LINCOLN, ABRAHAM (1809–1865)

Abraham Lincoln of Illinois served as President of the United States during the nation's greatest crisis, the civil war. He had previously represented Illinois in the houseof representatives for a single term (1847–1849), during which he introduced the spot resolutions, implicitly critical of President james k. polk's administration of the Mexican War, and supported the wilmot proviso, which would have banned slavery from the territory acquired in that war. Lincoln rose to national prominence opposing the policies of Senator stephen a. douglas, especially Douglas's kansas-nebraska act, which extended slavery in the territories on a local-option basis. In 1856 he joined the fledgling Republican party. Lincoln opposed Douglas's reelection to the Senate in 1858, and the two candidates toured the state together, publicly debating the issues of slavery, popular sovereignty, and constitutionalism. During the lincoln-douglas debates, Lincoln severely criticized Chief Justice roger b. taney's decision in dred scott v. sandford (1857) as a betrayal of the principles embodied in the declaration of independence.

Lincoln's election to the presidency in 1860 triggered the long-impending secession of several slaveholding southern states. Lincoln's presidency was devoted to saving the Union, which meant, in his mind, the rededication of the nation to the principles of the Declaration of Independence, and especially to the proposition that all men are created equal. This work of saving the Union, tragically cut short by an assassin's bullet, was Lincoln's great contribution to American constitutionalism.

In the Lincoln Memorial, directly behind the statue of the Great Emancipator, these words are inscribed:

In this temple
as in the hearts of the people
for whom he saved the Union
the memory of Abraham Lincoln
is enshrined forever.

Lincoln did indeed save the Union. But the Union Lincoln saved was older than the Constitution; the Constitution was intended to form a "more perfect Union." When Lincoln began the Gettysburg Address with the magisterial "Fourscore and seven years ago …" he intended his listeners to understand that the birth date of the nation was 1776, not 1787, and that the principles of "government of the people, by the people, for the people" were those of the Declaration of Independence. The Constitution was intended to implement those principles more perfectly than had been done by the articles of confederation. Lincoln at Gettysburg also intended his listeners—and the world—to know that there would be "a new birth of freedom" that would be accomplished by the emancipation proclamation, followed, as he intended that it would be, by the thirteenth amendment. (We may be confident that, had he lived, Lincoln would also have given his support to the fourteenth and fifteenth amendments, as part of that same "new birth.")

To understand the Constitution as Abraham Lincoln did must mean, primarily and essentially, to understand the Constitution as an expression of the principles of the Declaration. To do this is to separate the interpretation of the Constitution from all forms of legal positivism, historicism, and moral relativism, that is to say, from all those forms of interpretation that are dominant today in the law schools, universities, and courts of the nation. For, contrary to Lincoln's expectations, his words at Gettysburg have been greatly noted and long remembered: it is their meaning that has been forgotten.

Lincoln did indeed save the Union. At the time of his inauguration, March 4, 1861, seven states had already seceded and joined together to form an independent government called the Confederate States of America. james buchanan, the outgoing President, had been confronted with the south carolina ordinance of secession on December 20, 1860, six weeks after Lincoln's election, and more than ten weeks before his inauguration. Buchanan declared secession to be unconstitutional, but coupled his denunciation of secession with a much harsher denunciation of abolitionism. He denied, moreover, that he as President could take any lawful action against secession. Whatever action the federal government ought to take, he lamely concluded, must originate in laws enacted by Congress. But Buchanan had nothing to suggest to Congress, and Congress, at this juncture—the representatives of eight slave states remaining on March 4, 1861—was as divided as the nation itself. No congressional majority could have been formed then for decisive action against the rebellion. Lincoln waited until Congress had gone home, and cannily maneuvered the South Carolinians into firing those shots against Fort Sumter that electrified the North and consolidated public opinion behind his leadership. He then issued his call for 75,000 troops, and set on foot those measures that eventually resulted in the forcible subjugation of the rebellion.

Lincoln insisted that the Constitution ought not to be construed in such a way as to deny to the government any power necessary for carrying out the Constitution's commands. The Constitution required the President to take an oath "to preserve, protect, and defend the Constitution," and made it the duty of the President to "take care that the laws be faithfully executed." Lincoln held it to be absurd to suppose that it was unlawful for him to do those things that were indispensably necessary to preserve the Constitution by enforcing the execution of the laws. Even an action that might otherwise be unlawful, he said, might become lawful, by becoming thus indispensable. Lincoln never conceded that any of his wartime actions were unconstitutional. But supposing that one of them had been so, he asked, "… are all the laws but one to go unexecuted, and the Government itself go to pieces, lest that one be violated?"

Lincoln saved the Union. He prevented the United States from being divided into two or more separate confederacies. It was entirely likely that the North American continent would have been "Balkanized" had the initial secession succeeded. Like the Balkan states, the petty American powers would have formed alliances with greater powers, and North America would have become a cockpit of world conflict. All the evils that the more perfect Union was designed to prevent, those particularly described in the first ten numbers of the federalist—large standing armies, heavy taxation, the restriction of individual liberties characteristic of an armed camp—would have come to pass. Civil and religious liberty, the supreme ends of republican government, would, with the failure of the American experiment, "perish from the earth." The "central idea of secession," Lincoln held, "is the essence of anarchy." A constitutional majority, checked and limited, and able to change easily with deliberate changes in public opinion and sentiment, "is the only true sovereign of a free people." To reject majority rule is to turn necessarily either to anarchy or to despotism.

The Lincoln Memorial says that Lincoln saved the Union for "the people." At the outset of the war Lincoln said, "This is essentially a people's contest." Today, when the foulest despotisms call themselves "people's republics," it requires a conscious effort to restore to our minds the intrinsic connection in Lincoln's mind between the cause of the people and fidelity to individual liberty under the rule of law in a constitutional regime. "Our adversaries," Lincoln said, at the outset of the war, "have adopted some declarations of independence, in which, unlike the good old one, penned by thomas jefferson, they omit the words 'all men are created equal.' Why? They have adopted a temporary national constitution, in the preamble of which they omit, 'We the People,' and substitute 'We, the deputies of the sovereign and independent States.' Why? Why this deliberate pressing out of view the rights of men and the authority of the people?" Here is the core constitutional question of the Civil War. Lincoln was elected on a platform that called for the recognition of states ' rights, "and especially the right of each State to order and control its own domestic institutions according to its own judgment exclusively." Such rights, the Republican platform asserted, and Lincoln repeated in his inaugural, were "essential to that balance of power on which the perfection and endurance of our political fabric depend." For Lincoln, however, the rights of the states were themselves the political expression of the rights of the people, which in turn were the political expression of the rights of men. The proposition that embodied the rights of men was that to which—as he said at Gettysburg—the nation was dedicated at its conception. The Civil War was a result of the fact that the idea of states' rights, and of popular sovereignty, had become divorced, in the public mind of the Confederacy, from the original doctrine of equality in the Declaration of Independence.

The question posed by the Civil War, Lincoln said, was addressed to "the whole family of man." That Lincoln conceived of mankind as in some sense a "family" was of course but another expression of his belief in human equality. Lincoln's question was essentially the same as that addressed by alexander hamilton in The Federalist #1: "whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions upon accident and force." The election of Abraham Lincoln was a deliberate decision of the American people, in accordance with the canons of reflection and choice embodied in the Constitution. It remained to be seen therefore whether, in Lincoln's words, "discontented individuals, too few in numbers to control administration according to organic law [can arbitrarily] break up their government, and thus practically put an end to free government upon the earth." But because the leaders of the rebellion "knew their people possessed as much of moral sense, as much devotion to law and order … as any other civilized and patriotic people," it was necessary for them to invent "an ingenious sophism which, if conceded, was followed by perfectly logical steps … to the complete destruction of the Union. The sophism itself is, that any State of the Union may, consistently with the national Constitution … withdraw from the Union without the consent of the Union or of any other State."

The secessionists claimed that membership in the Union resulted from the acts by which the states had ratified the Constitution and that they might therefore withdraw by the same procedure. The Constitution itself, according to this theory, had no higher authority than the will of the people of the several states, acting in their constituent capacity.

In contradiction of this position, Lincoln presented a historical argument, that the Union was older than the states, that the rights of the states were only rights within the Union, and never rights outside of it or independent of it. Although the Declaration of Independence speaks, in its next to last sentence, of all those "Acts and Things which Independent States may of right do," none of them were ever done by any of the United States independently of each other. This argument, however, is not as conclusive as that other argument, independent of history, which follows from that "abstract truth applicable to all men and all times," to which, at Gettysburg, Lincoln said the nation had been dedicated. This argument Lincoln had been developing throughout his mature life, and is the ground of his constitutionalism, as indeed it is of all his moral and political thought. According to Lincoln, the Civil War was a "people's contest" because the rights of the states, and of the United States, were the rights of the people, either severally or generally. But what are the rights of the people? They are the rights with which the Creator has equally endowed all men—all human beings. These are the unalienable rights, among which are the rights to life, to liberty, and to the pursuit of happiness. Since all men have these rights equally, no man can rule another rightfully except with that other man's consent. Nothing better illuminates the division within the American mind that brought about the Civil War than this passage from a speech in reply to Douglas in 1854: "Judge Douglas," said Lincoln, "frequently, with bitter irony and sarcasm, paraphrases our argument by saying: 'The white people of Nebraska are good enough to govern themselves, but they are not good enough to govern a few miserable negroes !' Well, I doubt not that the people of Nebraska are, and will continue to be as good as the average of people elsewhere. I do not say the contrary. What I do say is, that no man is good enough to govern another man, without that other's consent. I say this is the leading principle—the sheet anchor of American republicanism." Slavery, Lincoln observed, is a violation of this principle, not only because "the Master … governs the slave without his consent; but he governs him by a set of rules altogether different from those which he prescribes for himself." Republicanism, for Lincoln, meant that those who live under the law share equally in the making of the law they live under, and that those who make the law live equally under the law that they make. Here in essence is the necessary relationship between equality, consent, majority rule, and the rule of law in Lincoln's thought. Here in essence is what unites the principles of the Declaration with the forms of the Constitution. Here is what enables us to distinguish the principles of the Constitution from the compromises of the Constitution (in particular, the compromises with slavery). Here is the essence of Lincoln's understanding of why the argument against slavery and the argument for free government are distinguishable but inseparable aspects of one and the same argument.

The people are collectively sovereign because the people individually, by their consent, have transferred the exercise of certain of their unalienable rights—but not the rights themselves—to civil society. They have done so, the better "to secure these rights." A just government will act by the majority, under a constitution devised to assure with a reasonable likelihood that the action of the majority will fulfill its purpose, which is the equal protection of the indefeasible and equal rights of all. The majority is the surrogate of the community, which is to say, of each individual. Majority rule is not merely obliged to respect minority rights; in the final analysis it has no higher purpose than to secure the rights of that indefeasible minority, the individual. The sovereignty of the people—or of the states—cannot be exerted morally or lawfully for any purpose inconsistent with the security of those original and unalienable rights. Although Lincoln denied any constitutional right to secede, he did not deny a revolutionary right, which might be exercised justly if "by the mere force of numbers, a majority should deprive a minority of any clearly written constitutional right."

In his inaugural address Lincoln repeated his oftrepeated declaration that he had no purpose, "directly or indirectly, to interfere with slavery where it exists." He had, he said, "no lawful right to do so" and he had "no inclination to do so." This, he held, was implied constitutional law, but he was willing to make it express, by an amendment to the Constitution. Lincoln would not, however, agree to any measures that might have as their consequence the extension of slavery to new lands where it did not already exist. As he wrote to his old friend alexander h. stephens in 1861, "You think slavery is right, and ought to be extended; while we think it is wrong and ought to be restricted. That I suppose is the rub. It certainly is the only substantial difference between us." Many complex and elaborate explanations have been made of the causes of the Civil War. Lincoln's is at once the shortest and the most profound.

The South claimed the right to extend slavery on the ground that it was a violation of the fundamental equality of the states to allow the citizens of one state or section to emigrate into a federal territory with their property, while prohibiting the citizens of any other state or section from emigrating into that same federal territory with their property. Lincoln dealt with this argument in 1854—in his first great antislavery speech—as follows: "Equal justice to the South, it is said, requires us to consent to the extending of slavery to new countries. That is to say, inasmuch as you do not object to my taking my hog to Nebraska, therefore I must not object to you taking your slave. Now, I admit this is perfectly logical, if there is no difference between hogs and negroes."

Southerners had come to deny the essential difference between hogs and Negroes, in part because of the enormous economic stake that they had come to have in slave labor, because of the enormous burgeoning of the cotton economy. This was one cause of the change in their opinion of slavery, from a necessary evil to a positive good. Another may be seen in the following from one of Lincoln's 1859 speeches. Douglas, Lincoln said, had "declared that while in all contests between the negro and the white man, he was for the white man … that in all questions between the negro and the crocodile he was for the negro." Lincoln interpreted Douglas's statements as "a sort of proposition in proportion, which may be stated thus: As the negro is to the white man, so is the crocodile to the negro; and as the negro may rightfully treat the crocodile as a beast or reptile, so the white man may rightfully treat the negro as a beast or reptile." Douglas's references to "contests" between negroes and crocodiles, and between negroes and whites, reflected popular ideas of "the survival of the fittest" in the evolutionary process. Lincoln, in commenting on these remarks of Douglas, also went out of his way to deny the necessity of any such "contests." Alexander Stephens, who was inaugurated vice-president of the Confederacy in February 1861, conceded that the United States had been founded upon the proposition "that all men are created equal," and that that proposition had indeed (contrary to what Chief Justice Roger B. Taney had said in Dred Scott v. Sandford) included black men as well as white. But, Stephens went on, the Confederacy was "founded [and] its corner stone rests upon … the great truth that the negro is not the equal to the white man. That slavery—the subordination to the superior race, is his natural and normal condition." "This our new Government," Stephens added, "is the first in the history of the world, based upon this great physical and moral truth." The doctrine of racial superiority became a vital element in the conviction that slavery was a positive good. Without the conviction and the doctrine there could not have been a belief in the South of a constitutional right to extend slavery. That science, in one or another version of evolution, had established the inequality of the races, became the ground for the rejection of the doctrine that all men are created equal.

In fact, the doctrine of racial inequality involves the denial that there is any natural right, or that there are any "laws of nature and of nature's God." And this is to deny that constitutionalism and the rule of law rest upon anything besides blind preference. Justice would then be nothing but the interest of the stronger. Abraham Lincoln's speeches, before and during the Civil War, are the supreme repository for that wisdom that teaches us that we as moral beings ought to live under the rule of law. According to this wisdom, it is also in our interest to do so, because upon our recognition of the humanity of other men depends the recognition of our own humanity. And upon the recognition of our own humanity—by ourselves and by others—depends the possibility of our own happiness as human beings. Surely Lincoln was right in saying that the source of all moral principle—no less than of all political and constitutional right—was the proposition "that all men are created equal."

It is doubtful that the history of the world records another life displaying an integrity of speech and deed equal to that of Abraham Lincoln. With an almost perfect understanding of the theoretical ground of free, constitutional government was united an unflinching courage, and a practical wisdom, in doing what had to be done, lest popular government "perish from the earth." Whether, in the third century of the Constitution, Lincoln's legacy will survive in deed depends upon whether we can recover anything of his character and intelligence. But whether or not this republic lasts, as long as the world lasts Lincoln's speeches and deeds will remain as an emblem and a beacon of humanity to all men everywhere who may be struggling out of the dark valley of despotism and aspiring to the broad, sunlit uplands of freedom.

Harry V. Jaffa
(1986)

Bibliography

Belz, Herman 1969 Reconstructing the Union. Ithaca, N.Y.: Cornell University Press.

Fehrenbacher, Don E. 1978 The Dred Scott Case: Its Significance in American Law and Politics. New York: Oxford University Press.

——1979 Lincoln and the Constitution. Pages 121–166 in Cullom Davis, ed., The Public and Private Lincoln: Contemporary Perspectives. Carbondale: Southern Illinois University Press.

Jaffa, Harry V. (1952) 1983 Crisis of the House Divided: An Interpretation of the Lincoln-Douglas Debates. Chicago: University of Chicago Press.

Nevins, Alan 1950 The Emergence of Lincoln. 2 Vols. New York: Scribner's.

Randall, James G. 1951 Constitutional Problems under Lincoln, rev. ed. Urbana: University of Illinois Press.