Constitution Day 2008

Lawyer Lincoln’s Constitution and the Case Against Slavery

Bill Woodward

By William Woodward, Ph.D.
Professor of History
Seattle Pacific University



Is there in all republics this inherent and fateful weakness? Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?

The president was responding to criticisms of his extraordinary actions in the midst of war. His plaintive questions could be restated thus: What can a president do in wartime, within the constraints of the U.S. Constitution? If the nation is in peril, can the rules be bent a bit?


In 2008, that’s a pressing and contested issue. It was even more so back in 1861, when Abraham Lincoln addressed these words to Congress.


In 2009, 200 years after its 16th president was born, America’s 44th president will take the oath to defend the Constitution. On Constitution Day 2008, as the Lincoln bicentennial approaches, it is instructive to look at what Lincoln had to say about the Constitution at its greatest moment of danger.


The Civil War was a great moral, political, and cultural crisis. It was no less a crisis of the Constitution. And that crisis had begun years before with another constitutional crisis, when property and states rights – protected by the Constitution – clashed fundamentally with human and political rights – also guaranteed by the Constitution.


And a lawyer named Lincoln was in the thick of that battle, even before he took the oath as president.


Let us this day consider some of Lincoln’s constitutional views that led up to the outbreak of war and the weighty questions quoted above (reserving for a future occasion a look at his views on secession and war powers). Lincoln deeply respected the nation’s founding documents. He saw the Constitution as the logical outgrowth of the ideals embodied in the Declaration of Independence. Neither as a rising leader in the fight against slavery nor as wartime president in the fight to save the Union would Lincoln miss a chance to ground his artful rhetoric in the nation’s charter documents.


It should be recognized that Lincoln’s respect for the Constitution meant he accepted the reality of slavery’s legal existence in the American South. On this basis, some in recent decades have tried to paint him as a racist, underplaying his hostility to slavery and undervaluing his role in ending it. Encountering Lincoln’s consistent antislavery rhetoric in the tumultuous 1850s gives the lie to the charge.


Consider first the sources of Lincoln’s opposition to slavery, then note how he proposed to deal with it: not by ending it but by confining it. Then listen carefully to the moral and constitutional arguments the Illinois lawyer crafted in defending this strategy. In short, it is not enough to read about what Lincoln thought. You need to read what Lincoln actually wrote and said.


So please stay with this analysis of two landmark episodes as I lay out, in Lincoln’s own words, his responses first to Sen. Stephen Douglas’ Kansas-Nebraska Act. in 1854, then to Chief Justice Roger Taney’s Supreme Court ruling in 1857 in the case of Dred Scott v. Sandford.

Lincoln's Antislavery Stance

Abraham Lincoln opposed slavery. This principled stance followed from economic, pragmatic, legal-historical, and moral premises. As a life-long Whig party loyalist and exemplar of the American Dream, Lincoln, like his political hero Henry Clay, sought positive government action to promote opportunity for free working folk. Pragmatically, he chafed at the distorting, even corrupting political power of the slave states and their Northern Democrat allies. Legally, he argued that the nation’s founders, though unable to ignore the reality of slavery’s existence, intended that it eventually disappear, crafting a constitutional system on that assumption. But all of these were extensions of his moral passion, which stemmed in turn from a distinctive religious outlook.


A genuine but “hybrid” religious commitment — more Unitarian than orthodox — grounded Lincoln’s moral stance on slavery, argues biographer Richard Carwardine. Biblical allusions permeated his rhetoric, “driven by conviction, not expediency.” He often voiced a near-fatalist, or near-Calvinist, “doctrine of necessity,” believing that “the Universe followed a course fixed by divine laws.” Yet he also held that men and women could participate in God’s unfolding plan. Indeed he saw himself as an instrument of slavery’s inevitable doom. Concludes Carwardine: “fatalist and activist were thus fused in Lincoln.”


In sum, Lincoln’s economic and antislavery views merged to cast a grand vision, tying the moral bankruptcy of bondage to the dream of economic opportunity. In keeping with his own story, he began with the conviction that work is good and worthy of reward. He found biblical warrant — in God’s declaration to Adam that he would henceforth earn his bread through his own toil — for the dignity, duty, and just desserts of labor freely pursued. Hence slaves not only were denied the blessings of work, but they also competed unfairly with free labor. To vindicate that view he found another “scripture”: the Declaration of Independence.


What we must see, then, is that Lincoln based his constitutional arguments in the earlier Declaration. He saw the Declaration, in turn, as a noble American embrace of a universal moral system rooted in free labor. He couched that celebration of freedom, somewhat paradoxically, in a worldview of irresistible if mysterious Divine Providence.


“If God wills,” he would one day famously say, but in the meantime it is rather “for us the living” to do good work — yes, God’s work — in the world.


And that meant implacable hostility to slavery.


But not the uncompromising hostility of the abolitionist!

Lincoln's Antislavery Strategy

True “abolitionists” targeted the slave system of the American South. They sought to end slavery once for all, and at once. “Immediatism” was their radical watchword.


Lincoln was not an abolitionist.


Lincoln took a more attainable stance. Slavery was wrong. Slavery, in God’s timing, must indeed end. But that destiny was the South’s particular burden. In the meantime, what America must do is prevent slavery’s expansion.


Back in 1820, a law had done just that, mostly. The so-called Missouri Compromise admitted Missouri as a slave state but banned slavery everywhere else in the great Louisiana Territory, except for a small area south of Missouri (future Arkansas).


Events altered the geography. Three decades later, the United States had stretched to the Pacific. Oregon, growing steadily, received formal territorial status. And California, flooded by gold-seekers, suddenly qualified for statehood.


Was slavery to be permitted or prohibited beyond the Rockies? Militant Southern slaveholders insisted constitutional guarantees of property rights gave them license to take their “chattels” (the slaves they owned) into the West. Even Northerners such as Illinois Sen. Stephen Douglas, pressing for a new compromise, argued that American democratic principles dictated letting the Western settlers themselves decide the status of slavery in their respective jurisdictions. He called his anti-extremist approach “popular sovereignty.”


Lincoln, as a congressman in the late 1840s, fiercely dissented. He took a “free-soil” approach, repeatedly voting to bar slavery’s expansion. After his single term expired, Lincoln kept faith with an earlier pledge and did not seek re-election in 1848. In fact, he withdrew from politics, focusing on a growing and rewarding law practice with, as he later wrote, “greater earnestness than ever before.” He did well, honing skills of thought and persuasion in his hometown of Springfield and out on the judicial circuits.


Six years later, Douglas dropped a bombshell. It yanked Abraham Lincoln out of political retirement and into mortal combat with Douglas and his purported sensible middle way.


Douglas wanted to ensure that any future western railroad would begin in Illinois and follow a central route to the booming gold-rush state of California. To make that likely, he wanted to promote settlement of the central Great Plains. To make that likely, he rammed through a bill to organize new territorial governments for Kansas and Nebraska. But to get his bill passed, he had to insert a clause voiding the longstanding Missouri Compromise. Slavery now might become legal where it once had been “forever” banned, if settlers so voted.


The Kansas-Nebraska bill was a political earthquake. It shook the tenuous political calm, polarized the electorate, split Douglas’ Democratic Party, destroyed Lincoln’s Whig Party, and led to a mini-civil war in Kansas. And in Douglas’ home state, it awakened the compelling rhetoric of lawyer Lincoln.

The Argument Against the Kansas-Nebraska Act

For Lincoln, the repeal of the Missouri Compromise, permitting slavery in Kansas and Nebraska territories — and perhaps elsewhere on once-free soil — was a moral outrage. It jolted him back into action. His return came in his hometown of Springfield. He was electrifying. Let’s hear him explode back on the political stage.


On repeal: “It is wrong.” On Douglas’ professed neutrality toward slavery: “This declared indifference ... I cannot but hate.”


Why, Mr. Lincoln?


I hate it because of the monstrous injustice of slavery itself. I hate it because it deprives our republican example of its just influence in the world ...


After blasting the act on moral grounds, Lincoln turned to constitutional principle. Who could oppose Douglas’ moderate, democratic notion of letting the settlers decide?


I meet that argument — I rush in. I take the bull by the horns.


Of course, said Lincoln, “the doctrine of self-government is right.” But what of the slave? Isn’t it a contradiction “to say that he too shall not govern himself?” After all, the Declaration of Independence enshrines the bedrock idea that


no man is good enough to govern another man, without that other’s consent. I say this is the leading principle — the sheet anchor of American republicanism ...


Hence America’s founders, argued Lincoln, in a line of analysis to which he would repeatedly return, accommodated to slavery in their midst only out of “necessity.” Moreover,


the earliest Congress, under the constitution, took the same view of slavery. They hedged and hemmed it in to the narrowest limits of necessity ...


So it violates the republic’s founding documents, Lincoln insisted, as well as basic moral precept, to say


that for some men to enslave others is a ‘sacred right of self-government.’ These principles can not stand together. They are as opposite as God and mammon, and whoever holds to the one, must despise the other ...


Lincoln’s appeal to the charters actually posed a challenge to both pro-slavery and anti-slavery arguments. Many Southerners argued that the Constitution’s accommodation to slavery (as, for example, in the infamous “three-fifths clause”) equated to an endorsement. And the most radical abolitionists agreed with them, branding the Constitution a “covenant with hell.” Lincoln, however, artfully sought to reclaim the documents and their underlying principles. And so he concluded:


Let us re-adopt the Declaration of Independence, and with it, the practices, and policy, which harmonize with it.


And then the altar call. “If we do this,” he proclaimed,


we shall not only have saved the Union; but we shall have so saved it, as to make, and keep it, forever worth the saving. We shall have so saved it, that the succeeding millions of free happy people, the world over, shall rise up, and call us blessed, to the latest generations.

The Argument Against the Dred Scott Decision

Three years elapsed. Sectional tensions heightened. Lincoln cast his lot with the new Northern free-soil party, the Republicans. Running the famous explorer John C. Fremont in 1856, the new party did well but still lost to Democrat James Buchanan. As he entered office, the new president eagerly anticipated an imminent once-and-for-all settlement of the strife over slavery, courtesy of the Supreme Court. Early in his term, the Court handed down its ruling in the case of Dred Scott v. Sandford. But it proved a detonation even louder than the Kansas-Nebraska Act, for it only inflamed the rising conflict.


(As I wrote in the Constitution Day 2006 essay in this series, Dred Scott is one of four landmark cases every American should know.)


Dred Scott was a slave. He had resided for a time in Wisconsin Territory, made free by the Missouri Compromise. He sued for his freedom on grounds that he could not rightfully be held a slave on free soil. Chief Justice Roger Taney, a former slave owner and a staunch Democrat, wrote the majority opinion for a strongly pro-Southern but divided court.


Scott, ruled Taney, had no standing to sue, because slaves were not citizens. Nor did the writers of the Constitution intend to include them “under the word ‘citizen’ in the Constitution.” Nor, in fact, could citizenship be gained by black folk under the Constitution even if they became free!


If that wasn’t enough, Taney went further, declaring that “the right of property in a slave is distinctly and expressly affirmed,” so the only jurisdiction Congress holds over slavery is to protect slaveowners’ property rights. Congress can’t ban slavery anywhere! The Missouri Compromise, concluded Taney, was “not warranted by the Constitution and is therefore void.”


It was another bombshell. Not only did this “definitive” ruling on slavery pull the rug from the “free-soil” stance of those like Lincoln who wanted to keep slavery where it was, it called Douglas’ “popular sovereignty” notion into question because slaveowners could evidently take their human property into a territory regardless of what the people there wanted.


Southerners rejoiced. Stephen Douglas publicly defended the Dred Scott ruling.


Lincoln didn’t flinch.


In a June speech in the Illinois capital, Lincoln counterattacked.


He first disarmed any charge that he refused to honor the authority of the high court. Its constitutional rulings, “when fully settled,” should become “the general policy of the country.” But in this case, a split decision, skewed by “partisan bias,” resting on “assumed historical facts” that are really false, and not sustaining a chain of prior judgments, should be branded as “erroneous.”


From the outset, then, Lincoln argued, the Court’s “studied blindness to precedent” (in Carwardine’s phrase) tainted the ruling. (Taney had overreached his purview, anyway, Lincoln would elsewhere point out, since as soon as he declared that Scott could not sue, no case presented itself on which to rule. He really had no standing to rule on the Missouri Compromise.) Therefore the decision has “not yet quite established a settled doctrine for the country.” Rather, it must be opposed until one day it can be overturned. The Supreme Court has reversed itself before, Lincoln pointed out, so we must work “to over-rule” Dred Scott.


Now here’s why, reasoned lawyer Lincoln.


To begin with, it relies on bad history. The framers, far from protecting slavery, intended and hoped that one day it would disappear. Taney and Douglas were corrupting the Constitution and slandering its creators, who meant what they said in the earlier Declaration: that all men were “equal in ‘certain inalienable rights.’” Justice Taney “plainly assumes” that white attitudes toward black folk are better in the 1850s than at the nation’s founding. That’s wrong, asserted Lincoln: “Their ultimate destiny has never appeared so hopeless.” Back then, “the spread of the black man’s bondage to new countries was prohibited"; now, with Nebraska and Dred Scott, slavery’s spread cannot be limited.


More powerfully, Lincoln invoked the nation’s charter.


In those days, our Declaration of Independence was held sacred by all, and thought to include all; but now, to aid in making the bondage of the Negro universal and eternal, it is assailed, and sneered at ...


No, things are not better for “the black man,” for


mammon is after him; ambition follows, and philosophy follows, and the Theology of the day is fast joining the cry. They have him in his prison house; they have searched his person, and left no prying instrument with him. One after another they have closed the heavy iron doors upon him, and now they have him, as it were, bolted in with a lock of a hundred keys ...


Next, savaging the scurrilous whisper that Republicans endorsed intermarriage, Lincoln quipped that just because “I do not want a black woman for a slave” does not mean “I must necessarily want her for a wife.” Then the bold counterattack:


in her natural right to eat the bread she earns with her own hands without asking leave of any one else, she is my equal, and the equal of all others.

Lincoln then returned to Taney’s opinion. Taney, like Douglas, thought that the Declaration “did not intend to include Negroes.” Wrong again. The founders “did not intend to declare all men equal in all respects.” But what did they say?


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 [they] meant.


“They meant,” Lincoln concluded,


to set up a standard maxim for free society, which should be familiar to all, and revered by all, ... and augmenting the happiness and value of life to all people of all colors everywhere ...


Thus Lincoln’s anti-extensionist position was “nothing more than a return to the policy of the fathers.” They could not or would not abolish slavery, but they tried to confine it, authorizing a future ban on slave importation. In fact, in the text of the Constitution they didn’t even use the word “slavery,” resorting instead to “covert language” in the few places the institution had to be mentioned.

The gauntlet was thrown down. Even the High Court he respected could not deter Lincoln’s uncompromising insistence that slavery be confined where it was. The next year Lincoln made his sharp dissent from Taney’s opinion and Douglas’ defense the centerpiece of his bid for the U.S. Senate.


Against Sen. Stephen A. Douglas, of course.

The Arguments Combined in the Great Debates

Lincoln was well known in Illinois. But it took the famous debates with Douglas, part of Lincoln’s campaign to unseat the Democratic senator, to attract national attention. Lincoln kicked off his campaign with a speech to the Republican Party’s Illinois convention. He first alluded to those two recent ominous events, the Kansas-Nebraska Act and the Dred Scott decision. This “almost complete legal combination — piece of machinery so to speak” threatened an unthinkable possibility, that the United States might end up with slavery legal everywhere.


In the republic’s early days, slavery had been illegal in half the states and most of the western territories. Now, by action of Congress and the Supreme Court, “neither Congress nor a Territorial Legislature can exclude slavery.” How long might it be until the Court rules that the Constitution prevents even a state from banning it? Douglas, Lincoln charged, doesn’t care. So if his view prevails, watch out. In memorable — and inflammatory — biblical imagery, Lincoln identified the threat.


‘A house divided against itself cannot stand.’ I believe this government cannot endure, permanently half slave and half free. ... It will become all one thing, or all the other.


Pundits call this kind of rhetoric “red meat.”


But Lincoln was no opportunistic demagogue. Sober logic and deep moral passion undergirded his hyperbole. And these characteristics shone through in the series of debates with his longtime nemesis. Lincoln managed to sidestep a snare set by Douglas, then box Douglas in to a posture that salvaged votes in Illinois but outraged the South. When Douglas charged Lincoln with refusal to comply with the law, Lincoln retorted with his familiar claim that Dred Scott was “erroneous” and therefore must be opposed. Then Lincoln turned the tables by asking Douglas how he could continue to uphold popular sovereignty. Douglas had to retreat to the limp explanation that territorial legislatures could effectively keep slaveowners out by failing to pass codes to protect their slaves.


With that deft deflection of the intent of Dred Scott, Douglas managed to bolster his Illinois support, but Southerners, feeling betrayed, would reject his candidacy for the presidency in 1860. The Democrats disintegrated, and the Republican nominee won.

Lawyer Lincoln's Moral Vision

Abraham Lincoln was president. And the war came. And on his first Fourth of July in office, President Abraham Lincoln had to rally the Congress to the daunting task of war confronting them.


The Lincoln of lore obscures the Lincoln of history. Lincoln the president outshines Lincoln the lawyer. But lawyer Lincoln of Springfield, Illinois, was effective, respected, and prosperous. His reasoning was rigorous, his advocacy formidable. He loved the law. He was brilliant at its practice. He respected judicial process, acknowledged the weight of court rulings, and bowed to precedent. He hailed the Constitution, and revered the generation that authored it. Above all, he loved the egalitarian rhetoric of the Declaration of Independence, and grounded his readings of law and Constitution in that storied charter.


And so it was that, melancholy by temperament and now brooding over the nation’s looming tragedy of civil war, President Lincoln chose to conclude his doleful message to Congress of July 4, 1861, with a ringing restatement of the constitutional principles of freedom and equality that he had so eloquently extolled throughout the 1850s.


This is essentially a people’s contest ... a struggle for maintaining in the world that form and substance of government whose leading object is to elevate the condition of men ... to afford all an unfettered start, and a fair chance in the race of life ...


Moreover, once independence had been won in the blood of battle, “ballots are the rightful and peaceful successors of bullets.” When ballots have fairly spoken, “there can be no successful appeal back to bullets ... . Such will be a great lesson of peace.”


It took a great war to establish that peace, and secure that cherished Constitution ... for them, and for us.