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tv   The Presidency  CSPAN  July 28, 2016 11:01am-11:52am EDT

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if the sole or overriding goal of the constitution can be reduced to establishing democracy, and if the distillededistilled essen essence -- just an understanding is passing strange. it is excessive to say as often has been said that the constitution is undemocratic or anti-democratic or anti-majorityian. it is not too much to say that the constitution regards majority rule as but one component in a system of liberty. the principle of judicial restraint distilled to its essence frequently is principle that an act of government should be presumed constitutional and
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that the party disputing the act's constitution bears the heavy burden of demonstrating the act's unconstitutionality beyond a reasonable doubt. the contrary principle that i will call judicial engagement is that the judiciary's principle duty is the defense of liberty and that the government, when challenged, bears the burden of demonstrating that its action is in conformity with the constitution's architecture, the purpose of which is to protect liberty. the federal government can dispatch this burden by demonstrating that its action is both necessary and proper for the exercise of an enumerated power. a state or local government can dispatch the burden by demonstrating that its act is within the constitutionally prescribed limits of its police
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power. the texas supreme court has addressed and dissolved the counterimagi countermajorityian difference. he begins as judicial review began in 1803 with marberry v. madison in which justice marshall wrote "the powers of the legislature are defined and limited and that those limits may not be mistaken or forgotten the constitution is written." in distinguishing between proper judicial difference to legislative majorities and dereliction of the duties to police excesses, willitt says "in our democracy though
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unrivaled is not unlimited. the constitution is supreme and desirable is not a sin-minute" if judicial reviews mean anything, judicial restraint does not allow everything. to reach a tipping point, courts must not distinguish constitutional liberties with nonchalant. there must, justice willett
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writes "remain judicial ly reconciled with constitutional demands." why must? because says willett, the texas constitution like the u.s. constitution is framed in prescription. it declares an emphatic no to myriad government undertakings even if majorities desire them. judicial review means preventing any contemporary majority from overturning yesterday's super majority that ratified the constitution. federal judges are accountable to no current constituency but when construing the constitution, today's judges are duty bound to be faithful to the constituti constitutioncy of those that framed and ratified it.
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this, says willett, is the profound difference between an improperly activity judge and a proper engaged judge. the former creates writes that are neither specified in or implied by the constitution. the latter defends rights and prevents elected branches from inserting duty to declare what the constitution means and implies. it is not true that as was declared in the play "the enemy of the people" the majority is always wrong. it is true, that the majority often is wrong and that the majority even when wrong often has a right to work its will anyway. often but not always. the challenge is to determine the borders of the majority's right to have its way and to
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have those borders policed by a nonmajorityian institution, the judiciary. so to the question about how lincoln has influenced my life, my answer is this. by his noble rejection of the kansas/nebraska act and the idea of popular sovereignty as the way to decide the question of slavery in the territories, lincoln concentrated my mind on two timeless truths. one, is that majority rule is inevitab inevitable but not inevitableably reasonable. and the constitution properly construed both affirm that many things should be beyond the reach of majorities. thank you very much. [ applause ]
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>> terrific. very deep and thoughtful. [ applause ] >> that was terrific. it was provocative. thoughtful. and i have a lot of questions myself. i'm not going to ask them. i'm going to open the floor to you all to do that. before i do, i want to give mr. will just a token of our appreciation. a reminder that he's always welcome to come back home and see us any time. >> thank you. >> one more hand for him. >> thank you very much. [ applause ] >> that concludes mr. will's
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formal presentation. in a moment we'll open the mike to a few questions. we don't have a ton of time. we have ten minutes or so for people to ask him appropriate questions and he's been gracious enough to answer a few. if you want to ask one, please come up to the mike here on my right side. >> could they bring up the house lights so we can see. >> is there a way that we can bring up the house lights? >> let there be light. >> i answered every question. >> let me throw one out then for him. >> here comes lady. >> better still. >> i collect famous legal footnotes and you made reference to one and i lost track of where it came from. >> footnote 4. where the supreme court -- i should be here. where the supreme court without justification and text history
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or logic of the constitution decided that it would now have a hierarchy of rights. there would be some that were declared fundamental and others declared inferior. that the court would make that distinction and then invariably has it turns out economic liberty, the liberty for which we fought the civil war, would be an inferior and not a fundamental right. >> good evening, mr. will. my name is paul. i'm a second-year student at college of law and long admired your work. my question to you is about the passing of justice scalia and particularly i found provocative your talk of the movement especially in american conservative legal minds for judicial restraint and deference to popular majority legislature.
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as conservatives move away from this being that it is a progressive thought, who especially in the light of passing of justice scalia embodies a jurist thought? >> that's a good question. i'm wearing my federal societyist necktie tonight founded in 1982. i assume there's a chapter at the university of illinois. scalia was a very important mentor of this. justice scalia and i -- i knew him before he was on the supreme court. known him a long time. we had a robust disagreement that when presidents overstepped their bounds, it's not the judiciary's duty to jerk the
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leash of the executive branch. his answer was impeach the president. i told him i thought that was awkward. and unrealistic. anyw anyway, closest on the supreme court in my view to these things is clarence thomas who has a healthy disregard or at least refusal to genuflect. if it's wrong, get rid of it he would relitigate the slaughterhouse cases. my son is second-year lawsuit at the university of virginia and i told him his life's work is to get rid of rationale basis test and relitigate the slaughterhouse cases. justice willett of the texas supreme court, clint bolick appointed a few weeks ago from the goldwater institute to the arizona supreme court, they all understand this.
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we're gaining on the rascals. >> do you want to make your way to the mike? >> i can just speak loudly. [ inaudible question ] [ applause ] >> i can tell you the latter in about two hours. i can understand why numerous people in our society are sad, angry, uncertain. for white males without college educations, they haven't had a raise for 40 years. economic stagnation, a sense that life is passing them by, a sense that the system is indeed rigged as in my judgment gig government is always rigged in
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favor of the strong, the articulate and the well lawyered. i understand this. what i do not understand is this man as a vessel for those anxieties. he's an anti-constitutional authoritarian. he's in every instinct prepared to double down on what i consider the most disagreeable feature of the obama years which is his executive overreach. and as i said in a recent column, the breath and depth of his ignorance is the eighth wonder of the world. to take one example, his sister is a federal judge. in defending her, not that anyone attacked her, but in defending her in the houston debate last thursday, trump said why she's so conservative, she signed a bill that justice alito
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of the supreme court also signed. this man who proposes to head the executive branch of our government believes that judges and justices sign bills. he's the first who would flunk an eighth grade civics exam. it's astonishing. it's going to be a long time putting him back in his cage. >> time for one more? >> one more. >> yes, sir. >> mr. will, i'm a first-year law student. my question since this is about lincoln, do you have a quote of lincoln's that you could share with us tonight? >> favorite quote of lincoln's? well, so many lincoln stories, i'm not quite sure of their
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providence but lincoln said if i call a tail a leg, how many legs does a dog have? five? no, four, because calling a tail a leg doesn't make it a leg. words to live by. thank you. [ applause ] >> one of my favorites, too. >> thank you all so much for being here. i wish you all a good night. c-span3's american history tv is in prime time during the
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democratic convention. tonight's programs are about abraham lincoln. starting at 8:00 p.m. eastern, a look at his action with immigrants as a lawyer and later as president and bob woodward reflects on abraham lincoln's legacy and how it affects his successors including richard nixon, ronald reagan and barack obama. and later, columnist george will reflects on president lincoln's view of judicial review and the constitution. all of this coming up tonight on american history tv on c-span3. tonight, hillary clinton becomes the first woman to accept a major political party's nomination for president of the united states. and with c-span, you have many convenient options for watching the entire speech without any interruptions. watch her historic acceptance speech live on c-span. listen to it on the c-span radio app. watch it live or on demand on
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your desktop, tablet or smartphone. hillary clinton's historic speech tonight on c-span, c-span radio app and c-span.org. up next on american history tv, historian jason h. silverman talks about his book "link on and the immigrant" describing lincoln's interaction with immigrants. he concludes these encounters boosted america's economy. the event is about an hour. >> and now for our speaker this evening. jason h. silverman is the professor of history at winthrup
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university. author or editor of 11 books, several of which nominated for national book awards, his recent work "lincoln and the immigrant" is a volume in the series published by southern illinois university press and was released in september. of the 16,500 and counting volumes published on abraham lincoln, this is the first full length study of its kind. dr. silverman received his undergraduate degree at the university of virginia and his graduate degree at colorado state and the university of kentucky. he has received many distinguished teaching awards. currently working on a companion volume detailing president lincoln's reputation in 19th century europe. he also served two elected terms on his local school board. so let's welcome professor jason
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silverman. [ applause ] >> thank you so much. that last part about the eight years on the rockhill school board, forget about all my education. that's when i learned the real meaning of civil war. i have a been interested in abraham lincoln since the fourth grade. we had a parents' night which we were going to do silent vinettes. a signing of the declaration of independence, all sorts of things. one of the silent viniettes was lincoln/douglas debates and my fourth grade teacher told me you can't be abraham lincoln, you're
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not tall enough. to add insult to injury, she said, you have to be steven douglas. so i swore by all that was sacred that i was going to study abraham lincoln for the rest of my life and try to make a contribution. now, i grew up right across the river in alexandria, virginia. i'm a product of the virginia public schools and i can tell you that very little about abraham lincoln was said flatteringly in the state of virginia as i was growing up. but those comments were glowing compared to what i encountered when i first came to south carolina in 1984. so one of my proudest accomplishments is the fact that for 32 years now, i just
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finished my 32nd year, i've been teaching courses to packed classrooms on abraham lincoln in the state of south carolina, which i don't think is a small accomplishment whatsoever. [ applause ] so i'm going to tell you what i tell my students before each class. come back with me in history. fasten your seatbelts. we're going to take a magic carpet ride tonight through the study of abraham lincoln and his relationship with immigrants. may 4th, 1865, oakridge cemetery, springfield, illinois. the weather is warm and the sun is peeking through the clouds. the day is peaceful and a slight wind blows from the west.
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everybody in springfield is on the streets, silent and mournful. their sorrow is all encompassing and they don't know where to go or what to do. the landscape is beautiful and has been especially cared for on this occasion. the clergyman is a tall, dist distinguish looking academic sort that spoke with a softness that belied his younger more evangelical days. bishop matthew simpson was delivering the funeral sermon. he quoted the deceased in words of deep conviction. words that spoke of a great work to be done. they conjured up the spector of an evil in the land. broken by it, i may be, bow to
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it, i never will. the probablity that we may fail in the struggle ought not to deter us from the support of a cause which we believe to be just. it shall not deter me. if ever i feel the soul within me elevate and expand to those dimensions, not unholy worthy of its almighty architect, it's when i contemplate the cause of my country. deserted by all of the world besides and i standing up boldly and alone hurling defiance at her victorious oppressors. the declaration was that of a young abraham lincoln on the day after christmas, 1839. the bishop interpreted his text in a way and with an authority that seemed holy natural to the mourning nation. here was the testament of the beloved martyr dedicating
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himself in his youth to the great slave power. fighting it with all of his energy. bishop simpson quoted lincoln accurately. he had unearthed a long lost speech that would soon be lost again. but he did make one error, however. lincoln's speech had nothing to do with slavery. its subject was banking, industry, and immigrant labor. the log cabin labor and industry, the combination should not surprise us. in more than three decades of public life, lincoln probably talked more about economics and labor to use the terms broadly, than any other issues, slavery included. the bulk of his discussions with an economic focus preceded his
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period of fame and for a while went unrecorded. but the main lines of his thinking survived as do frequently the details. immigration, abraham lincoln, absolutely. lincoln lived in an era when immigration was as much a controversy as it is today. between 1840 and 1860, 4.5 million newcomers arrived. most of them from ireland, the german states and scandinavian countries. many crossed back and forth across the border with mexico, newly drawn in 1848. but from an early age, lincoln developed an awareness and tolerance for different people and different cultures. while no doubt a product of his time, lincoln nevertheless refused to allow his environment
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to blind him to the strengths of diversity and throughout his legal and political career, he retained an infinity for immigration, especially the irish, the germans, the jews and the scandinavians. the indians and their plight was never far from lincoln's thoughts and his plans. his travel down the mississippi river to the port of new orleans exposed lincoln to the sights s s, the sounds and taftstes. more importantly, it established a foundation and sympathy for the rest of his life when it came to the foreign born as well as to the enslaved. it must have been an odd sight to see that tall, lanky, boy sailing down the mississippi
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river in 1829 with his companions looking wide eyed and in awe of everything that he saw. just 22 years old and finally freed of the obligations to his father and his farm, lincoln set off from illinois on a flat boat journey with his stepbrother, cousin and employer. sailing on what must have been an amusing sight, a log cabin on a raft with barrels and logs and hogs. lincoln, john johnston, john hanks, and dennis offette set off on adventure of a lifetime. for the first time in his young life, abraham lincoln was traveling afar and while he could not know it, what he would see would shape his thoughts for the remainder of his life.
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during this trip, lincoln would first come in contact with foreigners in the exotic city of new orleans. and although he probably couldn't and didn't distinguish swedes from dutchman from italians from spaniards, norwegi norwegians, russians, he encount a encounterred them all. he realized for the first time in his young life that immigrants from many lands formed a significant part of the american population. lincoln's two flat boat voyages to new orleans were exceptionally important in his development. they formed the longest journeys of his life. his first experiences in a major city. his only visits to the deep south. his sole exposure to the
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region's brand of slavery and slave trading. his only time in the subtropics and the closest he ever came to immersing himself in a foreign culture. lincoln never wrote or spoke very much of his trips. but you know what? anybody that studies lincoln gets frustrated because this is a man who was as secretive as they come, who kept no journal, no kept no diary and for those of us who study abraham lincoln, you think you know him and he slips right out of your hands and you don't anything about him. you have to start all over again. others wrote about his trips though. his cousin, john hanks, joined lincoln on his second trip departing illinois in 1831. lincoln's eventual law partner and biographer, william hurden, recorded that hanks had said in may we landed in new orleans.
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i can say knowingly that it was on this trip that he formed his opinions. it ran its iron in his then and there. may, 1831. i've heard him say that often and often. lincoln's two flat boat journeys exposed him for weeks on end to the vastness of the american landscape. no subsequent travels in lincoln's life would ever match the length of these journeys. and they also immersed him in the subject of the relationship between transportation and the economic development in the west. lincoln understood and preached that a better form of transportation would improve the economic life of the state of illinois. it would raise living standards for all and it would enhance
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property values. but his river journeys also showed him that by controlling unsettled domains in the state of illinois, you could accelerate immigration. he resided in a sparsely populated region so it was understandable for abraham lincoln that wealth and population were practically synonymous to him. immigrants would bring economic growth and all that it implied. seeing america firsthand from a flat boat at a young age transfixed on abraham lincoln the core of his wig party beliefs. free labor, transportation modernization, internal improvements, and most assuredly, the need to attract
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immigrants. lincoln's trip to new orleans also represented his first and only journey deep into the slave south and into places where enslaved african-americans not only abounded but predominated overwhelmingly. new orleans ranked as the largest city the young lincoln ever had ever seen and it would remain so until he stepped on the national stage as a young congressman in 1848. more importantly, it represented the most ethnically diverse and culturally foreign city in the united states. while lincoln would take a day trip to niagara falls, canada, in 1857, new orleans really would represent the closest abraham lincoln ever came to entering another country. i've been to niagara falls. that is a stretch to say that
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you're going into another country. i've been to new orleans. it isn't a stretch to say that. and while lincoln occasionally encountered french or spanish speaking immigrants or catholics or catholicism in his early years in indiana or illinois or on the ohio river, lincoln's trip to new orleans engulfed him in a different culture's ethnicity, ancestry, religion, language, race, cuisine, architecture and just shear urban size. it gave him the perspective that no other place in his life would provide. into the midst of this complex and contentious social, economic and political landscape walked a young abraham lincoln in 1828 and again in 1831. there was ethnic tension everywhere that lincoln went in
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new orleans. it was in the streets. it was in conversations. it was in the local press. newspapers, local newspapers, were filled with prejudice and scorn for one group or another. editors promised to their readers that their principles would be purely american. whatever that meant. an obvious portent to the american or no nothing party that would rise in the 1850s to exploit american at the scexeno. lincoln would have seen firsthand that some immigrants in the city were discriminated against by a large element of other people. lincoln was present when the creoles suffered at the hands of americans who would become members of the know nothing
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party and when alliances were established and creoles became an object of scorn. their presence, experience and treatment had an enormous effect upon abraham lincoln. the impression of discrimination and prejudice against a group because of who they are, what they look like or how they sound would last abraham lincoln a lifetime. in new orleans, lincoln saw the nation's largest concentration of free peoples of color and best educated people of african ancestry anywhere. lincoln understood this and was enthralled by the cultures he first witnessed in the population of new orleans. later in his life he would remember what he saw as a youth, and he would forcefully oppose
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the nativist movement of the 1850s and know nothing party which i mentioned a few moments ago. in fact, there was a part of new orleans that even followed lincoln back to springfield. william billy, a free black found new orleans to be hostage place to free people of color in the 1820s. fearing kidnapping and enslavement, he fled new orleans for st. louis and then he found his way up to the illinois river in 1831. while approaching the village of salem, a county history records, he overtook a man wearing a red flannel shirt. a tall man was he and carrying an ax on his shoulder.
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they fell into conversation, and they walked to a little grocery store together. the tall man was abraham lincoln who soon learned that the stranger was a barber and he was out of money. mr. lincoln took him to his boarding house and told the people that this man needed help. and his business needed support. and that opened the way for an evening's work among the boarders as they allowed william to cut their hair. lincoln was taken with him. he convinced him to stay and settle in illinois. floorville stayed and he married and raised a family and prospered as a barber to hundreds of springfield's men and children including lincoln who knew him endearingly as billy the barber. it was floorville who groomed lincoln through his attorney days through the ups and downs of his foras into politics and
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before he made that fateful and final departure from springfield to become president of the united states. over the years, lincoln enjoyed many conversations at floorville's barber shop on east adam street about new orleans, about immigrants, about slavery, life on the mississippi river. floorville was bilingual, catholic, french, african, haitian, american. he became lincoln's friend. their conversations were many times of substance and certainly the foundations of a genuine friendship because late in 1863, floorville wrote lincoln a warm letter of gratitude for the emancipation proclamation that had gone into effect the year before. i thought it might not be improper for one so humble in life and occupation to address
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the president of the united states, wrote floorville, yet i do so feeling that if it is received by you, it will be received with pleasure as a communication from your dear friend, billy the barber. in all likelihood, lincoln first learned of the situation in haiti -- heck, he probably first learned about haiti through billy the barber and the conditions that floorville had told him when the men first met in 1831. coincidentally, maybe? ironically, maybe? three decades later, president abraham lincoln established diplomatic relations with the independence caribbean nation of haiti. thanks to billy the barber. ironically, it was through lincoln's connection with the port of new orleans and the efforts of several immigrants that the great emancipator freed
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one of the first people of color. john shelby. a freed black and one of the fellow african-american barbers in springfield while traveling in new orleans in 1856 found the same hostility that floorville had found. not having the proper papers, shelby was arrested and imprisoned. somehow shelby made contact with a springfield raised new orleans now attorney by the name of benjamin jonas. and shelby suggested to jonas that he contact a prominent lawyer back home in illinois whose influence might help him get released. jonas, the lawyer, recognized the name abraham lincoln because lincoln was a friend of jonas' father. a man by the name of abraham jonas, who was one of the first jewish settlers in and around
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springfield, illinois. word spread upriver to shelby's mother and then to lincoln. mr. lincoln was very much moved, wrote one of lincoln's early biographersin biographersin biographers, and requested that mr. hurden go to the state house and inquire if there was not something that would be done to obtain the possession of the negro. mr. hurden made the inquiry and returned with the report that the governor regretted to say he had no legal or constitutional right to do anything in new orleans and in the state of louisiana. at which point mr. lincoln rose to his feet in great excitement and exclaimed, by the almighty i'll have that negro back soon or i'll have 20 years agitation in illinois until the governor does have a legal and constitutional right to do something in the premises."
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wouldn't it be nice if politicians spoke like that today? lincoln knew he didn't have legal legs to stand on. he knew that new orleans and the state of louisiana had the law on their side to what lincoln and hurden did, they drafted $60.30 out of the metropolitan bank of new york and on may 27th, 1857, sent the funds from their springfield law office to benjamin jonas' office in new orleans. jonas paid the fine and by early june shelby's release occurred and he made his way safely back to springfield. john shelby became among the first african-americans ever freed by abraham lincoln. lincoln's affection for the jonas family determined that he would take action as much for them as for shelby himself.
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lincoln regarded abraham jonas as "one of my most valuable and trusted friends" and their friendship dated back to the 1830s. lincoln never forgot the role in his personal life. many times when he was on the campaign trail, lincoln would portray his flat boat voyages as an affirming dues paying experience assuring anybody that would listen that he was a man of the people because he was of the people. it would astonish if not amuse the older citizens of york county, said lincoln on a campaign trail, who 12 years ago knew me as a strange, friendless, uneducated penniless
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boy working on a flat boat at $10 per month to learn that i had been put down here as a candidate of pride, wealth distinction. i can assure you i am not an aristocrat." 20 years later, lincoln returned to the same theme. free society is such that a poor man knows he could better his condition. he knows there's no fixed condition of his labor for his whole life. i am not ashamed to confess that 25 years ago i was a hired laborer, mauling rails at work on a flat boat. just what might happen to any poor man's son." on a personal and little known episode in lincoln's life, he became friends with the reverend lars paul ezborn who was a
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professor at illinois university, a lutheran school in springfield. lincoln's oldest son, robert, attended some of ezborn's classes and lincoln frequently called on the professor to discuss his son's studies. this sometimes reminds me of classes i've had over a number of years. robert wasn't at that time an enthusiastic student. he needed to be motivated. i can relate to that, i assure you. lincoln served on the board of directors of the school. ezborn had political experience as a member of the city council in princeton, illinois. he was an outspoken opponent of strong drink and slavery and lincoln took a liking to him since they shared similar political beliefs. ezborn became a loyal and consistent supporter of lincoln both in the press and on the
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stump and his sons enlisted in the union army with one of them being the first swedish soldier to fall in battle during the american civil war. but before we start patting lincoln on the back, we need to realize that like so many in the mid 19th century, lincoln's philosophy about immigrants was far more complicated than merely that which pertained to a free labor economy. abraham lincoln was a product of his times and of his environment. and despite whatever economic advantages immigrants might represent, many men of his era saw ethnic groups, immigrant groups. mono litically whether irish, jewish, german or swedish. they saw these immigrants as all the same and painted them with a very, very broad brush.
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to his credit, lincoln tended to perceive each individual and each group as distinctive in its own right because he saw diversity and the value in diversity of these groups, he did not assign them as foreigners or savages. his relationship with individuals of different ethnicity and groups as inconsistent as the man himself. like most westerners, lincoln had a low opinion of latin america civilization and his reference toward hispanic was never flattering. in his debate with steven douglas, lincoln attacked the concept that steven douglas believed in so fervently, popular sovereignty. douglas' notion that people in a territory should decide for themselves whether they wanted
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slavery. lincoln asked a hypothetical question as to whether douglas would apply the doctrine of popular sovereignty in an acquisition like mexico where the inhabitants were nonwhite. when we shall get mexico, lincoln asserted, i don't know whether judge douglas will be in favor of the mexican people because we know that the judge has a great horror for mongrals and the people of mexico are a race of mongrals. lincoln said i understand there isn't one person out of eight that's pure white. he will be in favor of these mongrals settling the question.
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that would bring him in collision with his horror of an inferior race. even if you make allowance for the fact that some of these comments occurred by abraham lincoln in a hotly contested debate in which there was a great deal of race-baiting, lincoln still used derogatory comments about hispanics when apparently there wasn't any motive. in describing cubans, lincoln pulled no punches. "their butchery was it seemed to me," lincoln said in 1852, "most unnecessary samost unnecessary d inhuman. they were fighting against the spanish but the real fault was the real people cuba had not asked for their assistance, were not desirous of it, or fit for it, or civil liberty." later, in another speech extolling the brilliance of
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young america and comparing it with old fogey countries. i got to tell you, the older i get, the less i like that phrase, "old fogey." you know that? [ laughter ] abe's going to have to work on that. that's all there is to it. he's going to have to work on that. lincoln concluded, but for the difference in the habit of observation, why did yankees almost instantly discover gold in california which had been trodden upon and overlooked by indians and mexican greasers for centuries." yes. it was in this same speech that abraham lincoln made one of his few remarks about people of asia. the non-white group with whom he had the least acquaintance and the least opportunity to think about. for one who had never been to asia, or arguably, for that matter, as i already

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