Robert E. Lee on what the Constitution left unsettled, as casus belli

In a remarkable and wide-ranging interview with Thomas M. Cook of the New York Herald, Robert E. Lee identified the failure of the Constitution to settle “the question of defining the relative powers of the States, and their relation to the General Government” as giving rise to legitimate casus belli:

On the question of State sovereignty, the General contends that there exists a legitimate casus belli. In the convention that formed the organic law of the land, the question of defining the relative powers of the States, and their relation to the General Government, was raised, but after much discussion was dropped and unsettled. It has remained so unsettled until the present time. This war is destined to set it at rest. It was unfortunate that it was not settled at the outset; but as it was not settled then, and had to be settled at some time, the war raised on this issue cannot be considered treason. If the South is forced to submission in this contest, it of course can only be looked upon as the triumph of Federal power over State rights, and the forced annihilation of the latter.


Lincoln’s Magnanimity

In Lincoln’s Virtues, William Lee Miller uses a line in Abraham Lincoln’s eulogy of Zachary Taylor to reveal Lincoln’s magnanimity. Here’s Miller on Lincoln on Taylor on Lincoln:

One way or another, it is significant what we select to praise in others. Lincoln said of Taylor: “[H]e pursued no man with revenge.” Then he dramatized an incident involving “the gallant and now lamented Gen. Worth,” who, when a colonel, had been so offended by a decision against him by his superior General Taylor as to leave the army in Mexico and to tender his resignation to army authorities in Washington. “It is said, that in his passionate feeling,” reported Lincoln, “he hesitated not to speak harshly and disparagingly of Gen. Taylor,” and that as a respected officer his word carried weight. An unexpected turn in the war then brought the prospect of what would be the Battle of Monterey, and Worth was now “deeply mortified” at being absent and seeing his laurels wither away. The government “both wisely and generously,” Lincoln said, declined Worth’s resignation and returned him to General Taylor’s command.

“Then came Gen. Taylor’s opportunity for revenge.” But of course he did not take it. Instead of placing Worth so that “his name would scarcely be noted in the report,” Taylor, feeling that it was generous to allow him, then and there, to retrieve his secret loss,” assigned him “what was, par excellence, the post of honor,” and Worth went on to glory. The selecting of that story tells as much about the eulogist as about the eulogee–magnanimity would, in time, be one of Lincoln’s prime virtues.

William Lee Miller, Lincoln’s Virtues, p. 227.

Abraham Lincoln’s “Prudence”

It’s unfortunate that “prudence” must be in quotation marks when used these days to describe what prudence really is. But the meaning of the term has changed somewhat from its meaning when used to denote the first of the cardinal virtues. In any event, here’s a perceptive student of Abraham Lincoln describing Lincoln’s prudence:

The mature Abraham Lincoln would exhibit, in an admirable way, a combination of the moral clarity and elevation of–what shall we say?–the prophet, with the “prudence,” the “responsibility” of a worthy politician. The latter characteristics he had already acquired in his early forties. The moral clarity was to come.

I use the two words above in quotation marks instead of some variant of the overworked American word “pragmatism,” because they imply a combination of practical wisdom with moral purpose, as “pragmatism” may not.

“Prudence” was once the name not only for a cardinal virtue but for the first of the cardinal virtues. Prudence as a virtue did not then exclude, as pragmatism tends to do, general moral ideals and larger moral patterns beyond the immediate situation. The term did not then mean, as it has shriveled to become in our modern vocabulary, a calculating, cautious self-regard: a prudent cat that does not step on a hot stove, a prudent driver who looks both ways before barreling out of the driveway, a prudent young person who puts away some money in a prudential life insurance company. The classical virtue did share with this modern shrunken usage, and with the ubiquitous modern language of pragmatism, this quality: a careful attention to the particular situation in which one acts. And it shares with utilitarianism in all its varieties a careful weighing of probable consequences of one’s actions in that real world, as Lincoln told Durley he should have done. One does not act simply out of one’s hopes, dreams, fantasies, or imaginings; one must look, and examine, and intelligently understand, the world out there, outside oneself, as it is in all its present particulars. A person imbued with the virtue of prudence must say to himself, or herself–to borrow from a source not available to Aristotle, Thomas Aquinas, and other interpreters of classical prudence, Jimmy Durante–“Dem’s da conditions dat exist.”

But the term did not originally imply that one should pay this scrupulous attention primarily or only because of the potential consequences for ourself, as our diminished usage now tends to do; nor did it disdain or ignore larger moral purposes and effects, as at least the popular use of the language of pragmatism tends to do, or reduce moral judgment to one future-oriented measurement, as utilitarianisms do.I am resuscitating this concept temporarily for my purpose here, just to indicate that there once was such a way of slicing moral understanding–and that it then could be applied to Lincoln. In the older usage–the one I suggest would have fit the maturing Lincoln–prudence was a virtue. That means it was a pattern or habit that should become ingrained. Prudence as a moral virtue made a bridge to the intellectual virtues, as they were called in the old schemes. That means it entailed a central role for cognition, for learning and knowing, in praiseworthy conduct. A prudent person in this older sense used his powers of observation and reasoning to take careful account of the real and concrete situation, the particular situation, not simply in order to protect his own skin, and not with the assumption that whatever “works” in that situation is what one ought to do, but in order continually to adapt the appropriate moral claims and purposes, also carefully considered, to the real world.

William Lee Miller, Lincoln’s Virtues: An Ethical Biography, 222-23 (2002).

True or False? After Virtue Edition

[O]n the one hand we still, in spite of the efforts of three centuries of moral philosophy and one of sociology, lack any coherent rationally defensible statement of a liberal individualist point of view; … [O]n the other hand, the Aristotelian tradition can be restated in a way that restores intelligibility and rationality to our moral and social attitudes and commitments.

Alisdair Macintyre, After Virtue: a study in moral theory, 259 (2d ed. 1985)

Madison in Federalist No. 55 on “qualities in human nature which justify a certain portion of esteem and confidence”

As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.

Federalist No. 55 (Madison)

The John Marshall Hero Project: An Introduction

The inaugural project for Law-RVA as an incubator for more lawful constitutional law is the John Marshall Hero Project.

The basic idea of the John Marshall Hero Project is simple: To convey why John Marshall is and ought to be a hero for those aspiring to more lawful constitutional law. The project will be critical, as it must to be credible. But it will be primarily constructive, in the sense of actually building something up.

The opening phase of the John Marshall Hero Project began a few months ago and is still ongoing. This phase started with an initial sweep of electronically accessible public domain materials about John Marshall. The guidebook for this first phase is a bibliography of materials about Marshall published in 1955 in connection with a celebration of Marshall’s 200th birthday. That bibliography by James Servies, then a law librarian William & Mary, includes both primary sources and secondary sources. But the completion of the John Marshall Papers Project a while back resulted in a more authoritative set of primary sources. The Servies bibliography phase of the John Marshall Hero Project has accordingly focused on secondary sources.

Welcome to Law-RVA.


Law-RVA is an incubator of sorts for better law and politics. The enterprise draws founding inspiration from three outstanding individuals who contributed to our republic through arguments in law, politics, and related matters: John Marshall (1755-1835), Charles Hammond (1779-1840), and Abraham Lincoln (1809-1865). Each of these men had flaws and limits. But that is part of what makes their examples useful. We, too, have our flaws and limits. But it can be uplifting to try to recognize in others better versions of practical reasonableness we seek to embody ourselves.