Lincoln's Prewar Constitutional Vision

Lincoln's Prewar Constitutional VisionAuthor(s): Phillip S. PaludanSource: Journal of the Abraham Lincoln Association, Vol. 15, No. 2 (Summer, 1994), pp. 1-21Published by: University of Illinois PressStable URL: http://www.jstor.org/stable/20148908 .

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'V.

Abraham Lincoln by Mathew Brady, Washington, D.C., January 8, 1864.



Lincoln's Prewar

Constitutional Vision

PHILLIP S. PALUDAN

We know this man too well, or think we do. He is the nation's

greatest president, perhaps the world's most popular American leader.

His powerful and eloquent words are quoted in every American

election and to endorse almost every political philosophy. His ideas are sent throughout the world to inspire people with faith in dem

ocratic government. And in the United States each generation "gets

right with Lincoln" and thus calls him into its midst, making him

"one of us." We re-create, or at least rewrite, the most appealing of our predecessors to gain support from posterity. When we do this,

we create a compelling story about him. It goes something like this:

Abraham Lincoln fought to preserve the Union and the consti

tutional system that maintained it. From the time that he first de

veloped his ideas about the meaning of the nation, Lincoln thought that this constitutional union existed to achieve an ideal of equal

liberty under which all people could govern themselves and have

"a fair chance in the race of life." The greatest threat to achieving these goals was slavery, but Lincoln believed that the constitutional

system was fundamentally sound and could put slavery on the course of ultimate extinction. What was needed was for people to choose

and support men dedicated to that ideal and devoted to the system. Then the threat would be ended, and the world and the people themselves would know that popular government could endure.

When war came, Lincoln stuck with these ideals. The crucible of conflict intensified their meaning and accelerated their achievement, but Lincoln remained consistent in his ideals through the years of

peace and of war. His presidency provided the awesome and pro found opportunity to turn ideals into actions, to protect as well as

proclaim what the nation, at its best, might be. It is a story we immediately recognize. We nod our heads, quickly

assenting. And yet we assent too fast. Each of the elements of the

An abridged version of this article will appear in "We Cannot Escape History": Abraham

Lincoln and the Last Best Hope of Earth, edited by James M. McPherson, forthcoming from the University of Illinois Press.

Journal of the Abraham Lincoln Association, Vol. 15, No. 2, 1994 ? 1994 by the Board of Trustees of the University of Illinois



2 Lincoln's Prewar Constitutional Vision

story is deep and complex, and to truly understand we must work more carefully through this understanding?not simply to say yes, but to understand why yes is the right answer. One merit in pro

ceeding this way is that it puts us in Lincoln's shoes. "Wfhen he had

occasion to learn or investigate any subject," Herndon recalled, "he was thorough and indefatigable in his search. He not only went to

the root of the question, but dug up the root and separated and

analyzed every part of it."1 Here is not just the preacher of noble

and familiar sentiments, but rather a man working carefully through ideas, understanding what they are made of and how they come to

life. Here is a man not just speaking well-remembered phrases easily recalled and embraced by later generations. Here is Lincoln the

lawyer, Lincoln the politician, Lincoln the constitutionalist. And be cause each of these occupations is grounded in the realities and

necessities of time and place, here also Lincoln must be sought,

living within his age and fitting ideas into the practice of politics,

turning theories of the Constitution into the exercise of governmental power, and making concepts of law into tools for shaping the econ

omy and the social order. Here is Lincoln living in his own age, more than four generations ago?a time in many ways unlike our

own, a time it will take some effort to understand. But when we

understand that Lincoln, we will not only have gotten right with

Lincoln but we will also have gotten Lincoln right. It is hard to approach Lincoln cautiously. Modern ideals and needs

make him too obviously and immediately relevant. Contemporary

imperatives create an unbalanced story. Today his most arresting

aspect is the commitment to equality. The Lincoln of recent years is

the leader of the Union, whose foremost contributions consist in

having freed the slaves, overcoming constitutional obstacles, and

transcending the conservative impulses of mere Union-saving as he

did so.2 He is the idealist for equality whose words remade America

1. William Herndon and Jesse W. Weik, Abraham Lincoln: The True Story of a Great

Life (New York: Appleton, 1920), 2:6; David Donald, "Getting Right with Lincoln,"

Lincoln Reconsidered (New York: Vintage, 1956). There is another element of Lincoln's

thought that supports this argument of Lincoln the conservative. He was intensely interested in how things worked?fascinated by inventions, intrigued with how

magic tricks were performed, drawn to talks with scientists who could explain the

operation of the natural world. This quality seems a manifestation of his interest in

the political-constitutional process. For examples of this interest in scientific processes and in magic, see Benjamin Thomas, Abraham Lincoln (New York: Modern Library,

1968), 469, 477.

2. For literature on Lincoln the egalitarian, see my "Toward a Lincoln Conversation,"

Reviews in American History 16 (March 1988): 35-42. James McPherson, in Battle

Cry of Freedom (New York: Oxford University Press, 1988), presents an egalitarian



Phillip S. Paludan 3

by changing the way Americans think about the meaning of the

nation and the Constitution. He acts to correct "the spirit of the

nation." As Garry Wills argues, "By accepting the Gettysburg Ad

dress, its concept of a single people dedicated to a proposition, we

have been changed. Because of it, we live in a different America."3

And in that America, commitment to equality must be celebrated

and sustained.

Understandably, Lincoln the egalitarian?rather than the consti

tutionalist?is compelling in the age of the Second Reconstruction.

Egalitarians of the post-Brown era live in a world of "Freedom Now."

Martin Luther King, Jr., spoke for a higher law and met often bloody

opposition from men and women who wrapped themselves in con

stitutional rhetoric of state rights and interposition. When the specific words of segregation were stricken from constitutional law, "insti

tutional racism" remained perhaps even more insidious than its

blatant, ugly, brutal parent. The contrast between constitutionalism

and a commitment to equality may have reached its most respectable

peak in the bicentennial celebrations of 1987 when Thurgood Mar

shall, the first black justice of the Supreme Court, who had been

fighting racism from within the legal system for decades, publicly doubted that blacks should rejoice. Here was a disturbing and force

ful contrast between constitutional order and equality.4 It built on an abiding argument that split Lincoln the constitu

tionalist from Lincoln the liberator, as scholars debated whether

Lincoln was devoted to the Declaration of Independence or to the

Constitution. The two documents stand at the foundation of what

the country is, and they define the terms and possibilities for the

Lincoln. In "Hedgehog and the Foxes," in Abraham Lincoln and the Second American

Revolution (New York: Oxford University Press, 1992), 128, McPherson shows an

ambiguity on the relationship between slavery and the Constitution. On the one

hand, he says that Lincoln's major belief was that constitutional government rested

on the Declaration's principle of equal liberty and shows how Lincoln argued this

before the war. Yet McPherson also argues that Lincoln's oath to protect the Con

stitution meant he could not directly attack slavery because "the Constitution pro tected slavery." In one sense this is true. It stopped federal action in time of peace from interfering with slavery in slave states. When Lincoln interfered in time of war

he performed an act that would have been unconstitutional in peacetime, but the

need to preserve the Union made the act lawful. Nevertheless, the other elements

of the constitutional system had already put slavery in peril, for example, the electoral

process, which eleven southern states in 1860-61 were very sure endangered slavery. 3. Garry Wills, Lincoln at Gettysburg: The Words That Remade America (New York:

Simon and Schuster, 1992), 147.

4. Thurgood Marshall, "The Constitution's Bicentennial: Commemorating the Wrong Document?" Vanderbilt Law Review 40 (1987): 1337-42.




polity. The Constitution is admired for the machinery that established

national supremacy and preserved a Union; the Declaration for pro

claiming the ideal that "all men are created equal" and resting

legitimate government on that ideal. Reflecting the modern egali tarian consensus, the authoritative Abraham Lincoln Encyclopedia says, "As an antislavery man, Lincoln had a natural affinity not for the

Constitution (with its compromising protections of the slave interest) but for the Declaration of Independence."5

The most recent version of this argument appears in Garry Wills's

immensely thoughtful Lincoln at Gettysburg: The Words That Remade

America. Wills believes that Lincoln "thinks the Declaration some

how escaped the constraints that bound the Constitution. It was free

to state an ideal that transcended its age, one that serves as a

touchstone for later strivings." Wills recognizes that Lincoln respected the Constitution. He notes Lincoln's devotion to justifying his war

time acts as constitutional. He describes how insistent the president was on being president of the entire Union, North and South, and

hence of acting to respect the status of southerners as citizens under

the Constitution. But although he recognizes Lincoln's constitutional

commitment, Wills aspires to making Lincoln a twentieth-century

egalitarian, a champion who can master modern state rights ad

vocates, from Wilmore Kendall in 1963 to Robert Bork, Edward

Meese, and Ronald Reagan in the 1980s, men who denied that

equality was a national commitment. Wills argues that the Gettys

burg address made advancing equality a federal responsibility. The

instrument of that advance was the use of the "Declaration ... as

a way of correcting the Constitution itself." The flawed Constitution

must be redeemed by a glorified Declaration that would advance

the modern struggle for equality. The rule of law must be rescued

by an appeal to something nobler.6

Lincoln the egalitarian has vital relevance today. His words stand

as an important rebuttal to those who would back away from the

Declaration's ideals. Modern inequality makes knowing that Lincoln

a compelling, immediate need. And yet there is another Lincoln?

5. Examples of arguments that Lincoln chose one of the documents over the other

are found in Mark E. Neely, Jr., The Abraham Lincoln Encyclopedia (New York: McGraw

Hill, 1982), 70; William Gienapp, "Lincoln and Slavery," in Lincoln on Democracy, ed. Mario Cuomo and Harold Holzer (New York: HarperCollins, 1990), 57; Harry

Jaffa, Crisis of the House Divided: An Interpretation of the Lincoln-Douglas Debates

(Chicago: University of Chicago Press, 1982); and Gary Jacobsohn, "Abraham Lincoln

'On This Question of Judicial Authority,' "

Western Political Quarterly 36 (1984): 52

70.

6. Wills, Lincoln at Gettysburg, 102, 129-46.




the lawyer-politician operating within the complex institutions of

his age, manipulating and using institutions, respecting the Consti

tution on its own grounds?who matters even more. All around are signs of popular loss of faith in the political-constitutional system:

post-Watergate, post-Iran Contra America doubts that presidents can

be trusted; check writing scandals that indict Congress; and senatorial

hearings on judicial nominations that raise doubts about senators

and judges. Movements grow to limit congressional terms, and pres idential candidates run against the system, claiming that their ig

norance of politics and lawmaking are recommendations. The voice

of the people is exalted through the politics of polling, in which

candidates find out what the people want and then promise to give them only that. Government by electronic town meeting is offered as a way to make the system work. Americans "hate politics," and

the chief executive campaigns against lawyers.7 And in all this the fundamental quality of the American republic

is submerged. We are, of course, a government "of the people," but

that has not historically meant that popular opinion alone rules the

nation. Much more crucially it has meant that we are a people who

govern ourselves, who make governments as easily as we breathe.

Self-government is cosa nostra?"our thing." Landing on a new

world, expanding across a continent, and incorporating immigrant

populations have all demanded that we make and organize a process in which people can participate, have their voices heard and re

spected, unite in debate and argument, and devise means to achieve

the thousands of different ends that this diverse nation appeals to and symbolizes. In this nation, as Christopher Dodd and many others

have suggested, "Our means are our ends." The process itself?

participation in it, defense of it, acceptance of its results?is what

makes this nation possible. Undeniably, people have been left out, but the very power of the charge that being left out is unacceptable shows how committed we have been to a process of inclusion that

allows the discourse of the polity to continue in an orderly, respectful

procedure. We have not always agreed on ends, but what has allowed

the nation to survive has been fundamental agreement about means

and process?that the rule of law shall be respected, and the political process open. Ironically but understandably, people become civil disobedients and break the law (it is the most outrageous thing they can think of) in order to force their way into the political-consti tutional system.

7. E. J. Dionne, Jr., Why Americans Hate Politics (New York: Simon and Schuster,

1991).




The struggle for equality is connected intimately to this respect for our institutions. As shown by women and former slaves?who

demanded legal protection and participation as jurors, as witnesses, and as voters?the struggle has historically been for inclusion within

the system. And more crucial still is the fact that the institutions

themselves secure and protect those rights. The struggle for equality is ongoing within the process, and each step, each battle won, has

built equality into the system, has constitutionalized freedom. It has

made civil rights and equal suffrage part of the routine of political constitutional life, the common everyday rule of the order of custom

that in this nation is linked intimately to the rule of law. Doing this

has linked equality with its most powerful ally, the commitment of

the society to law and the political-constitutional process.8 Lincoln faced the dilemma clearly. In his environment, to attack

slavery meant more than proclaiming equal justice and freeing slaves.

It meant connecting the nation's values with its institutions, showing,

explaining, and teaching how these institutions could be employed to not only free slaves but also to keep open the chance for ideas

of equal liberty to grow and thrive. If the question is simply, Are

you in favor of equal liberty? Impatience with anything that stands

in its way is legitimate, perhaps even imperative to energize re

formers. But Lincoln's problem and his personal disposition were

more complex. His question was, How is equal liberty achievable within the constitutional system? His task was not just to deplore

slavery, but to sap its strength and, ultimately, to kill it.

Because his America believed quite strongly in black inferiority, he needed to show white Americans that something they treasured

for themselves rested on principles that gave rights to others. His

major task was to show that the Constitution rested on equality. More important, his task was to show Americans that the constitution

they respected did not have to be Roger Taney's constitution, nor

Stephen Douglas's. It could be one in which equality could be re

spected and advanced, and that advancement would benefit whites

as much as blacks. Lincoln made his most eloquent statements about

the Declaration when he challenged Douglas's popular sovereignty and Taney's proslavery constitutionalism. He seldom discussed the

idea that all men are created equal outside the debate about what

8. My interpretation of the operation of the constitutional system relies heavily on Sotirios Barber, On What the Constitution Means (Baltimore: Johns Hopkins Uni

versity Press, 1984); Ronald Dworkin, Law's Empire (Cambridge: Harvard University

Press, 1986); and James Boyd White, When Words Lose Their Meaning: Constitutions

and Reconstitutions of Language, Character and Community (Chicago: University of

Chicago Press, 1984).




the Constitution meant and how the electoral process set up by the

Constitution should operate. He insisted that the Declaration's equal

ity ideal is fundamental because it is connected inextricably to the

constitutional process, a process that Douglas and Taney and Com

pany undermined. He objected to their effort to disconnect the ideals

of the Declaration from the process of the Constitution.

Harry Jaffa is predominantly on target when he observes, "In a

sense it is true that Lincoln never intended to emancipate the Negro: what he intended was to emancipate the American republic from

the curse of slavery, a curse which lay upon both races, and which

in different ways enslaved them both."9 That larger emancipation meant not only removing chains from slaves, but also uncoupling

slavery from its attachment to beliefs and institutions that Americans

cherished.

Ideals of equality demand devotion, and yet alone they seldom

prevail and never endure. Ideals require a sustaining structure, an

ongoing process to implement and give them meaning. They need

to be nurtured and endorsed by experiences and through institutions

that emerge from the traditions and history of a people. And yet, of course, there is a cost to this reverence for history and its insti

tutions. For the ideals they were designed to sustain can be forgotten,

submerged in the inertia of institutions; they can become only quiet

promises and not compelling imperatives. It is fine for those who

have received the blessings of liberty to extol the institutions that

sustain them. Those who have not understandably may ask, "How

long, Oh Israel?"

For the first four decades of his life Lincoln did not often hear

this question. He was working his way into and then shaping the

institutions that defined the status quo. He was a part of the estab

lishment in at least three crucial senses. Economically he had made

it within the economy of the prewar years; he was one of the

wealthiest men in Springfield. He was a successful lawyer who had

been hired by the major business in the state, the Illinois Central

Railroad, to defend its interests. More viscerally, Lincoln had worked

his way up to this position from the bottom. Starting as a landless, uneducated laborer, separated by choice from his father's support and backing, such as it was, he had climbed to where he now stood

in a system whose major myths eulogized just such a rise. His

personal experience both validated and personified that myth. Sum

moning the tale in many speeches Lincoln was defining self and

9. Henry Jaffa, "The Emancipation Proclamation," in A Hundred Years of Eman

cipation, ed. Robert Goldwin (Chicago: Rand McNally, 1964), 23.




polity when he said, "The penniless beginner in the world labors

for wages awhile, saves a surplus with which to buy tools or land

for himself; then labors on his own account for another while, and

at length hires another new beginner to help him."10

Lincoln built his economic security on the two occupations most

entwined with the system. He was a lawyer, and he was a politician. His law practice required that he know the rules and the procedures that settled disputes and distributed resources. For years he traveled

the circuit in Illinois, without the respite of home for many weeks

at a time, absorbed in the camaraderie and the contests of argument and negotiation, and he learned to link fellowship and vocation.

Because he was the most admired and welcomed of his colleagues in this arena he could hardly escape believing that things went well

there. The law and the environment of lawyering, of making the

system work, were integral to Lincoln's life.

And, as Herndon said, "Politics were his life."11 He spent seven

formative years in the Illinois state legislature, one term in Congress, and maneuvered and manipulated the political system throughout his mature years, working out political bargains in which ambitious

men might take turns holding public office. His papers are inter

woven with lists and evaluations of vote totals as well as letters

discussing which candidates would get the most votes where and

why. And he reveled in it. There, in the public sphere, doing the

public's business, Lincoln replicated his legal career?admired and

enjoyed by colleagues, forming coalitions and logrolling, forging majorities, and compromising and cajoling, he had seen and shaped

politics with considerable pleasure and frequent success. If ever a

man had reason for devotion to the system, the establishment in all

of its manifestations, it was Abraham Lincoln.

Through all of this, institutions claimed his greatest devotion. Yet

the ideals of the Declaration were so intimately part of the nation's

traditions that he could hardly ignore them. And the slavery ex

pansion crisis would, of course, demand increased attention. Yet

Lincoln did not abandon his respect for the structures of law and

politics that had nurtured him so well. He did not even set them

10. Roy P. Basler, ed., Marion Dolores Pratt and Lloyd A. Dunlap, asst. eds., The

Collected Works of Abraham Lincoln, 9 vols. (New Brunswick: Rutgers University Press,

1953-55), 3:478-79 (hereafter cited as Collected Works). On Lincoln's climb, see

Richard Hofstadter, "Abraham Lincoln and the Self-Made Myth," The American

Political Tradition and the Men Who Made It (New York: Knopf, 1948, repr. 1973), 92-134.

11. Quotation from J. G. Randall, Lincoln: The President, 4 vols. (New York: Dodd,

Mead, 1945), l:40n.




aside to emphasize ideals over institutions. His main task was to

interconnect the nation's ideals, manifested in the Declaration with

its processes, founded in the Constitution. Lincoln was not essentially a twentieth-century precursor whose passion for freedom and equal

ity triumphs over his more dubious legal and constitutional prin

ciples, whose devotion to emancipation finally overcomes his con

servative unionism, and whose commitment to the Declaration of

Independence cures the flaws in his constitutional devotion. When

we seek to find the Lincoln of history we need to beware of thinking in either/or terms?he admired either the Constitution or the Dec

laration. He treasured both. This is true not only because Lincoln, like most people, wanted to keep as many of his ideals and goals as vital and alive as possible. It is also true because Lincoln saw

harmony, not conflict, between the Declaration and the Constitution.

And it did not require a great war to lead him to this discovery; he

did not have to wait to Gettysburg to acknowledge it.12

Establishing the relationship between the two was the central

problem of his political life, and it began when he was twenty-nine. For both personal and political reasons the Constitution and the rule

of law were at first primary. His own success illustrated that discipline was rewarded. The climb out of rural poverty to respected lawyer had shown him the mastery of mind over a life controlled by nature

and circumstance. His personal experiences showed the terror of the

loss of reason. He had been present, and only sixteen, when a young

companion from Indiana, Matthew Gentry, suddenly went insane.

The memory haunted him for years. He did not drink alcohol because it made him feel "flabby and undone," as he put it. He studied the

six books of Euclid's Geometry in order to train himself to think

carefully and keenly, a regimen that paralleled his reading of the

law. Thus when Lincoln envisioned a utopia, it was of a "happy

day when all appetites controlled, all passions subdued, all matters

subjected, mind, all conquering mind shall live and move."13

12. Jaffa, "The Emancipation Proclamation," 5, makes this point about the war

years: "There has been a tendency to see the two phases of the war as corresponding to the phases in which, first the Constitution, and then the Declaration of Inde

pendence, were looked to for the principles which needed to be vindicated. Needless

to say, this implies a tension, if not a contradiction, between these two documents, as sources and statements of moral and political obligation. But there is no evidence

that Lincoln himself was ever aware of any such tension or contradiction." Here, I

provide what Jaffa omits, a description of how and why Lincoln felt that way. 13. Stephen B. Oates, With Malice toward None: The Life of Abraham Lincoln (New

York: Harper and Row, 1977), 13-21, 75, 77; Albert Beveridge, Abraham Lincoln,

1809-1858 (Boston: Houghton Mifflin, 1928), 533-34; Collected Works, 1:279 (Feb. 22,

1841).




The political environment in which he matured also inspired com

mitment to order. As Jacksonian democracy rose it provoked accu

sations of mob rule, accusations bolstered by vigilante attacks on

abolitionists, on bank officers, on gamblers, and on blacks. Jackson

inspired the fears of establishment leaders that things were not going their way. In this environment Alexis de Tocqueville worried about

"the tyranny of the majority" and lauded local self-government institutions as a remedy. Anti-Jackson politicians formed a Whig

party, built on challenges to Jackson's "mobocracy" as well as gov

ernment-supported economic growth. Although Andrew Jackson had

said, "Never for a moment believe that the great body of the citi

zens . . . can deliberately intend to do wrong," Lincoln was dubious.

His view of "the people" consistently was cast within discussions

of government, laws, the need for restraint. He was so little com

mitted to Jackson's shibboleth that although he analyzed other po litical concepts at length, he gave posterity a thirty-three-word def

inition of democracy. Lincoln was no democrat as the word was

understood in his century. It is not surprising then that he left the

Democratic party his father had supported and joined trfe Whigs.14 Thus young lawyer Lincoln cast the balance between the accom

plishments of 1776 and those of 1787 by arguing that the Consti

tution and the institutions it established were fundamental. Speaking in early 1838 at the Young Men's Lyceum of Springfield on "the

perpetuation of our political institutions," he noted that with Jef ferson and the other Framers dead, a new generation had to achieve

their ideals by respecting the institutions the Founders had made, not simply by proclaiming their principles. With the men of the

Revolution gone, succeeding generations could fulfill their mission

by making reverence for the Constitution and the laws "the political

religion of the nation." "[A]s the patriots of seventy six did to support the Declaration of Independence," he said, "so to the support of the

Constitution and the Laws, let every American pledge his life, his

property and his sacred honor."15 The Constitution was thus the

means to the Declaration's ends. But how? At first Lincoln wasn't

very clear, and in the 1840s and early 1850s he was essentially

14. See Phillip S. Paludan, "The Better Angels of Our Nature": Lincoln, Public Opinion and Propaganda, 1992 Gerald McMurtry Lecture (Ft. Wayne: Lincoln Museum, 1993).

15. Collected Works, 1:112; Wills, Lincoln at Gettysburg, 79-87. By focusing on the

question of Lincoln's relationship to "the fathers" that has skewed discussion of the

Lyceum address, Wills ignores the importance of the speech as illustrating Lincoln's

view of law and the Constitution.




satisfied with the course of events, too busy building a career to

attend seriously to the issue.

The question of slavery, of course, kept intruding itself, and as it

did Lincoln took some early soundings on how promises of equality

might be kept when the rule of law was threatened. Clearly, he

hated slavery in principle. "If slavery is not wrong, nothing is wrong," he told a correspondent in 1864. "I cannot remember when I did

not so think, and feel."16 As a young man he floated a large raft

down the Mississippi to New Orleans. He saw along the Mississippi

oppression that made him* miserable. He cared about the suffering of the slaves, but his sympathy was held in check by other com

mitments. Until the institution reached out to trouble and threaten

the overall operation of the polity, he was content to stick to his

law business, and even within that business to defend at least one

slave-chaser's right to his chattel.

He understood but would not join abolitionist organizations that

attacked the personal and human horrors of the institution. Lincoln

first spoke publicly against slavery in 1837 with a short protest

against resolutions that attacked abolition societies and defended

states' rights to property in slaves. Joining with Dan Stone, a fellow

Springfield lawyer and Whig, Lincoln called slavery unjust and bad

policy but asserted that abolition societies "tend[ed] rather to increase

than to abate its evils." In July 1848 he supported the Wilmot Proviso

and challenged the expansion of slavery into the territories, but his

challenges to that expansion came while defending the Whig party's overall program against charges that the Free Soil party was a better

choice than his own. The existing party system was adequate to deal

with all the evils of society. In 1852 Lincoln was still defending the established polity, em

phasizing that devotion to the rule of law would somehow keep alive the Declaration's principles. In his eulogy to Henry Clay he

applauded his "beau ideal of a statesman" for both opposing slavery and maintaining respect for the Union and the laws. In the campaign of that year Lincoln again linked his opposition to slavery with

respect for the political-constitutional system. Arguing that the Whig

party would oppose slavery more faithfully than the Democrats, he

still disavowed opposition outside existing institutional channels.

Noting that Democrats were trying to use Seward's inflated rhetoric

to undercut the Whigs, Lincoln said that if William Seward's "higher law" speech "may attempt to foment a disobedience to the consti

16. Collected Works, 7:281.




Thomas Jefferson and James Monroe were among the Founding Fathers invoked in this "National Republican Chart" published during the presi

dential campaign of 1860.

tution or to the constitutional laws of the country, it has my un

qualified condemnation." Lincoln did hate slavery, but he was aroused

to passionate opposition only when slavery threatened the consti

tutional or political system.17

17. Ibid., 1:74, 126, 260; 2:3, 5, 7-9, 11, 14, 121-30, 136, 156.




Up to 1854 Lincoln saw little threat. It was enough to beat back

occasional overenthusiastic bombast, to temper abolitionist zeal with

rather standard admonitions about respecting order, to deplore slav

ery but basically to avoid the issue. The processes begun in 1787 were quietly and inevitably keeping the promises of 1776. But on

May 22, 1854, everything changed. The House of Representatives

passed the Kansas-Nebraska bill, repealed the Missouri Compromise, and opened a million square miles of territory to slavery. More than

that, it proclaimed loudly that the constitutional system no longer

incorporated promises of equal liberty. Stephen Douglas had found

that "popular sovereignty" justified repealing the Missouri Com

promise. The Illinois senator argued that the people of a territory could do whatever they chose about slavery there. The law of the

land was now neutral on equal rights. Popular government meant

that some men could deny equal liberty to others because of the

color of their skin. The Declaration's idea that "all men are created

equal" had been expelled from its constitutional context.

Initially, Lincoln was stunned and angry about the Kansas-Nebraska

Act. When his old friend Joshua Speed wrote him, Lincoln indicted

the measure as "not... a law, but. . . violence from the beginning . . . conceived in violence, passed

in violence . . . maintained in vio

lence, and . . . executed in violence." He snapped, "You ought... to

appreciate how much the great body of northern people do crucify their feelings in order to maintain their loyalty to the constitution

and the Union." Others in the North went further in their anguish over law corrupted. William Lloyd Garrison and his followers burned

copies of the Constitution and called the document "a covenant with

death and an agreement with hell."18

Yet even as he wrote to Speed, Lincoln began to envision a con

stitutional system that worked to challenge slavery and advance

equality. He began to think more deeply about the interrelationships between the documents and principles of 1776 and 1787. The result

would be an even greater interconnection between constitutional

process and egalitarian promises, and that project would require that

he change Jefferson's 1776 promise.

Throughout the six years of peace that remained to the nation, Lincoln forged more clearly the connections between the Consti

tution and the Declaration. Doing so was not simple. Both as pol itician and as lawyer the pressures on him were strong to emphasize conservative values. After the Douglas debates he had become a

major voice in a party that was about five years old. He knew the

18. Ibid., 2:320.




necessity of bringing together the diverse and potentially divergent constituencies, and of reaching out to voters who feared Republican radicalism. The most obvious taint of radicalism came from John Brown's Harpers Ferry raid, from which Lincoln was quick to deplore and distance his party. But there were more subtle dangers that the

party might tear itself apart over issues he called "explosive . . .

enough to blow up a dozen national conventions." Although he

insisted that no expansion of slavery be the bedrock of Republican

policy, he still sought to fit that principle into a conservative frame

work that included supporters from all ranges of opinion. When

more radical Republicans, led by Ohio's Salmon Chase, pushed for

an attack on the Fugitive Slave Act when Massachusetts yielded to

nativism in 1859, Lincoln warned against losing the Northwest for

Republicans. The true principle, as he told Schyler Colfax, was "in

every locality we should look beyond our noses; and at least say

nothing on points where it is probable we shall disagree."19 Party

unity spoke alluringly to Lincoln's more conservative instinct, his

natural commitment to institutions.

Perhaps even more compelling was the appeal of the rule of law

to Lincoln the lawyer. The Constitution protected slavery in several

places as of the 1850s: prohibiting export taxes that might threaten

slave-grown products, allowing slave states to count three-fifths of

their slaves in apportioning congressional seats, and insuring that

persons "held to service or labor" who ran to freedom would not

be protected by free state laws. Most important, it allowed states to

choose slavery or freedom for their black residents. Lincoln did not

attack these constitutional requirements. He promised to enforce

fugitive slave laws and never interfere with slavery in the states.

These elements of the Constitution protected slavery where it was,

and Lincoln respected them. They were the fixed protections for the

institution. He even supported a constitutional amendment proposed in the secession winter that guaranteed forever the right of states

that had slavery to preserve it.20

But lawyer-politician Lincoln also knew the force of equality's claims. He understood the burgeoning of antisouthern, and hence

antislavery, feeling, born of the firestorm that erupted when slavery broke its Missouri Compromise boundaries. That fire created a new

party whose existence depended on answering Democratic status

19. Ibid., 3:378-91; Randall, Lincoln: The President, 1:129-35.

20. Collected Works, 4:151-52. This letter, to a North Carolina Unionist, echoes

Lincoln's reassurances throughout the 1850s that he would not deny constitutional

protections of slavery.




quo arguments by claiming and proving to be both progressive and

respectful of the law. Lincoln recognized that for his party to win

he would have to explain and persuade the voters that the Consti

tution was not only stable, but it was also protean. Its processes allowed, indeed, placed, change on the agenda with the establish

ment of each new territorial and state government and with every election. It was this constitution that Lincoln understood to promise a victory for the Declaration's ideals. It was this constitution that

thus intimately linked Declaration and Constitution. He was sure

that history revealed freedom's constitution, which would under

mine slavery's.

He looked into the founding years and constructed a history of

the age that consolidated the two creations of 1776 and 1787 into

one moment in time. Although eleven years passed between the

two gatherings in Independence Hall, for Lincoln they were essen

tially one meeting, bonded together in the act of founding the coun

try. In the entire corpus of his writing he never separated the two.

Speaking against the Kansas-Nebraska bill in October 1854, he noted

that the writers of the Constitution thought slavery violated basic

principles and so they never mentioned slavery in the document.

And "the earliest Congress, under the constitution, took the same

view of slavery. They hedged and hemmed it in to the narrowest

limits of necessity." In his February 1860 Cooper Union address he

researched the history of the Framers' world extensively to prove that they had wanted to place slavery on the course of ultimate

extinction. Because almost all of them thought slavery was an evil

that contradicted the ideal of equality, they voted frequently and

consistently throughout the 1780s and 1790s, Lincoln said, to pro hibit slavery from the territories. At Gettysburg he would see a

nation born in 1776 dedicated to equality, but he spoke also of a

"government" of, by, and for the people that was equally at stake.

The government he had in mind was the one created by the Con

stitution in 1787.21

Certainly Lincoln stepped over the constitutional fences of the

Taney Court; he moved beyond guidelines proclaimed by his Dem

ocratic opponents. And they indicted him as an enemy of the Con

stitution. But this was an accusation, not a verdict. Lincoln operated

21. Ibid., 2:247-83, esp. 274-75; 3:522-50; 2:274-75, 318, 403-5, 453-54, 491

92, 499-501, 546; 3:29, 92-93. Lincoln said at Cooper Union, "Neither the word

'slave' nor 'slavery' is to be found in the Constitution," a device "employed on

purpose to exclude from the Constitution the idea that there could be property in

men."




within the constitutional possibilities of the founding years. For him,

achieving the ideals of the Declaration meant preserving the gov ernment brought forth in 1787. He referred to the idea of "Liberty to all" in the Declaration as an "apple of gold," and the "Union

and the Constitution" as "the picture of silver." While asserting that

the picture was made for the apple and not vice versa, he also said, "Let us act, that neither picture, or apple shall ever be bruised or

broken."22

Lincoln insisted on his devotion to the basic ideal that "all men

are created equal." "I have never had a feeling politically," he said, "that did not spring from the sentiments embodied in the Declaration

of Independence." His strongest charge against the expansion of

slavery was that it showed how far the nation had fallen from its

founding ideals. "Near eighty years ago we began by declaring that

all men are created equal," he observed, "but now from that be

ginning we have run down to the other declaration, that for some

men to enslave others is 'a sacred right of self government.' "23

But if the basic ideal abided, Lincoln's political environment re

quired changes in what the Framers meant by that ideal, changes that highlighted constitutional process. First, Lincoln's Illinois was

hardly committed to racial equality. An 1853 state law kept blacks

out. Its legal code forbade interracial marriage, kept blacks off juries and out of the state militia, banned black testimony against whites, denied them the vote, and had no provision for black schools. Es

pecially in its southern half, predominantly settled from slaveholding states, racism was a powerful and practically unchallengeable no

tion.24

Thus when Lincoln challenged the expansion of slavery by pro

claiming all men created equal, Douglas and other Democrats howled

"miscegenation" and named Republicans "Black Republicans." To

counter the charge, Lincoln had to reassure constituents, first in

Illinois and later in the Midwest as his political horizons expanded, that he did not favor Negro voting, jury service, or office holding. But he did believe that the Declaration's promise of equality extended

to life, liberty, and the pursuit of happiness, and thus he concluded

that every man had "the right to eat the bread, without leave of

anybody else, which his own hand earns." And he mocked Douglas's

charges by noting that treating blacks as human beings with rights

22. Ibid., 4:168-69.

23. Ibid., 4:240; 2:275.

24. V. Jacque Voegeli, Tree but Not Equal: The Midwest and the Negro during the

Civil War (Chicago: University of Chicago Press, 1967), 1-2.




to keep the fruits of their own labor hardly required intermarriage. But he also knew the dangers of advocating immediate equality. Hence he was pushed to temporize by speaking of an equality to

come. Although it was clearly a more respectable position than

slavery forever and the assertion that blacks were unalterably inferior

in everything, it pandered nevertheless. Political prejudice on race

thus played its role in moving Lincoln to a new position.25 So did the charges that Republicans were disunionists. At times

Lincoln fed those allegations; his House Divided speech forecast the

nation split in two and division made imperative because either

freedom or slavery must triumph. But the future president was quick to deny that accusation. What was at stake, he claimed, was a struggle for the minds of men over the question of whether slavery or freedom

controlled the territories and hence the future. It was a debate that

would be resolved not with invasion or threat, but through the

political discourse that would lead the people and their government toward their original idealism. That reassurance actually only prom ised Dixie a slow death for slavery if people like Lincoln won office.

But it did suggest how a healthy political-constitutional process could

bring to life the Declaration's egalitarian promise. That too pushed Lincoln toward redefining the meaning of 1776.26

Lincoln built another element of his constitutional egalitarianism thanks to Chief Justice Roger Taney. When the Supreme Court issued

its Dred Scott decision, Lincoln again was forced to ponder new

directions. Less than a year before the decision, he had spoken of

trusting the Court to decide the constitutional question of whether

slavery could be excluded from the territories. But when the decision was handed down, Lincoln enlarged his ground and expanded the arena of constitutional discussion. He flanked the decision on two

sides. First, Lincoln adopted Andrew Jackson's argument that the

Court did not stand alone as interpreter of the Constitution. "The

Congress, the executive and the court, must each for itself be guided

by its own opinion of the Constitution." Congressmen and chief

executive now joined judges in the constitutional debate. The mean

ing of the Constitution was too important to be left to judges. Second, Lincoln posited a discussion expanded in time as well as in numbers.

An important judicial decision would be binding, Lincoln said, only after a long process of discussion and litigation had taken place.

What legitimized such a decision was "the steady practice of the

departments throughout our history," arguments in previous courts

25. Collected Works, 3:400-403.

26. Ibid., 2:461-69.




in which the decision "had been affirmed and reaffirmed though a

course of years." That process of determining what the Constitution meant involved also electing to office men who would reflect public

opinion on such questions. The people would join the debate to

instruct their leaders and maintain their own authority as ultimate

sovereigns. The electoral process set up by the Constitution would overcome the flawed constitutional vision of the Supreme Court.27

Having formulated a vigorous and involved political-constitutional debate that responded to the political imperatives of his age, Lincoln was now ready to evoke a new Declaration, one that was demanded

by the system he envisioned and the world he occupied. He did not

change his commitment to equality. Whereas the Founders had de

clared all men are created equal as a "self evident truth," however, Lincoln now envisioned it as a "proposition"?the word would wait

until Gettysburg, the idea was present in 1857. Equality was a

"standard maxim for a free society, which should be familiar to all

and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and

constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors every

where."28 And the only way for that process to occur was for con

stitutional government to endure.

Lincoln not only envisioned a constitutional process that would

enlarge the meaning of equality in the nation, but he also saw

equality as the equivalent of self-government itself. Challenging the

Kansas-Nebraska bill, he wrote, "At the foundation of the sense of

justice there is in me" is the "proposition that each man should do

precisely what he pleases with all that is exclusively his own." That was at the core of self-government. "No man is good enough to

govern another man, without that other's consent." And this principle, "the sheet anchor of American republicanism," rested on the ideals

of the Declaration that "all men are created equal," which meant

27. Ibid., 2:354-55, 400-403.

28. Ibid., 2:406. Wills, Lincoln at Gettysburg, 120, has things just right with his

observation that what Lincoln feared (among other things) is that Douglas would

succeed in preparing the public mind for giving up the "proposition" that all men

are created equal. "

'Preparing the public mind' is a thing of great importance in an

age of Transcendentalism. To fall silent, or to silence others, on the very notion of

equality is the ultimate self betrayal of a land that was dedicated to a proposition." What needs to be added is that the Constitution established the system whereby

that proposition would be realized. By demonstrating that, Lincoln made even more

important the open political discussion that the polity secured and by which it was

nurtured.




that governments had to rest on the consent of those men. "Allow

all the governed an equal voice in the government, and that, and

that only is self government." The ideal of equality was manifested

in acts of self-government. Ideal depended on process. Expanding

slavery imperiled process and ideal.29

But self-government resting on consent, the manifestation of the

ideal of equality, was threatened in other ways as well. The Nebraska

principle allowed proslavery people to rush to a territory, establish

slavery there, and then deny people who arrived later the right to

vote it out. As Missourians readied themselves to take over the new

territories, "Bowie knives and six shooters are seen plainly enough; but never a glimpse of the ballot box." Lincoln protested that what

was wrong in Kansas was that self-government had been overcome

by coercion, that people who "venture to inform a negro of his

rights" could be hanged under a law passed by the proslavery

legislature.30 The expansion of slavery and denial of the principle of equality

threatened self-government in an even larger sense. It inspired the

bitter and potentially violent threats to the Union as each side now

angrily demanded its rights in the territories. The nation had lived

peacefully under the old Missouri Compromise for decades. Now

each section feared a future where its rights would not be respected and each section was tempted to unravel other constitutional re

straints to advance their goals?"Already a few in the South claim

the constitutional right to take and to hold slaves in the free states."

"Already a few in the North, defy all constitutional restraints, resist

the execution of the fugitive slave law, and even menace the insti

tution of slavery in the states where it exists." Whereas the founders

of the nation had created a government resting on the equality and

consent of all, one that put slavery in the course of ultimate ex

tinction, the Kansas-Nebraska Act imperiled that process.31 The other thing Lincoln disliked about the expansion of slavery

was part of his economic vision. He shared a broad feeling within

the Republican party that the contest over the territories was a contest

between free labor and slave labor and that free labor was imperative to economic growth and personal development. He was profoundly

upset by George Fitzhugh's defense of slavery as superior in morality to a northern society that oppressed the poor, the old, the weak, and the unlucky, all the while hypocritically proclaiming "equality."


30. Ibid.

31. Ibid.




He contrasted the economy of slavery on one hand with that of free

society where workers "are not obliged to work under all circum stances and are not tied down and obliged to work whether you

pay them or not." But Lincoln linked even his economic goals to

the survival of governmental and political institutions. Before war

began he contrasted "most governments" "based ... on the denial

of equal rights" with the U.S. government, where "we proposed to

give all a chance" and saw the fruits in "aggregate grandeur, . . . extent of country, and numbers of population?of ship and

steamboat and rail." And in the clearest blending of economic ideals with self-government, Lincoln explained and justified the war on

July 4, 1861: "This is essentially a peoples contest, on the side of the Union, it is a struggle for maintaining in the world, that form

and substance of government, whose leading object is, to elevate the condition of men?to lift artificial weights from all shoulders? to clear the paths of laudable pursuit for all?to afford all, an

unfettered start, and a fair chance in the race of life."32

Thus Lincoln so interwove the ideals of the Declaration with the

Constitution, with the processes of self-government, that attempts to unravel the threads dissolve Lincoln's thought. And such efforts

also obscure the meaning of his presidency. Saving the Union and

ending slavery and preserving the right to rise and a free labor

economy, and defending the right of the people to change govern ments by ballots not bullets and thus showing people throughout

the world that self-government worked, were interrelated parts of what Lincoln wanted to do. And as he assumed office he took "the most solemn oath" to preserve, protect, and defend a Constitution

that, in his view, embodied them all. Yet it is ironic that Lincoln now sat in the White House, with more

power for preserving the Declaration's ideal than any other person in the country and with a clearer promise to do so than almost any other public official. His attacks on slavery were eloquent enough that he rallied an electoral majority behind him. He had gained their

support in perhaps the only way that the age permitted, by appealing to their faith that their system would work for the best of their

ideals. If Taney or Breckenridge or Bell or even Stephen Douglas had his way, freedom moved to a future so distant as to be un

32. Ibid., 2:222; 4:24, 438; Hofstadter, "Lincoln and the Self-Made Myth"; Eric

Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party before the

Civil War (New York: Oxford University Press, 1970); William E. Gienapp, Origins

of the Republican Party, 1852-1856 (New York: Oxford University Press, 1987); Gabor

S. Boritt, Lincoln and the Economics of the American Dream (Memphis: Memphis State

University Press, 1978).




imaginable and unacceptable to most whites and blacks. Lincoln

countered that. But his process-based egalitarianism made only long term promises itself. If Lincoln got his way, he said in August 1858,

"The crisis would be past and the institution might be let alone for

a hundred years, if it should live so long, in the States where it

exists, yet it would be gone out of existence in the way best for

both the black and the white races."33 Somehow the process would

work for the ideal, somehow the Constitution would implement the

Declaration. The North now had the vision to believe that, but

achieving it would be a complex and agonizing process for the people and the president who now assumed power.

Yet at least Lincoln's thought, and his education of the public in

that thought, laid the foundation for making a struggle for the Union

simultaneously a struggle for the ideal of equality. The people of

the North were passionate in their commitment to self-government, devoted to the Constitution as they understood it. Lincoln had made

it possible for that devotion to incorporate the promises of 1776

within the processes of 1787. War might accelerate this union of

equality with the rule of law, even as Lincoln and the North fought to save the Union.




Documents

Lincoln's Prewar Constitutional Vision