But governing, in practical terms, is not so much about ideals and the higher mindedness, as about what you can get away with. So close to the attacks in New York and Washington, "protecting the homeland" was the key priority and in the fever-pitch of panic and patriotic fervor, it seemed prudent to fore-go some basic liberties about privacy to prevent any further terrorist attacks, and so the Patriot Act was voted in (the House passed it 357 to 66; the Senate 99 to 1—the lone dissenter, Sen. Russ Feingold), but, evidently, not read by many of our representatives.*** To have gone against it at the time might have been labeled unpatriotic.
Would that the workings of government be as transparent, as the government wants our lives to be, but it is not, and on practical terms it cannot. It will always be "Washington: Behind Closed Doors," (the government doesn't want it any other way—they waited fifty years to broadcast House proceedings) and we'll hear about those back-room dealings in secret only by accident (the U-2 incident), "proper channels" (the Watergate break-in), or improper channels (The Pentagon papers), but the thing of it is, we will hear about...that is, if we're really listening.
But, it's what you can get away with, and it was ever thus, for good or ill, and when I hear the howls of protest over PRISM, I think of this scene from Lincoln (right after I think "where have they been hiding?") and of The Great Emancipator going over his not exactly legal, but practical, strategem for the Emancipation Proclamation. And it comes down to: if the people don't like it, why did they re-elect me?
And that's the truth of it. The Senators and Representatives are doing what they're doing out of the winds of political exigency. But we've re-elected them, some many times, and we re-elected George W. Bush to a second term, and Barack Obama to one, as well. If we don't like their work, why are we re-electing them? This has been going on for almost twelve years, we can't plead ignorance of it, and if we do, then we deserve the label of being out-of-touch and semi-cretinous, and if we protest, we're hypocrites by our very voting records.
But, in my dotage, I've come to realize there are worse things than being a hypocrite. I think everybody is, at one stage or another. It comes with being malleable, fallible...and human. We do what we can get away with, when we abandon our ideals. In which case, maybe we do have a truly representational government.
What did Edward R. Murrow say? "The fault, Dear Brutus, lies not in our stars, but in ourselves." Good line. I wonder where he got it...?
The Set-Up: Cabinet meeting. Lincoln (Daniel Day-Lewis) administration. Waning days of the Civil war, mid-way through the consideration of the Thirteenth Amendment.
INT. LINCOLN'S OFFICE, WHITE HOUSE - MORNING
The cabinet has assembled. Lincoln heads the table, Seward at his left and EDWIN M. STANTON, Secretary of War, 51, barrel- shaped, long bearded, bespectacled, at his right. Next to him are Secretary of the Navy GIDEON WELLES, 63, luxurious white hair (it's a wig) and a flowing snowy beard; Postmaster General WILLIAM DENNISON, 50; Secretary of the Interior JOHN USHER, 49; Secretary of the Treasury WILLIAM FESSENDEN, 59; and Attorney General JAMES SPEED, 53. Nicolay and Hay are in chairs behind Lincoln, taking notes.
LINCOLN (TO STANTON:) Thunder forth, God of War!
Stanton clears his throat. He's noticed the singed edge.
STANTON We'll commence our assault on Wilmington from the sea.
(PEEVED:) Why is this burnt?
Was the boy playing with it?
LINCOLN It got took by a breeze several nights back.
STANTON This is an official War Department map!
SEWARD And the entire cabinet's waiting to hear what it portends.
WELLES A bombardment.
From the largest fleet the Navy has ever assembled.
LINCOLN (TO WELLES:) Old Neptune! Shake thy hoary locks!
WELLES Fifty-eight ships are underway, of every tonnage and firing range.
Welles gestures on the map to the positions of many ships.
STANTON We'll keep up a steady barrage.
Our first target is Fort Fisher. It defends Wilmington Port.
Stanton indicates the lines tracing artillery trajectories. These converge particularly heavily on Fort Fisher.
JAMES SPEED A steady barrage?
STANTON A hundred shells a minute.
There's a moment of shocked silence.
STANTON (CONT'D) Till they surrender.
WILLIAM FESSENDEN Dear God.
WELLES Yes. Yes.
LINCOLN Wilmington's their last open seaport. Therefore...
STANTON Wilmington falls, Richmond falls after.
SEWARD And the war... is done.
The rest of the cabinet applauds, foot stomping, table slapping. Only John Usher doesn't join in.
JOHN USHER Then why, if I may ask are we not concentrating the nation's attention on Wilmington? Why, instead, are we reading in the HERALD -
(he smacks a newspaper on THE TABLE) -
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 it's... to what's likely to be its premature demise?
You signed the Emancipation Proclamation, you've done all that can be expected -
JAMES SPEED The Emancipation Proclamation's merely a war measure. After the war the courts'll make a meal of it.
JOHN USHER When Edward Bates was Attorney General, he felt confident in it enough to allow you to sign -
JAMES SPEED (A SHRUG:) Different lawyers, different opinions. It frees slaves as a military exigent,
not in any other -
LINCOLN I don't recall Bates being any too certain...
...about the legality of my Proclamation, just it wasn't downright criminal.
Somewhere's in between.
Back when I rode the legal circuit in Illinois I defended a woman from Metamora named Melissa Goings, 77 years old,
...they said she murdered her husband; he was 83. He was choking her; and, uh, she grabbed ahold of a stick of fire-
...wood and fractured his skull, `n he died. In his will he wrote "I expect she has killed me. If I get over it, I will have revenge."
This gets a laugh.
LINCOLN (CONT'D) No one was keen to see her convicted, he was that kind of husband. I asked the prosecuting attorney if I might have a short conference with my client. And she and I went into a room in the courthouse, but I alone emerged. The window in the room was found to be wide open. It was believed the old lady may have climbed out of it.
I told the bailiff right before I left her in the room she asked me where she could get a good drink of water, and I told her Tennessee.
Mrs. Goings was seen no more in Metamora. Enough justice had been done; they even forgave the bondsman her bail.
JOHN USHER I'm afraid I don't -
LINCOLN... 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.
That might recommend to suspicion that I agree with the rebs that their slaves are property in the first place.
Of course I don't, never have, I'm glad to see any man free, and if calling a man property, or war contraband, does the trick... Why I caught at the opportunity.
Now here's where it gets truly slippery. I use the law allowing for the seizure of property in a war knowing it applies only to the property of governments and citizens of belligerent nations.
But the South ain't a nation, that's why I can't negotiate with 'em.
So if in fact the Negroes are property according to law, have I the right to take the rebels' property from 'em, if I insist they're rebels only, and not citizens of a belligerent country?
And slipperier still: I maintain it ain't our actual Southern states in rebellion, but only the rebels living in those states, the laws of which states remain in force.
That means, that since it's states' laws that determine whether Negroes can be sold as slaves, as property --
The Federal government doesn't have a say in that, least not yet --
a glance at Seward, then:
LINCOLN -- then Negroes in those states are slaves, hence property,
hence my war powers allow me to confiscate 'em as such.
So I confiscated 'em. But if I'm a respecter of states' laws, how then can I legally free 'em with my Proclamation, as I done, unless I'm cancelling states' laws?
I felt the war demanded it; my oath demanded it; I felt right with myself; and I hoped it was legal to do it, I'm hoping still.
He looks around the table. Everyone's listening.
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.
Might those people I freed be ordered back into slavery?
That's why I'd like to get the Thirteenth Amendment through the House, and on its way to ratification by the states, wrap the whole slavery thing up, forever and aye. As soon as I'm able.
Now. End of this month.
And I'd like you to stand behind me. Like my cabinet's most always done.
A moment's silence, broken by a sharp laugh from Seward.
As the preacher said, I could write shorter sermons but once I start I get too lazy to stop.
It seems to me, sir, you're describing precisely the sort of dictator the Democrats have been howling about.
JAMES SPEED Dictators aren't susceptible to law.
JOHN USHER Neither is he! He just said as much! Ignoring the courts? Twisting meanings? What reins him in from, from...
LINCOLN Well, the people do that, I suppose. I signed the Emancipation Proclamation a year and half before my second election. I felt I was within my power to do it; however I also felt that I might be wrong about that;
I knew the people would tell me. I gave `em a year and half to think about it. And they re-elected me.
And come February the first, I intend to sign the Thirteenth Amendment.
Words by Tony Kushner
Pictures by Janusz Kaminski and Steven Spielberg
Lincoln is available on DVD and Blue Ray from Touchstone Home Video.
* Shocked! Shocked! in the same way that Capt. Renault is shocked to find that gambling is going on at Rick's Cafe Americain in Casablanca, moments before an attendant gives him his evening's winnings. That same pusilanimously feigned ignorance for the cameras for short-term gains always amuses me, producing a grimacing smile.
** Particularly galling are the remarks of Wisconsin Senator Jim Sensenbrenner—the man who introduced the House version of the bill in the first place—who, now that a Republican is no longer in The White House states that he "always worried about potential abuses" when the methods employed are written right into the bill. Any potential points he might have gained by introducing the bill when his party was in power have given way to regret now that his party isn't. It's a tough life being a lap-dog when the laps keep changing.
*** Something that was mentioned—and admitted on-camera—in Michael Moore's Fahrenheit 911.