Abraham Lincoln, Legal Positivism, and Constitutional History

 

Abraham Lincoln, February 9, 1864, by Anthony Berger

A quarter-century ago, Arthur Bestor, Professor Herman Belz's distinguished doctoral mentor, called attention to "the configurative role that constitutional issues played [during the Civil War and Reconstruction ... as] the point of crucial importance." [1] Since then, throughout Belz's own increasingly productive postdoctoral career, heeding Bestor's wise precept, he has dealt commendably with constitutionalism as a body of theory that, applied by both elective politicians and appointed jurists, defined public policies and private rights during America's greatest crises, including the Civil War. So perceived, constitutionalism and law reciprocated endlessly with many real-world externalities and were never compressible into theorists' cherished symmetries and syntheses, yet retained unsevered links to their basic sources, especially, of course, to the positive text of the 1787 Constitution itself. [2]

In his publications Belz attended properly to the "intentions of the Founding Fathers" of 1787. He respected subsequent "black letter" laws and derivative high-court case decisions, as must we all. In addition, he also employed relevant evidence drawn from "unofficial" sources external to the public law. Especially interested in the Lincoln-constitutionalism theme, Belz, from his ongoing examination of this usefully wide array of sources, reestimated aspects of Lincoln's career through lenses ground partially to a political Page  [End Page 1] philosopher's wider angles. Despite his obvious affection for systematic political analysts, Belz has not succumbed to sometimes dangerous lures of historical synthesizing, or fallen prey to what Oscar Handlin described as "vast panoramic ... aspirations to be that ... transcendental eyeball." Those so seduced allow themselves to be deflected away from "the tyranny of intractable facts," Handlin warned.[3]

Instead, commendably subject to this happy tyranny, Belz remained faithful to his own 1984 conclusion that the "dictator" label was inappropriate for Lincoln. As he wrote, "Ultimately Lincoln appealed to a kind of constitutional common sense that while respecting the requirements of procedural regularity and formal legality, was concerned above all with preserving the substance of republican liberty—the purpose both of American nationality and the constitutional order." [4] Reinforcing this consistent respect for "constitutional common sense," Belz reminded us that although "It is not unrealistic ... to see extraordinary executive power as a threat to the rule of law,... emergency prerogative power capable of having this effect is meaningful only in the context of defined and limited constitutional forms and institutions." [5]

And so Belz is catalogable as a mid-road traveler on constitutional and legal history's roads, one who accepts Philip Kurland's and Ralph Lerner's suggestion that constitutionalism "involves not only the general forms and abstract declarations, but a particular people, a specific place, [and] concrete circumstances ... [plus] the mood and situation of a people intent on defining and refining its notions of self-government."[6]

Belz's mainstream qualities and saving sense of the practical do, however, place him at risk from travelers on other, more extreme analytical paths. Historians who enter dens of philosopher-lions risk being attacked by the savage inhabitants; or, worse, being ignored by them. The most hazardous present dens for mid-road constitutional and legal historians are those law school faculty offices and government bureaus whose inhabitants champion the ideological far left or far right. Page  [End Page 2]

Consider first today's far left, especially among law academics, especially the self-styled "critical legal studies" activists ("crits" in shorthand). They will, predictably, slash Belz if they attend to him at all, which they should. To some crits, tillers like Belz in the vineyards of constitutional or legal history are either corrupted or naive. Crits allege that America's constitutions and laws, and their accompaniments of federalism, democracy, and capitalism, are false-fronted Potemkin villages, footnoted fictions, and romantic frauds perpetrated on America's generations by campus lackeys of self-interested economic and political profiteers. Therefore, only misguided or credulous academics like Belz (and myself) still waste time, energy, and research money on constitutional-legal history topics. [7]

Belz will likely suffer also at the hands of far right constitutional militants, especially those like Judge Robert Bork, former Attorney General Edwin Meese, and other exaggerated "legal positivists." Unlike crits, who are predominantly law academics, these overextended positivists include a depressing number of academic historians, philosophers, and political scientists plus such weighty policymakers as Chief Justice William Rehnquist, Justice Antonin Scalia, and many lower federal judges and attorneys.[8] All take constitutionalism dead seriously as a revealed truth, more like Calhoun's rigid strict-constructionism than Jefferson's. They have the flavor of today's creationists in debates on evolution in school curricula. And, if only because they occupy such influential public offices, such true believers enjoy opportunities to infuse policies with dogma.

Positivism is definable as an effort to identify what law is by separating it from ethics or moral justice. Adherents of exaggerated forms, however, suggest that only the formal texts of the Constitution and derivative statutes and case decisions, plus a slim roster of canonized commentaries, especially The Federalist, should inform judges, legislators, presidents, and historians about the limits of public functions and private rights. Such judgments, overextended positivists argue, must be free of the "taint" of all externalities, including history itself, politics, sociology, economics, or idealism. [9] Page  [End Page 3] Their credo is that only the intentions and alternatives of 1787 properly define policy alternatives of 1987. Supreme Court Justice William Brennan has described such excessive confidence about the recapturability of the Framers' intentions from the slim roster of verifiable sources as "arrogance cloaked as humility."[10] "Constitutional commonsense" like Lincoln's, that Belz praises, rates very low indeed in the Meese scale of values.

Conclusions seem justifiable that the Declaration of Independence and the Constitution, the latter including the Bill of Rights, were linked by a shared tradition of political philosophy, and that Lincoln and some unknowable but significant number of his contemporaries saw the Declaration as part of the Constitution. For Lincoln Republicans of early 1865, liberty in the sense of a nationwide end to slavery became joined or joinable to equality as a constitutional duty for government. [11] A junction of the Declaration with the Constitution had long been a goal of antislavery activists. They evolved justifications for this juncture from historical, ethical, constitutional, and legal sources. Here Moncure Conway's insight deserves echo: "Mr. Lincoln grew as the people grew." [12]

Grew from what, to what? For Lincoln, as for his generation, from opposition to the further extension of slavery into the territories to a commitment to erase slavery from the re-United States. For some, including Lincoln, growth evolved to a vision of "freedom national: slavery not even local," that is, to the most extended version of antislavery jurisprudents' long-frustrated vision. However varied and eclectic the sources that abolitionist lawyers employed to justify their aspiration, none omitted the Declaration as intrinsic in the Constitution and as explicit in and central to the Northwest Ordinance, a public policy created under the Articles of Confederation and reaffirmed immediately after the ratification of the 1787 Constitution. [13] Page  [End Page 4]

In 1861 Lincoln and a volatile majority were shakily opposed to the further extension of slavery, but so ardent to reverse state secessions that they were willing perpetually to guarantee by a thirteenth amendment to the Constitution's property rights in slaves in the states where it then existed. Thereafter Lincoln "grew," that is, kept learning that abolitionist constitutionalism was relevant to the Union's survival. By 1862–63, his Emancipation Proclamation not only threatened slavery in the seceded states but also recruited blacks from those states for the Union armies. Two years later, Lincoln, with four years of a second term of office in hand, enthusiastically supported the proposed new Thirteenth Amendment, to erase slavery nationwide. His growth in commitment to liberty is paralleled by one about equality before law, as an element of a new, tenderer constitutionalism, one of universal liberty and consonant with stabilized federalism, enhanced capitalism, and widened democracy. By April 1865, the amending Constitution prefigured the victorious Union society. [14]

Lincoln's growth toward liberty as equality is measurable also by his warm support for a singularly American mix of wartime statutes not commonly associated with emancipation. They should be. These are the Morrill, Homestead, and Jurisdiction acts of 1862–63 and the Freedmen's Bureau law of 1865, all of which Lincoln warmly supported. These statutes reach backward to the Declaration and the 1787 Constitution as a unity, and forward to universal emancipation. The trio of extraordinary laws created for Americans unprecedentedly wide access to land (i.e., property), education, and legal remedies, if and when the Union won the war. At least theoretically this access was racially nondiscriminatory (for white and black males, not, it appears, for other races or for females of any race).

Throughout the free-wheeling debates on these bills, congressmen linked them to the Declaration of Independence, the Northwest Ordinance, the Constitution, and the prewar Judiciary Acts. Both supporters and opponents of the Civil War legislation viewed these Page  [End Page 5] and other new policies as part of what the Emancipation Proclamation and then the Abolition Thirteenth Constitutional Amendment of 1865 implied for the country. That is, by early 1865 universal freedom was definable in practical terms as a bundle of constitutional and legal rights of access for all Americans. It derived from the Declaration and the Constitution together, as purified by the Thirteenth Amendment, and was implemented by the enlarged access to land, education, and legal remedies created by the Morrill, Homestead, and Jurisdiction laws, and the Freedmen's Bureau statute.[15]

Chief Justice Roger B. Taney

The equation of liberty with access to land, education, and legal remedies existed in Locke's trinity of liberty, property rights, and independent citizenry; a trinity dear to Jefferson and to Lincoln as he matured. [16] During that period of Lincoln's maturity, Andrew Jackson had reinforced equalitarian aims in American politics. Page  [End Page 6]

That Lincoln was early sensitive to these imperatives, if only for local vote-getting, is evident in his 1832 speech to Illinois neighbors, in which he viewed education "as the most important subject which we as a people can be engaged in.... I desire to see the time when education ... shall become much more general than at present, and should be gratified to have it in my power to contribute something to the advancement of any measure which might have a tendency to accelerate the happy period." [17]

He was to have his chance. Twenty-five years later, Lincoln criticized the Dred Scott decision, arguing bravely in racist Illinois that the Declaration of Independence embraced "all men." In his 1858 debates with Stephen Douglas, Lincoln seized on resolutions of "Judge Douglas's own good old State of Vermont, that I think ought to be good for him too." First among the Vermont resolutions was "That liberty is a right inherent and inalienable in man and that herein all men are equal."[18]

Lincoln's Gettysburg Address referred to "Fourscore and seven years ago"—that is, to 1776, not 1787. In August 1863, Lincoln was midway in a tumultuous presidential term. By this time the access laws had been enacted, all with his firm support. Lincoln notified the Union general commanding Louisiana, his showpiece wartime reconstruction state, that he "would be glad" for Louisiana to make a new state constitution recognizing the Emancipation Proclamation. "And while she is at it," Lincoln continued, "I think it would not be objectionable for her to adopt some system by which the two races could gradually lift [?] themselves out of their old relation to each other, and both come out better for the new. Education for young blacks should be included in the plan." Why? In part, at least, so that literate freedmen might know their legal rights in making labor contracts, the lawyer-president continued.[19]

Then in December 1863, only four months later, in his Amnesty and Reconstruction Proclamation for all the seceded states, Lincoln included requirements that new state constitutions both recognize the Emancipation Proclamation and also "provide for the ... education" of both freed and ever-free black state residents. On the Page  [End Page 7] same day he reported rather boastfully to Congress about sales already made to smallholders under the recent Homestead Law, and urged priority in future sales for Union army veterans. Almost a hundred thousand black bluecoats were then part of that potential array of freeholders.

A year and a second presidential election victory later, in February 1865, Lincoln, responding to a serenade in his honor, reported that the pending Thirteenth Amendment was advancing even in Maryland, a state long opposed to equalitarian changes in race hierarchies. He was also especially "proud that Illinois was a little ahead." The wartime Emancipation Proclamation had been a necessary and proper interim measure, he stated. But it "falls far short of what the [Thirteenth] Amendment will be when fully consummated." That amendment, Lincoln continued, "was a very fitting if not an indispensable adjunct to the winding up of the great difficulty.... [It] is a King's cure for all ... evils." [20]

Then, on April 11, 1865, with an entire second term ahead, Lincoln redefined postvictory possibilities and purposes. He would carry on the essence of the wartime Reconstruction policy of December 1863 and of the Thirteenth Amendment by encouraging all the defeated rebel states to allow literate blacks to vote and to educate at public expense all citizens' children, white and black. To John Wilkes Booth, this meant "nigger citizenship," and so he murdered Lincoln. [21]

Among others, Chief Justice Salmon P. Chase tried unsuccessfully to convince Andrew Johnson, Lincoln's successor as president, that the Thirteenth Amendment "incorporated a distinct recognition of the loyal colored men as citizens, entitled to the right of suffrage."[22] Three years later, the Congress elected with Lincoln in 1864 announced the ratification of the Fourteenth Amendment. Today echoes resound of arguments heard in Lincoln's time about the "incorporation" of the Declaration of Independence into the Constitution by these Reconstruction Amendments, especially the Fourteenth, and by the battery of Civil War public policies. Positivists deny the legitimacy of incorporation, but the probability appears large that a great leap forward from Dred Scott had occurred to a culture of Page  [End Page 8] aspiration that not only preserved federalism, democracy, and capitalism but, potentially at least, also greatly improved and broadened them.[23]

Chief Justice Salmon Portland Chase

Thus, positivist limitations on historical evidence are unappealing. An impressive pride of constitutional-legal scholars now attend to criminal as well as civil law, to humble lower courts where almost all litigations finish, as well as to high appeal courts, and to the intellectual baggage that lawyers and judges brought to courts. These innovators happily mix the positive law and high-court case decisions with data drawn from contextual economic, political, and social phenomena and unofficial manuscript sources. Perhaps by reason of their eclectic researching, these inquirers appear to comprehend Page  [End Page 9] better the inextricably intermixing fears of Lincoln's generation about the federal Union's fate, about all individuals' civil (i.e., property) rights, and about all law and order.[24]

This accumulated research suggests that many ambiguous, conflicting, and contradictory aspirations and fears constrained even the most permissive Republican stalwarts of the 1860s. Lincoln's partymates gave increasing prominence to several questions as the war neared emancipation-Appomattox frontiers. Beyond forbidding slavery, were the nation and states unlimited in their capacities to affect property rights? Did different limits on government exist concerning the property rights of former rebel Southern whites compared to Southern white Unionists and always-loyal freedmen, and of loyal Northern whites as distinguished from those categorized as disloyal? If so, who should decide what these differentials were?

To understand better Lincoln's generation—one that did not disappear when he died—the Constitution and the positive laws are best not considered as sacred texts. Rather they were and are guides to, and reflections of, deep and swirling social currents. In 1865 these currents were thrusting the politics of compassion as well as of efficiency and order into the agendas of national and state governments and mixing these newer imperatives with older ones about liberty. Then the compassionate current became divided and tentative. [25]

Notably sensitive to compassionate possibilities in wartime policy alternatives, impressively educable about the potentialities in government to affect and effect social change, Lincoln linked his own destiny and that of the nation to the most decent avenues visible to American society. His generation faced conflicts of visions, as does ours. [26] During Lincoln's whole lifetime, constitutional and legal positivism meant social reaction, military defeat, national dismemberment, institutionalized racial hierarchies and prejudices, and the Page  [End Page 10] threatened loss of the world's last best hope. Then, in the 1860s, the Lincoln "revolution" managed, although only temporarily, to overcome the effects of encrusted, oversystematic applied political philosophy, whose spokespersons had allowed little or no room for compassion as a necessary and proper duty for American society.

There are lessons for our time in this history. Refusing to be distracted by contemporary political theorists and politicians concerning the status of the conquered Confederate states, Lincoln called their arguments "a merely pernicious abstraction."[27] W. H. Auden has warned, "Thou shalt not sit with statisticians nor commit a social science." What about a political philosophy applied to legal and constitutional history? Page  [End Page 11]

This article was in response to a paper written by Herman Belz and delivered at the symposium "Lincoln, the Law and the Constitution" in Springfield, Illinois, on February 12, 1987, which was sponsored by the Abraham Lincoln Association and the Illinois State Historical Library.