Should we have executed Jefferson Davis and Robert E. Lee?


A very thought provoking piece from Sandy Levinson over at Balkinization. It is brief so I have reproduced it here in full. Please take a minute to read it.

The New York Times has just indicated that an Iraqi appeals court has upheld the death sentence for Sadam Hussein "in a decision that clears the way for his execution within 30 days, Iraqi officials said." 

So the question is this: Should the victorious Union in 1865 have tried, convicted, and then executed Jefferson Davis and Robert E. Lee for the treason they undoubtedly (as a legal matter) engaged in? Indeed, though the term is obviously anachronistic vis-a-vis 1865, should they have been tried for "crimes against humanity" with regard to their collaboration, to the point of secession, with slavery?

I suspect that most Americans, rightly or wrongly, believe the answer is no, that the wisdom of Lincoln's Second Inaugural was precisely to avoid "malice" toward the defeated South, including its leaders. From a more realpolitik perspective, the answer is surely no, unless one is willing at the same time to support a far, far more rigorous and bloody "reconstruction" (also known as "regime change") against the insurrection that would surely have been multiplied had Davis and Lee swumg from the gallows.

So why should anyone cheer the imminent execution of Saddam Hussein, however much one may believe that if capital punishment is ever justified, then he surely qualifies? Can any sane person believe that his execution will in any manner whatsoever serve to bring any further stability to Iraq? The United States is without the slightest authority, moral or political, to intervene in this "self-inflicted wound" (to quote Charles Evans Hughes's description of some notable Supreme Court fiascoes). Can anyone, or are we doomed, as in a Greek tragedy to the execution of the tyrant followed by ever-increasing retaliation against Shi'ites and so on. Does any sane person believe that a "surge" in US forces, coupled with Saddam's execution, makes the slightest bit of sense, unless we want to declare ourselves unequivocal partisans of the Shi'ites (and, indirectly, of increased Iranian influence?).

And so on to a New Year. And is anyone going to be celebrating the fact that on New Year's Day, thanks to our Constitution, there will be 751 days to look forward to of the Bush-Cheney Administration?

Posted: Tue - December 26, 2006 at 01:46 PM          

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