been in business can attest.

Business, or more to the point, the entrepreneur, was really the source and focus of Lincoln’s practice. The “energy men” as Dirck call them, who personal investment, risk, and occasional reward provided a constant source of legal work to minimize the risks, and damage control when things were pushed too far or otherwise went awry.⁷ Entrepreneurs provided Lincoln with legal work in forming and dissolving partnerships and other business arrangements, seeking charters from the state where necessary, and even some patent work. Most of his legal work was for small businesses; and Lincoln believed he shared most of the entrepreneurial values of the businessmen. This was also the time when railroads were coming into their own. The 1840s and 1850s saw the growth of these foremost engines of an expanding economy. Steam powered travel was the first quantum leap in reducing transportation and communication time. Where it once took four days to transport a load of goods to a market, a train pulled by a locomotive could make the same journey in four hours. No other endeavor during that time had the “same mixture of cutting edge technology, investment potential, and sheer economic power” as the railroads. Lincoln was enthusiastic about the railroads, believing that they would bring to Illinois all of the advantages of commerce. His enthusiasm continued into the Presidency and was a significant factor in launching the construction of the transcontinental railroad. Indeed, rail transport and communications was a decisive factors in the Union winning the Civil War. In the 1840s and ‘50s, the railroads provided a good deal of legal work to Lincoln and his partner. In two significant cases, he was able to establish in the railroads’ favor, long term precedents relating to tort liability. The Illinois Central Railroad was the largest client he ever had, and he litigated over fifty cases on its behalf, although he once sued the Illinois Central for a fee.

Probate and estate litigation provided an exceptional variety of cases for Lincoln, as it surely did for many other lawyers during his time. He took on over one hundred divorce cases during his career, representing both husbands and wives. Slander cases where women were accused of sexual impropriety, a species of defamation which seems peculiar today, and rarely makes it to the courthouse, was common in antebellum America. Lincoln did his share of that kind of work, both for plaintiffs and defendants.

The short of it is that Abraham Lincoln was a typical general practice lawyer for his entire career. Dirck maintains that the very nature of Lincoln’s practice prepared him well for the tribulations of the Presidency he assumed at the time of the Nation’s gravest crisis. The very ordinariness of a quarter century law practice dealing with everyday human relationships showed him the value of what Dirck calls “grease.” The metaphor is that of lubricating the personal and commercial dealings between people to reduce friction to an acceptable level. Friction is the enemy of harmonious social and economic relations that lawyers serve to lubricate. The debtor-creditor cases where Lincoln recovered at least part of what a note-holder was owed by a recalcitrant borrower, or managed to forestall collection long enough for a hapless debtor to gather some resources to pay a lesser, but acceptable, amount than was due greased the wheels of the frontier Illinois economy. He doubtless made the dissolution of partnerships, whether business or domestic, less rancorous that they otherwise might have been, and, where he could not, facilitated an asset division that at least approximated fairness. Most of all, as a lawyer he was there for the client. The value of having and advocate who is positively, unequivocally, on your side at a time of difficulty, whether being accused of capital murder, or trying to collect a debt, cannot be over emphasized.

The most salient contrast between Dirck and Steiner is their treatment of an event in Lincoln’s law practice that seems anomalous in his genera; reputation. The Matson case wherein he represented a slave owner from Kentucky who was sued by one of his slaves for her freedom under Illinois law troubles Lincoln’s most ardent admirers. Dirck devotes only two pages to this episode. He makes the point in not belaboring the case is that it was not representative of Lincoln’s practice and it is futile to read moral choices about slavery into his choice of litigation. Lincoln was a consistent advocate against slavery throughout his entire public career, though never an abolitionist. Steiner, on the other hand, spends an entire 34 page chapter – the longest in his book – on the topic. This author’s point, which really does not need the space he uses on it, is that the prevailing ethic of professional responsibility which refused to hold a lawyer accountable for his choice of clients, was a corrupting influence that required Lincoln to suspend moral judgment. Part of this was the English barrister tradition that a lawyer must take on any client who seeks his legal services and who is able and willing to pay, regardless of the lawyer’s personal moral sensibilities. Steiner, though, mainly regards the Whig political philosophy, which emphasizes orderly law, and leaves the making of ultimate judgments to judges and juries, at fault. True enough, Lincoln was a Whig all of his political life until the party self destructed over sectionalism and slavery and the new Republican Party received the remnants of the northern Whigs in the mid-1850s. The implication of Steiner’s view, though, is that Lincoln’s Whiggish emphasis on adherence to law and objective legal standards, rather than the subjective crusader mentality often ascribed to lawyers, followed Lincoln into the Presidency and, ultimately, gave the judgments he made in that position, some of which were clearly moral ones, a legitimacy they might not have otherwise had.

Steiner and Dirck have both produced well researched works that open to view a new dimension of Abraham Lincoln: that of a general practice lawyer. Steiner does not draw the conclusions that Dirck does, but his work backs up the Dirck thesis. Both books are generally readable, but Dirck’s writing occasionally can be abstruse. Many sentences and passages require re-reading to understand. Steiner is a generally more competent wordsmith, but his work often reads like a legal brief, and, though clear and precise, is a little tedious. All in all, whether a lawyer, historian, or interested layperson, one will not waste their time reading either of these two books.

With the number of flaps that are going on in our country today, I am beginning to more fully understand the Chinese curse “May you live in interesting times.” I suppose it’s time for me to weigh in on the present controversy regarding Obamacare and the requirement that insurance policies provide first dollar coverage for contraceptive services, even if the medical insurance plan’s sponsoring employer is a religious organization that believes contraception is morally wrong. The primary religious institution here in the United States that believes contraception is wrong, of course, is the Roman Catholic Church. That has been a long-standing belief and teaching of the Church, and is entitled to respect, if not agreement, especially from the government. While I was raised in the Catholic Church, I personally disagree with the teaching. It does not appear to have any sound Scriptural or rational moral basis, other than a continued tradition over several centuries. And it has never been declared as an infallible dogma, which means it could change at some time, and presently leaves some room for individual conscience to make a judgment as to whether or not its use is appropriate, and, personally, moral.

Nevertheless, in our country, church and state are and should be separate. That separation works both ways. Recall that the Constitution provides that “Congress [i.e., the federal government] shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. In the last four or five decades, the establishment clause has received quite a bit of attention in the courts, the media, and among the general public. The free exercise clause somewhat less so. But they are both equally important. The government may not sponsor religion; that much is clear. But it must also not burden religion. By providing that institutions that are owned and operated by religious organizations for eleemosynary purposes such as feeding the hungry, caring for the sick, and so forth must pay for, directly or indirectly, provide contraceptive services as part of a medical insurance plan for their employees, when those services are contrary to morality as those institutions see it, is obviously burdening religion. It is, and remains, contrary to the letter and spirit of our Constitutional system of governance. (Yes, my gauche friends, that pesky Constitution again.) 

Of course, the root cause of this conflict is the flawed premise of Obamacare itself. That is, that everyone is mandated under that law to have medical “insurance” policies, and those must provide payment for medical services mandated by bureaucrats employed by a federal executive department. I put “insurance” in quotes because medical policies are not insurance, they are a method of paying for goods and services by third parties, usually as part of a compensation plan. Such a scheme is bound to bring about conflicts in a society such as ours which extols diversity of thought, opinion, and notions of personal freedom. It is established law that our government cannot do something unpleasant to a woman who seeks contraceptives, or even an abortion, because it is her judgment that is appropriate in her circumstances. It should also follow that one who believes it is immoral for her to do so should not have pay for it, directly or indirectly.

For more on this issue see: “The Real Trouble with the Birth-Control Mandate” by University of Chicago Professor John H. Cochrane   http://www.cato.org/pub_display.php?pub_id=14093 

Tomorrow, February 2, 2012, Great Britain’s Queen Elizabeth II will have been on her throne sixty years. In May 2011, she passed King George III to become the second longest reigning monarch in Britain, and is exceeded in longevity only by Victoria, who wore the crown for 63 years and 7 months. Given the 85 year old Queen’s current state of health and family history (her mother lived to age 101), it is likely Elizabeth will attain the longest reign in September 2015.

The celebration of the Diamond Jubilee, as it is called, will occur on June 5 in the United Kingdom and in the sixteen or so other Commonwealth countries of which Elizabeth is nominally queen. It is certain to be quite a pageant. There may be over a million tourists attending, with a commensurate boost to the economy.

Which is one of the principal reasons the British Monarchy endures. Unlike the many nations that have discarded a hereditary monarchy, with all of the attendant pomp and splendor, the British have kept theirs, although one with extremely limited powers in governance. A lot of present day Europe looks to me like a proto-Huxleyan brave new world, but much of it remains a Disneyland for adults, particularly foreigners, and like that Magic Kingdom, the existence of the Monarchy is a cash cow. It doesn’t cost Britain money; it makes it.

There are at least two other reasons the British Royals endure. One is the position of the monarch as a constitutional, non-political, but prestigious moderator of government and potential arbitrator of last resort. Constitutionally, the Queen is the head of state. In many democratic republics throughout the world – Germany for example – there is an elected president who is nominally the head of state, but has neither the power nor the trappings of one. In Britain, the monarch has no real political power, though the bully pulpit is there if the occasion ever arises. She gives her pro forma consent to legislation, is kept informed as to state matters, and is consulted by and occasionally gives warning to her government, in the person of the prime minister. The monarch stays out of politics. The obvious exception would be in the event of a hung Parliament; that is, the inability of a majority in the House of Commons to coalesce behind a prime minister and form a government. The Queen could have a decisive role in that event, with a number of options available to her, such as choosing a minority prime minister or calling another election. Because she has little personal stake in the outcome in that event, her sense of the country’s mood would tend not to be suspect.

Another reason the Monarchy endures is that Britain’s one flirtation with non-monarchical government turned out to be a disaster. The nominal Parliamentary democracy under the leadership of Puritan Oliver Cromwell and his son in the mid-17th Century was really a military dictatorship akin to that of the Iranian Ayatollahs and other such regimes. That government’s inception was the execution of King Charles I under trumped up charges, and its demise came once Richard Cromwell’s ineptitude became apparent.

Today, some believe the British Royal Family is of German origin. That is not entirely, or even mostly correct. While there are ancestors who ruled in Germany, the present branch of the family tree sojourned there in the 17^th Century, and Victoria was married to a German prince, there is an unbroken line of descent from William the Conqueror to the present. The current Prince William is the 25^th great-grandchild of the Conqueror of 1066. Fittingly, he may well be 5^th King of that name in time for the millennium of the Norman Conquest.

Not every ancestor in the direct line, however, sat on the throne. Some collateral successors to the throne died without issue, ending their line; some were deposed. In possibly an ironic twist, the three intervening Williams are all collateral ancestors. The family lineage took a detour through Scotland in the 16^th Century, and then merged to become a dual monarchy of both England and Scotland that later consolidated as the United Kingdom (some Scots today are in favor of secession, but that’s a subject for another essay). The daughter of James I (James VI of Scotland), Elizabeth Stuart, married into a German princely family which remained Protestant. Her grandson George I thus was the nearest relative eligible to assume the British throne in 1714 under the terms of the Act of Settlement, which forbade Roman Catholics to wear the crown. The family tree gets rather complicated with several branches which diverge and then re-merge during the 15^th Century amid internecine conflict, but it is directly traceable. The various dynastic name changes are a reflection that the male ancestor’s name, even when merely the consort, took precedence.

Why does all of this matter to us Americans? Our founders renounced the concept of a hereditary, or any other kind of monarchical government, and fought a bloody war of independence against a descendant of the “principal ruffian of a restless gang.”

My short answer is that it is a frame of reference for how we got here, is an interesting story, and great entertainment. And there is our fantasy land, in which we long for a President who will be a Platonic philosopher-king or at least a Good King Wenceslaus. We love the trappings that come with power even though suspicious of its concentration, particularly in one individual with lifetime tenure.

The heritage of Britain is the most important reason, though. Although we Americans have biological ancestors from every corner of the Earth who brought their own contributions, the principal source of our nation’s culture is, and always will be, Great Britain, and in that sense, we are all the fruit of Albion’s seed. The British monarchy is a symbol of stability. It is an institution that despite all the travails from the Anarchy of the 12^th Century, through the Wars of the Roses in the 15^th, the Civil War of the 17^th, to their Finest Hour in the 20^th and beyond, they endured. Perhaps we can too.

Last year, I attended a public discussion of the oh so Frank Luntz-ish named Patient Protection and Affordable Healthcare Act, more commonly known as Obamacare, sponsored by the National Center for Policy Analysis. Dr. Ron Anderson, then CEO of Dallas’ Parkland Hospital said that the scariest words in the Act were the numerous clauses that began with “the Secretary [of Health and Human Services] shall… .” What this means is the 2000+ page monstrosity of a statute is not the final word. It amounts to an enabling act giving the Washington bureaucracy wide discretion to enact a host of regulations and requirements as to how medical services are delivered and financed in this country. Well, some sowers might be reaping the unexpected – the Secretary has… .

Many of the Roman Catholic Church’s leaders in the United States supported the concept of Obamcare, and probably a majority of Catholics voted for him in 2008, taking to heart his message that he intended to see a national medical care scheme enacted, as well as the many other beneficent measures he espoused. Two of the public issues the Church has been vocal on are the use of medical contraceptive devices and pharmaceuticals and abortion. The Church believes that human life begins at conception and it regards abortion as equivalent to homicide. It also believes and teaches – somewhat incongruously, as its use would and does prevent the perceived necessity of many abortions – that “artificial” contraception is wrong. Now Secretary Kathleen Sebelius, herself a Catholic, has mandated that Catholic institutions must provide contraceptive services, including some pharmaceuticals that act as very early term abortifacients, in medical insurance policies they provide to their employees. There appears to be narrow exemption for the clergy (which theoretically would not have any use for such services anyway). This leaves open Catholic schools, universities, hospitals, and all kinds of eleemosynary institutions that must either to provide medical insurance for their employees that includes paying for activities the Church deems immoral, or decline to do so and pay a monetary penalty. The monetary penalty may be the least of the burdens as many of those whose skills are sought will find employment elsewhere with organizations that would provide medical benefits.

Whatever one believes concerning the Church’s stance on contraception, it is a long standing religious tenet that deserves to be, and is protected by the Constitution. Over the past four or five decades, the Establishment Clause of the First Amendment has received a lot of attention in the courts and the press. There is a concern, bordering on paranoid in some circles, that any activity, no matter how attenuated the connection, that can be construed as government sponsorship of religion, must be squelched forthwith. Given the past history of the Inquisitions, and the present day Taliban and other Islamist regimes, that concern has a point. There is another part of the First Amendment, though, known as the Free Exercise Clause. This has received a lesser amount of attention, but it is just as important as the Establishment Clause. The government must not burden religious belief and conduct in accordance with that belief unless it serves a compelling state interest. The bar is and should be drawn very high. Certainly the Constitution will not protect conduct such as the handling of poisonous snakes in the presence of children, forced female genital mutilation, honor killings, and the like, no matter what a particular creed holds. But to force a religious sponsored institution to finance what that religion considers immoral conduct must be Constitutionally prohibited. There is no clash of rights here. Even assuming that the availability of medical services regardless of ability to pay is a right, which I do not so believe, a potential beneficiary of a medical insurance policy is not forced to work at a Catholic college, hospital, or other institution.

There are a number of downstream possibilities. I see no way the regulations can withstand judicial scrutiny, and there is a chance that the Obamacare fiasco will be consigned to the landfill of history, either by the courts or a subsequent Congress and President. Even if it survives, these regulations will not. Secondly, personal appeals by a number of bishops and other Catholic leaders to the President have apparently been rebuffed. As a result, perhaps the Church leaders and their flocks will exhibit less enthusiasm for Obama in 2012 than they did in 2008. That may be fitting. A lot of Catholics believed he was the Messiah; for many of them, on this issue anyway, he looks more like the Antichrist.

Actor Anthony Mackie (The Hurt Locker; The Adjustment Bureau), during a visit to our fair city last week, was asked about how a part in William Shakespeare’s King Lear in his high school influenced his decision to become an actor. “I was so blown away by how this white dude who lived 500 years ago could write so many stories that pertain to me as a black dude living in America today.” he said. (Dallas Morning News, 1/26/2012, p. C1)

 

 

Mr. Mackie may have been blown away, but I’m not; his perception was not surprising at all. I have been a fan of the Bard since high school days and have read and/or seen performances of a good number of his plays – at least most of the well known ones. Shakespeare tells stories that give profound insight into the human condition, and tells them in memorable style, grand without being grandiose. His statement also confirms that, whatever Mr. Mackie’s complexion, he is a descendant of the culture of the English Renaissance and the inception of the tongue that conquered the world. And it’s another confirmation of the late Samuel P. Huntington’s thesis that language and religion have more to do with people’s affinity for each other than race or ethnicity.

Although news reports today indicate that many Representatives and Senators who previously supported SOPA and PIPA have withdrawn their support and, in some cases, now actively oppose the bills, Senate Majority Leader Harry Reid is not among them.  Despite a request by six senators from both sides of the aisle, Reid says he will not postpone taking up PIPA.  Can’t fault Harry for consistency. He helped railroad the PPACA through Congress in the face of massive public opposition.

There is no word at this writing whether SOPA will be considered in the House without delay. 

For more on these ostensibly anti-Internet piracy bills see the Brookings Institution what paper on the subject at this link.

Cybersecurity has dominated headlines and the attention of American policymakers. The challenge is not in recognizing the problem, but in understanding how to balance cybersecurity efforts with other policy priorities and scarce resources. Two new bills designed to combat foreign websites that infringe on American intellectual property present one of the first such decisions to Congress: how can we balance the defense of cyberspace and defense against online piracy when the two conflict?

The Senate bill S.968, or the PROTECT IP Act, and the House bill H.R. 3261, the Stop Online Piracy Act, have raised a great deal of controversy. This paper does not deal with the questions of economic value, free expression or other issues raised by advocates on both sides. Instead, I highlight the very real threats to cybersecurity in a small section of both bills in their attempts to execute policy through the Internet architecture. While these bills will not “break the Internet,” they further burden cyberspace with three new risks. First, the added complexity makes the goals of stability and security more difficult. Second, the expected reaction of Internet users will lead to demonstrably less secure behavior, exposing many American Internet users, their computers and even their employers to known risks. Finally, and most importantly, these bills will set back other efforts to secure cyberspace, both domestically and internationally. As such, policymakers are encouraged to analyze the net benefits of these bills in light of the increased cybersecurity risks.