Guest Essayist: J. Eric Wise


“One would start with great confidence that he could convince any sane child that the simpler propositions of Euclid are true; but, nevertheless, he would fail, utterly, with one who should deny the definitions and axioms. The principles of Jefferson are the definitions and axioms of free society.”
– Abraham Lincoln, Letter to Henry L. Pierce in 1859

Euclid’s geometry begins with five postulates or axioms (e.g., the first postulate, a straight line may be drawn between any two points) that cannot be demonstrated from other principles. The axioms to which Lincoln refers are, of course, the “self-evident” propositions in the Declaration of Independence that all men are created and equal and entitled to inalienable rights. Just as a right triangle cannot be comprehended if the first postulate of Euclid is denied, to Lincoln’s understanding a free society cannot be constructed if Jefferson’s postulates of equality and inalienable right are denied.

Prior to the American Revolution, the authority of government relied on a principle of inequality: divine right. In the West, divine right looked to the authority of Saul and David described in the Book of Samuel and the authority of Caesar. Expressions of authority reflected this even in defense of liberty, such as in the Magna Carta (1215), the Declaration of Arbroath (1320), and the Mayflower Compact (1620). Each of these examples appeals to the divine right of kings for their claims of freedom – freedom from arbitrary power of King John over the English nobles (Magna Carta), freedom from the depredations of King Edward II against Robert the Bruce and the Scots (Declaration of Arbroath), and the freedom to establish civil government by charter (Mayflower Compact). In his debates with Stephen Douglas in 1858, Lincoln asserted that the claim of divine right is fundamentally indistinguishable from the claim of a slaveholder over a slave. “That is their argument, and this argument of [Stephen Douglas] is the same old serpent that says you work and I eat, you toil and I will enjoy the fruits of it.”

A theorem is a claim that can be logically demonstrated from certain axioms, the truth of which must be admitted. From the axiom of human political equality of the Declaration comes a theorem that all government derives its just powers from the “consent of the governed.” If each person is equally sovereign to govern themselves, to agree or not agree, then by agreement each person may bind themselves to a government. The preamble to the Constitution thus, famously, begins “We the People”. It is a claim of authority often cited today by confident and strident pluralities and majorities. Undoubtedly this did not represented to Lincoln the claim of majority rule – the Constitution employs majorities in places but is not a charter of majority rule – but the formal recognition of the source of authority of the Constitution rooted in the principles of the Declaration, as opposed to the divine right of kings, the logic of which would have implied a text such as “for the Glory of God” (Mayflower Compact) or “by the grace of God” (Magna Carta).

“We the People” is famously echoed in the peroration to the Gettysburg Address as a defining attribute of the government of the United States: “. . . that government of the people, by the people, for the people, shall not perish from the earth.” Importantly, the reference that Lincoln makes at the close of the Gettysburg Address again is not actually to rule by a majority, but to the authority of the compact made by consent, which in Lincoln’s view could not be undone without the consent of all the others. It was, after all, by the vote of localized majorities by which the states of the Confederacy had sought to dissolve the Union, and it was Lincoln who led the Union to oppose this with force.

Article I Section 2 of the Constitution includes the “three fifths clause”. Article I Section 9 restricts Congress from prohibiting the slave trade until 1808.  Article IV Section 2 contains the fugitive slave clause. These provisions embedded the institution of slavery in the Constitution. Lincoln’s political life is defined in large part by Lincoln’s recognition that of all institutions, the institution of chattel slavery – the status of a person as property – is most violently at odds with the principle of individual human equality set forth in the Declaration. Lincoln maintained throughout his political career that the Constitution was anti-slavery and that the Constitution’s provisions protecting slavery were compromises with the institution of slavery for the sake of union, made with a view towards the eventual eradication of slavery.

Lincoln in his Cooper Union Address in 1860 laid out this view. He said, “True, we do, in common with ‘our fathers, who framed the Government under which we live,’ declare our belief that slavery is wrong” [Emphasis added]. In support, Lincoln demonstrated that “our fathers, who framed the Government” gave the power to Congress to prohibit the territorial expansion of the institution of slavery, which they had done through the Northwest Ordinance of 1787, and did again in 1789, ratifying the Northwest Ordinance under the under the Constitution.

Lincoln’s Cooper Union Address is unequivocal that the anti-slavery character of the Constitution is what makes the Constitution’s conservation, American conservatism, compelling. “What is conservatism?” Lincoln asked in the Cooper Union Address. Despite pro-slavery voices to the contrary, Lincoln demonstrated that the right of property in a slave is not “expressly and distinctly” affirmed in the Constitution, and Lincoln forcefully argued that attempts to attribute a pro-slavery principle to the Constitution were new and radical. “It was not we, but you who discarded the old policy of the fathers,” Lincoln said to pro-slavery factions.

Besides the documentary case Lincoln made in the Cooper Union Address, Lincoln thought the Constitution’s tolerance of slavery could only be a compromise with the institution aimed at its eradication, because tolerance of the slavery from indifference or favor would repudiate the authority of “the People” to form a government by consent.

There is a well-known case, Calder V. Bull (1798), which is not good law, in which Justice Samuel Chase held that the principles of natural justice of the Declaration limit the scope of legislative authority. Nothing Lincoln wrote or said suggests that he thought the principles of natural right of the Declaration could be read into the Constitution in a manner that placed natural right as a natural law above positive law to be construed by judges and officers of the Government. Instead, Lincoln saw the principles of the Declaration as the source of the authority of the positive law, i.e., of the Constitution and the inferior positive laws passed by the legislature. Acts of the legislature could be inconsistent with this source of authority, just as a king could act in a manner inconsistent with divine right. A humble act of a king could not empower his ministers to amend the king’s powers; likewise courts (or once law, the President or any officer of the government) could not judge whether an act of the legislature was valid based on its inconsistency with natural justice. To do so would empower courts, judges and office holders as high priests of natural justice rather than interpreters of positive law.

Lincoln therefore claimed no power to address the issue of slavery except as was express or implied by the Constitution. Lincoln thus committed himself to enforce the repugnant Fugitive Slave Act of 1850. Even the Emancipation Proclamation was narrowly tailored to fit within the Constitutional war powers of the Presidency, emancipating slaves only in states in rebellion, so as to further the war aims of the United States. Lincoln claimed that, in peace, the Constitution’s terms only permitted the legislature to restrict the territorial expansion of the institution of slavery. Lincoln would reiterate this at the end of the Civil War in his Second Inaugural Address: “[T]he Government claimed no right to do more than to restrict the territorial enlargement of it.”

While Lincoln did not suppose that the principles of the Declaration empowered officials to act lawlessly in pursuit of natural justice, Lincoln did suppose that the terms of the Constitution could not be construed correctly if not understood as an expression of the principles of the Declaration or if the compromises of the Constitution were confused with its principles. In this light Lincoln rejected the construction of the Constitution of Dred Scott v. Sanford (1857) as “erroneous,” which construed the Constitution to rest on the authority of the Declaration of Independence, but then absurdly read the Declaration as a pro-slavery document which excluded slaves from the definition of men. Justice Taney’s error in construing the Declaration had been to suppose that if the signers of the Declaration had meant the universal equality they expressed it would have obliged them to immediately abolish the institution of slavery in the pursuit of natural justice without regard to the practical circumstances of their revolution. Of this Lincoln said the decision was “based on assumed historical facts which are not really true.” What the signers of the Declaration meant, Lincoln continued:

“They defined with tolerable distinctness, in what respects they did consider all men created equal-equal in “certain inalienable rights, among which are life, liberty, and the pursuit of happiness.” This they said, and this meant. They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere.”

Eric Wise is an attorney practicing in NewYork.


3 replies
  1. Ron
    Ron says:

    Mr. Wise writes: “Lincoln maintained throughout his political career that the Constitution was anti-slavery and that the Constitution’s provisions protecting slavery were compromises with the institution of slavery for the sake of union, made with a view towards the eventual eradication of slavery.”

    Likewise, Article VI, Clause 3 states that “no religious test shall ever be required as a qualification to any office or public trust under the United States.” Our Founding Fathers knew that the states had religious tests for the holding of state offices; they rejected doing so for federal offices in faith that the states would, in time, reject the religious tests for state offices. While their faith in the abandonment of the religious test proved valid, the slavery issues proved more difficult for the pro-slave states.

    The important point is that, while the Founders compromised on slavery and state religious tests for the sake of unity in 1787, they set a high standard in the hope that both issues would resolve themselves in time. One did, the other didn’t.

    • Ralph T. Howarth, Jr.
      Ralph T. Howarth, Jr. says:

      It is noteworthy that religious tests signifies being asked a battery of questions pertaining to a particular sectarian liturgy or doctrine. If if were not or such a prohibition, then people who formerly were state elected officials or appointed officers of a state of a particular state run church then could be disqualified from a federal office. Also, the prohibition of a “religious test” is often misconstrued these days as a mandate to exclude all manner of religion from public office. To the contrary, such a measure was to make the federal government more inclusive of public offices of different faiths because is was expected that most federal office holders would come from the base of experienced statesmen already found in the several states that did hold religious tests for such state held offices.

  2. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    To add to Lincoln’s concluding remarks: The DoI also was issued at a time when there already was an ongoing conflict with British authority. For the delegates to be characterized as consenting to slavery for the failure to enforce the ideal of freedom for all men is an unrealistic undertaking like remodelling the kitchen right when there is a raging fire going on in your house. It is not the time to swing a hammer and saw some wood right when the whole structure is in jeopardy of being consumed. Likewise, deconstructing the institution of slavery, partly bolstered by the Crown’s insistence that all slave trade bans be suspended until the Crown reviews the colonial slave trade ban laws, was secondary to throwing off the authority who precipitated slavery first. If a boat is sinking, do you go about plugging breaches in the hull or proceed to bail out buckets of water just as more water is pouring in?

    Concerning the 3/5ths compromise, the conclusion of a Case Western Reserve Law Review informs that the 3/5th compromise already existed under the Confederate Congress as a crude tax levy formula to overcome the issue of land and wealth survey information being too sparse and incomplete to fairly levy direct land taxes. So population was used as a crude substitute for wealth & the 3/5ths rule was a crude approximation of wealth generation of slaves compared to if they were free persons. So CWRLR claims that the 3/5ths rule was purely of economic purposes and that there is no evidence that it was an instrument intended to prevent or promote slavery.

    “The framers decided to adopt the apportionment rule for at least three reasons, none of them related to slavery. They were (1) to ensure that taxation was linked with representation, (2) to comply with custom, and (3) to comply with the public trust standard of impartiality
    by preventing unfair treatment of politically weak states. ” p.350


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