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Clark Memorandum: Spring/Summer 1998 J Brigham Young University Law School BYU Law Digital Commons The lC ark Memorandum Law School Archives Spring 1998 Clark Memorandum: Spring/Summer 1998 J. Reuben Clark Law Society J. Reuben Clark Law School Follow this and additional works at: https://digitalcommons.law.byu.edu/clarkmemorandum Part of the American Politics Commons, Legal Biography Commons, Legal Ethics and Professional Responsibility Commons, Religion Commons, and the Religion Law Commons Recommended Citation J. Reuben Clark Law Society and J. Reuben Clark Law School, "Clark Memorandum: Spring/Summer 1998" (1998). The Clark Memorandum. 23. https://digitalcommons.law.byu.edu/clarkmemorandum/23 This Article is brought to you for free and open access by the Law School Archives at BYU Law Digital Commons. It has been accepted for inclusion in The lC ark Memorandum by an authorized administrator of BYU Law Digital Commons. For more information, please contact [email protected]. Remembering Lincoln the Lawyer CMá Clark Memorandum J.Reuben Clark Law School Brigham Young University | 1998 Spring | Summer á Cover Illustration Elvis Swift contents 34 Civility: 43 A Necessity, 38 Not a Luxury, Memoranda in the American 2 Seeing the Elephant: Political System Portraits 12 Western Legal Patrick A. Shea LeGrande Fletcher Remembering History Sources Steve Averett Lincoln the Is This a Regional or Kristin Gerdy Lawyer National Law School? Lorena Riffo Kelly L. Andersen 20 24 Testimony Before the Weimar on H. Reese Hansen, Dean Scott W. Cameron, Editor Senate Committee the Wasatch? 12 Charles D. Cranney, Associate Editor on the Judiciary Mormon Political Linda Sullivan, Art Director Elder Dallin H. Oaks Alienation and the John Snyder, Photographer Mourning Boerne Search for Power Hugh Hewitt The Clark Memorandum Religious Freedom Timothy E. Flanigan is published by the J. Reuben Clark Law Society and the and the LDS Law J. Reuben Clark Law School, Community Brigham Young University. © Copyright 1998 by W. Cole Durham, Jr. Brigham Young University. All Rights Reserved. REMEMBERING Kelly L. Andersen · Illustrated by Elvis Swift 2 Clark Memorandum INCOLN As a child I was taught to respect and admire our 16th president, yet I really did not comprehend why he was so great a man. I suspected it had something to do with the Gettysburg Address or, in general, that he had been president during the Civil War. Yet beyond that vague feeling I really knew little about him. Not long ago, while visiting a bookstore, I noticed a one-volume edition of Carl Sandburg’s monumental six-volume epic biography of Lincoln1 and decided that although I could not afford the time to read six volumes, I most certainly could read one. Besides, I reasoned, Sandberg was unquestionably an excellent writer and deserved to be read, even if the study of Lincoln was inconsequential. · I was not disappointed in the book. It not only inspired a great respect for Lincoln, but it also bathed me with desire to know more and more about this most admired of all u.s. presidents. I soon returned to the bookstore and bought Lincoln biographies written by William H. Herndon2 (Lincoln’s law partner for more than 16 years), by Ward Hill Lamon3 (Lincoln’s law associate in Danville, Illinois, where Lincoln traveled on the Illinois Eighth Circuit), and by Isaac N. Arnold4 (an attorney who practiced before the same bar as Lincoln and who served in Congress during Lincoln’s administration).· After reading these well-written biographies, I also read—for good measure—comprehensive biographies by Stephen B. Oates5 and David Herbert Donald.6 · These, written more recently, drew upon hundreds of sources not available to biographers who lived during Lincoln’s lifetime or even Sandberg’s. All these books, added to my own two-volume set of Lincoln’s writings and speeches, have given me a great appreciation for Lincoln the man as well as Lincoln the lawyer. THE AWYER To understand Lincoln’s greatness, it is ed as to whether or not the Union itself first necessary to visit the vast challenges should be preserved. One of the great that confronted him as president. By ironies of the Civil War, as noted in understanding the greatness of the last Michael Shaara’s classic novel The Killer four years of his life, it is then possible to Angels,7 was that the North was divided in work backward and understand how the fighting for the Union while the South was practice of law served to form his charac- united in fighting for disunion. ter and intellect. As the North suffered one humiliating Between the time of his election as presi- military defeat after another, many natural- dent and his taking the oath of office, a ly blamed Lincoln. Discontent exploded in handful of states had seceded from the 1864 when George McClellan, discharged Union, and many more were poised to do general of the Army of the Potomac, cam- so. The previous president, James Buchanan, paigned against Lincoln for president on a in sympathy with the South and in anticipa- platform to immediately end the war. tion of secession, had allowed many federal Smoldering antiwar embers flamed into a forts and arsenals to fall into the hands of roaring, antiwar movement, which dwarfed secessionists and had permitted the treasury anything witnessed in our generation dur- to be looted by them. Chief justice of the ing the Vietnam War. u.s. Supreme Court, Roger Taney, also well To understand just how bloody the known for his Southern bias, had strenuous- Civil War was—and how vibrant the anti- ly used his office to influence the interpreta- war movement became—it is necessary to tion of the Constitution to guarantee put some statistics in perspective. The Civil slavery. The now infamous Dred Scott deci- War, with its 600,000 dead, was the sion, holding that blacks were not people bloodiest war ever fought by American sol- but merely property, was the Supreme diers—bloodier, in fact, than all other Smoldering antiwar Court’s last word on the most divisive American wars combined. If fought today issue of the day. with our u.s. population approaching 300 Most of the great military talent of the million people, we would be appalled at anything witnessed nation was composed of men of the 600,000 casualties. But this war was fought South, including Robert E. Lee, a military at a time when the u.s. population—North genius said to be a talent worth the equiv- and South combined—was 30 million peo- alent of 50,000 infantry soldiers. (The aged ple, or just one-tenth its present size! If the and retiring General Winifred Scott told same war were fought today, it would take Lincoln this in early 1861. Not until six million casualties to affect a proportion- Ulysses S. Grant was appointed in early ate number of hearts and homes. 1864 would Lincoln have a commanding The Vietnam War—with its 50,000 casu- general who was not afraid of Lee.) alties, spread out over 10 years—drove On top of these problems, Lincoln had from office Lyndon Johnson (a “seasoned” to contend with unbelievably diverse opin- former congressman, senator, majority ions about how to deal with a civil war— whip, and vice president) under pressure and eventually about whether the war was that he could not endure. By contrast, even worth the unfathomable cost in Lincoln had no prior federal government blood and treasure. The rainbow of his experience, except for a two-year term in critics included “peace Democrats,” who Congress 12 years before he became presi- favored a restoration of the Union, with dent; yet he had to deal with far greater slavery guaranteed in all states and territo- complexities, far fewer resources, and far ries; “conservative Republicans,” who more casualties than Johnson. wanted the Union preserved but slavery The bloodiest single day of the Civil War undisturbed in the South; “liberal was the climax of the battle of Antietam, Republicans,” who wanted slavery prohib- fought in Maryland in September 1862, in ited in all new territories and states but which more than 25,000 soldiers fell (North were willing to have it gradually abolished and South combined, in about equal num- in the South; and, finally, “abolitionists,” bers). With the country then one-tenth its who wanted slavery abolished in all states present size, a comparable battle in our life- and territories but were sometimes divid- time would have 250,000 war dead in a 4 Clark Memorandum embers flamed into a roaring, antiwar movement, which dwarfed in our generation during the Vietnam War. single day! When finally in 1864 Lincoln nize the South as an independent nation or It is to this enormously gifted man that turned command of all Northern armies allow a restoration of the Union with slav- I pay respect—not as a president but as the over to Ulysses S. Grant, battle casualties ery guaranteed. country lawyer he was before he became mounted at appalling rates—over 50,000 And yet Lincoln—with consummate president. Union casualties in the late spring and early political skill and inspired judgment— Lincoln’s legal career began September summer of 1864, or what would be 500,000 somehow managed to hold the fragile and 9, 1836, when at the age of 27 he was casualties today (more than all of the u.s. weary Union together and preserve a licensed to practice in the courts of Illinois. casualties in World War II) if measured in nation. Had he failed, the map of the con- In spite of having less than one year of for- proportion to our present population.
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