Lincoln is the 2012 Steven Spielburg biopic starring Daniel Day-Lewis, who bears an uncanny resemblance to the titular President. The film is excellent, but as always, we’re not really reviewing it on its merits, but on its handling of the legal issues it touches. The movie is a dramatization of the 2006 book Team of Rivals: The Political Genius of Abraham Lincoln by Doris Kearns Goodwin, which centers at least as much on Lincoln’s Cabinet, especially William H. Seward, Salmon P. Chase, and Edward Bates, all of whom were candidates for the Presidency in 1860, all of whom were recruited by Lincoln to serve in his administration. The movie focuses mostly on William H. Seward (David Strathairn, apparently on break from Alphas).

Here, we’re going to look at three particular issues. First, the procedural requirements for the passage of a constitutional amendment. Second, the procedure regarding contested congressional elections. And third, the use of patronage to accomplish Lincoln’s political goals.

I. U.S. Const., Art. V.

Constitutional amendments are governed by Article V of the Constitution. An amendment may be proposed either by passing both houses of Congress with a two-thirds majority, or by a national convention called by two-thirds of state legislatures. There has never been such a convention called under Article V; all amendments to the Constitution have come via Congress, including the Bill of Rights (that’s why it was called the Bill of Rights). Once proposed, the amendment must then be approved by three-quarters of state legislatures or three-quarters of the “state ratifying conventions“. Exactly how such conventions work is up to the states, but they’ve only been used once, for the 21st Amendment, which repealed the 18th Amendment’s prohibition on alcohol.

In the movie, we’re clearly looking at the legislative option in both cases. The Thirteenth Amendment was proposed as a joint resolution of House and Senate by Senator John B. Henderson of Ohio. It sailed through there, as the Senate of the 38th Congress was composed of 30 Republicans, and the seven Unionist and Unconditional Unionist senators tended to vote with the Republicans. There being twenty-one vacant seats, mostly from secessionist Southern states, this left the Republicans only two votes shy of the two-thirds majority needed for passage, even without third-party and War Democrat help. The measure passed 38 to 6.

The House was a different matter, and here the horse-trading and numbers game depicted in the movie are basically spot on. There were 183 filled seats in the House with 56 vacancies at the end of the term. That meant that to pass, the measure needed 122 votes, fewer if there were abstentions. But the Republicans only controlled 106 seats and their Unionist and Unconditional Unionist allies only held 25, and not all of them were of a mind to vote for the Amendment anyway.

You think today’s Congress is divided? You think today’s politics are uncivil? It doesn’t get much more antagonisic than 1865. The movie’s handling of the passage of the Thirteenth Amendment is accurate, as far as we can tell, or at least the events it depicts are consistent with the American legal system at the time.

II. Contested Elections

Alexander Coffroth is one Democratic vote that Lincoln sought to obtain. He did so by going through Thaddeus Stevens, head of the Radical Republican contingent and arguably the most powerful man in the House. Stevens points out that Coffroth’s election had been contested, and that the Constitution gives the houses of Congress the right to be the judge of their own elections, including contested elections, overriding even state governments and the federal judiciary. Stevens points out that if he asked the Republican governor of Pennsylvania to turn the contest over to the House, the Republican-controlled chamber would toss Coffroth out in a heartbeat. Stevens chose instead to pressure Coffroth to fold, giving the measure bipartisan support, but he could just as easily have taken the seat.

This is accurate as far as it goes. The Constitution does, in fact, give Congress significant power both to regulate and judge its own elections. See Art I., Sec. 5, cl. 1. Coffroth’s election was indeed contested by William Koontz (you can read the report of the House Committee on Elections here), but we were unable to find historical evidence of how Stevens handled the matter.  Nonetheless, Stevens’s alleged threat to unseat Coffroth is entirely believable.

III. Political Patronage

One notable way that Lincoln managed to gather his votes was by essentially buying them with political patronage jobs. Postmaster, tax assessor, you name it, Lincoln was giving out political appointments to lame duck Democrats left and right, trying to get those critical twenty-odd votes. A viewer might wonder why, say, President Obama doesn’t do something similar to win support for his preferred political agenda given the state of congressional politics today?

The reason is that it’s illegal. It was unseemly in the 1860s, which is why Lincoln didn’t want to be seen doing it, and there was a growing public dissatisfaction with the blatant spoils system that had dominated federal politics since the eighteenth century. But it was legal. Almost all federal civil service jobs were appointed by the President, and only cabinet-level officials required the advise and consent of the Senate, giving the President the ability to place his political allies at any level of the executive branch, from the lowest to all but the very highest positions.

This changed in 1883 with the passage of the Pendleton Act, passed in the aftermath of the assassination of President Garfield by a disgruntled civil servant. The law created the Civil Service Commission and required that jobs to which the Pendleton Act applied were essentially no longer subject to political appointments, but must be filled by a merit system. The Act initially applied only to about 10% of all federal jobs, but it let outgoing Presidents designate jobs as being subject to the Pendleton Act, giving them the ability to protect their supporters at least a little. As successive Presidents have designated more and more such jobs, the vast majority of the federal system is now not really subject to patronage hiring. Indeed, knowing someone on the inside can be a drawback to getting hired in certain cases.

IV. Conclusion

Lincoln really is worth seeing, and a huge number of Hollywood’s best (male) actors turn in some ridiculously good performances. Daniel Day-Lewis takes the cake, but Strathairn, James Spader and especially Tommy Lee Jones do amazing work. And the movie nails it in terms of the law.

Authors and screenwriters take note: doing your homework on the legal system makes for better movies. There’s plenty of drama to be had just by showing how things really work. This, right here, is how you do that.

4 responses to “Lincoln

  1. Apparently, from the reviews I read, they blew the entire fact-checking budget on the legal issues, as from a historical perspective there is a great deal more dramatic license.

    • If it ended up that the movie got it right more often than not as a result, and they got a good movie from that…worth the money.

  2. An amendment can be proposed by passing each house with a 2/3rds majority, not both. Wooho! Nitpick!

  3. Dear Sirs:
    Couold you perhaps do an article on the movie Black Moon Rising? It might raise some issues about whatt is legal in a court of law.
    Thank You

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