September 27, 2003

The Amistad, and the Declaration of Independence

Watched Spielberg's Amistad movie tonight: quite good.

One thing in the movie struck me as unbelievable: John Quincy Adams arguing before the Supreme Court and claiming not the Constitution but the Declaration of Independence as his legal authority. But it happened. Indeed, John Quincy Adams claimed the Declaration of the Independence as his sole legal authority. It happened--although not quite as in the movie:

The Amistad Case- The Arguments of John Quincy Adams before the Supreme Court: One of the Judges who presided in some of the preceding trials, is said to have called this an anomalous case. It is indeed anomalous, and I know of no law, but one which I am not at liberty to argue before this Court, no law, statute or constitution, no code, no treaty, applicable to the proceedings of the Executive or the Judiciary, except that law, (pointing to the copy of the Declaration of Independence, hanging against one of the pillars of the courtroom,) that law, two copies of which are ever before the eyes of your Honors. I know of no other law that reaches the case of my clients, but the law of nature and of Nature's God on which our fathers placed our own national existence. The circumstances are so peculiar, that no code or treaty has provided for such a case. That law, in its application to my clients, I trust will be the law on which the case will be decided by this Court...

Posted by DeLong at September 27, 2003 09:19 PM | TrackBack


JQA argument in the Amistad case was pretty deft for theoretical and practical political reasons.

Since the Amistad incident involved multiple nations on the high seas where international law in the early 19th century was, at best, nebulous, the door was wide open to natural law arguments such as these. JQA's position moreover was one highly recognizable to all learned men of the day since it could be traced back to Cicero's premise of one moral law being applicable for all nations in all times. It was not a novel proposition and one that conservatives suspicious of the power of the central government would find acceptable.

Citing the Declaration with it's Lockean and Natural Law themes was a practical political strategy because it provided " cover " for Southern justices because Jefferson's assertions therein were much the common property on North and South. Arguing hard on the fine-points of chattel slavery laws and Constitutional provisions could have made the Southern justices far more cautious for fear of weakening slavery as a domestic institution by setting any precedent, however remote, which would be support an analogous case involving the internal slave trade.

If only the Adams men displayed this level of acumen inside the White House that they did outside it, their reputations would stand higher.

Posted by: mark safranski on September 28, 2003 10:27 AM


Interesting. I have always wondered if anyone had invoked the declaration of independence against slavery in a lawsuit. Did that happen in any local slave case?

Posted by: Zack on September 28, 2003 11:54 AM


Much of Lincoln's later political career was a reprisal of this trick. The Constitution explicitly--or at least as explicitly as is possible while avoiding committing the words 'slave', 'slavery' and 'slave trade' to paper--authorized the institution of slavery in America. Beyond the sheer textual authorizations, the Constitution committed the moral authority of the Founders to the peculiar institution. How, without following a John Brown into outright rebellion, could you oppose slavery without opposing the Constitution?

Lincoln did it by tieing his arguments to the Declaration and largely ignoring the Constitution. The Gettysburg Address does not start with "Three score and fourteen years ago, our forefathers brought forth on this continent, a new government..."

Rather, he counted back four score and seven in order to be able to use the moral authority of the Declaration to trump the moral authority of the Constitution. It is a testament to Lincoln's political skill that his slight of hand worked. I've never seen an article on what, if anything Lincoln's political thinking owed to JQAdams but it would not come as a surprise if a debt was owed.

Posted by: Douglas on September 28, 2003 08:57 PM


Douglas writes, "Lincoln did it by tieing his arguments to the Declaration and largely ignoring the Constitution. The Gettysburg Address does not start with "Three score and fourteen years ago, our forefathers brought forth on this continent, a new government..."

Lincoln may have done that in the Gettysburg Address, but he didn't start out that way.

In his first Inaugural Address, he made it clear that the Constitution supported slavery:

"There is much controversy about the delivering up of fugitives from service or labor. The clause I now read is as plainly written in the Constitution as any other of its provisions:"

(Quoting the Constitution): "No person held to service or labor in one State, under the laws thereof, escaping into another, shall in consequence of any law or regulation therein be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due."

Lincoln noted, "It is scarcely questioned that this provision was intended by those who made it for the reclaiming of what we call fugitive slaves; and the intention of the lawgiver is the law. All members of Congress swear their support to the whole Constitution-- to this provision as much as to any other."

Douglas concludes, "It is a testament to Lincoln's political skill that his slight of hand worked."

It's more a testament to the fact that the winners of battles get to write the history of those battles. (Nobody remembers Jefferson Davis' speech marking the end of the battle at Gettysburg. It was much shorter than even Lincoln's: "Oh, #@$%.")

Posted by: Mark Bahner on September 29, 2003 03:00 PM


Self-imposed ignorance should disgust everyone.

Posted by: Barrett Bill on December 10, 2003 10:30 PM


Misfortune shows those who are not really friends.

Posted by: Schiffmann Rob on January 10, 2004 03:21 AM


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