Honest Abe, cockfighting, and the Constitution

"(Cockfighting is) barbarous and cruel, leading to disorder and danger, and tending to deaden the feeling of humanity."

--Commonwealth v. Tilton, 49 Mass. 232 (1844).


Give the Massachusetts Supreme Court credit for realizing in 1844 something that it took a lot of Americans another century and a half to figure out. As late as 1998, five states--Arizona, Louisiana, Missouri, New Mexico, and Oklahoma--still permitted the alleged sport of cockfighting (Waisman, et. al, Animal Law: Cases and Materials, 2nd ed., 2002, p. 451-52). The good news is that in the ensuing ten years these five states fell in line. On August 15 of this year, Louisiana will become the fiftieth state in which cockfighting is banned (LA. Rev. Stat. Ann. §102.23, see also http://news.bbc.co.uk/2/hi/americas/6898020.stm).



In some states, the demise of cockfighting has involved the people or their legislators overturning court decisions. Such was the case in Oklahoma, where forty-five years ago a court ruled that the existing anti-cruelty statute did not enjoin cockfighting, see Lock v. Falkenstine, 1963 OK CR 32, 380 P.2d 278 (1963). For me, what is really striking about Lock isn't so much the ruling itself as this little tidbit from the opinion:



"It is reported that Abraham Lincoln said to a group of citizens, who wished to wipe out gamecock fighting by Federal Law: 'As long as the Almighty permitted intelligent men, created in his image and likeness, to fight in public and kill each other while the world looks on approvingly, it's not for me to deprive the chickens of the same privilege.'" Lock at 278.



Would you like to know where in a collection of Lincoln's papers, or in a biography of the man, this bit of Abe's homespun humor is found? Well so would I. Unfortunately, the Oklahoma court did not cite a reference for the quote. Other courts, however, have cited Lock for the assertion that Lincoln did utter such a witty observation, see State ex rel. Miller v. Claiborne, 211 Kan. 264, 505 P.2d 732 (1973) and Brackett v. State, 142 Ga. App. 601, 236 S.E.2d 689, 690 (1977). I guess that's how a story becomes "official." An official body says something and even though they don't cite a source, everybody else can now cite that body as their source for the information. Sort of like New York Times stories about John McCain.



Well, at the risk of appearing foolish should someone step forth and say, "Here it is--a substantial reference showing that Lincoln did, in fact, make that statement," let me go out on a limb and say this story probably is not true. I say that for three reasons. The first, as I've alluded to, is a matter of scholarship. If an article, court opinion, etc., says this famous person said that and there is no source indicated--not even Bartlett's Familiar Quotations for goodness sakes--I get a bit skeptical as to its authenticity. (Here's a website with lots of things Abe Lincoln is alleged to have said; not even THIS source gives the cockfighting story: http://www.brainyquote.com/quotes/authors/a/abraham_lincoln.html).



The second reason for my doubt is that the details are spotty. Notice the anecdote does not tell us when Lincoln addressed the fight against cockfighting. Was it when he was running for Congress or serving there? Was it later when he ran for President and ultimately got elected? I think if somebody accosted him about banning cockfighting when he took over at the White House in 1861 his response might have been not amusing, but instead a rather somber observation that with the nation tearing apart, he had more pressing matters at the moment.


My third reason for suspecting the story isn't all it's cracked up to be is the Constitution, as it was written and interpreted before Lincoln's assasination. It would be one thing if the anecodote stated that Honest Abe was solicited about a local cockfighting ordinance in New Salem or Springfield, or a statewide ban in Illinois. But notice that the tale doesn't say that. It specifically declares that folks approached Lincoln seeking a federal law against cockfighting. Who, I ask, before Lincoln's death, would have thought federal power allowed this?


National authority before the Civil War was quite limited; that was the framers intent. As James Madison wrote in The Federalist Number 45, attempting to sooth fears the Constitution would create too powerful a central government:


"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce... The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs; concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."

That was written one score and one years before Lincoln was born (I couldn't resist writing that), but the doctrine of limited federal authority had not diminished by the time Lincoln became a lawyer. He received his license to practice law in 1836 (Delbanco, A., ed., The Portable Abraham Lincoln, 1992, p. xxxiv), just one year earlier Tocqueville commented on federalism in antebellum America in this manner:

"(I)n America the real power is vested in the states far more than in the Federal government."

And:

"In the American republics (sic) the central government has never as yet busied itself except with a small number of objects, sufficiently prominent to attract its attention."

(Democracy in America, Volume 1, the first quote is from Chapter VII, p. 143 in the Vintage Classics edition, the second is from Chapter XVI, p. 271).

That's the way scholars of our time looking back see it, too. William Novak of the University of Chicago asserts that not until 1877--over a decade after Lincoln walked the earth--did the federal government rise in power. Before that, he writes the the "locus of authority" in America was the state and local governments (The People's Welfare: Law & Regulation in Nineteenth Century America, 1996, p. 238).


And it's not too hard to figure out what happened during and after Lincoln's time that made federal power expand: the Civil War and Reconstruction. Or more specifically where the Constitution is concerned, the Fourteenth Amendment, ratified in 1868. Once there was a federal authority to decide whether a state was engaging in equal protection and due process, inevitably Washington, DC was going to ascend.


But to repeat: even with all that federal authority, we still didn't have a national law against cockfighting well over a century after Reconstruction, which is why there were still five states where you could legally induce chickens to kill each other as recently as 1998.


The end of legal cockfighting in this country on August 15 will be a day worth celebrating. Now if we could just do something about that other part of Lincoln's alleged quip and get men created in the Almighty's image and likeness to stop fighting and killing each other.