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Abraham Lincoln and American Constitutionalism

Published online by Cambridge University Press:  05 August 2009

Herman Belz
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Extract

As a contribution to scholarly discussion of Lincoln's place in the American political tradition, this article examines his conception of constitutionalism. Controversy has focused recently on whether Lincoln acted in accordance with the purposes and ideas of the framers, or whether as a wartime president he rejected the constitutionalism of the Founding in favor of a pragmatic, instrumentalist style of leadership that in effect created an organic and unwritten constitution. It has also been suggested that Lincoln's conception of fundamental law can be described as a theory of constitutional aspiration. The article rejects the latter two points of view and argues that Lincoln adhered to the written Constitution of the framers — its forms, procedures, principles, and spirit — and was guided by it in political action aimed at achieving the ideals asserted in the Declaration of Independence. Prudent and practical in his statesmanship, Lincoln possessed in himself and inculcated in the people, constitutionalist conviction that regarded the preservation of republican self-government as the nation's defining and paramount purpose.

Type
Research Article
Information
The Review of Politics , Volume 50 , Issue 2 , Spring 1988 , pp. 169 - 197
Copyright
Copyright © University of Notre Dame 1988

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References

Notes

1. Remarks of Thurgood Marshall at the Annual Seminar of the San Francisco Patent and Trademark Law Association in Maui, Hawaii, 6 05 1987, pp. 7–8.Google Scholar

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7. Murphy, Walter F., “Who Shall Interpret? The Quest for the Ultimate Constitutional Interpreter,” Review of Politics 48 (Summer 1986): 405.Google Scholar The act of interpretation to which Murphy refers is contained in Lincoln's statement that “in contemplation of universal law, and of the Constitution, the Union of these States is perpetual.”

8. Basler, Roy P. et al. , eds., The Collected Works of Abraham Lincoln, 9 vols. (New Brunswick, NJ: Rutgers University Press, 1953–1955), 4:267.Google Scholar

9. Ibid., p. 264.

10. Ibid.

11. Ibid., 1: 171–72.

12. Ibid., p. 451.

13. Ibid., 2: 142–43.

14. Ibid., 3: 278–79. Lincoln here refers to the territorial clause of the Constitution (Art. IV, sec. 3). He clarified his position in the First Inaugural by stating that the Constitution did not expressly say whether Congress might prohibit slavery in the territories.

15. Ibid., pp. 230–31.

16. Ibid., 4: 264–65.

17. The “four-corners” metaphor is used by contemporary legal theorists to describe constitutional interpretation that is confined to enforcing norms stated or clearly implied in the written Constitution. See John Hart, Ely, Democracy an Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980), p. 1.Google Scholar

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19. Ibid., 6: 302.

20. Ibid., p. 446.

21. Ibid.

22. The Federalist, ed. Edward Mead, Earle (New York: Modern Library, 1938). pp. 336–38.Google Scholar

23. Ibid., p. 329.

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25. On the general subject of constitutionalist conviction, see Eden, Robert, “Tocqueville on Political Realignment and Constitutional Forms,” Review of Politics 48 (Summer 1986): 349–73.CrossRefGoogle Scholar

26. Basler, , Collected Works of Lincoln, 1: 109–115.Google Scholar

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29. Eden, , “Tocqueville on Political Realignment and Constitutional Forms,” p. 365.Google Scholar

30. Mansfield, Harvey C. Jr., “The Forms and Formalities of Liberty,” The Public Interest, no. 70 (Winter 1983): 123.Google Scholar

31. Basler, , Collected Works of Lincoln, 1: 488.Google Scholar

32. Ibid., 2: 156.

33. Ibid., 3: 496.

34. Ibid., 4: 215–16.

35. Ibid., p. 220.

36. Ibid., 8: 52.

37. For discussion of positivistic and nonpositivistic views of the Constitution, see Jacobsohn, Gary J., The Supreme Court and the Decline of Constitutional Aspiration (Totowa, NJ: Rowman & Littlefield, 1985), pp. 57–73.Google Scholar

38. Basler, , Collected Works of Lincoln, 2: 494.Google Scholar

39. Ibid., 4: 210.

40. Ibid., 6: 27.

41. Ibid., p. 302.

42. Ibid., 1: 5.

43. Ibid., pp. 506–507.

44. Ibid., 2: 2–3.

45. Ibid., 4: 200.

46. Ibid., p. 207.

47. Ibid., pp. 267–68.

48. Ibid., 2: 245. Lincoln's quotation of the Declaration was inaccurate. The text states that “all men are created equal.”

49. Ibid., p. 385.

50. Ibid., p. 406

51. Ibid., 4: 240.

52. This argument has been made most persuasively by Jaffa, Harry V. in a number of works. For a concise statement of the thesis, see his essay, “Abraham Lincoln,” in Encyclopedia of the American Constitution, ed. Levy, Leonard W., Karst, Kenneth L., and Mahoney, Dennis J. (New York: Macmillan, 1986), 3: 1162–66.Google Scholar Jaffa's analysis of the Declaration of Independence in Lincoln's thought is central to his interpretation of Lincoln's relationship to the Founding Fathers. His general view is that Lincoln preserved the Union and the Constitution of the framers. In Crisis of the House Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates (1959), however, Jaffa introduced a specific argument about Lincoln's view of equality that strikes a somewhat different note. He argued that Jefferson, following Locke, regarded equality as the immanent and effective basis of legitimate government, and viewed civil society as constituted by a movement away from the state of nature and the condition in which the equality of all men was actual. Lincoln in contrast, according to Jaffa, treated the equality of all men “as a transcendent goal,” and viewed civil society as constituted by the movement toward a condition in which the equality of men is actual. Jaffa said further that in Lincoln's thought the principle of equality “is so lofty a demand that the striving for justice must be an ever present requirement for the human and political condition” (Crisis of the House Divided [Phoenix, ed., 1982], p. 321Google Scholar). Lincoln “transforms and transcends the original meaning” of the Declaration, Jaffa wrote, giving it “a new dimension” and effecting a “‘reconstruction’ of the meaning of the Fathers.” (Crisis of the House Divided, p. 328.) This argument, which is central to Jaffa's natural-right interpretation of Lincoln, places Lincoln at a greater distance from the Founding than does the present analysis. In subsequent writings, however, Jaffa has not, to the best of my knowledge, elaborated on the “transcendental reconstruction” thesis about Lincoln's conception of equality, but rather has underscored the similarity of Lincoln's views to those of the Founding generation. See Jaffa, , How to Think About the American Revolution: A Bicentennial Cerebration (Durham, NC: Carolina Academic Press, 1978), pp. 13–48Google Scholar, wherein he refutes Willmoore Kendall's view of Lincoln as a modern egalitarian. In a recent essay moreover Jaffa states that in asserting the principle of equality as “a standard maxim for free society,” constantly to be “revered” and “labored for” though never perfectly attained, Lincoln can not be seen as giving warrant for contemporary judicial activism in pursuit of egalitarian social policies. In asserting the principle of equality as a fundamental goal, Jaffa observes, “Lincoln is speaking of the Declaration of Independence apart from the Constitution and before there was a Constitution.” He adds that equality as “a standard maxim of society intended to guide public policy.was understood by Lincoln as shaped and implemented primarily through “legislative prudence” (Jaffa, , “What Were the ‘Original Intentions’ of the Framers of the Constitution of the United States?” University of Puget Sound Law Review 10 [Spring 1987]: 370–71Google Scholar). It may be said that Professor Jaffa in his recent writings has not modified his original view of Lincoln and equality, but rather has extended it to apply to different historical conditions and theoretical arguments. Persuasive as he so often is in his analysis of Lincoln, I am inclined on this matter to introduce a distinction that Professor Jaffa himself makes between “the character of Lincoln's thought” and “the articulation of that thought in Crisis of the House Divided' (How to Think About the American Revolution, p. 21).

53. Basler, , Collected Works of Lincoln, 4: 168.Google Scholar

54. Jacobsohn, , The Supreme Court and the Decline of Constitutional Aspiration, pp 95–112.Google Scholar

55. Barber, Sotirios A., On What the Constitution Means (Baltimore: Johns Hopkins University Press, 1984), pp. 23–37 and passim.Google Scholar

56. Basler, , Collected Works of Lincoln, 2: 353.Google Scholar

57. Ibid., 3: 307.

58. Ibid., p. 307; 4: 22.

59. Ibid., 3: 327.

60. Jacobsohn supports the theory of constitutional aspiration for this reason, seeing it as the approach favored by the framers, in contrast to what he calls “judicial aspiration” which he identifies with contemporary theories of judicial activism and judicial supremacy. See, The Supreme Court and the Decline of Constitutional Aspiration, p. 6.

61. This point applies especially to the theory of constitutional aspiration as developed by Barber, On What the Constitution Means. For discussion of the theory of constitutional aspiration, see Mcdowell, Gary L., “The Constitution and Contemporary Constitutional Theory,” Constitutional Commentaries, Center for Judicial Studies (Cumberland, Va., 1985), pp. 34–40.Google Scholar

62. Murphy, , “Who Shall Interpret? The Quest for the Ultimate Constitutional Interpreter,” p. 290;Google ScholarHyman, Harold M. and Wiecek, William M., Equal Justice Under Law: Constitutional Development 1835–1875 (New York: Harper & Row, 1982), p. 278.Google Scholar

63. See Belz, Herman, “Lincoln and the Constitution: The Dictatorship Question Reconsidered,” Seventh Annual R. Gerald McMurtry Lecture (Fort Wayne, IN: Louis A. Warren Lincoln Library, 1984).Google Scholar

64. Rossiter, Clinton, Constitutional Dictatorship: Crisis Government in the Modern Democracies (Princeton: Princeton University Press, 1948), pp. 212, 224.Google Scholar

65. See works cited in note 2 supra.

66. Basler, , Collected Works of Lincoln, 4: 430.Google Scholar As for whether Congress or the president might suspend the writ, the Constitution did not say. Consulting original intention, however, Lincoln said it could not be believed that the framers of the document intended that in every case nothing should be done until Congress could be convened (Ibid., p. 431).

67. Ibid., p. 429.

68. Ibid., 5: 240–43. Lincoln's explanation was made in response to a resolution of the House of Representatives censuring Simon Cameron, secretary of war in April 1861.

69. The Federalist, ed. Earle, , p. 143.Google Scholar

70. Bessette, Joseph M. and Tulis, Jeffrey, eds., The Presidency in the Constitutional Order (Baton Rouge: Louisiana State University Press, 1981). pp. 17–19.Google Scholar

71. Engeman, Thomas S., “Presidential Statesmanship and the Constitution: The Limits of Presidential Studies,” Review of Politics 44 (04 1982): 272.CrossRefGoogle Scholar

72. Bessette, and Tulis, , Presidency in the Constitutional Order, p. 26Google Scholar; Goerner, E. A., “Letter and Spirit: The Political Ethics of the Rule of Law Versus the Political Ethics of the Rule of the Virtuous,” Review of Politics 45 (10 1983): 553–75.CrossRefGoogle Scholar

73. Basler, , Collected Works of Lincoln, 4: 302.Google Scholar

74. Bessette, and Tulis, , Presidency in the Constitutional Order, p. 24.Google Scholar

75. Basler, , Collected Works of Lincoln, 6: 303.Google Scholar

76. Ibid., 7: 281.

77. King, Willard L. and Nevins, Allan, “The Constitution and Declaration of Independence as Issues in the Lincoln-Douglas Debates? Journal of the Illinois State Historical Society 52 (Spring 1959): 17.Google Scholar

78. The Federalist, ed. Earle, , p. 158.Google Scholar Observing that “parchment provisions” are unequal to “a struggle with public necessity” Publius comments: “Wise politicians will be cautious about fettering the government with restrictions that cannot be observed, because they know that every breach of the fundamental laws, though dictated by necessity, impairs that sacred reverence which ought to be maintained in the breast of rulers towards a constitution of a country, and forms a precedent for other breaches where the same plea of necessity does not exist at all, or is less urgent and palpable.”

79. Basler, , Collected Works of Lincoln, 6: 303.Google Scholar

80. Bessette, and Tulis, , The Presidency in the Constitutional Order, p. 25.Google Scholar

81. Basler, , Collected Works of Lincoln, 6: 531–32.Google Scholar In 1863, urged to extend the Emancipation Proclamation to parts of Virginia and Louisiana that had been exempted, Lincoln refused on the ground that doing so, for purely political reasons, would place him “in the boundless field of absolutism” (Ibid., pp. 428–29).

82. Ibid., 7: 281.

83. Ibid., 6: 64.

84. Ibid., p. 291; 5: 43; 5: 8. In his annual message to Congress in December 1861, Lincoln referred to the legislature the question of the administration of justice in occupied parts of the rebellious states. In October 1862 he established a provisional court in Louisiana by executive order, not extending beyond the military occupation of the city of New Orleans or the restoration of the civil authority in that city and in the state of Louisiana (Ibid., pp. 467–68).

85. Ibid., p. 49.

86. Ibid., pp. 423–24.

87. Rawley, , “The Nationalism of Abraham Lincoln,” pp. 283, 292, 298.Google Scholar

88. Grimes, Alan P., American Political Thought (New York: Holt, Rinehart, and Winston, 1955), p. 281.Google Scholar

89. Quoted in Mannheim, Karl, Ideology and Utopia (New York: Harcourt, Brace and Co., 1963), p. 234.Google Scholar

90. As in the study of Lincoln's life and political career in general, a major issue in the analysis of his political thought has been the relationship of the prewar and wartime periods. Many historians and political scientists identify Lincoln with the natural rights philosophy in discussing the sectional struggle, while identifying him with organic nationalism in discussing his actions during the Civil War. See, for example, Grimes, , American Political Thought, pp. 236–38, pp. 280–86Google Scholar; Merriam, Charles E., A History of American Political Theories (New York: Macmillan Company, 1903), pp. 221–26, 291.Google Scholar An able presentation of Lincoln as a consistent natural rights thinker is Neely, Mark E. Jr., “Abraham Lincoln's Nationalism Reconsidered,” Lincoln Herald 76 (Spring 1974): 12–28.Google Scholar The most thorough and satisfying analyses of Lincoln's political thought view him in the tradition of classical natural right. See Jaffa, Crisis of the House Divided and Thurow, Glen E., Abraham Lincoln and American Political Religion (Albany, NY: State University of New York Press, 1976).Google Scholar

91. This view is propounded by left-wing as well as right-wing writers. For the leftist argument, see Olsen, Otto H., “Abraham Lincoln as Revolutionary,” Civil War History 24 (09 1978): 213–24.CrossRefGoogle Scholar For the rightist analysis, see Kendall and Carey, Symbols of the American Political Tradition.

92. Hyman, Harold M., A More Perfect Union: The Impact of the Civil War a Reconstruction on the Constitution (New York: Knopf, 1973). p. 57.Google Scholar

93. Hyman, and Wiecek, , Equal Justice Under Law, pp. 277–78.Google Scholar

94. Jaffa, Harry V., “Abraham Lincoln,” in Encyclopedia of the American Constilution, 3: 1162.Google Scholar

95. Hyman, and Wiecek, , Equal Justice Under Law, p. 278.Google Scholar

96. Cornwell, Elmer E. Jr., “The American Constitutional Tradition: Its Impact and Development,” in The Constitutional Convention as an Amending Device, ed. Hall, Kermit L., Hyman, Harold M., and Sigal, Leon V. (Washington, D. C.: APSA, 1981), p. 1.Google Scholar

97. Basler, , Collected Works of Lincoln, 7: 281.Google Scholar

98. Lincoln's, reference to the possible wrecking of “government, country, and Constitution all together” might suggest that he equated the particular administration of which he was the head with the constitutional regime and the nation. This reading is contradicted, however, by his willingness to accept the possibility of electoral defeat and relinquishment of the machinery of government to his political opponents in 1864.Google Scholar

99. Merriam, , History of American Political Theories, p. 296;Google ScholarKing, and Nevins, , “The Constitution and Declaration of Independence as Issues in the Lincoln–Douglas Debates,” p. 17.Google Scholar Compare the view of Chief Justice Earl Warren, a twentiethcentury liberal constitutionalist who has sometimes been seen as carrying on the tradition of Lincolnian Republicanism. Concerning the conflict between national security and individual rights, Chief Justice Warren wrote: “Lincoln once asked, ‘[Is] it possible to lose the nation and yet preserve the Constitution?’ His rhetorical question called for a negative answer no less than its corollary: ‘Is it possible to lose the Constitution and yet preserve the Nation?’ Our Constitution and Nation are one. Neither can exist without the other.” This thought should be kept in mind, Chief Justice Warren advised, in judging the claims of political officers who assert that national security requires what the Constitution appears to condemn (Warren, Earl, “The Bill of Rights and the Military” in The Great Rights, ed. Cahn, Edmond [New York: Macmillan, 1963], p. 109).Google Scholar We observe first that Chief Justice Warren does not carefully consider, or at least does not give evidence of having considered, Lincoln's answer to his own question. He implies that Lincoln answered the question as he, Warren, does, and moreover that Lincoln asked, or should have asked, the corollary question about the possibility of losing the Constitution. The latter of course is Warren's invention which enables him to assert an equivalence or identity between the Constitution and the nation that was not present in Lincoln's thought. The significance of equating Constitution and nation in modern liberal constitutionalism, or of defining the Constitution in terms of the nation, is that it removes restraints on the judiciary and places it on a par with the political branches in determining national security and other policy questions. If the Constitution is the nation, as Chief Justice Warren says, and if the Supreme Court is the final authority on the meaning of the Constitution, as the Court often said during Warren's tenure as chief justice, then the standard for judicial determination of the constitutionality of government action would appear to be infinitely variable, limitless, and politically subjective.

100. Mclaughlin, Andrew C., “Lincoln, the Constitution, and Democracy,” International Journal of Ethics 47 (10 1936): 1–24.CrossRefGoogle Scholar

101. Neely, , “Andrew C. McLaughlin on Lincoln and the Constitution,” Lincoln Lore, no. 1761 (11 1984): 2.Google Scholar

102. Ibid., p. 3.

103. Basler, , Collected Works of Lincoln, 1: 111.Google Scholar

104. Mclaughlin, , “Lincoln, the Constitution, and Democracy,” p. 2.Google Scholar