The relevance of a doctrine's being

[Ilya Somin]

I am not convinced that Sandy's scenario is the most likely one. Lincoln,
unlike Johnson, had a real commitment to building up and maintaining the
strength of the Republican Party. He, like most Republicans of the time,
knew that that required breaking the Democrats' hold on the South and the
border states, which could only be achieved through maintaining black
voting rights. Thus, he would very likely have taken steps to protect the
political rights of southern blacks, and this would inevitably have
involved taking steps to protect some of their other rights too. For the
same reason (strengthening the Republican Party), Lincoln would not have
been likely to let the ex-Confederate states back into the Union under
governments dominated by Democratic Confederates.

 Now of course the Republicans took some of these steps after Johnson left
office, but by that time 3 crucial years had been wasted and the old
elites of the South had had a chance to consolidate resistance. Perhaps
under Lincoln Reconstruction would not have taken the form of
constitutional amendment(s), but it would probably have been more
thoroughgoing than it actually was.

Lastly, I'm not sure that executing top Confederates would not have made a
difference. It would have been a powerful signal that no return to the old
regime would be tolerated. It would also have totally alienated
Confederate sympathizers from the Republican Party (even more than they
were already) and, in the language of game theory, tied the Party's hands
to a policy of crushing the old regime in the South. Consider, in this
regard, the impact of executing the top Nazi leaders convicted at
Nuremberg and think what might have happened if they instead were
permitted to take part in electoral politics in post-WWII Germany (perhaps
after a few years suspension, as happened with many Confederates who later
led "Redeemer" governments).

For similar reasons, I think it will be more than just emotionally
satisfying to execute Saddam and other top Baath officials, but now we're
really getting off the subject of con law, so I desist before Eugene gives
me a Reconstruction of my own:).

Ilya SOmin



On Mon, 22 Mar 2004, Levinson wrote:

> My argument is as follows:
>
> 1) It is thinkable (nothing more, because who knows what Lincoln would actually have done) that Lincoln, as part of his "malice toward none, charity toward all policy" would have welcomed the defeated Southern entities (some would say states, but, obviously, that raises some real questions about the legitimacy of military reconstruction) back on Johnsonian terms, i.e., renounced secession and ratify the 13th Amendment.  Perhaps he would have put his prestige on the line to say that the Black Codes had to go (or at least be significantly modified).  We don't know (obviously) whether he would have supported the Radicals in barring the door to the elected representatives and senators in December 1865.  We can be absolutely confident that he would not have vetoed the Civil Rights Bill of 1866.  That Bill being passed (and signed with an accompanying statement by Lincoln about how it captures the meaning of the War), would there have been a congressional majority for proposing !
 the 14th Amendment and then, more importantly, engaging in military occupation and a rewriting of the electoral rules in order to force ratification?  If Lincoln refuses to join the Radicals, then he has enormous legitimacy in preventing their (temporary) dominance.  Thus, my argument goes, the real possibility that there is no 14th or 15th amendment.
>
> Several people have mentioned his willingness to dump Hamlin because of political exigencies (i.e., the political attractiveness of a War Democrat like Johnson). Why wouldn't the same sense of pragmatism lead him to continue collaborating with "moderates" in both parties?
>
> It's a little bit like the argument about whether JFK would have pulled out of Vietnam.  I personally doubt it, but almost all of his devotees are convinced that he would have forestalled the debacle of Vietnam.  But perhaps if he had lived, it would have been worse, because a lot of academics (among others) would have accepted the war from the urbane Kennedy in a way that they didn't from LBJ.
>
> Incidentally, re a posting from Lynne Henderson, my view is that Reconstruction was in a failure, save for some brief shining moments described very well in Eric Foner's classic book on the subject.  But the US clearly did not have the stomach for genuine "regime change" or "the building of a genuinely bi-racial nation" in the South.  I'm sure that Mark Graber is right that executing 50-100 leaders (beginning with Robert E. Lee and including Jefferson Davis) would not in fact have helped very much, just as will be the case with executing Saddam Hussein (however much emotional satisfaction that will give many people).
>
> sandy
>
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