Lincoln's Constitutionalism

The date for Abraham Lincoln’s First Inaugural Address was set for March 4, 1861. Lincoln, though born in Kentucky, and spending a bit of childhood in Indiana, was for the larger part of his life an Illinoisian. On February 11, 1861, Lincoln gave a farewell address to a crowd of onlookers in his home town of Springfield. The speech was one of his more emotionally driven dictions. Lincoln was not only aware that he might never return to Springfield, he was aware of the vastness of the task before him: “without the assistance of the Divine Being who ever attended him, I cannot succeed. With that assistance I cannot fail.” Lincoln of course was not just talking about the standard duties of being president, but of the mounting tensions and the growing divide at the heart of the Union over the matter of slavery. Just a few months prior, on December 20th 1860, the Charleston Mercury announced “The Union is Dissolved” as it set out to leave the Union. Lincoln’s task was to somehow, and in some way preserve the Union in the face of almost certain dissolution.

But to understand this moment, we need to take a few steps back first. For the Founders of our nation were, despite claims to the contrary which are most certainly the work of overgeneralization, not unified on all matters, nor was the declaration on 1776 under the impression that all Americans were the same. As the founders gathered, they realized that unity was going to be challenging, far more challenging than a monarchy understood. The different states had different economies, for starters. The South, with its cotton exports and tobacco-rich fields speckling the Virginia countryside. The North, with its textile exports, corn and squash and cabbage fields, and the ever-rising Massachusetts whale industry with its influx of whale blubber. Even early on it was apparent that the American project, though we call it this retrospectively, was going to be one of compromise, but not compromise in the weak sense of the word. Instead, it was the awareness that among the people of the fledgling nation there would be people of various stripes seeking to live together in harmony.

The next century would play this out repeatedly. Slowly, the disparate corners of the growing country would see increasingly that they were at odds with other parts. The South, aided by James Polk and his eye on expansion, saw the West as a means to extend the slave empire, to create a Southern Cotton Kingdom made up of territory that included Texas. The Whigs, on the other hand, were repulsed by such a thing. Henry Clay, the Whig stalwart who endeared himself to the likes of Abraham Lincoln (who even invited him to Illinois to speak though Clay declined), would run for the presidency in 1844. The Mexican-American War, which this expansionist drive from the Executive would lead to, was, to most Whigs (though not all), highly unnecessary. With each new territory claimed, the question that lingered beneath the surface came rearing back: would slavery be allowed? 

American history, far from being unified, is full of conflicts of this sort. But this one would culminate in the Civil War, a great divide between North and South, slave and free. Lincoln, while a somewhat minority voice of opposition to the Mexican-American War, would be thrust into the national eye in 1860, first as the Republican candidate for the presidency and then as President. Lincoln inherited a nation that had been built on compromise, but not in the sense that mattered. With each decade in the early 19th century, the question of slavery was punted down the line. The Missouri Compromise of 1820 avoided a direct debate over slavery, offering instead to bring in Maine as a free state and Missouri as a slave state. The Gag Rule of the 1830s and 40s prevented Congress from debating anti-slavery propositions, instead tabling them. The Wilmot Proviso, an attempt at stopping slavery's spread into the new territory acquired from Mexico, failed. And the Compromise of 1850, allowing some states to decide the slave question by popular sovereignty, was followed in 1854 by the Kansas-Nebraska Act, which repealed the Missouri Compromise line. By the election of 1860, Lincoln traveled by train to Washington under immense pressure, with the threads of unity nearing their end.

It's hard not to picture Lincoln sitting in a train car after giving his farewell address in Springfield, leaving the teary-eyed people of his beloved home behind. Washington loomed like a shadow ahead, and Lincoln, far from the country bumpkin we like to present him as, was an ardent political partisan ready to invoke a more lasting bond of unity.

So what was Lincoln's choice here? Certainly, he could have pressed for a remaking of the constitutional order, looking back at the founding and explaining that the Constitution that began the American project was incapable of handling the nation's massive differences. Yet he did nothing of the sort. If anything, Lincoln pressed into the constitutional framework. His opponents would argue that the Constitution protected slavery, but this was far from the truth.

In his February 27, 1860, Cooper Union Address in New York, Lincoln addressed this point head on. Combing through the voting records of the thirty-nine framers of the Constitution, he showed that of the twenty-three who left any record on the question, twenty-one, a clear majority, had voted to prohibit or restrict slavery's spread into federal territory: the Northwest Ordinance of 1787, the organization of the Mississippi Territory in 1798, the Louisiana Territory in 1804, and the Missouri question of 1819–20. Washington himself, as president, signed the 1789 act enforcing that same prohibition in the Northwest Territory. Lincoln drove the point home directly stating: "True, we do, in common with 'our fathers, who framed the Government under which we live,' declare our belief that slavery is wrong." This line, "our fathers, who framed the Government under which we live," was actually Stephen Douglas's own, first used by him to argue that the framers believed the Constitution gave Congress no power to restrict slavery's spread into the territories. Lincoln adopted Douglas's own framing as his text in a sort of jab at him (something Lincoln would often do) declaring, "I fully indorse this, and I adopt it as a text for this discourse," and then used the voting record to turn it against him. Lincoln, in contrast to Douglas, argued that the very men who had framed the Constitution repeatedly voted, in Congress and even from the presidency, to limit, and by limit I mean prohibit, the expansion of slavery into the territories. 

In a February 14, 1861, speech in Steubenville, Ohio, Lincoln, standing on the train platform as part of his journey to the First Inaugural, proclaimed: "we everywhere express devotion to the Constitution." The problem was that, as Lincoln goes on to say, "What are our rights under the Constitution?" This is an important question for us today to consider. In his First Inaugural, Lincoln would proclaim, "I hold that in contemplation of universal law, and of the Constitution, the Union of these States is perpetual." This perpetual undergirding of the Constitution was essential to Lincoln; he even noted that if all were to abide by the constitutional framing, the Union would last forever. For Lincoln, the Constitution was not a contract. It was a binding assertion that there were agreed-upon and verifiable universal laws and rules which all humans must accept and live under.

Lincoln's First Inaugural truly holds the key to his constitutional thought (though it certainly would grow and develop over time, as anyone who has read Lincoln will come to realize). Lincoln was convinced there was a universality to the Constitution, one which he served not as an authoritarian enforcer, but as a responsibility to guide and protect. "I therefore consider that in view of the Constitution and the laws, the Union is unbroken," he declared, "and to the extent of my ability I shall take care, as the Constitution itself expressly enjoins upon me, that the laws of the Union be faithfully executed in all the States." Yet he was careful to frame this duty not as the assertion of personal power, but as submission to it under the people: "Doing this I deem to be only a simple duty on my part... unless my rightful masters, the American people, shall withhold the requisite means, or in some authoritative manner, direct the contrary."

Many of Lincoln's critics, including numerous Southern papers, created a caricature of Lincoln as a kingly figure, a lawless, ruthless leader seeking blood and vengeance under the guise of constitutional legality. His opponents might have been better off recognizing that the same claims were made against Washington, one of Lincoln's heroes thanks to Weems's biography, which Lincoln read over and over again in his youth. For an authoritarian, Lincoln surely was inept at understanding his all-encompassing role as king and lord.

Lincoln understood the Constitution as the maturation of the Union, not its origin. In other words, the Union itself predates the Constitution: the Articles of Association (1774), the Declaration of Independence (1776), the Articles of Confederation (1778) all came first, culminating in the Constitution (1787). While Southern states were seeking a way, a constitutional way, to leave the Union, Lincoln was quick to point out that the Union existed prior to the constitutional framework.

But perhaps more important for our modern age, Lincoln found that the Constitution was never meant to offer a specific answer to every future ailment or controversy. This is vital for us today. While I'm certainly aware of the ailments of modern "liberality," I'm not sure the claim that it stems from the constitutional order is the approach we need. In fact, I'd argue that it was this very same tendency playing out in the mid-19th century. So what is the purpose of the Constitution, then, if not to resolve all issues? Lincoln goes on: "No organic law can ever be framed with a provision specifically applicable to every question which may occur in practical administration." In other words, Lincoln says that the Constitution does not explicitly state whether fugitives should be surrendered by national or state authority, or whether Congress may, or is even obligated to, act on slavery in the territories. Instead, the Constitution offers a limiting restraint.

And yet Lincoln found within the Declaration of Independence, the laws of nature and of nature's God, the restraint that gave the Constitution its shape. In a January 1861 note, Lincoln recorded that "all this," meaning the crisis of the nation, "is not the result of accident. It has a philosophical cause." Lincoln goes on to clarify that the principle of "liberty to all" "clears the path for all, gives hope to all." This expression, as Lincoln calls it, is what makes the Declaration so unique and gives the Constitution its life and purpose. "No oppressed people will fight, and endure, as our fathers did, without the promise of something better than a mere change of masters." "Liberty to all" truly is the limiting restraint of the constitutional order. The statement is, in Lincoln's words, "an apple of gold." The Union and the Constitution, he goes on, are "the picture of silver, subsequently framed around it." The Constitution was made not to usurp this claim, but to preserve it.

Fast forward to today, and it seems our nation is once again at a great inflection point. On one hand, there are those who claim the constitutional order we inherited is inherently flawed and biased. The only path forward, these proponents state, is to unmake the old order, altering Congress and remaking the Supreme Court. They likewise seek to remove the Electoral College, calling it a "thing of the past" and "innately racist." On the other hand, there are those who would see America usher in a "Christian prince," an authoritarian figure to lead a revolt and reestablish order. These proponents despise the Constitution, seeing it as the natural parent of the individualistic life and the revolt against moral and religious strictures. Yet is this not far removed from the opponents of Lincoln's day? The South, seeking to feed its drive to expand the slave empire, desired to either remove the constitutional order or remake it entirely. Some, incorrectly I believe, viewed Lincoln as an authoritarian figure, a sort of constitutional king forcing his will. Yet this completely misses what Lincoln was doing. Lincoln certainly violated some rights, such as habeas corpus, but he, like Washington, was always set on handing power back to the people. Lincoln understood that the Constitution was the silver lining around the apple of gold, that the claim "liberty for all" truly meant for all.

To reclaim the constitutional order is compromise in the best sense, not out of weakness, as in the events that led to the Civil War, but as a means to live, as a vast union of very different people, harmoniously under a constitution of liberty. This constitution of liberty is not the freedom to do whatever one would like; I'd agree with the critics who decry this. Instead, it is the freedom to live in harmony under certain principles. For starters, there is the separation of powers. This is why, in Federalist 51, Madison notes that ambition must counteract or temper ambition. This connective tissue of authority enables safeguards against abuse in a way that European peasants would have long loved to have. This separation ensured a buffer between the various parts of governance. Likewise, checks and balances, while frustrating to many, offer a means to slow down ambition (again drawing from Madison) in the instance of executive abuse of power. A king could execute authority by whatever means he thought best. Checks and balances, along with the separation of powers, ensured this would not happen.

Of course, there is federalism itself. Many will scoff at this: "why don't we have the Articles of Confederation instead?" Well, with a country so vast, and a people so diverse (yes, even in 1787 the country was diverse, not all people are the same), there needs to be a mechanism for enacting the constitutional order while also allowing state governments to function. This compromise ensures that divided communities can address matters locally, while national matters can be addressed not by locality but by national governance. There's also the protection of individual rights, individual being a bad word in today's world, but it does not mean "individualism," or the sin which is read into every document from the past. Instead, the Constitution protects and guarantees the ability to speech, religion, due process, and equal protection under the law.

Lincoln understood, as he set out toward Washington, that the best hope for the Union was not through authoritarianism, nor was it to completely remove the Constitution. Instead, it was a rededication to the founding principles that make America a cohesive, yet very disparate, home to a people seeking to live at peace with one another. This is why, while I share the laments at the ills of society as posited by some of my post-liberal friends (and I mean this, there are some good critiques of culture), I'm not sure there is anything better than the Constitution as a safeguard of liberty for all. Like Lincoln, we must draw on the sacrifice of those who came before us and have "a new birth of freedom," for when the government of the people, by the people, and for the people no longer exists, it will be a scary day, not just for the American people, but for the whole world.

(All quotations from Lincoln in this essay came from Basler’s collected works of Lincoln.)