Lincoln's Prewar Constitutional Vision

 

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

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 democratic 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 constitutional system that maintained it. From the time that he first developed 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 profound 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 Page  [End Page 1] 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 proceeding this way is that it puts us in Lincoln's shoes. "When 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 because 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 economy 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 Page  [End Page 2] 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 Address, 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 constitutionalist—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 constitutional rhetoric of state rights and interposition. When the specific words of segregation were stricken from constitutional law, "institutional 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 Marshall, 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 forceful contrast between constitutional order and equality.[4]

It built on an abiding argument that split Lincoln the constitutionalist 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 Page  [End Page 3] polity. The Constitution is admired for the machinery that established national supremacy and preserved a Union; the Declaration for proclaiming the ideal that "all men are created equal" and resting legitimate government on that ideal. Reflecting the modern egalitarian 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 somehow 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 wartime 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 advocates, 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 Gettysburg 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— Page  [End Page 4] the lawyer-politician operating within the complex institutions of his age, manipulating and using institutions, respecting the Constitution 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 presidential candidates run against the system, claiming that their ignorance 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 respected, 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-constitutional system. Page  [End Page 5]

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 reformers. 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 respected 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 Page  [End Page 6] the Constitution meant and how the electoral process set up by the Constitution should operate. He insisted that the Declaration's equality ideal is fundamental because it is connected inextricably to the constitutional process, a process that Douglas and Taney and Company 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 institutions. 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 establishment 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. Summoning the tale in many speeches Lincoln was defining self and Page  [End Page 7] 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 interwoven 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 expansion 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 Page  [End Page 8] 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 equality triumphs over his more dubious legal and constitutional principles, whose devotion to emancipation finally overcomes his conservative 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 Declaration. 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] Page  [End Page 9]

The political environment in which he matured also inspired commitment to order. As Jacksonian democracy rose it provoked accusations 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 government-supported economic growth. Although Andrew Jackson had said, "Never for a moment believe that the great body of the citizens ... 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 committed to Jackson's shibboleth that although he analyzed other political concepts at length, he gave posterity a thirty-three-word definition 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 the Whigs. [14]

Thus young lawyer Lincoln cast the balance between the accomplishments of 1776 and those of 1787 by arguing that the Constitution 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 Jefferson 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 Page  [End Page 10] 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 commitments. 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, emphasizing 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- Page  [End Page 11] tution or to the constitutional laws of the country, it has my unqualified condemnation." Lincoln did hate slavery, but he was aroused to passionate opposition only when slavery threatened the constitutional or political system.[17]

Thomas Jefferson and James Monroe were among the Founding Fathers invoked in this "National Republican Chart" published during the presidential campaign of 1860.

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 slavery 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 Compromise. 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 violence, 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 constitutional 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 Constitution and the Declaration. Doing so was not simple. Both as politician 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 Page  [End Page 13] 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 framework 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 Page  [End Page 14] 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 Constitution was not only stable, but it was also protean. Its processes allowed, indeed, placed, change on the agenda with the establishment 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 undermine 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 essentially one meeting, bonded together in the act of founding the country. 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 prohibit 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 Constitution in 1787. [21]

Certainly Lincoln stepped over the constitutional fences of the Taney Court; he moved beyond guidelines proclaimed by his Democratic opponents. And they indicted him as an enemy of the Constitution. But this was an accusation, not a verdict. Lincoln operated Page  [End Page 15] within the constitutional possibilities of the founding years. For him, achieving the ideals of the Declaration meant preserving the government 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 beginning 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 required 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. Especially in its southern half, predominantly settled from slaveholding states, racism was a powerful and practically unchallengeable notion. [24]

Thus when Lincoln challenged the expansion of slavery by proclaiming 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 Page  [End Page 16] 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 promised 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 meaning 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 Page  [End Page 17] 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 declared 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 everywhere." [28] And the only way for that process to occur was for constitutional 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 Page  [End Page 18] 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 restraints 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 institution 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 extinction, 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." Page  [End Page 19] He contrasted the economy of slavery on one hand with that of free society where workers "are not obliged to work under all circumstances 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 governments 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- Page  [End Page 20] 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. Page  [End Page 21]

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.