April 25, 2006
Fantasy History Posted by Joshua Zeitz at 12:40 PM EST Fred Schwarz offers a good cautionary note against the tendency to “get right with Lincoln”—that is, to imagine how certain historical actors might have responded to contemporary events. His post is a response to my comparison, several days ago, of the relative ease with which Mathew Brady photographed scenes of Civil War battles and the extreme constraints the Bush administration has slapped on coverage of the Iraq war (particularly its decision to bar news cameras from recording scenes of coffins being unloaded at Dover Air Force Base, in Delaware). I think Fred’s point was a sound one, though really, my what-would-Lincoln-do closer was more of a rhetorical shot than a serious question. It’s worth remembering another reason why the question is probably a lame one. The Constitution that regulated Lincoln’s actions in the 1860s was quite different from the constitution that George Bush—with his warrantless wiretaps and denial of due process to American citizens and foreign nationals—is flouting today. The reason for this difference is the Fourteenth Amendment, which Congress passed, and the states ratified, several years after Lincoln’s death. For the better part of the late nineteenth and early twentieth centuries, the federal courts narrowly construed the Fourteenth Amendment, ruling consistently that it was never intended, and could not be invoked, to apply the Bill of Rights to the states. This meant that state and local governments were essentially free—if they chose—to abridge speech and public assembly, censor the press, recognize established churches, deny criminal suspects jury trials, try acquitted suspects multiple times for the same crimes, and search and seize personal property without warrants. Though a Supreme Court majority consistently resisted calls to “absorb” the entirety of the Bill of Rights via the Fourteenth Amendment, in a string of landmark decisions between the 1925 and the late 1950s the Court reversed ground and gradually incorporated most of the first eight amendments. In so doing, it federalized a range of protections that individual citizens enjoyed under the Constitution: the right to free speech, assembly, and religious expression; the right to fair and speedy jury trials; and protection against unwarranted searches and seizures of property. At the same time that it was incorporating elements of the Bill of Rights, the Supreme Court was expanding its interpretation of citizens’ federal civil rights. All of which meant that by the late twentieth century, the laws binding governors and Presidents, and protecting individuals, were far more strict than anything Lincoln might have faced in the early 1860s. To be sure, Lincoln stretched the limits of the law, and even broke them outright, in his day. But those laws are quite different from anything he might have contended with in later years. So Fred Schwarz makes a good point. Playing fantasy history is about as speculative and irrelevant as playing fantasy baseball. But that’s another can of worms entirely.
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