Monday, February 18, 2013

"Lincoln" Errs . . . And Corrects Errors

Prof. Edward Zelinsky (Cardozo) wrote last week in the Hartford Courant about a mistake in the movie "Lincoln."  The error: Lincoln wouldn't have signed the Amendment.  Zelinsky explains:

In a particularly effective scene in a movie with many more of them, President Abraham Lincoln holds aloft a pen for emphasis and forcefully declares his intent to soon sign the 13th Amendment, abolishing slavery.  The problem is that presidents do not sign constitutional amendments.  Abraham Lincoln, the best lawyer to ever serve as the nation's chief executive, undoubtedly knew this.  He would not have declared his intention to sign an amendment that was not his to sign.

But Zelinsky's willing to cut screenplay author Tony Kushner some slack:

Mr. Kushner's liberties with the details of the Constitution served a legitimate artistic mission by graphically portraying Lincoln's personal commitment to the abolition of slavery.  As the movie makes clear, the abolition of slavery via the 13th Amednment was not inevitable.  Lincoln's commitment was decisive.

As Zelinsky points out, the alternative--in which Lincoln might have said "something along the lines of wanting Congress to promptly send the 13th Amednment to the states"--is "not the stuff on which Oscar nominations are made."  Good point.

(Zelinsky also references another error: the movie's portrayal of Connecticut congressman as voting against the Thirteenth Amendment.  In fact, Connecticut's representatives voted for it.) 

But if the film committed errors, it also helped correct them--or at least one of them.  According to The Atlantic Wire, a recent immigrant from India, Dr. Ranjan Batra, after seeing the movie, researched and determined that Mississippi never ratified the Thirteenth Amendment.  Last week it did.


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But Lincoln DID sign the Thirteenth Amendment! While not legally required to do so, at least according to Hollingsworth v. VA, Lincoln opted to sign the amendment nonetheless, for symbolic reasons. See Akhil Amar, America's Unwritten Constitution 263-64.

Posted by: John Ohlendorf | Feb 19, 2013 8:17:56 AM

(Posted for Edward Zelinsky)

Lincoln did affix his name to the congressional resolution passing the 13th amendment. However, he signed personally, not officially. In contrast, for example, when he signed the Emancipation Proclamation, Lincoln signed as president and his signature was witnessed by Seward as secretary of state. On the other hand, Lincoln affixed his name to the resolution approving the 13th amendment informally, not listing his office and not witnessed by Seward since he had no official role to play under Article V.

None of this was an accident. A careful lawyer, Lincoln understood the difference between presidential "sign[ing]" as called for in the Article I law-making process and what he did as to the 13th amendment.

The bottom line is that it is implausible that Lincoln made the statement in the movie, i.e., that he would "sign" the 13th amendment. He undoubtedly knew Articles I and V well and knew that there was no role for him to "sign" a constitutional amendment. On the other hand, I think Tony Kushner was within the boundaries of artistic license to put those words in Lincoln's mouth to emphasize Lincoln's commitment to the amendment.

Posted by: Steven D. Schwinn | Feb 19, 2013 3:58:33 PM

A tangent, but in the waning days of his presidential term President Buchanan signed the amendment proposal immediately preceding the Thriteenth Amendment, the so-called Corwin Amendment. The proposal passed both chambers of Congress by the requisite supermajorities, Buchanan signed it, and it went out to the states for ratification.

That proposed Amendment stated: "No amendment shall ever be made to the Constitution which shall authorize or give to Congress power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor of service by the laws of the said State."

Ohio, Maryland, and (disputedly) Illinois ratified the proposed amendment.

[Various sources, but a good one is the Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, by John R. Vile.]

Posted by: George Mader | Feb 21, 2013 11:55:03 AM

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