Guest Essayist: David J. Shestokas


“… if constitutionally we elect a President, and therefore you undertake to destroy the Union, it will be our duty to deal with you as old John Brown has been dealt with.”
– Abraham Lincoln, December 3, 1859

John Brown had been hanged for treason on December 2, 1859.  Brown had lead a raid on the federal arsenal in Harper’s Ferry, Virginia on October 16.  Brown and his group had intended to secure weapons to arm slaves for a revolt against their masters. The United States Marines, commanded by Colonel Robert E. Lee captured the raiders, foiling the plan. On November 2, Brown received his death sentence.

The day after Brown was hanged, Abraham Lincoln was in speaking in Leavenworth, Kansas. He was nationally known from his famous debates with Stephen Douglas the year before and a leader of the fledgling Republican party. In Kansas that day Lincoln made clear his belief that seceding from the Union would be treasonous; the penalty for secession should be no different than Brown’s: death by hanging.

Fifteen months later, on March 4, 1861, Lincoln would take the oath of office as the sixteenth president. His inaugural address that day laid out his view of the Union and the Constitution. While more nuanced and legally argued, the message was ultimately the same as on that December day in Kansas.

Anticipation of Lincoln’s Inaugural Address

Presidential campaigns were much different in 1860 than in the modern era. Active campaigning by candidates was generally considered undignified. The candidate would stand on the platform promulgated by his party and surrogates would actively campaign. Following his May, 1860 nomination and November, 1860 election, Lincoln rarely left his Springfield home. He had maintained a careful silence leading up to his inauguration.

The silence was intended to avoid further fanning the flames of secession. Six weeks after his election, South Carolina became the first state to declare it was leaving the Union. By Lincoln’s March 4 inauguration, Mississippi, Florida, Alabama, Georgia, Louisiana, and Texas had joined Georgia’s declaration.

After almost ten months of silence, Lincoln’s critical inaugural address was much anticipated. In the face of the secession crisis, the new president’s view of the constitutional nature of the Union was needed to be clearly stated.

The First Inaugural, the Constitution and Slavery

The Constitution took center stage in Lincoln’s First Inaugural Address, perhaps more than ever before and ever since. Lincoln would rely upon the Constitution to work to allay the fears of the secessionists, and yet affirm the authority of the federal government in the face of secession.

Given that slavery was tearing the country apart, Lincoln initially addressed both his understanding of his constitutional authority and his intent:

“I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.”

He then quoted from the party platform that he stood upon for his election:

“That the maintenance inviolate of the rights of the States, and especially the right of each State to order and control its own domestic institutions according to its own judgment exclusively, is essential to that balance of power on which the perfection and endurance of our political fabric depend…”

Having denied any constitutional authority to interfere with slavery within a state, he quotes the Constitution’s Fugitive Slave Clause[1]. Having addressed the president’s lack of constitutional authority to interfere with slavery, the right of states to regulate what happens within their borders and the affirmative duty of all taking an oath to uphold the Constitution to facilitate the return of slaves, Lincoln has summarized his view that membership in the Union does not imperil a state’s “domestic institution”.

Lincoln asserts that he takes the presidential oath of office[2] without reservation and fully understanding the nature of the Union as regards to slavery.

The First Inaugural, the Constitution and the Union as Perpetual

A theory of the Constitution among secessionists was that it was a voluntary contract or agreement among the states to create an association. The contract theory included the premise that as a voluntary association, each state had the legal right to leave the association if it so decided. This was a theory with which Lincoln clearly disagreed.

In the inaugural, on the subject of perpetual union, Lincoln starts with his clearly stated conclusion that no government builds into its basic law the seeds of its destruction:

“I hold that in contemplation of universal law and of the Constitution the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments.  It is safe to assert that no government proper ever had a provision in its organic law for its own termination. Continue to execute all the express provisions of our National Constitution, and the Union will endure forever, it being impossible to destroy it except by some action not provided for in the instrument itself.”

Lincoln the lawyer, reminds adherents to the contract theory that while parties to a contract can violate the contract, a contract may only be lawfully rescinded if all parties agree. Without such agreement, the contract remains in effect.

To strengthen his conclusion of perpetual union, Lincoln goes back to a time before the Constitution even existed. The colonies created the Articles of Association in 1774, the Declaration of Independence in 1776, the Articles of Confederation in 1778, and finally the Constitution in 1787.

The relationship between the Articles of Confederation and the Constitution as found in the Preamble is Lincoln’s final stitch in his argument of the Union’s inviolability. The Articles had created a “perpetual union”. The Preamble listed among the Constitution’s purposes the creation of “a more perfect union”. If any state could simply leave and destroy the Union, the result would have been something less perfect than existed before the Constitution.

With that in mind, Lincoln explained:

“It follows from these views that no State upon its own mere motion can lawfully get out of the Union; that resolves and ordinances to that effect are legally void…”

In Lincoln’s view of the Constitution and the Union, neither Georgia, Mississippi, Florida, Alabama, Georgia, Louisiana, nor Texas had left the Union.

In the balance of his address, Lincoln struck a conciliatory tone, speaking of bonds, history, heritage and the practical aspects of sharing the continent. Despite this tone, despite the legal, common sense arguments, anyone aware of his statement the day after John Brown was hanged, knew Lincoln saw any effort to destroy the Union as a treasonable offense worthy of the death penalty.

David Shestokas, J.D., is a former state prosecutor and author of Constitutional Sound Bites, explaining America’s Founding Documents in a 21st Century presentation. The Spanish edition Cápsulas Informativas Constitucionales is the first book to explain American founding principles for the 36 million Americans more comfortable in Spanish than English. Follow him on Twitter:  @shestokas and visit his website: Constitutional and Legal Education and News.

[1] No person held to service or labor in one State, under the laws thereof, escaping into another, shall in consequence of any law or regulation therein be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.  Constitution, Article IV, Section 2, Clause 3.

[2] “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” Constitution, Article I, Section 1, Clause 8

6 replies
  1. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    [quote]The colonies created the Articles of Association in 1774, the Declaration of Independence in 1776, the Articles of Confederation in 1778, and finally the Constitution in 1787.[/quote]

    There are empirical problems with Lincoln’s sources cited. The Association of 1774 was issued while still under the authority of British rule and recognizing British rule as proper regulator of foreign trade. The Declaration of Independence was itself not a contract of states; and if it were, did it supercede the contract of Association of 1774 under foreign rule? Was it permissible then for any state to opt out? And if so, when did it no longer become an option? When the Articles of Confederation of 1778 was superseded by the Constitution of 1787, Virginia, New York, Rhode Island and North Carolina were known to be “left out of the union”. New York and Virginia soon ratified before the first Congressional meeting of the new Congress of the U.S. all the while Rhode Island and North Carolina remained as the old Confederation. Yes, the old Confederation still held a session because those hold out states had not joined the new union. To put it another way, the states the ratified the new constitution had indeed seceded from the old confederation, AND that the old confederation’s organic law did explicitly have the term “perpetual union” in its “contract”. If the AoI was explicitly a perpetual union, while the new constitution was an implicit one, then what makes the new implicit perpetual union any more durable than the explicit one? The term “perpetual union” was just an old treaty artifact meaning “without an expiration”, not the roach motel where you can check in but never check out.

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

    It is safe to assert that no government proper ever had a provision in its organic law for its own termination.

    –Pres. Abe Lincoln above.

    The Organic Laws passed by the 1st US Congress also includes the Unanimous [Declaration] of Independence located at the beginning of the federal register and compilations of statutory laws of the US. If you were to ask what are the standing laws of the federal government most any book put in your hand will have the DoI as the first section followed by the AoC, NW Ordinance, and the 1787 Constitution.

    Many will say the DoI has no legal standing in any court jurisprudence yet Congress has had the Organic Laws put in the federal register as if it were not optional like the rest of the federal register is not supposed to be optional to follow if you feel like it. The DoI is the purpose document for the government while the AoC and NW Ordinances are the original intent, background documents for the 1787 Constitution. The Constitution is a mere function document and is a temporal, disposable one as the DoI states:

    That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government…

    So the Organic Laws do have a gross provision for terminating the government.

  3. David J. Shestokas
    David J. Shestokas says:

    Mr. Howarth,
    I clearly was presenting Lincoln’s view, and he expressed it clearly in the First Inaugural. I agree with many of your points, and it’s likely that many of the ratifiers felt there was an opt out option, although Madison made the opposite point to fence sitters during the New York ratification debates: “The Constitution requires an adoption in toto and for ever.” While Lincoln’s arguments have a certain sensibility to them, the understanding of the ratifiers would have been stronger, though no doubt difficult to pinpoint.

    As for the DoL being organic law, it certainly was not ratified as was the Constitution, nor passed by Congress and signed by the President. It did however have a legal consequence of terminating the colonies relationship with England. Lincoln did admit to a right to revolution, but considered armed secession an “insurrection”. I imagine the difference between a revolution and an insurrection is more practical than legal. If the rebels succeed it’s a revolution, if they fail, it’s an insurrection.

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

      Thank you. I enjoy the article and feedback, and really was addressing to a bit of a surprising stance at Lincoln’s word choice of “organic laws.” Indeed, the difference between a revolution and a rebellion is a sheer numbers of majority rule departure vs. a minority one. As the Civil War was 23 states vs. 11 (24 if you count West Virginia) the outcome could have been vastly different or protracted further had Kentucky not remain in the Union. Lincoln was concerned that Kentucky would secede and cried, “I must have Kentucky.” If Kentucky did secede, then the Union would not have had unfettered control of the Ohio River. And the Union would have had less supply access to assure that Missouri would not fall into Confederate hands as Missouri only remained in the Union do to pre-emptive Union loyalists who ousted and arrested dissidents. Missouri could then have been more readily made a Confederate sympathizing government without the Union support thereby isolating Kansas the more. Further, a Confederate Kentucky would have made West Virginia less of a buffer boarder state. The conflict then could have been 21 states vs. 13 resulting in a more protracted war or a grievous draw, West Virginia notwithstanding.

  4. David J Shestokas
    David J Shestokas says:

    A very thoughtful and insightful comment on the dichotomy in philosophy regarding the southern cause. Certainly the principle of self-determination for a political community has become a bedrock principle with the caveat that it is unacceptable to achieve self-determination for one’s own community with the purpose of denying it to others within the community.


Join the discussion! Post your comments below.

Your feedback and insights are welcome.
Feel free to contribute!

Leave a Reply

Your email address will not be published. Required fields are marked *