On The Constitution – Part Three

“All this is not the result of accident. It has a philosophical cause. Without the Constitution and the Union, we could not have attained the result; but even these, are not the primary cause of our great prosperity. There is something back of these, entwining itself more closely about the human heart. That something, is the principle of "Liberty to all"--the principle that clears the path for all--gives hope to all--and, by consequence, enterprise, and industry to all. — Abraham Lincoln, Fragment on the Constitution and Union, 1861

In the Second Part of On The Constitution I covered the abandonment of the Articles of Confederation and the framing of our Constitution and the arguments presented by the Federalists and Anti-Federalists for and against the new constitution. In this part I will cover the greatest crisis our nation had to the Union and the Constitution.

In 1787 the Congress passed the Northwest Ordinance which was intended to be the model for the entry of all future states into the Union. This ordinance pertained to the new states of Minnesota, Michigan, Illinois, Wisconsin, Indiana, and Ohio. The ordinance forbade slavery and indentured servitude. This was the first shot fired at the institution of slavery, something the Framers had set aside to in order to form a more perfect union.

At the heart of the American constitutional crisis of the mid-nineteenth century stood the moral, social, and political evil of slavery. At stake in this crisis was the future of republican self-government.

Abraham Lincoln saw the dilemma facing the nation as the “crisis of a house divided.” While the American Founders worked to put slavery, as Lincoln said, “on the course of ultimate extinction,” the institution had instead flourished in the first half of the nineteenth century. By the 1850s, efforts to expand slavery threatened to tear the nation apart.

Illinois Senator Stephen Douglas championed the idea that Americans living in the territories should choose whether or not slavery should be legal there. “Popular sovereignty” eventually became the law of the land with the passage of the Kansas-Nebraska Act of 1854, which repealed the Missouri Compromise of 1820.

For Lincoln, “popular sovereignty” was an abandonment of moral principle. Man does not have a moral right to choose a moral wrong. Self-government cannot mean ruling other human beings without their consent. The Kansas-Nebraska Act, although disguised in the language of liberty and self-government, was in fact at odds with the core principles of the American regime.

The Supreme Court’s Dred Scott decision marked a further departure from the principles of the American Founding. Writing for the majority in 1857, Chief Justice Roger Taney declared that the Founders never intended for the principles of natural right enunciated in the Declaration to apply to blacks—whether enslaved or emancipated. Furthermore, Congress had no right to ban slavery in the territories. For Lincoln and the opponents of slavery, this decision was not only constitutionally and historically wrong, but it also further enabled the legal expansion of slavery nationwide.

Lincoln and Douglas debated both popular sovereignty and the Dred Scott decision in their Illinois Senate race of 1858. Douglas maintained that self-government and slavery were compatible and mutually beneficial in certain climates, and it was up to the majority of citizens to determine whether or not the conditions prevailing in their territory or state made slavery useful. Lincoln countered that republicanism and slavery could never exist in harmony, and that self-government could never be compatible with the denial of consent. America, he held, could not long exist half slave and half free; it must become one or the other.

Lincoln believed the Constitution was based on the Declaration of Independence. He saw a house divided over the issue of slavery and the issue was both a moral and legal crisis — a crisis in self-government under God. Madison alluded to this in Federalist #10 when he spoke of the dangers of factionalism to a republican form of government:

“Among the numerous advantages promised by a well-constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. The instability, injustice, and confusion introduced into the public councils have, in truth, been the mortal diseases under which popular governments have everywhere perished, as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations. The valuable improvements made by the American constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality to contend that they have as effectually obviated the danger on this side, as was wished and expected. Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.”

The Missouri Compromise of 1820 allowed Maine to enter the Union as a Free State and Missouri as a slave holding state. Jefferson, who was still living at the time, thought this would be the death knell of the Republic and considered it “as a fire bell in the night that awakened his with terror.” In his letter to John Holmes he wrote:

“…I considered it at once the kneel of the union. It is hushed indeed for the moment, but this is a reprieve only, not a final sentence.”

In 1854 Douglas introduced the Kansas-Nebraska Act allowing a state to determine slavery by an up or down vote.

Lincoln made his famous House Divided speech after the passage of the Kansas-Nebraska Act. Abraham Lincoln delivered this speech upon his nomination as the Republican candidate for the U.S. Senate in Illinois, where he would square off against incumbent Senator Stephen Douglas. Drawing the leading metaphor from a passage in the Gospel of Matthew, Lincoln held that pro-slavery forces—Douglas, Franklin Pierce (president when the Kansas-Nebraska Act was adopted), Roger Taney, and James Buchanan (president when Dred Scott was decided)—were working in concert to effect a national policy legalizing slavery in all states and territories. Papers throughout the North reprinted the text of the speech, propelling Lincoln to new prominence.

In 1857 the infamous Dred Scott decision was rendered by the U.S. Supreme Court under the leadership of Chief Justice Roger Taney. Like Stephen Douglas, Supreme Court Chief Justice Roger Taney believed that his response to the slavery controversy would resolve the issue. His ruling in Dred Scott v. Sandford had the opposite result, throwing the country into even greater turmoil. The case was brought by a slave, Dred Scott, who was taken by his master into territory in which slavery was illegal. Asked to rule simply on whether Scott’s residency in a free territory meant that he should be granted freedom, the Court ruled that Congress had no power to regulate slavery in the territories and that persons of African descent could not be citizens, rendering both the Missouri Compromise and the Compromise of 1850 unconstitutional.

“But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this Declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted.”

…..

“It is difficult at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it, in a manner too plain to be mistaken.

They had for more than a century before been regarded as beings of an inferior order; and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.”

Douglas claimed liberty and slavery were compatible. He believed a state, under republican government, had the right to vote slavery into its constitution.

Abraham Lincoln argued that Chief Justice Taney’s opinion in Dred Scott v. Sandford violated America’s founding principles and rewrote American history:

“....Chief Justice Taney, in his opinion in the Dred Scott case, admits that the language of the Declaration is broad enough to include the whole human family, but he and Judge Douglas argue that the authors of that instrument did not intend to include negroes, by the fact that they did not at once, actually place them on an equality with the whites. Now this grave argument comes to just nothing at all, by the other fact, that they did not at once, or ever afterwards, actually place all white people on an equality with one or another. And this is the staple argument of both the Chief Justice and the Senator, for doing this obvious violence to the plain unmistakable language of the Declaration. I think the authors of that notable instrument intended to include all men, but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color, size, intellect, moral developments, or social capacity. They defined with tolerable distinctness, in what respects they did consider all men created equal—equal in “certain inalienable rights, among which are life, liberty, and the pursuit of happiness.” This they said, and this meant. They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for 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 thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere. The assertion that “all men are created equal” was of no practical use in effecting our separation from Great Britain; and it was placed in the Declaration, nor for that, but for future use. Its authors meant it to be, thank God, it is now proving itself, a stumbling block to those who in after times might seek to turn a free people back into the hateful paths of despotism. They knew the proneness of prosperity to breed tyrants, and they meant when such should reappear in this fair land and commence their vocation they should find left for them at least one hard nut to crack.”

It should be noted that President-elect James Buchanan wrote to U.S. Supreme Court Associate Justice John Catron, asking whether the case would be decided by the U.S. Supreme Court before his inauguration in March 1857. Buchanan hoped the decision would quell unrest in the country over the slavery issue by issuing a ruling that put the future of slavery beyond the realm of political debate.

Buchanan later successfully pressured Associate Justice Robert Cooper Grier, a Northerner, to join the Southern majority in the Dred Scott decision, to prevent the appearance that the decision was made along sectional lines. By present-day standards, such correspondence would be considered improper ex parte contact with a court.

Even under the more lenient standards of that century, Buchanan's applying such political pressure to a member of a sitting court would have been seen as improper. Republicans fueled speculation as to Buchanan's influence on the decision by publicizing that Chief Justice Roger Taney had whispered in Buchanan's ear prior to Buchanan declaring, in his inaugural address, that the slavery question would "be speedily and finally settled" by the Supreme Court.

In 1854 in Jackson Michigan in response to the Kansas-Nebraska Act anti-slavery unionists named their new party “The Republican Party” precisely in order as they put it to “battle for the first principles of republican government and against the schemes of the aristocracy.”

With an eye to the Republican presidential nomination of 1860, Abraham Lincoln campaigned vigorously across the North. Responding to Stephen Douglas’s “Dividing Line” speech, he used this address to claim the mantle of America’s Founders for the Republican Party. Employing original research on the anti-slavery views of “our fathers,” Lincoln cast himself as a conservative. The speech caught the attention of the Eastern political establishment, while at the same time distinguishing him from the radical abolitionists. Lincoln stated in is address at Cooper Institute on February 27, 1860.

In October 1859 Abraham Lincoln accepted an invitation to lecture at Henry Ward Beecher's church in Brooklyn, New York, and chose a political topic which required months of painstaking research. His law partner William Herndon observed, "No former effort in the line of speech-making had cost Lincoln so much time and thought as this one," a remarkable comment considering the previous year's debates with Stephen Douglas.

The carefully crafted speech examined the views of the 39 signers of the Constitution. Lincoln noted that at least 21 of them — a majority — believed Congress should control slavery in the territories and not allow it to expand. Thus, the Republican stance of the time was not revolutionary, but similar to the Founding Fathers, and should not alarm Southerners (radicals had threatened to secede if a Republican was elected President).

When Lincoln arrived in New York, the Young Men's Republican Union had assumed sponsorship of the speech and moved its location to the Cooper Institute. The Union's board included members such as Horace Greeley and William Cullen Bryant, who opposed William Seward for the Republican Presidential nomination. Lincoln, as an unannounced presidential aspirant, attracted a capacity crowd of 1,500 curious New Yorkers.

Lincoln stated in his address:

“But enough! Let all who believe that “our fathers, who framed the Government under which we live, understood this question just as well, and even better, than we do now,” speak as they spoke, and act as they acted upon it. This is all Republicans ask—all Republicans desire—in relation to slavery. As those fathers marked it, so let it be again marked, as an evil not to be extended, but to be tolerated and protected only because of and so far as its actual presence among us makes that toleration and protection a necessity. Let all the guarantees those fathers gave it, be, not grudgingly, but fully and fairly maintained. For this Republicans contend, and with this, so far as I know or believe, they will be content.

And now, if they would listen—as I suppose they will not—I would address a few words to the Southern people....

Your purpose, then, plainly stated, is, that you will destroy the Government, unless you be allowed to construe and enforce the Constitution as you please, on all points in dispute between you and us. You will rule or ruin in all events.

This, plainly stated, is your language. Perhaps you will say the Supreme Court has decided the disputed Constitutional question in your favor. Not quite so. But waiving the lawyer’s distinction between dictum and decision, the Court have decided the question for you in a sort of way. The Court have substantially said, it is your Constitutional right to take slaves into the federal territories, and to hold them there as property. When I say the decision was made in a sort of way, I mean it was made in a divided Court (7-2), by a bare majority of the Judges, and they not quite agreeing with one another in the reasons for making it; that it is so made as that its avowed supporters disagree with one another about its meaning, and that it was mainly based upon a mistaken statement of fact—the statement in the opinion that “the right of property in a slave is distinctly and expressly affirmed in the Constitution.”

An inspection of the Constitution will show that the right of property in a slave is not “distinctly and expressly affirmed” in it. Bear in mind, the Judges do not pledge their judicial opinion that such right is impliedly affirmed in the Constitution; but they pledge their veracity that it is “distinctly and expressly” affirmed there—“distinctly,” that is, not mingled with anything else—“expressly,” that is, in words meaning just that, without the aid of any inference, and susceptible of no other meaning.

If they had only pledged their judicial opinion that such right is affirmed in the instrument by implication, it would be open to others to show that neither the word “slave” nor “slavery” is to be found in the Constitution, nor the word “property” even, in any connection with language alluding to the things slave, or slavery, and that wherever in that instrument the slave is alluded to, he is called a “person;”—and wherever his master’s legal right in relation to him is alluded to, it is spoken of as “service or labor which may be due,”—as a debt payable in service or labor. Also, it would be open to show, by contemporaneous history, that this mode of alluding to slaves and slavery, instead of speaking of them, was employed on purpose to exclude from the Constitution the idea that there could be property in man.

To show all this, is easy and certain.

When this obvious mistake of the Judges shall be brought to their notice, is it not reasonable to expect that they will withdraw the mistaken statement, and reconsider the conclusion based upon it?

And then it is to be remembered that “our fathers, who framed the Government under which we live”—the men who made the Constitution—decided this same Constitutional question in our favor, long ago—decided it without division among themselves, when making the decision; without division among themselves about the meaning of it after it was made, and, so far as any evidence is left, without basing it upon any mistaken statement of facts.”

Abraham Lincoln’s fidelity to the Declaration of Independence is equally a fidelity to the Constitution. The Constitution takes its moral life from the principles of liberty and equality, and was created to serve those principles. We are divided as a nation today, as in Lincoln’s time, because we have severed the connection between these two documents.

Lincoln’s “Fragment on the Constitution and the Union” contains the central theme of Lincoln’s life and work. Drawing upon biblical language, Lincoln describes the Declaration of Independence as an “apple of gold,” and the Constitution as the “frame of silver” around it. We cannot consider the Constitution independently of the purpose which it was designed to serve.

The Constitution acts to guard the principles enshrined in the Declaration of Independence. As the embodiment of the Declaration’s principles, the Constitution created a frame of government with a clear objective. The Constitution is not a collection of compromises, or an empty vessel whose meaning can be redefined to meet the needs of the time; it is the embodiment of an eternal, immutable truth.

Abraham Lincoln defended the Union and sought to defeat the Confederate insurrection because he held that the principles of the Declaration and Constitution were inviolable. In his speeches and in his statecraft, Lincoln wished to demonstrate that self-government is not doomed to either be so strong that it overwhelms the rights of the people or so weak that it is incapable of surviving.

The south wanted a Constitutional right to overthrow the Constitution for the purpose of denying rights to millions of people. Lincoln proposed two possible paths for the southern states. One was to use Constitutional means to address their grievances and continue to hold slaves as chattel property, the other by revolution, as advocated in the Declaration when the rights of a people are abrogated or denied by a government. In the second sense Lincoln believed the rights of the south were not being denied, it was the rights of millions of slaves that were being denied. Instead of these two paths the secessionist states chose insurrection. Was this Lincoln’s fault? Did Lincoln want to force the southern states to emancipate their slaves? No. He felt he had no constitutional warrant to do so. He left the issue squarely in the hands of the slave holding states.

One could make an argument that the Constitution permitted slavery, i.e. Article V, Section 2:

“The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.

A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.

No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.”

Of course this was changed by the Thirteenth Amendment:

“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Congress shall have power to enforce this article by appropriate legislation.”

In the opening line of the Gettysburg Address Lincoln stated:

“Four score and seven years ago our fathers brought forth, on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.”

Four score an seven is equal to 87 years. If you walk back from the date of his speech in 1863 you arrive in 1776 and the date of the formation of our nation and the Declaration of Independence.

After much debate we devised a system of governance that would protect those principles embodied in the Declaration.

In his Second Inaugural Address Lincoln stated:

“On the occasion corresponding to this four years ago, all thoughts were anxiously directed to an impending civil-war. All dreaded it—all sought to avert it. While the inaugural address was being delivered from this place, devoted altogether to saving the Union without war, insurgent agents were in the city seeking to destroy it without war—seeking to dissolve the Union, and divide effects, by negotiation. Both parties deprecated war; but one of them would make war rather than let the nation survive; and the other would accept war rather than let it perish. And the war came.”

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“With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation’s wounds; to care for him who shall have borne the battle, and for his widow, and his orphan—to do all which may achieve and cherish a just, and a lasting peace, among ourselves, and with all nations.”

Today Lincoln’s heritage has been hijacked by the progressive’s and the libertarians. The progressives claim Lincoln was one of them and the libertarians claim Lincoln was a tyrant who had no respect for constitutional government. Neither is correct. Lincoln was neither a progressive nor a tyrant. He believed in the Declaration and the Constitution and knew if the union was not preserved the republic would fall and we would revert back to the factionalism so feared by Madison. Click here for additional writings on Lincoln and the Civil War.

Through a brutal civil war the unions was saved and our constitutional republic was preserved.

We now stand at such a place as Lincoln did in 1860. The problem today is the threat to the Constitution by progressivism. In my next part of On The Constitution I will address the era of Progressivism and the crisis we face today.

Please Click Here for Part Four.