Lincoln and Constitutional Theory

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LINCOLN AND CONSTITUTIONAL THEORY

Throughout his political career, most notably in the performance of his duties as chief executive during the civil war, abraham lincoln was required to construe the Constitution. Three of Lincoln's constitutional constructions have assumed fundamental significance in American constitutional theory. Basic to the decision to resist disruption of the Union, these constructions were presented in Lincoln's first inaugural address, on March 4, 1861.

The first of Lincoln's constitutional constructions denied a monopoly of constitutional interpretation to the judicial branch and asserted the authority of the political branches of the government to determine the meaning of the Constitution. Discussing the nature of a liberal republican form of government, Lincoln considered the proposition that constitutional questions are to be decided by the Supreme Court. He said that constitutional decisions of the Court were binding on the parties to a suit as to the object of that suit, and were entitled to very high respect and consideration by the other departments of government in parallel cases. Nevertheless, "if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by the decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent, practically resigned their government, into the hands of that eminent tribunal." Reiterating his criticism of the dred scott v. sandford (1857) decision, Lincoln affirmed the separation of powers and the political question doctrine as essential elements in constitutional interpretation.

Lincoln's second constitutional construction asserted the necessity of majority rule as a fundamental principle in liberal republican government. Rejecting the Southern view that the right of secession was the basic principle in the American political tradition, Lincoln said: "A majority, held in restraint by constitutional checks, and limitations, and always changing easily, with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people." Stating that unanimity was impossible and that the rule of a minority was not legitimate as a permanent arrangement, Lincoln declared the majority principle to be the only alternative to anarchy or despotism. In deciding constitutional controversies, he reasoned: "If the minority will not acquiesce, the majority must, or the government must cease." And if "a minority, in such case, will secede rather than acquiesce, they make a precedent which, in turn, will divide and ruin them; for a minority of their own will secede from them, whenever a majority refuses to be controlled by such minority."

The third theoretically significant constitutional construction, providing further reason for rejecting secession as an American constitutional principle, concerned the nature of the Union and the Constitution. Claiming authority to prevent the disruption of the Union, Lincoln said: "I hold, that in contemplation of universal law, and of the Constitution, the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper, ever had a provision in its organic law for its own termination." Lincoln meant that the federal government, in essence, was the sovereign government of a nation and national people, not the coordinating authority or agent of "an association of States in the nature of a contract merely." Like all national governments, the government of the Union-nation was intended to last indefinitely. By the principles of political science and the law of nations, it possessed rightful authority to maintain its own existence against disintegration, as a means to the end of maintaining the purposes of the nation and of the Constitution by which the establishment of the government was ordained.

Lincoln's constitutional constructions crystallized earlier constitutional arguments and had a formative effect on constitutional law and theory for the indefinite future. Politically controversial, they were integral to practical decisions aimed at upholding the ends of the Constitution. Lincoln did not conceive of constitutional theory as an activity aimed at developing abstract normative propositions based on principles of moral philosophy external to the existing constitutional order.

Herman Belz
(2000)