Lincoln, Douglas, and the Law
Pat Smith comments at Ius & Iustitium on my prior post on originalism and positive law, comparing it to Stephen Douglas’s studied neutrality on the expansion of slavery. Smith analogizes leaving the question of abortion to the states (if that’s what the original Fourteenth Amendment did) to leaving the question of slavery to popular elections in the Kansas and Nebraska Territories, which Douglas famously supported and Abraham Lincoln famously opposed. To Lincoln, no one could outsource his views to state elections; it was untenable for Douglas to “say that any body has a right to do wrong.” Smith argues that abortion, like slavery, is an “intrinsic evil,” and “[a]law authorizing or commanding such an evil would be no law at all.”
Two quick points.
1. The selection of Lincoln as exemplar here is very strange. Lincoln was implacably opposed to slavery, but he also scored very high on the Human Law Respecter scale. I’m not talking here about early positions like his Lyceum Address, which called on his countrymen “never to violate in the least particular, the laws of the country,” and argued that “bad laws, if they exist, should be repealed as soon as possible, still while they continue in force, for the sake of example, they should be religiously observed.” I’m talking about his mature position—such as his response to the Dred Scott decision, which recognized that
Article from Latest – Reason.com