By Edward Zelinksy/Commentary
A recent participant in this sport is Rep. Joe Courtney who represents Connecticut's 2nd Congressional District. Rep. Courtney, like most of us, thinks "Lincoln" is a great movie. However, Rep. Courtney objects to the movie's inaccurate portrayal of Connecticut congressmen as voting against the 13th Amendment to the Constitution.
As a historic matter, Rep. Courtney is correct — all the Constitution State's representatives voted for the Constitution's greatest amendment. Professor Matthew Warshauer recently joined the debate agreeing that the movie got the Connecticut delegation's vote wrong but he convincingly argues that Rep. Courtney paints the state's opposition to slavery as more monolithic than it actually was.
Though a loyal Connecticut resident, my historic quibble with "Lincoln" is different. Moreover, I'm inclined to grant Tony Kushner, the author of "Lincoln's" screenplay, the benefit of poetic license.
In a particularly effective scene in a movie with many 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.
Article V of the Constitution (as Lincoln would have known) is explicit: After approval by Congress, constitutional amendments must be "ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof." The text is clear: The president does not sign or otherwise approve proposed constitutional amendments after Congress passes them.
Indeed, the Constitutional Convention in Philadelphia never considered giving the president a role in the amendment of the Constitution. In early drafts of the Constitution, the amendment of the Constitution was to be initiated by the states and ultimately entrusted to a convention to be called at the states' behest. Only late in its deliberations did the Philadelphia conclave craft Article V as it reads today with Congress and then the states — but not the President — approving constitutional amendments.
Honest Abe would not have claimed the right or obligation to sign the 13th Amendment.
I'm inclined, however, to cut Mr. Kushner more slack than is Rep. Courtney. The statement articulated by Lincoln in the movie dramatizes Lincoln's deep commitment to the 13th Amendment — which is historically accurate. In all likelihood, Lincoln actually would have said something along the lines of wanting Congress to promptly send the 13th Amendment to the states — not the stuff of which Oscar nominations are made.
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 Amendment was not inevitable. Lincoln's commitment was decisive.
In the end, "Lincoln," despite historic quibbles, teaches about one of our nation's pivotal moments in an interesting and accessible way. Despite a bloody civil war, Americans, led by their president, hewed faithfully to the constitutional processes that define America. Although Mr. Kushner may have taken some liberties with strict historical facts, the movie captures the larger truth: Due process, decency and the rule of law can prevail in the messy and flawed realities of democratic decision-making.
At a time of excessive partisanship and gridlock in Washington, this is a welcome reminder of the bedrock underlying our "more perfect union."
Edward A. Zelinsky of New Haven is the Annie and Morris Trachman Professor of Law at the Benjamin N. Cardozo School of Law, Yeshiva University.
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