MSNBC.com Takes Lincoln Out of Context to Present Him As 'Living Constitution' Advocate, Rebuke Justice Scalia

It's a perilous proposition to insist that a long-dead historical figure would share your politics. It's doubly so when your documentary evidence is thin and you are twisting the proper meaning of the words in that supposed evidence. Take the case of MSNBC.com's Nick Ramsey, who insists that Abraham Lincoln would strongly disagreed with Justice Antonin Scalia that the U.S. Constitution is a dead document rather than a living constitution that can evolve outside the constitutionally-provided mechanism for such evolution: the amendment processes described in Article VII.

"This is an issue that constitutional experts have debated for years and years, but at least one president is firmly on the record on the issue. And this President is one often cited by conservatives, but he is not in agreement with Justice Scalia," Ramsey insisted, going on to quote Abraham Lincoln out of context and seemingly with a misunderstanding of a key word in the passage he cited. Here's how Ramsey dealt with that (emphases his):


In his first inaugural address, Abraham Lincoln referred to the Constitution as “organic law.” Twice. Here are the two passages, emphasis added:

I hold that in contemplation of universal law and of the Constitution the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination. Continue to execute all the express provisions of our National Constitution, and the Union will endure forever, it being impossible to destroy it except by some action not provided for in the instrument itself.

no organic law can ever be framed with a provision specifically applicable to every question which may occur in practical administration. No foresight can anticipate nor any document of reasonable length contain express provisions for all possible questions. Shall fugitives from labor be surrendered by national or by State authority? The Constitution does not expressly say. May Congress prohibit slavery in the Territories? The Constitution does not expressly say. Must Congress protect slavery in the Territories? The Constitution does not expressly say.

Of course, we did go on to decide as a nation that a ban on slavery would be included in the Constitution with the ratification of the Thirteenth Amendment. As for whether the document we used to do it, our Constitution, is one that is “dead, dead, dead” or “organic”, that is a question likely to be debated for years and years to come.

There are a few problems with Ramsey's argument. The first is that Ramsey is confusing the "organic" in "organic law" to be the same thing as the term "organic" in the biological sense -- "of, relating to, or derived from living organisms." But according to West's Encyclopedia of American Law, organic law is simply:

The fundamental law or constitution of a particular state or nation, either written or unwritten, that defines and establishes the manner in which its government will be organized.

In other words, the organic law of the United States is the United States Constitution, that written constitution which "defines and establishes" the boundaries and powers of the government. Lincoln's argument in his first inaugural -- addressing the secession crisis -- was that no government organizes itself with a view to its own dismemberment and temporality. Lincoln was defending his intention to continue to execute federal law in the states which had declared themselves seceded from the Union.

Lincoln also argued that "no organic law can ever be framed" in such a way as to address "every question which may occur in practical administration," it being manifestly impossible to "contain express provisions for all possible questions." Of course, that proposition is beyond dispute by any jurist, no matter what their philosophy of constitutional interpretation, but it hardly means Lincoln believed in a "living Constitution" which must evolve in fundamental meaning over time apart from the amendment process.

Indeed, from later on in the very same inaugural address, Lincoln himself sounded quite dedicated to the proposition that the Constitution is "dead," changing in its nature only through the amendment process (emphases mine):

This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing Government, they can exercise their constitutional right of amending it or their revolutionary right to dismember or overthrow it. I can not be ignorant of the fact that many worthy and patriotic citizens are desirous of having the National Constitution amended. While I make no recommendation of amendments, I fully recognize the rightful authority of the people over the whole subject, to be exercised in either of the modes prescribed in the instrument itself; and I should, under existing circumstances, favor rather than oppose a fair opportunity being afforded the people to act upon it. I will venture to add that to me the convention mode seems preferable, in that it allows amendments to originate with the people themselves, instead of only permitting them to take or reject propositions originated by others, not especially chosen for the purpose, and which might not be precisely such as they would wish to either accept or refuse. I understand a proposed amendment to the Constitution--which amendment, however, I have not seen--has passed Congress, to the effect that the Federal Government shall never interfere with the domestic institutions of the States, including that of persons held to service. To avoid misconstruction of what I have said, I depart from my purpose not to speak of particular amendments so far as to say that, holding such a provision to now be implied constitutional law, I have no objection to its being made express and irrevocable.

The Chief Magistrate derives all his authority from the people, and they have referred none upon him to fix terms for the separation of the States. The people themselves can do this if also they choose, but the Executive as such has nothing to do with it. His duty is to administer the present Government as it came to his hands and to transmit it unimpaired by him to his successor.

What's more, were Lincoln a living Constitution advocate, would he not have simply tried to outlaw slavery through an act of Congress -- which would have required a mere simple majority -- rather than lobbying for the requisite 2/3rds supermajority required to send the 13th Amendment to the states for ratification?

Logically and historically, Ramsey's claim makes no sense.

Ken Shepherd
Ken Shepherd
Ken Shepherd is the Managing Editor for NewsBusters