Honest Abe’s legal might


Toting an armload of books and papers to a Law School podium Wednesday night, Duke University law professor Walter E. Dellinger III reminded Chicago students and faculty that just two years before winning the presidency, Abraham Lincoln considered himself a failure. On June 16, 1858—the day he delivered his famous House Divided speech against the Supreme Court’s Dred Scott decision—“Lincoln would have awakened a very disappointed man,” Dellinger said. His marriage was sputtering, his wife was slipping into mental illness, and his son was slowly dying. Depression overwhelmed him. Little known outside Illinois, he was beset by creditors and a failing business. His state-legislature career had proved unremarkable, and at 49 years old he felt his youthful ambitions ebbing.

“But that night,” Dellinger said, “what Lincoln did changed the history of the nation.” His speech “destroyed the middle ground on slavery” and catapulted Lincoln onto the national stage. It also, Dellinger insisted, offered a glimpse into the 16th president’s legal acuity. During his hour-long talk, sponsored by the American Academy of Arts and Sciences, Dellinger parsed Lincoln’s debates with Stephen Douglas, his House Divided speech, the Gettysburg Address, and his second inaugural address, declaring him “America’s greatest lawyer.” He attributed Lincoln’s greatness to “deep humility, astounding candor, and an extraordinary ability to conceptualize or reconceptualize questions.” Lincoln, he said, “could look at a group of stars everyone had always seen as the Big Dipper and say it was Aristotle contemplating the bust of Homer. And he could convince others to see something other than what they saw before.” With the Gettysburg Address, Dellinger said, Lincoln recast the very founding of the nation, tracing America’s conception not to the Constitution but to the more stirring Declaration of Independence.

Sometimes, Dellinger said, Lincoln’s strengths introduced themselves as weaknesses. In the courtroom—and later in speeches—he would concede point after point. Just when he seemed on the verge of giving his whole case away, he would raise a single issue of disagreement, Dellinger said, “and that would be the point on which the whole case would turn.”

During the post-lecture Q & A, Chicago law professor Geoffry Stone asked what Lincoln, an “aggressive proponent of commander-in-chief powers,” might think of George W. Bush’s warrentless wiretapping. “There’s war and then there’s war,” Dellinger replied. “If Al Qaeda were occupying Baltimore or Richmond, it would be a different situation.” Constitutionally, the wiretapping is problematic. “I happen to think we should be getting this information. … But we’re passing through a troublesome period when there appears to be a violation of a statute intended to apply to the president and no necessity to do it.”


Photo: Dellinger speaks in the Law School's Weymouth Kirkland Courtoom.

February 17, 2006