Guest Essayist: Professor Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

Abraham Lincoln won the presidency in the election of 1860, defeating three other candidates, including two Democrats, with nearly forty percent of the popular vote and an absolute majority in the Electoral College.  Democrats had split into two factions. Northern Democrats, headed by Illinois Senator Stephen Douglas (who had defeated Lincoln in the Senate election two years earlier) held that the question of admitting slavery into the western territories should be answered by referendum in each territory. Southern Democrats, headed by Senator John J. Breckinridge of Kentucky, upheld the claim most famously enunciated decades earlier by Senator John C. Calhoun of South Carolina–namely, that property in slaves is an unalienable right, that slavery was “a positive good” for both white masters and black slaves, and that slave owners therefore could keep their slaves wherever in the territories they pleased.  Popular sovereignty might not protect, and surely did not posit a natural or absolute legal right to slave property, and could never satisfy the slave owners. Although Douglas won the nomination of the regular Democratic organization, he won only a single state in the national election: Missouri. The southern Democrats (who had `seceded’ from the party’s convention before the final vote was taken) won ten states, all of them by overwhelming margins.

Upon learning of these results, the southern Democrats attempted to secede from the Union itself, with South Carolina leading the way on Christmas Eve.  By the time Lincoln took the oath of office on March 4, 1861, seven southern states had passed secession resolutions and had founded the Confederate States of America.  South Carolina’s argument for secession was typical: many northern states had failed to comply with the Fugitive Slave Clause of the Constitution; ergo, the terms and conditions of the Union had been violated and secession was a justifiable response.  Although South Carolina wouldn’t fire on the federal garrison at Fort Sumter until the following month, other federal properties had been seized by the secessionists.  “The house divided” that Lincoln had described two years earlier had reached its crisis.

Crucial to understanding the speech is seeing that Lincoln begins with custom and ends with nature.  He moves his audience from thinking about custom–conventions made by human beings–to thinking about human nature, endowed by God. “In compliance with a custom as old as the government itself,” he begins, “I appear before you to address you briefly, and to take, in your presence, the oath prescribed by the Constitution of the United States, to be taken by the President `before he enters on the execution of his office.’” The oath of office amounts to a promise to uphold a humanly-constructed law, the Constitution; the customary speech that follows the oath ordinarily outlines policies of the new president, policies he takes to be consistent with that oath and that Constitution. Much more famously, Lincoln closes the speech averring that “The mystic chords of memory, stretching from every battle-field, and patriot grave, to every living heart and hearthstone, all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.”  Entwined with but distinct from the sentiments about mystic chords, patriotism, and angels, at the end nature is Lincoln’s final word.

Why? What is he doing, or attempting to do?

By putting custom, convention, and law front and center, Lincoln assured the slave-owning states that he had no intention of interfering with slavery in those states; in this he followed the Republican Party platform itself. On the question of enforcing the Fugitive Slave Clause, he affirmed it as part of the Constitution he had just sworn to obey, saying only that in enforcing the law “all the safeguards of liberty known in civilized and humane jurisprudence” ensuring “that a free man be not, in any case, surrendered as a slave” ought to prevail.

But he also observed that the oath to preserve, protect and defend the Constitution required him to uphold the federal union that pre-dated that constitution. The union was a convention or custom formally acknowledged by the American colonies in 1774 in the Articles of Association enacted by the first Continental Congress–two years before those colonies declared their independence.  The framers of the 1787 Constitution intended to perfect that Constitution and that union–a union that had already been called “perpetual” in the Articles of Confederation of 1778. The constitutional union of the American states is a contract; absent some contractual clause to the contrary, no party to a contract can rescind it unilaterally, without the consent of the other parties to the contract.  This holds whether the parties are individual citizens or sovereign states.  But this was what the secessionists were attempting.  Lincoln’s first argument against secession thus amounts to a logical demonstration based upon the character of a conventional agreement or contract that takes the form of a man-made law–which also happens to be the supreme human law of the land.

As seen in South Carolina’s declaration of independence, some Southerners claimed that the contract had already been violated by those northern states which had passed the “personal liberty laws’ making it tougher to extradite African-Americans in free states who were accused of being runaway slaves.  That argument hinged upon whether secession was a just or proportional response to laws that set a high bar for extradition.  Because secession seems both a drastic and an ineffective response to such laws (why would secession make it easier to recover runaway slaves?), the main argument of the slaveholders continued to be that slavery was a positive good and that slaveholders were entitled to bring slaves into federal territories–the argument to which Lincoln next turns.

Lincoln’s next argument against secession edges away from convention in the direction of nature. It is an observation about political rule in a republican regime.  In republics the people rule through their elected representatives, who commit themselves to the supreme law of the land upon taking office.  With respect to the principal issue dividing the house in 1860–Congressional authority to protect or prohibit slavery in the federal territories–“the Constitution does not expressly say” what must be done. This relegates the issue of slavery in the territories to the realm of a political question–that is, to majority rule. The presidential candidate of the Republican Party had just won a majority of votes in the Constitutionally-ordained Electoral College. “If a minority, in such case, will secede rather than acquiesce” to majority rule, “they make a precedent which, in turn, will divide and ruin them; for a minority of their own will secede from them, whenever a majority refuses to be controlled by such minority.” With no legal or even rational limit to such division down to the body of each individual, “the central idea of secession is the essence of anarchy.”  Only a majority can function as “the true sovereign of a free people.

“One section of our country believes slavery is right, and ought to be extended, while the other believes it is wrong, and ought not to be extended.”  Slavery, not states’ rights, lies at the foundation of the house divided.  Only constitutional majorities can repair this division if Americans would adhere to the political principles of the Founders, which were the principles of republicanism. “This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it”–and in 1860 neither side had the votes for that–“or their revolutionary right to dismember, or overthrow it.” Lincoln offered his support for a Constitutional amendment to pledge the federal government never to interfere with “the domestic institutions of the States, including that of persons held to service.” But as a constitutional officer of the United States pledge to preserve, protect, and defend the Constitution, he would not countenance a revolutionary right to overthrow that government.  What is more, even if Lincoln walked away from his Constitutional duty to defend the Union, the fundamental problem would not end because the United States of America and the Confederate States of America would “remain face to face,” governed at most by treaties rather than a shared constitution.  Why would a treaty on runaway slaves be better enforced than a constitutional law on runaway slaves?  Why would two federal governments keep the peace between the sections better than one?

In a speech in Cincinnati delivered in the previous year, Lincoln had warned of the outcome of a sectional war, remarking that Northerners outnumbered Southerners, and were no less valorous.  The Southerners thought otherwise, and fought.  Lincoln next-to-last argument in the First Inaugural, an argument from prudence, an argument based on practical reasoning, tactfully does not go so far as he had done in Cincinnati. He instead speaks more generally: “Intelligence, patriotism, Christianity, and a firm reliance on Him, who has never yet forsaken this favored land, are still competent to adjust, in the best way, all our present difficulty.”  Prudence, sentiment, and religion having taken decidedly different forms in the slave-owner ruled states, the war came, and Lincoln’s final argument, or really allusion, to the better angels of our nature fell unheard. The better angels of our nature adhere to the laws of nature and of nature’s God, but the slave-owners, beginning with Senator Calhoun, had rejected the truths that the Founders had held to be self-evident. Without that standard–that all men are created equal–which Lincoln elsewhere calls the standard maxim of a free society, no other arguments for the conduct of a self-governing citizenry can prevail and the citizenry will depart from self-government and go to war with itself. And that is exactly what happened.

Read President Lincoln’s First Inaugural Address here:

May 21, 2013 – Essay #67

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.

3 replies
  1. Dee Woodall
    Dee Woodall says:

    I would really like to discuss Art. II, Sect. 2 Clause 5 … on such a forum.
    I see you have no essay for that. Could you please do one?
    Thank you.

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