Thursday, March 02, 2006

Necessity and the Constitution

Good morning!

And it's another day that has thus far and will continue to be spent catching up on things due today, rather in lab being mildly useful. Of course, with such a paucity of actual experience, "useful" is a relative term. For example, I realized this morning that I completely screwed up an entire injection batch by calibrating the dosage wrong. When I go in to clean up and evaluate the embryos today, they will all be dead, just you wait and see. Note to self--if when you're injecting and you think "gee, that seems like an awful lot of solution being injected," for goodness' sake, STOP, woman, STOP!! Stop and think very carefully for a minute. Ah well, asi es la vida.

So, I thought I'd try something different today: just to prove that as much as I like pretty shoes and being silly, I do sometimes have a quasi-substantive thought. Occasionally. I just don't always write them down. Ergo, below are some of them. It is, in fact, this week's 2-page paper for my Lincoln seminar. It's not great, but I thought it maybe wasn't completely horrible. Although I could be wrong, you never know.

Yes, there are a number of incomplete and underdeveloped positions in it. One, it's a rough product; Two, we're only allowed two pages, dagnabbit--you're not exactly looking at the next Sowell, you know. And yes, I am completely incapable of writing decent conclusions. Always have been, probably always will be. Deal :)

Does the Constitution Allow Interpreters to Entertain the Idea of Necessity?
Lincoln’s Argument in the Letter to Erastus Corning and Others, the Letter to James Conkling, and the Letter to Albert Hodges

While the argument Lincoln advances in the Corning letter is an argument about the constitution, once it passes from the realm of suspension of the writ of habeas corpus it is ultimately an argument from necessity. Despite Lincoln’s remarkable ability to express himself and his constitutional positions as President both clearly and persuasively, his argument in the letter to
Erastus Corning and others simply is not constitutionally sound. He is unfortunately quite wrong—not necessarily inherently so by including necessity in his argument, but in the substance of his argument as compared to the very text of the constitution.

His error is in claiming that the language of the writ suspension clause can be extrapolated to cover any action regarding any wartime situation in which “disloyalty to the Union” is suspected. That argument from necessity is constitutionally unsound and incorrect. While I might agree or be persuaded to agree that powers may be a little broader in wartime, his argument oversteps
constitutional limits outright in employing the writ suspension language to defend other actions not obviously connected to writ suspension itself, such as the heavy-handed treatment of or silencing of newspapers. Rather than so blatantly stretching that clause, he must seek support from elsewhere in the document, if it can be found. However, in the Conklin and Hodges letters, his argument from necessity for the Emancipation Proclamation is much more constitutionally sound.

Therefore, we see that an argument from necessity can be a constitutional argument. Put perhaps more completely, such an argument is not necessarily anti-constitutional in and of itself, nor is it one the mere consideration of which automatically risks grievous injury to the constitution. There is nothing in the constitution itself to indicate that necessity cannot be a consideration under at least some circumstances. In fact, the document itself entertains the concept of necessity, albeit on a far more mundane scale, in the Necessary and Proper clause; more importantly, the constitution considers necessity as a valid factor in what are all essentially situations of dire emergency.

Harboring great concern, even innate suspicion of an argument from necessity is valid, defensible, and highly compatible with our need to be jealous guardians of liberty. It is not, however, valid as a final pronouncement. As the constitution itself hints, the question is one of limits. Again, the
constitution does not rule out necessity entirely. The words of the writ suspension clause clearly indicate that the Founders understood that there will indeed be instances of severe national emergency, and that in such situations, certain actions taken out of necessity are entirely valid and justified. (Or that there could be such instances: ideas, attitudes, and reactions of our own
times as to whether or not nation-threatening situations actually exist or can truly exist line up remarkably well with those expressed in Lincoln’s.)

Whether an argument from necessity is a constitutional argument depends on what action or position is being argued, as well as the constitutional provision(s) at issue; there is no one-size-fits-all answer to that question, as demonstrated by the letters to Corning, Conklin, and Hodges. Lincoln instinctively understood this, and the concept of constitutional constraints, as evidenced by his
statement in the letter to Hodges:

I am naturally anti-slavery. If slavery is not wrong, nothing is wrong. …And yet I have never understood that the Presidency conferred upon me an unrestricted right to act officially upon this judgment and feeling. …I understood, too, that in ordinary civil administration this oath even forbade me to practically indulge my primary abstract judgment on the moral question of slavery.

But in the argument espoused in the Corning letter, he ignored this principle. Therefore, an argument from necessity is not inherently an unconstitutional one; there are times when necessity may be a valid constitutional argument.

Update 3.7.06: Marked "V. good!" With an exclamation point, no less!


The Tiger said...

I prefer the French, "C'est la vie," myself.

Viatrix said...

But Spanish is such a lovely language when it rolls off the tongue...and the "asi es la vida" (which I hope is not too terrible of a cross-translation) always reminds me of this snippet: ¿Qué es la vida? Un frenesí./ ¿Qué es la vida? Una ilusión,/ una sombra, una ficción… --Pablo Neruda, if I recall correctly. If that is your only quibble, I shall take it to mean you have none with the paper, then :)

The Tiger said...

None in particular -- but I'm not a constitutional scholar, you know...

Viatrix said...

Oh, but neither am I!