Before I started law school, I labored under the same misapprehension that many people do: that the law is a fixed thing with clearly delineated lines between what’s permissible and impermissible. I just assumed that law school would teach me where that line was and what sat on either side of it. My rude awakening occurred very early on in torts class when my professor’s canned response to any hypothetical from the class was “it depends.”
The reality is that the law is often vague and up for debate. Even areas that are settled can become unsettled depending on new facts, a new political landscape, or new interpretations of the law. That’s why, whenever you turn on the news and see President Obama and Congress arguing over the legality of his executive actions, Congress will call the President’s actions unconstitutional, while the President argues that he’s uphold his oath of office. Much of this is just political grandstanding sure, but it speaks to the highly amorphous nature of the law. Either party could be right, and both could be wrong.
No movie has attacked this issue with greater zest than Lincoln, a great film by a great director about the greatest achievement of a great president featuring a toweringly great performance by one of the greatest actors of all time. Yeah, you could say I think this movie is pretty great. The greatness of the film certainly stands on its own, but thanks to the 10,000 times I’ve watched it - a result of Showtime playing it on an infinite loop - I’ve really had a chance to marinate in the film’s genius.
About 30 minutes into the film, President Lincoln is discussing the assault on Wilmington port with his cabinet when John Usher, Secretary of the Interior, starts jabbing the President over the imminent vote in the House on the 13th Amendment. His concern, like so many politicians before him and so many after, is that the President is overstepping his legal authority.
Then why, if I may ask are we not concentrating the nation's attention on Wilmington? Why, instead, are we reading in the Herald that the anti-slavery amendment is being precipitated onto the House floor for debate - because your eagerness, in what seems an unwarranted intrusion of the Executive into Legislative prerogatives, is compelling it to what is likely to be its premature demise. You signed the Emancipation Proclamation, you've done all that can be expected -
The Emancipation Proclamation's merely a war measure. After the war the courts'll make a meal of it.
When Edward Bates was Attorney General, he felt confident in it enough to allow you to sign -
Different lawyers, different opinions. It frees slaves as a military exigent, not in any other -
I don't recall Ed Bates being any too certain about the legality of my Proclamation, just it wasn't downright criminal. Somewhere's in between.
What a debate! Especially Speed's line about different lawyers, different opinions (as the Attorney General, he would know). Movies about lawyers rarely have such nuanced discussions, while even fewer acknowledge that uncertainties in the law even exist. Characters are always firm in their moral and legal certitude. In a lesser film, Lincoln would have spoken grandiloquently about his confidence in the law supporting his actions. There would be no legal qualms about his suspension of Habeas Corpus or the seizure of Confederate property.
But this script takes a more thoughtful approach. It recognizes that neither side really knows where the line is between what’s legal and what isn’t. Later in that scene, Lincoln, an established attorney in his own right, basically admits that really he's just making it up as he goes.
I decided that the Constitution gives me war powers, but no one knows just exactly what those powers are. Some say they don't exist. I don't know. I decided I needed them to exist to uphold my oath to protect the Constitution, which I decided meant that I could take the rebels' slaves from `em as property confiscated in war.
Then he says this:
Two years ago I proclaimed these people emancipated - "then, thenceforward and forever free." But let's say the courts decide I had no authority to do it. They might well decide that. Say there's no amendment abolishing slavery. Say it's after the war, and I can no longer use my war powers to just ignore the courts' decisions, like I sometimes felt I had to do.
The language he uses is telling and exquisite in its vagueness. These men knew that the law was squishy enough to do what they wanted, but also that they might not get away with it. It’s a tricky line to walk in real life, but it’s especially hard in movies (even prestige pictures like Lincoln) since you risk the alienating the audience with too much ambiguity. Film is a blunt instrument, designed for myth-telling rather than legal, philosophical, or political debate. That's why C-SPAN exists. But when you can stage it well, as Spielberg and screenwriter Tony Kushner have done here, the result can be a fascinating exercise, turning a heady topic into a thrilling discussion about how different interpretations of the law can make the difference between a nation that permits slavery and one that has a soul.