FIRST PRINCIPLES FOUNDATIONAL CONCEPTS TO GUIDE AND POLICY

NO. 42 | April 19, 2012

A Federal Republic: Lincoln’s First Inaugural and the Nature of the Union Herman Belz

Abstract The Constitution establishes a federated republic in which sovereignty is divided between federal and state institutions. From the outset, this division introduced into American politics an element of ambiguity over the proper relation between the federal and state . To properly understand the nature of our republic, we turn for guidance to President Abraham Lincoln’s defense of and Union in his First Inaugural Address. Lincoln vindicated the Constitution by proving secession to be lawless rebellion and affirmed the two central principles of the Union: divided sovereignty and equal citizenship based on the natural rights of individuals. Based on the principles of the nation’s political tradition, the Civil War and Reconstruction were a fulfillment and completion of the Constitution, not a revolution against it.

hanges in culture and society constitutional order established at The paramount authority of the Csurely affect political life, but the nation’s Founding has, on the people of America was organized in the more important issue in con- whole, proved remarkably sound, sta- a federal government with power to sidering the political health of a ble, and enduring. The Constitution regulate matters of concern to the people concerns the constitutive has served the purposes for which whole country and in state govern- principles, forms, and ends by which it was originally intended very well, ments with power to regulate mat- they choose to be governed. America and the principal reason has been the ters of local concern. Government is exceptional in the sense that the republican character of its governing sovereignty was divided and exer- principles and institutional forms. cised in federal and state republican Looking at our Founding, two institutions, respectively.

This paper, in its entirety, can be found at revolutionary innovations stood In this way, the people governed http://report.heritage.org/fp42 out. The first was to form one nation themselves as one for national pur- Produced by the B. Kenneth Simon Center and one people out of the people of poses and with substantial autonomy for Principles and Politics 13 separate and distinct states. The according to local needs and inter- The Heritage Foundation second was to write a republican ests in their respective states. The 214 Massachusetts Avenue, NE Washington, DC 20002 constitution for the nation as a whole people were not insulated from (202) 546-4400 | heritage.org that depended in part on written each other in a condition of inde- Nothing written here is to be construed as necessarily constitutions adopted by the people pendent sovereignty. Exercise of reflecting the views of The Heritage Foundation or as an attempt to aid or hinder the passage of any bill in the states. states’ powers in the Union under before Congress. FIRST PRINCIPLES | NO. 42 April 19, 2012

the paramount authority of the of egalitarian-minded progressives republican government that restored Constitution was the norm, and a to transform America into a social- the authority of the Founding. claim to absolute state sovereignty ist welfare state under the rule of an Ratification of the Constitution was disunionist in nature. elite bureaucratic class will provoke inaugurated a national system of The division of government sov- a still deeper crisis of republican two-party political competition ereignty introduced into American self-government and constitutional for control of the federal govern- politics an element of ambiguity government in the United States. ment. Political parties originated in beyond that which naturally exists in To understand the nature of our Congress as a means of organizing political life. The people as individu- country, Americans would do well and representing public opinion. als and the states as distinct entities to turn for guidance to President From the outset, constitutional are constituent parts of the nation as Abraham Lincoln’s defense of repub- arguments about the nature and a political whole. They are not cen- lican liberty and Union. Lincoln’s extent of federal government pow- tralized or consolidated in one mass, teaching on the nature and signifi- ers relative to state powers figured but retain significant individual and cance of American first principles prominently in legislative poli- local . is especially instructive in meeting cymaking. The majority party in Republican values define the present threat to constitutional Congress had an incentive to con- American nationality, notwithstand- government. strue federal power broadly, and the ing distinctive local and regional dif- minority party had an incentive to ferences. Federal and state govern- RIGHTLY UNDERSTOOD, THE oppose broad construction in def- ments stand on and are intended to FEDERAL SYSTEM OF CONCURRENT erence to state powers. National- protect the people’s natural rights minded lawmakers warned against to life, liberty, and the pursuit of REPUBLICAN GOVERNMENTS anarchic state sovereignty, and happiness. In addition to reasonable PROVIDES A DOUBLE SECURITY FOR self-styled “states’ rights” lawmak- differences of opinion concerning THE RIGHTS OF THE INDIVIDUAL. ers warned against consolidation of the meaning of specific rights claims, THERE IS A POINT, HOWEVER, AT power in the federal government. ambiguity arises in determining Ultimately, party competition WHICH RADICAL DISAGREEMENT which government, federal or state, aimed at determining the permanent is properly authorized to protect the OVER THE MEANING AND and aggregate interests of the nation. rights of individuals under a given set APPLICATION OF FUNDAMENTAL It served a constructive nationaliz- of circumstances. CONSTITUTIONAL PRINCIPLES IS ing purpose and could go on indefi- Rightly understood, the federal nitely with one caveat: that politi- SUBVERSIVE OF REPUBLICAN SELF- system of concurrent republican gov- cians avoid introducing issues that so ernments provides a double security GOVERNMENT AND NATIONAL divided public sentiment as to make for the rights of the individual. There UNION. compromise impossible, threatening is a point, however, at which radical disruption of the Union. disagreement over the meaning and Lincoln takes his place with the The relationship between slavery application of fundamental con- Founders for resisting the anti- and republican government proved stitutional principles is subversive republican revolution of the slave- to be such an issue. Lincoln’s election of republican self-government and holding southern aristocracy. He as President in 1860 was a sign that national union. established constitutional govern- slavery’s day of reckoning was nigh. In the American Revolution, coer- ment on a more comprehensive The controversy over the nature cive and hierarchical imperial rule republican basis by fulfilling the of the Union that led to the Civil War provoked the overthrow of British principles of the Declaration of ultimately involved the question of authority. In the 19th century, the Independence. When the time came political obligation. When 11 south- threat of a slaveholding aristocracy for Lincoln as Chief Executive to pre- ern states seceded from the Union to subvert republican self-govern- serve and protect the Constitution, in 1860–1861, citizens were forced ment and nationalize slave property his great and essential contribu- to consider the problem of dual and led to secession and civil war, and tion was to make moral and philo- conflicting allegiance. How could a it is by no means inconceivable that sophic distinctions concerning the citizen remain loyal to two govern- in our own time, the determination meaning of liberty, equality, and ments, each of which demanded

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exclusive allegiance? Putting them- concurrently wrote state constitu- unamendable, effectively institut- selves into a moral and legal dilem- tions for their internal government. ing government by the minority as a ma of this nature was not what the Subsequently, Congress adopted permanent arrangement. American people intended when they and the state legislatures ratified The Articles’ flawed design organized a national union to defend (between 1777 and 1781) Articles of reflected a failure to recognize the their rights and liberties in the Confederation to provide a govern- principle of direct popular repre- American Revolution.1 ment for the Union as a whole. sentation and majority rule. The The Articles of Confederation states were equally represented Failure of the Articles of (1781–1789) were an interstate com- in Congress, with each entitled to Confederation pact in the nature of a treaty alliance one vote. The people as individuals Americans traced the origin of between sovereign states. Congress were not represented in Congress. national union to the war for inde- was at best a putative national Nevertheless, Americans thought of pendence from Great Britain. The government: It lacked lawmaking themselves as a national people des- English colonies in North America authority and functioned largely in tined to enjoy a propitious future. were too varied and extensive to be an advisory capacity. Its resolutions The idea of permanent national- ruled by a single sovereign govern- and recommendations were subject ity was expressed in the provision ment in the nature of a centralized or to veto by state legislatures. stating that the Articles “shall be unitary empire. When Britain, in the inviolably observed by every State, middle of the 18th century, attempt- THE FAILURE OF THE ARTICLES OF and that the Union shall be perpet- ed to impose such a government CONFEDERATION TO DELEGATE ual” (Article XIII). Lacking a con- on them, the people of the colonies stitutional basis in the paramount recognized their common political LEGALLY COERCIVE POWERS authority of the people, however, the principles and formed a nation. They TO CONGRESS PREVENTED THE Confederation was incapable of sup- did not separate into 13 sovereign DEVELOPMENT OF STABLE AND porting republican self-government and independent states, but what was EFFECTIVE GOVERNMENT FOR THE in the nation as a whole. the right arrangement of political Although many provisions of COUNTRY AS A WHOLE. institutions in a permanent national the Articles of Confederation were union competent to defend American incorporated into the Constitution liberty? The failure of the Articles of of 1787, the document was not truly a This was the challenge of Confederation to delegate legally national constitution. Despite a short American statesmanship, the coercive powers to Congress pre- life span, or perhaps because of it, political question of paramount vented the development of stable and the Articles have acquired an appeal importance that required consti- effective government for the coun- for political dreamers. Throughout tutional and legal determination. try as a whole. In effect, the national American history, critics of the The Declaration of Independence government depended for its exis- national government have invoked announced the existence of the tence on the states. Little could be the Articles as a valid constitutional United States of America as an done to rectify the problem because alternative, one that has never been independent nation. Renouncing amending the Articles required given a fair opportunity to prove its monarchy, the colonies formed unanimous approval by the state worthiness as a system of govern- a Continental Congress in 1774 legislatures. This rule rendered the ment for the nation. Contemporary to defend American liberty and Articles of Confederation practicably anarcho-libertarians, for example,

1. With the wisdom of hindsight, Civil War partisans saw in the Founders’ attempt to divide sovereignty a disaster waiting to happen. Charles Francis Adams, a Unionist, wrote: “Taking refuge in metaphysics, they proposed a contradiction in terms,—a divided sovereignty.” “The immediate result was a nation founded on a metaphysical abstraction,—a condition of unstable equilibrium. It could not endure…. No man can serve two masters.” Charles Francis Adams, The Constitutional Ethics of Secession and “War Is Hell” (Boston: Houghton, Mifflin & Company, 1903), pp. 10–11. Bernard Sage, a defender of the Confederacy analyzing the problem of conflicting allegiance, summarized: “Delightful country to live in! whereone authority can hang you for doing, what another authority can hang you for not doing!” [P.C. Centz (pseud.)], Davis and Lee: A Vindication of the Southern States, Citizens, and Rights (New York: Van Evrie, Horton & Company, 1866), p. 17.

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are fond of claiming a right of seces- The principle of state equal- James Madison wrote in Federalist sion in the spirit of the Articles of ity in the Articles of Confederation No. 10: Confederation. was thus maintained in part, and In the world of internation- the principle of representation of In the extent and proper struc- al relations, the design of the individuals, previously confined to ture of the Union, therefore, we Confederation was especially inad- the state governments, was applied behold a republican remedy for equate to the needs of the country. to the government of the Union. the diseases most incident to The logic and reason of the Articles National authority was further republican government. And of Confederation were decentralizing defined and strengthened by creating according to the degree of and disintegrative to the point where distinct departments of government— pleasure and pride we feel in dissolution of governmental author- legislative, executive, and judicial—to being republicans ought to be ity would provoke both internal dis- exercise the powers of the govern- our zeal in cherishing the spirit sension and external predation by ment of the Union. and supporting the character of foreign nations.2 federalists. ON THE AMERICAN MODEL, The Constitution: WOULD HENCEFORTH Historically, the federal idea Federal referred to a compact between sover- Based on Divided Sovereignty REFER TO A DIVISION OF eign and independent states. On the Instability in the state gov- SOVEREIGNTY BETWEEN A CENTRAL American model, federalism would ernments and the impossibil- GOVERNMENT TO REGULATE henceforth refer to a division of sov- ity of amending the Articles of MATTERS CONCERNING THE ereignty between a central govern- Confederation persuaded Congress ment to regulate matters concern- NATION AS A WHOLE AND STATE to approve a proposal for a conven- ing the nation as a whole and state tion to be held in Philadelphia in GOVERNMENTS TO REGULATE LOCAL governments to regulate local mat- 1787. The object of the convention MATTERS. ters. The sovereignty of the people was to report such alterations in assumed the form of dual citizenship, the Articles of Confederation as In the postwar period, state the people acting as the constituent would “render the federal constitu- republican governments were criti- authority both of the government of tion adequate to the exigencies of cized for tending toward majority the Union and of the state in which Government and the preservation of tyranny and democratic instability. they resided. the Union.” The Federal Convention Congress was faulted for a want of The “more perfect Union” formed determined that it was necessary to power that rendered it subordinate by the Constitution unified the form a properly constituted fed- to the states. The solution was two- new nation without turning it into eral republican government for the fold: (1) extend the sphere of repub- a hierarchical imperial system. In nation. lican self-government by transform- Federalist No. 39, referring to the The new idea to emerge from the ing Congress into a representative origin and structure of the new gov- convention was to combine ele- government based on the constituent ernment, Madison observed: “The ments of a republic of individual authority and suffrages of the people proposed Constitution, therefore, citizens and a confederation of of the United States and (2) curtail even when tested by the rules laid states. Members of the House of democratic legislative excesses by down by its antagonists, is, in strict- Representatives would be appor- limiting certain powers of the state ness, neither a national nor a federal tioned among the several states governments and conferring on the Constitution, but a composition according to their respective num- federal government power to act of both…partly federal, and partly bers by citizens of the states. The directly on individual citizens in the national.” Senate would consist of two Senators states. Constitutional limitations from each state, chosen by the state Summarizing the principle of were intended to prevent the state legislature. the extended or compound republic, and national governments from

2. For a comprehensive overview of all that was wrong with the Articles of Confederation, see Federalist Nos. 15–22.

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aggrandizing power at each other’s power of the federal government was emerged that promoted reasoned expense. Whether the new system reason for guaranteeing the right deliberation for the common good of would successfully divide govern- of the people to keep and bear arms. the nation. At the same time, party ment sovereignty depended in part One might say that while the Second competition, if carried to extremes, on how Americans thought and acted Amendment did not legalize rebel- could undermine constitutional politically in relation to the right of lion, it legalized the instruments fidelity and tear the country apart. revolution, on which the movement necessary for rebellion.3 for national independence depended. Early Threats to the Union: The Declaration of Independence THE CONSTITUTION DID NOT Nullification and Secession asserted “the right of the people to RECOGNIZE A RIGHT OF REVOLUTION. The nature of the Union was alter or abolish [government] and to the central issue in early constitu- institute new government, laying its TO DO SO WOULD BE ABSURD tional politics. How could it not be foundation on such principles, and AND SUICIDAL. YET THE SUPRA- in an increasingly pluralistic soci- organizing its powers in such form, CONSTITUTIONAL NATURAL RIGHT ety where the line dividing sover- as to them shall seem most likely to TO RESIST UNJUST AND ABUSIVE eignty between the federal and state effect their safety and happiness.” governments was often vague or GOVERNMENT WAS NOT EXPUNGED. The right to revolution was the ulti- indistinct? Party conflict was often mate sanction for keeping govern- inconclusive because the minor- ment within constitutional limits. At the same time, it was clearly ity or dissenting party, claiming to Whether or how this right should the purpose of the Constitution to support the Constitution, was free be taken into account in the con- integrate republican self-govern- to question any given governmen- stitutional order was a matter of ment into a coherent whole. This tal act or determination as wrongly speculation. Madison, in Federalist can be seen in the Guarantee of decided, illegitimate, or unlawful. In No. 46, predicted that if the govern- Republican Government Clause of this sense, right-to-revolution think- ment of the Union should attempt the Constitution (Article IV, section ing persisted as an ambiguous, if not to exceed the limits of its powers, 4), which declares: quasi-constitutional, practice that “signals of general alarm” would be was a source of political instability. sounded. “Every Government would The United States shall guaran- The practice of divided-sovereign- espouse the common cause. A corre- tee to every State in this Union a ty federalism in the early 19th centu- spondence would be opened. Plans of Republican Form of Government, ry gave rise to a rule of constitutional resistance would be concerted. One and shall protect each of them fidelity that preserved the Union spirit would animate and conduct against Invasion; and on against both anarchic disintegration the whole.” The states would coor- Application of the Legislature, and imperial consolidation. The rule dinate their efforts as they did in or of the Executive (when the held that neither the national gov- opposing Great Britain, “and unless Legislature cannot be convened) ernment nor any state government the projected innovations should against domestic Violence. could rightfully reduce the other to be voluntarily renounced, the same itself or otherwise destroy it. This appeal to a trial by force would be The 10 amendments to the was not a positive legal rule written made in the one case, as was made in Constitution adopted by Congress into the Constitution, but an unwrit- the other.” and ratified by the states in 1791 were ten rule of constitutional practical The Constitution did not recog- intended as a bill of rights limiting reason intended to maintain the fed- nize a right of revolution. To do so the power of the federal government. eral republican ground of American would be absurd and suicidal. Yet As noted above, political parties were nationality. the supra-constitutional natural formed and the Constitution was The paramount objective in right to resist unjust and abusive invoked in political debate to guide federal-system politics was control of government was not expunged. The and justify public law and policy. A the national government. Assertion states’ concern to limit the military system of “constitutional politics” of the states’ rightful powers—in

3. Daniel H. Deudney, Bounding Power: Republican Security Theory from the Polis to the Global Village (Princeton, N.J.: Princeton University Press, 2007), p. 168.

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the vernacular of politics, “states’ arresting the progress of the evil construction of the Constitution. rights”—was a default strategy and for maintaining within their Nationalist interpretation provoked adopted by the electoral minority. respective limits the authorities, a vigorous reaction from the states States had an incentive to devise grants, and liberties appertain- that was intended to preserve the means of protesting measures that ing to them. Union by preventing the consolida- arguably consolidated power in the tion of legislative power in the fed- federal government in violation of eral government. the Constitution. The federal govern- MADISON MADE CLEAR HIS State-sovereignty thinking was ment had motive to enforce national BELIEF THAT INTERPOSITION WAS not confined to one section of the laws against acts of individuals and country. Nevertheless, it took root INTENDED FOR THE EXPRESSION state officials that arguably violated and reached its logical conclusion the Constitution to the point of OF OPINION, DELIBERATION, AND in the South rather than the North. disunion. DEBATE OVER THE CORRECT This was because southerners, deter- In each case, the constitutional MEANING OF THE CONSTITUTION. mined to protect slavery and vulner- construction in question—state able to moral criticism in relation HE OBJECTED VIGOROUSLY TO THE interposition against federal usur- to national republican values, had a pation of state power and national VIEW THAT THE CLAIM OF A RIGHT more powerful motive to claim abso- intervention against state usurpa- OF INTERPOSITION WAS WARRANT lute state sovereignty than northern- tion of federal power—could be FOR A STATE TO DISOBEY OR NULLIFY ers did. justified as intended to maintain FEDERAL LAW. The decisive step in the transfor- the Constitution and the Union. mation of state powers into absolute Depending on the means employed, state sovereignty occurred when however, constructions of state and Interposition was a term of South Carolina protested against the federal power could be viewed as an indefinite meaning that lent itself to federal tariff on imports by asserting abuse of constitutional authority and construction. Madison viewed it as the doctrine of nullification or state disunionist in nature. the act of a state government inter- veto. In 1828, the South Carolina Madison and Interposition. jecting itself between the federal legislature issued an Exposition and States’ rights opposition to national government and citizens of the state Protest, written by Vice President consolidation was a more constant in order to limit the federal govern- John C. Calhoun, declaring the tariff theme than nationalist alarm over ment to its delegated powers and pro- to be an unconstitutional exercise of assertions of state sovereignty. The tect the liberty of its citizens. What the taxing power for the protection seminal document asserting a actions a state might take remained of domestic manufacturing inter- constitutional state right of protest unspecified, but in subsequent com- ests, an object reserved to the states. against federal usurpation was the mentary, Madison made clear his Unilateral nullification of the uncon- Virginia Resolutions of 1798. Written belief that interposition was intend- stitutional national law by South by James Madison, the resolutions ed for the expression of opinion, Carolina was proposed as the proper introduced the forceful and sugges- deliberation, and debate over the cor- constitutional remedy. tive idea of “interposition.” Madison rect meaning of the Constitution. He Nullification was premised on the asserted: objected vigorously to the view that theory that the Union was a compact the claim of a right of interposition among sovereign states in which [I]n case of a deliberate, palpable, was warrant for a state to disobey or the federal government was limited and dangerous exercise of other nullify federal law.4 to the exercise of delegated powers powers not granted by the com- Calhoun and Nullification. In as the common agent of the states. pact, the states, who are parties the 19th century, territorial expan- Calhoun argued that an essential thereto, have the right and are sion and economic development element of state sovereignty was the in duty bound to interpose for produced a coherent nationalist right to decide on infractions of state

4. For more on Madison and interposition, see Christian G. Fritz, “Interposition and the Heresy of Nullification: James Madison and the Exercise of Sovereign Constitutional Powers,” Heritage Foundation First Principles Report No. 41, February 21, 2012, http://www.heritage.org/research/reports/2012/02/ interposition-and-heresy-of-nullification-james-madison-exercise-of-sovereign-constitutional-powers.

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powers and to determine the proper not utilize the amendment process henceforth proceed to organize a remedy for their correction. because of the difficulty of obtaining separate Government, and do all The state’s right of judging, a three-fourths majority. Without other acts and things which sover- Calhoun said, “implies a veto or the state veto, the minority would be eign and independent States may of control, within its limits, on the subjected to permanent subordina- right do.” action of the General Government, tion by the majority in a consolidated Webster’s Critique on contested points of authority.” government. Calhoun wanted to put of Nullification. Whig Senator The veto was the remedy provided minority rule on a constitutional Daniel Webster of Massachusetts by the Constitution to prevent the footing superior to that of a federal was the leading congressional critic encroachments of the general gov- republican majority. of nullification. Webster admitted to ernment on the reserved rights of the defending “the consolidation of the states and to protect the minority IN DANIEL WEBSTER’S VIEW, THE Union,” which he said was the object against oppression by the majority. GOVERNMENT OF THE UNION WAS of the Framers and the end of the To confine the power of making con- Constitution. stitutional determinations to the fed- THE AGENT NOT OF SOVEREIGN In Webster’s view, the government eral government alone, Calhoun said, STATES, BUT OF THE PEOPLE OF THE of the Union was the agent not of was to convert the system into “a UNITED STATES WHO ORDAINED AND sovereign states, but of the people of great consolidated government, with ESTABLISHED THE CONSTITUTION. the United States who ordained and unlimited powers, and to divest the established the Constitution. Both States, in reality, of all their rights.”5 the national and state governments The doctrine of nullification was In 1832, a South Carolina state were agents of the constituent sover- intended as a construction of Article convention adopted an Ordinance eignty of the people. The powers of V, requiring approval of three- of Nullification declaring the tar- the federal government were del- fourths of the states to amend the iff acts of Congress to be “null, egated in the Constitution, and pow- Constitution. Calhoun proposed to void, and no law, nor binding upon ers not delegated were reserved to turn the constitutional provision this State, its officers, or citizens.” the state governments or the people. upside down by using it to nullify Procedures were specified and sanc- State sovereignty was subject to con- federal legislation. As envisioned by tions imposed to prevent collection trol by the Constitution, the supreme Calhoun, a state convention nulli- of customs duties. The legislature law of the land. fies a federal statute; the nullified was directed to adopt acts enforcing Webster declared: “The great statute is submitted to the states the ordinance, including prohibition question is, whose prerogative is in the form of a proposal to amend of appeal to the U.S. Supreme Court it to decide on the constitutionality the Constitution; approval by three- of state court decisions that might or unconstitutionality of the laws?” fourths of the states converts the question the authority of the ordi- The states had no constitutional disputed power into an expressly nance. State officers were required right to interfere and annul the law granted power, thereby overturning to subscribe an oath to obey and of Congress in case of a supposed the state nullification. Disapproval execute the ordinance. violation of the Constitution. “I by one-fourth of the states confirms If Congress should attempt to cannot conceive,” Webster argued, the state nullification. coerce the state into obedience, its “that there can be a middle course Calhoun said that if Article V measures would be regarded as between submission to the laws, was not construed to recognize the “inconsistent with the longer continu- when regularly pronounced consti- doctrine of state nullification, the ance of South Carolina in the Union.” tutional, on the one hand, and open amending power would become The people of the state would “hold resistance, which is revolution, or obsolete. The federal government did themselves absolved from all further rebellion, on the other.” not need Article V because it could obligation to maintain or preserve Webster acknowledged an ulti- amend the Constitution by construc- their political connection with the mate violent remedy “above the tion, and individual states would people of the other States, and will Constitution, and in defiance of the

5. Ross M. Lence, ed., “Exposition and Protest,” in Union and Liberty: The Political Philosophy of John C. Calhoun (Indianapolis: Liberty Fund, 1992), p. 348.

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Constitution,” based on the unalien- South Carolina took a differ- “is to say the United States are not a able right of man to resist oppression ent approach. Treating nullifica- nation, because it would be a sole- when a revolution is to be justified. tion and secession as equivalent cism to contend that any part of a “But,” he insisted, “I do not admit terms, it claimed the right to break nation might dissolve its connection that, under the Constitution, and in up the Union as an exercise of state with the other parts, to their injury conformity with it, there is any mode sovereignty. or ruin, without committing any in which a State Government, as Jackson, a national-minded states’ offense.” a member of the Union, can inter- rights Democrat, repudiated the fere and stop the progress of the secessionist challenge. He noted THE DOCTRINE OF NULLIFICATION General Government, by force of her that the South Carolina ordinance WAS “INCOMPATIBLE WITH own laws, under any circumstances was not based on the right to revolu- whatever.”6 tion or the right to resist acts that THE EXISTENCE OF THE UNION, President Jackson’s are plainly unconstitutional and too CONTRADICTED EXPRESSLY BY THE Condemnation of Nullification. oppressive to be endured. Rather, the LETTER OF THE CONSTITUTION, Faced with the threat of disunion, state claimed that the right to secede UNAUTHORIZED BY ITS SPIRIT, President Andrew Jackson, a was deduced from the nature of the INCONSISTENT WITH EVERY Democrat, issued a proclamation to Constitution as a compact among the people of South Carolina con- sovereign states. In this view, states PRINCIPLE ON WHICH IT WAS demning nullification as unconsti- acknowledging no superior author- FOUNDED, AND DESTRUCTIVE OF THE tutional. A state could not retain its ity could break the compact when, in GREAT OBJECT FOR WHICH IT WAS place in the Union and yet be bound their opinion, other states departed FORMED.” only by laws it chose to consider con- from it. stitutional. Jackson declared, “Our Jackson rejected the claim of Constitution does not contain the state sovereignty. While acknowl- Jackson asserted that secession absurdity of giving power to make edging that the people of the United was revolution. Like any other revo- laws and another to resist them.” States acted in state conventions to lutionary act, it might be “morally The doctrine of nullification was ratify the Constitution, he argued justified by the extremity of oppres- “incompatible with the existence of that the Union was “a Government sion; but to call it a constitutional the Union, contradicted expressly by in which the people of all the States, right is confounding the meaning of the letter of the Constitution, unau- collectively, are represented” and terms, and can only be done through thorized by its spirit, inconsistent that when the government acts for gross error or to deceive those who with every principle on which it was national purposes, the people of the are willing to assert a right but would founded, and destructive of the great states constitute “one people.” The pause before they made a revolution object for which it was formed.”7 states retained all the power they or incur the penalties consequent on Most important, Jackson con- did not grant, but “each State, hav- a failure.”8 demned the claim of a right of state ing expressly parted with so many The idea that nullification could secession. Earlier conflicts between powers as to constitute, jointly with be a means of preserving the Union state and national authority focused the other States, a single nation, can was counterintuitive and unbeliev- on the right to resist an unconsti- not, from that period, possess any able. It was an argument for minority tutional federal act, placing the right to secede, because such seces- rule that was supported by no other burden of proof to justify the act on sion does not break a league, but state. The real meaning of nulli- the national government. Disunion destroys the unity of a nation.” “To fication was revolutionary seces- might result from the conflict of say that any State may at pleasure sion. Moreover, the notion of a right authority without purposeful intent. secede from the Union,” he argued, of peaceable secession was highly

6. Herman Belz, ed., The Webster–Hayne Debate on the Nature of the Union: Selected Documents (Indianapolis: Liberty Fund, 2000), p. 125. 7. James D. Richardson, ed., A Compilation of the Messages and Papers of the Presidents 1780–1908, Vol. 2 (Washington, D.C.: U.S. Government Printing Office, 1909), pp. 648–649. 8. Ibid., p. 649.

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implausible. The credibility of nul- questioned in the substantive sense Underlying these questions was lification depended on the threat of that it would transfer national execu- the deeper issue of the nature of secession. Nullification was an exer- tive authority to a political party republican self-government in the cise of state sovereignty brigaded that the South regarded as illegal United States. with the threat of violent disunion. and unconstitutional because of its Buchanan’s Abdication Before The Tariff Enforcement Act of opposition to slavery. The election the Threat of Secession. Until 1833 recognized this reality, autho- failed to reenact, as every presiden- the inauguration of Lincoln, the rizing the President to use military tial election since the beginning of fate of the Union lay in the hands of means to prevent the taking of any the government had reenacted, the President James Buchanan. In his U.S. ship or cargo by force or violence. original agreement between slave fourth annual message to Congress, The crisis subsided when Congress and free states that slavery should be on December 3, 1860, Buchanan adopted a compromise tariff act and recognized and protected under the offered his construction of the South Carolina rescinded the nullifi- U.S. Constitution. nature of the Union and the political cation ordinance. With Lincoln’s election, the prob- crisis facing the country. ability of secession became a near Buchanan sympathized with the The Election of 1860: certainty. It had always been recog- South’s desire to immunize itself The Crisis of Federal nized that disunion could occur as against antislavery agitation and Republicanism a contingent or unintended conse- intermeddling. He denied, however, The Kansas-Nebraska Act of 1854 quence of factional struggle. To make that secession was the constitu- repealed the geographical dividing disruption of the Union the goal of tionally correct way to protect its line between freedom and slavery policy, however, was to propound domestic institutions. Sounding like in Louisiana Purchase territory what most northerners regarded as Andrew Jackson, Buchanan said the that Congress had adopted in the constitutional perversion and absur- Union was sovereign in its sphere Missouri Compromise of 1820. The dity. Whether the Constitution and of authority and was intended to act provoked a furious reaction in the the Union could tolerate absurdity exist in perpetuity. The Constitution North that led to the formation of the on this order of magnitude was the never conceived of the Union as “a Republican Party. As applied in the question facing the nation in 1860. mere voluntary association of States, settlement of Kansas territory, the The secession movement pro- to be dissolved at pleasure by any act incited political violence amount- duced a crisis of constitutional fidel- one of the contracting parties.” The ing to a small-scale civil war between ity and operational integrity involv- Framers “never intended to implant southern slaveholders and northern ing three issues: in its bosom the seeds of its own free-soilers. Congress’s decision to destruction, nor were they guilty of admit Kansas as a free state split ■■ Did a state as a member of the the absurdity of providing for its own the Democratic Party, giving the Union, consistent with its obliga- dissolution.” Republican Party the political oppor- tions to the other states, have a Buchanan, however, denied that tunity it needed to compete favorably right to withdraw from the Union? the federal government had any for control of the federal government. power to prevent a state from seced- In the election of 1860, the ■■ Did the federal government have ing. Congress might be “called upon American people divided into four constitutional authority to pre- to decide the momentous question parties: northern Democrat, south- serve its existence by command- whether you possess the power by ern Democrat, Republican, and ing the allegiance and obligation force of arms to compel a State to Constitutional Union. The outcome of all individuals in the United remain in the Union.” To say that produced alarm and grave uncer- States, including state govern- it did was to say Congress had the tainty, but not in a procedural sense. ment officers? power to declare and make war Southerners acknowledged against a state. Buchanan denied it. that the election of the Republican ■■ Did the Constitution expressly Coercion and war would destroy the candidate, Abraham Lincoln, was affirm the right to hold property Union and make future reconcilia- carried out in a constitutionally cor- in slaves as an essential element of tion between the States impossible. rect manner. Lincoln’s election was American nationality? He concluded:

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The fact is that our Union rests left unimpaired by ratification of It was also politically risky. Few upon public opinion, and can the Constitution. The inference to political observers believed that never be cemented by the blood be drawn was that the Union was discontented states could actually of its citizens shed in civil war. If always contingent and indetermi- divorce themselves from the author- it can not live in the affections of nate, subject to the will of sovereign ity of the United States without the people, it must one day perish. states and people. bloodshed. Southerners nevertheless Congress possesses many means believed that swift exercise of the of preserving it by conciliation, JEFFERSON DAVIS HELD THAT THE right of secession would give them but the sword was not placed in RIGHT OF PEACEABLE SECESSION the strategic advantage. It would their hand to preserve it by force. place northern state governments IMPOSED A DUTY ON OTHERS NOT in the moral wrong, disarming and The Southern Defense of TO INTERFERE WITH THE ACTS OF immobilizing opposition. Secession. Following the seces- SECEDING STATES AND PEOPLE. Earlier threats of disunion by sion of South Carolina in December, SECESSION WAS THE RIGHT TO northern states gave southerners southern lawmakers intensified confidence that a strategy of imme- REVOLUTION IN ITS PROGRESSIVE efforts to promote secession and diate secession, executed while form a southern confederacy. Senator MODERN FORM. Buchanan was still President, would Jefferson Davis of Mississippi, in a succeed. Citing these examples as notable speech on January 10, 1861, Davis held that the right of peace- precedent, Jefferson Davis later advanced the theory of secession as able secession imposed a duty on wrote: “The only practical difference a constitutional right. Davis said the others not to interfere with the was that the North threatened [to creation of a political party hostile acts of seceding states and people. secede] and the South acted.”10 to slavery was a “declaration of war Secession was the right to revolu- upon our institutions.” It was imma- tion in its progressive modern form. Lincoln’s Defense of terial “whether that war be made Davis observed: “[W]e are confusing Federal Republican Union by armies marching for invasion, or language very much. Men speak of To understand why the strategy whether it be by proclamation, or revolution; and when they say revolu- failed, we need to consider Lincoln’s whether it be by indirect and covert tion, they mean blood. Our Fathers pre-1860 views on republican gov- process.” meant nothing of the sort. When ernment, the nature of the Union, The very existence of the they spoke of revolution, they spoke and the right of revolution. Republican Party, Davis contended, of an inalienable right.” The right With unwavering resolve, Lincoln altered the nature and purpose of revolution was the power of the affirmed the will of the people of the Union. Lincoln’s election in people to abrogate or modify their expressed through constitutionally effect amended the Constitution government whenever it failed to prescribed forms of electoral repre- and released the South from any answer the needs for which it was sentation. The consent of the people obligation to support the federal established. In effect, the South pro- properly transmitted in constitu- government. posed a new law of nature in the form tional public opinion imposed moral Davis said secession was not a of a right, privilege, and immunity of and political obligation on govern- constitutional right in the sense of the people to alter or abolish govern- ment officials. being expressly conferred in the ment by seceding from the Union.9 Lincoln recognized limits on text of the Constitution. It rested To claim a right of secession—to the influence of public opinion on a deeper political basis, “in the transform the right of resistance and the sovereignty of the people. rights of the people over and above to unjust government into a legal did not obvi- everything else,” in the original immunity to destroy government at ate the prudential judgments and sovereignty of the states that was will—was philosophically ambitious. constitutional determinations of

9. Jefferson Davis, “Remarks on the Special Message on Affairs in South Carolina. Jan. 10, 1861,” in Jon L. Wakelyn, ed.,Southern Pamphlets on Secession November 1860–April 1861 (Chapel Hill and London: University of North Carolina Press, 1996), p. 129. 10. Jefferson Davis,The Rise and Fall of the Confederate Government, Vol. 1 (New York: D. Appleton & Company, 1881), p. 76.

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government officials entrusted with in new communities on the public “equally their sacred right to buy public authority. In the secession domain, he asked: “Is not Nebraska, them where they can get them cheap- crisis, Lincoln demonstrated supe- while a territory, part of us? Do we est; and that undoubtedly will be on rior statesmanship by preserving the not own the country? And if we sur- the coast of Africa,” thereby reopen- Constitution, defending the federal render the control of it, do we not ing the trans-Atlantic slave trade republican Union, and determining surrender the right of self-govern- that had been abolished in 1808. the meaning of government by the ment?” The Nebraska territory “is Lincoln went to the root of the consent of the governed. part of ourselves,” Lincoln argued. question of constitutional power Far from suffering a long train of “If you say we shall not control it over slavery by asking whether the abuses and usurpations such as justi- because it is ONLY part, the same is Democratic Party’s principle of pop- fied colonial Americans’ resistance true of every other part; and when all ular sovereignty was “intrinsically to Great Britain in 1776, southerners the parts are gone, what has become right.” The South claimed that tak- in the 1850s aggressively sought to of the whole? What is then left of us? ing slave property into the territo- nationalize the right to slave prop- What use for the general government, ries was the moral equivalent of the erty. Events convinced Lincoln that when there is nothing left for it [to] North’s taking its property. Lincoln the political power of the slave sys- govern?” said, “This is perfectly logical, if tem, which he had long opposed as a there is no difference between hogs denial of republican liberty, threat- IN THE SECESSION CRISIS, LINCOLN and Negroes.” He insisted there was ened the existence of the Union. He DEMONSTRATED SUPERIOR a difference. “The doctrine of self- conceived it his duty and responsi- government is right—absolutely and bility to preserve liberty and Union STATESMANSHIP BY PRESERVING eternally right—but it has no justifi- under the Constitution. THE CONSTITUTION, DEFENDING THE cation as here attempted.” In the controversy over slavery FEDERAL REPUBLICAN UNION, AND Whether that doctrine was justly extension, the question was: With DETERMINING THE MEANING OF applied in the Kansas-Nebraska Act respect to national territories, where depended on whether the Negro was GOVERNMENT BY THE CONSENT OF did the authority of popular self- a man. Lincoln said, “If he is not a government reside? In Lincoln’s THE GOVERNED. man, why in that case, he who is a view, the disposition of this question man may, as a matter of self-gov- was the test of federal republican In Lincoln’s view, Douglas’s doc- ernment, do just as he pleases with Union and constitutional popular trine of popular sovereignty threat- him. But if the negro is a man, is it sovereignty. ened to corrupt republican self-gov- not to that extent, a total destruc- The Challenge of ernment by reducing policymaking tion of self-government, to say that Popular Sovereignty. Lincoln’s to a matter of individual choice. The he too shall not govern himself.” He Peoria speech of 1854 opposing premise of the Kansas-Nebraska Act declared: “If the negro is a man, why the Kansas-Nebraska Act laid the was that the people of the territory then my ancient faith teaches me premises for his construction of the had a particular interest in the ques- that ‘all men are created equal,’ and nature of the Union in the secession tion. Lincoln said, “If this be the rule, that there can be no moral right in crisis. Senator Stephen A. Douglas you must leave it to each individual connection with one man’s mak- of Illinois, author of the act, claimed to say for himself whether he will ing a slave of another.” “[N]o man is Congress could not legislate on slav- have slaves.” good enough to govern another man, ery in the territories, but the people But “What better moral right,” without that other’s consent. I say this of a territory could. This definition of he asked, “have thirty-one citizens is the leading principle—the sheet popular sovereignty was embodied in of Nebraska to say, that the thirty- anchor of American republicanism.” the Utah and New Mexico territorial second shall not hold slaves, than Lincoln did not ignore the cor- acts of 1850. the people of the thirty-one States rupting effect that slavery had on Lincoln regarded Douglas’s have to say that slavery shall not go republican government in the free doctrine of popular sovereignty into the thirty-second State at all?” states. The Three-Fifths Clause of as a threat to national author- Moreover, by the same logic, if the the Constitution gave the South an ity. Contending that Congress had people had a sacred right to take advantage “in the control of the gov- authority to legislate for individuals and hold slaves in Nebraska, it was ernment.”11 Lincoln said it was “an

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absolute truth, without an exception, Union; and if any attempt is made it secession, if actually undertaken, that there is no voter in any slave must be by you, who so loudly stig- would necessarily require violation State, but who has more legal power matize us as disunionists.” “But the of national law. in the government, than any voter in Union, in any event, won’t be dis- Crisis of the House Divided. any free State. There is no instance solved,” Lincoln asserted: The secession movement created a of exact equality.” constitutional crisis for which no one The three-fifths rule was in the We don’t want to dissolve it, was fully prepared. To deal with it Constitution and had to be accepted. and if you attempt it, we won’t required political prudence as well “But when I am told that I must leave let you. With the purse and the as constitutional conviction. Lincoln it altogether to OTHER PEOPLE to sword, the army and navy and told political associates in December say whether new partners are to be treasury in our hands and at 1860 that “the right of a state to bred up and brought into the firm, on our command, you couldn’t do it. secede is not an open or debatable the same degrading terms against This Government would be very question. It was fully discussed in me,” Lincoln objected, “I insist, that weak, indeed, if a majority, with Jackson’s time, and denied not only whether I shall be a whole man, or a disciplined army and navy, and by him but by a vote of…Congress.” only, the half of one, in comparison a well-filled treasury, could not Privately, he wrote: with others, is a question…which no preserve itself, when attacked by other man can have a sacred right of an unarmed, undisciplined, and I believe you can pretend to find deciding for me.” unorganized minority. but little, if any thing, in my speeches about secession; but my “THIS GOVERNMENT WOULD BE “All this talk about the dissolution opinion is that no state can, in VERY WEAK, INDEED, IF A MAJORITY, of the Union is humbug—nothing but any way lawfully, get out of the folly,” he exclaimed. “We WON’T dis- Union, without the consent of the WITH A DISCIPLINED ARMY AND solve the Union, and you SHAN’T.” others; and that it is the duty of NAVY, AND A WELL-FILLED TREASURY, Lincoln’s admonition under- the President, and other govern- COULD NOT PRESERVE ITSELF, scored the nature of the Union as a ment functionaries to run the WHEN ATTACKED BY AN UNARMED, sovereign government competent to machine as it is. defend its existence against revolu- UNDISCIPLINED, AND UNORGANIZED tionary subversion. Far from a vol- The duty or ability of the govern- MINORITY.” untary compact of sovereign state- ment to maintain its own integrity republics, the Union was based on “is not the ugly point in the matter,” The Republican Party’s antislav- the principles of republican consent he explained. “The ugly point is the ery policy and northern constituency and divided sovereignty. No federal necessity of keeping the Government made it vulnerable to the charge of Administration ever regarded it as a together by force, as ours should be a disunionism. Observing that this voluntary political association that government of fraternity.” was “Practically…the most difficult depended for its existence on the After the election, Lincoln adopt- objection we have to meet,” Lincoln willful and subjective desires of state ed a strategy of silence concerning refuted it. He said, for example, that politicians and their constituents. the policy of his Administration if the judicial department should It was axiomatic that the govern- toward the secession movement. attempt to settle the question of ter- ment of the Union had constitutional He let it be known only that the ritorial slavery, the Republican Party authority to make and enforce rules Republican Party would never com- would submit to whatever decision of action for individuals. Much as promise on the policy of excluding the Supreme Court might hand down. state-sovereignty theorists might slavery from national territories. “We, the majority,” he declared, speculate otherwise, practical rea- Determined to adhere to consti- “would not strive to dissolve the son established the proposition that tutionally defined public opinion,

11. Article I, Section 2 of the Constitution provided that Representatives shall be determined by adding to the whole number of free persons, including those bound to service for a term of years and excluding Indians not taxed, three-fifths of all other persons; i.e., slaves.

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Lincoln held that executive duty On the general question of states’ the Constitution. Lincoln’s analogy prevented him from revising posi- rights, Lincoln asked, “What is the recalled the thinking of national- tions on the basis of which he was particular sacredness of a State?” ist delegates at the Constitutional elected. “I will suffer death,” he It was not the power and author- Convention who, denying that the vowed, “before I will consent or ity of a state as recognized in the states were “so many political soci- advise my friends to consent to any Constitution, which “all of us agree eties,” viewed them “as districts concession or compromise which to” and “abide by.” It was the assump- of people composing one political looks like buying the privilege of tak- tion, rather, “that a State can carry Society.”13 ing possession of this government to with it out of the Union that which it which we have a constitutional right.” holds in sacredness by virtue of its The First Inaugural: To appease enemies by breaking his connection with the Union.” Restoring the Authority pledges would mean that “this gov- of the Constitution ernment and all popular government, DETERMINED TO ADHERE TO When Buchanan in his annual is already at an end.” It would break CONSTITUTIONALLY DEFINED PUBLIC message declared on the one hand the only bond of faith between public that secession was illegal and uncon- and public servant and “distinctly set OPINION, LINCOLN HELD THAT stitutional and on the other hand the minority over the majority.” EXECUTIVE DUTY PREVENTED HIM that the federal government lacked Eventually, it was necessary to FROM REVISING POSITIONS ON THE power to prevent a state’s exit from discuss the constitutional nature BASIS OF WHICH HE WAS ELECTED. the Union, he admitted to the dis- of the Union in concrete terms. In solution of authority in the govern- remarks at Indianapolis on February ment of the United States. Authority 11, 1861, en route to Washington, The “sacredness” of states’ rights answers to the need for unity of Lincoln discussed federal coercion referred to “that assumed right of action in emergency or crisis condi- of states attempting to secede. He a State, as a primary principle, that tions. It is the practical activity of believed marching a federal army the Constitution should rule all that determining the means of securing into South Carolina would be inva- is less than itself, and ruin all that the common good when opinion in a sion and coercion if the people did is bigger than itself.” To conceive community is divided. not give their consent and were the nature of the Union in this way Buchanan’s divided loyalties forced to submit. It would not be was absurd. If a state and a county rendered him incapable of coher- coercion, however, for the federal were equal in extent of territory ent exercise of the executive power. government to hold or retake forts and population, Lincoln reasoned, Swearing the oath “to faithfully belonging to it or to enforce laws for “wherein is that State any better than execute the Office of President” and the collection of duties on foreign the county? Can a change of name “preserve, protect and defend the imports. change the right?” By what principle Constitution of the United States” If professed “lovers of the Union” of original right did one-fiftieth or did not necessarily constitute a considered law enforcement to be one-ninetieth part of the nation, “by transfer of authority that was gravely invasion and coercion, he said, then calling themselves a State, have the if not entirely dissipated. Whether the means of preserving the Union right to break up and ruin that nation Lincoln would be able to exercise the “in their own estimation, is of a very as a matter of original principle?” authority of the federal government thin and airy character.” For them, The analogy of a state to a county, was uncertain. It is fair to say that “the Union, as a family relation, defining a state as “a certain district many were dubious. would not be anything like a regular of country with inhabitants,” scan- Lincoln was prepared for the chal- marriage at all, but only as a sort of dalized advocates of states’ rights.12 lenge that awaited him, a challenge free-love arrangement—to be main- It showed, however, that the seces- which, he said in farewell remarks tained on what the sect calls passion- sion movement raised the fundamen- at Springfield, was “greater than ate attraction.” tal issue involved in the framing of that which rested upon Washington.”

12. Albert Taylor Bledsoe, Is Davis a Traitor; or Was Secession a Constitutional Right Previous to the War of 1861? (Richmond, Va.: Hermitage Press, 1907), pp. 104–106. 13. See remarks of Samuel Johnson in James Madison, Notes of Debates in the Federal Convention of 1787 Reported by James Madison (New York: W.W. Norton & Company, 1965), p. 211.

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The Inaugural address marked the constitutional guarantees. To allay civilized and humane jurisprudence formal constitutional beginning southern fears, Lincoln reiterated ought to be introduced, so that a free of the work of “reinaugurating”14 that he had no purpose to interfere man be not, in any case, surrendered the authority of the government of directly or indirectly with the insti- as a slave.” He further proposed “to the United States. Seven states had tution of slavery in the states where provide by law for the enforcement of seceded, and four others were poised it existed, nor any lawful right or that clause in the Constitution which to join them depending on circum- inclination to do so. He did not object guaranties that ‘The citizens of each stances. Lincoln’s task was to explain to a proposed constitutional amend- State shall be entitled to all privileg- why secession was wrong and preser- ment passed by Congress stating that es and immunities of citizens in the vation of national union right. It was the federal government “shall never several States.’”15 necessary to establish the reason and interfere with the domestic institu- In appealing to the Privileges and justice of federal republican union as tions of the States, including that of Immunities Clause, Lincoln directly the theoretical and practical alterna- persons held to service.” challenged the premise of Chief tive to minority-rule anarchy based Justice Roger Brooke Taney’s opinion on state sovereignty. LINCOLN WAS PREPARED TO in the Dred Scott decision. Taney said “I take the official oath to-day,” CHALLENGE PROSLAVERY OPINION Negroes must not be recognized as Lincoln declared, “with no men- citizens of the United States because tal reservations, and with no pur- WITH RESPECT TO THE CIVIL RIGHTS if they were, pose to construe the Constitution OF BLACK PERSONS. or laws, by any hypercritical rules.” [T]hey would be entitled to all He explained that he assumed the Lincoln affirmed the Fugitive of these privileges and immuni- office of chief executive “under great Slave Clause of the Constitution but ties in every State, and the State and peculiar difficulty. A disrup- dismissed the question of whether could not restrict them; for they tion of the Federal Union heretofore the fugitive slave provision should be would hold these privileges and only menaced, is now formidably enforced by state or national author- immunities, under the para- attempted.” ity. If the slave was to be surrendered, mount authority of the Federal The country wanted to know it was of little consequence to him or Government, and its courts what the Republican Administration to others by which authority it was would be bound to maintain and would do about the formation of done. No lawmaker ought to assume enforce them, the Constitution the Confederate States of America that “his oath shall go unkept, on a and laws of the State to the con- in general and Fort Sumter, South merely unsubstantial controversy as trary notwithstanding. Carolina, in particular where fed- to how it shall be kept.” Observing eral troops were under siege of that all Members of Congress were At a time and in a situation where Confederate arms. Would Lincoln sworn to support the Constitution, defense of the Union was paramount, take a conciliatory or hard-line including the Fugitive Slave Clause, Lincoln reminded the nation of the approach? Would peace be preserved, he suggested that Congress make an corrupting effect of slavery on repub- or would the country descend into effort, “in good temper,” to “frame lican liberty and equality. civil war? and pass a law, by means of which to Perpetuity of the Union The Thorny Question keep good that unanimous [constitu- and the Fiction of a Right of Slavery. Strategically, the slavery tional] oath.” to Secession. Concerning policy question was subordinated to the At the same time, Lincoln was pre- toward the secession movement, national question, but it continued pared to challenge proslavery opin- Lincoln declared that the Union to be on everyone’s mind because ion with respect to the civil rights of would constitutionally defend and proponents of compromise were con- black persons. In any law on the sub- maintain itself. There would be vinced that the only way to save the ject of fugitive slaves, he advised, “all no bloodshed or violence unless it Union was to give slavery stronger the safeguards of liberty known in was forced on the government. The

14. In his last public address, in April 1865, Lincoln referred to reconstruction as “the re-inauguration of the national authority.” 15. Article IV, Section 2.

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executive power would be used to constitutionalism, the ground of proper, ever had a provision in its hold, occupy, and possess the prop- legitimate authority in America. organic law for its own termina- erty and places belonging to the Most important, they were informed tion.” “Continue to execute all the government and to collect duties and by what Lincoln called the “central express provisions of our national imposts. idea in our political opinion.” From Constitution,” he asserted, “and the Beyond what was necessary for the formation of the Union, this was Union will endure forever—it being these objects, “there will be no inva- the Declaration principle that “all impossible to destroy it, except by sion—no using of force against, or men are created equal,” not the false some action not provided for in the among the people anywhere.” Where doctrine that “all States as States, are instrument itself.” hostility to the United States pre- equal” as Democrats and secession- To underscore the point, Lincoln vented competent resident citizens ists claimed. took into account the compact theory from holding federal offices, there of the Union to which the South would be “no attempt to force obnox- WHAT HELD THE COUNTRY appealed. “Again, if the United States ious strangers among the people for TOGETHER WAS THE ALLEGIANCE, be not a proper government, but an that object.” Unless repelled, the association of States in the nature of mails would continue to be delivered LOYALTY, AND ATTACHMENT OF THE a contract merely,” he asked, “can it, in all parts of the Union. Lincoln PEOPLE TO THEIR GOVERNMENT. as a contract, be peaceably unmade, expressed hope that the people THESE VIRTUES WERE EMBEDDED by less than all the parties who made would have a sense of security in IN THE PRINCIPLES, FORMS, AND it? One party to a contract may vio- which calm thought and action could late it—break it, so to speak; but does INSTITUTIONS OF FEDERAL lead to “the restoration of fraternal it not require all to lawfully rescind sympathies and affections” and “a REPUBLICAN CONSTITUTIONALISM, it?” peaceful solution of the national THE GROUND OF LEGITIMATE In addition to political theory, troubles.” AUTHORITY IN AMERICA. Lincoln relied on history to sup- Lincoln’s policy was not unlike port the permanence of the Union. Buchanan’s in its defensive posture, “Descending from these general acknowledgement of the difficulty of In a sense, it is true, as historian principles,” he observed, “we find appointing federal officers in seced- Kenneth M. Stampp observed, that the proposition that, in legal con- ing states, and appeal to fraternal Lincoln in the First Inaugural made templation, the Union is perpetual, sympathies. The fundamental issue, no original contribution to the clas- confirmed in the history of the Union however, was not erosion of affective sical nationalist argument on the itself.” The Union was older than the sentiment between citizens, nor the nature of the Union.16 Lincoln accom- Constitution and “was formed in fact, difficulty of law enforcement in exi- plished something more impor- by the Articles of Association in 1774.” gent circumstances. It was southern- tant by providing an authoritative It was “matured and continued” by ers’ willful and imperious attempt defense and justification of federal the Declaration of Independence to overthrow the government of the republican constitutionalism under and, in the Articles of Confederation, United States under the claim of a the threat of national disintegration. “further matured and the faith of all right of secession. Stating the ground on which the the then thirteen States expressly The Union was formed of eco- government would defend itself, he plighted and engaged that it should nomic and geopolitical needs and declared: “I hold, that in the con- be perpetual.” interests. In a moral and philosophic templation of universal law, and the Finally, in 1787, “one of the sense, what held the country togeth- Constitution, the Union of these declared objects for ordaining and er was the allegiance, loyalty, and States is perpetual.” Perpetuity establishing the Constitution, was attachment of the people to their was implied, if not expressed, in ‘to form a more perfect union.’” “But if government. These virtues were the fundamental law of all national destruction of the Union, by one or embedded in the principles, forms, governments. “It is safe to assert,” by part only, of the States, be law- and institutions of federal republican he explained, “that no government fully possible,” Lincoln argued, “the

16. Kenneth M. Stampp, And the War Came: The North and the Secession Crisis (Chicago: University of Chicago Press, 1964), p. 200.

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Union is less perfect than before the simply that sound political science negations, guaranties and prohi- Constitution, having lost the vital did not authorize willful and arbi- bitions, in the Constitution, that element of perpetuity.” “It follows trary destruction of government or controversies never arise concerning from these views that no State, upon that the obligation to obey law in a them.” its own mere motion, can lawfully political community cannot coex- No organic law, however, could be get out of the Union—that resolves ist with a right to disobey the same framed “with a provision specifically and ordinances to that effect are law. To preserve “the vital element applicable to every question which legally void; and that acts of violence, of perpetuity” in the nature of the may occur in practical administra- within any State or States, against Union, he held that republican gov- tion.” The country was divided by the authority of the United States, ernment and the practical reason of questions that the Constitution did are insurrectionary or revolutionary, the Constitution ruled out the claim not expressly answer: according to circumstances.” of secession as a privilege and immu- The word “perpetuity” was in nity of a single state or a minority of ■■ Should fugitives from labor be the Articles of Confederation, not states. To support this proposition, surrendered by state or national the Constitution. Lincoln put it into it was necessary to demonstrate the authority? the fundamental law through his heretical nature of secession as a construction of the express pur- constitutional proposition. ■■ Did Congress have power to pro- pose of the Constitution: “to form hibit, or was it required to protect, a more perfect Union.” In Lincoln’s PRESERVING THE UNION MEANT slavery in the territories? construction, the idea of perpetuity FULFILLING THE ENDS OF LIBERTY, was not mystical or aspirational, but In deciding these matters, the constitutionally binding and legally EQUALITY, AND CONSENT FOR people necessarily divided into obligatory. The bonds of Union were WHICH THE NATION WAS FOUNDED. majorities and minorities. “If the political, legal, and constitutional minority will not acquiesce,” Lincoln more than they were sentimental With statesmanlike forbearance observed, “the majority must, or the and affective. and intellectual precision, Lincoln government must cease. There is He summarized: “I therefore con- reflected on the nature of consti- no other alternative; for continuing sider that, in view of the Constitution tutional politics in America. “All the government is acquiescence on and the laws, the Union is unbroken, profess to be content in the Union, one side or the other.” If a minority and, to the extent of my ability, I if all constitutional rights can be should secede rather than acquiesce, shall take care, as the Constitution maintained,” he averred. The ques- they will make a precedent that in expressly enjoins me, that the laws of tion was whether “any right, plainly turn may divide and ruin them. A the Union be faithfully executed in written in the Constitution, has been minority of their own will secede all the States.” “Doing this I deem to denied?” It had not. “Think, if you from them whenever the major- be only a simple duty on my part,” he can, of a single instance in which ity refuses to be controlled by the explained, “and I shall perform it, so a plainly written provision of the minority. far as practicable, unless my rightful Constitution has ever been denied.” Lincoln speculated: “why may not masters, the American people, shall Acknowledging the right of revo- any portion of a new confederacy, a withhold the requisite means, or, in lution, Lincoln said that if, by the year or two hence, arbitrarily secede some authoritative manner, direct mere force of numbers, a majority again, precisely as portions of the the contrary.” This should not be should deprive a minority of any present Union now claim to secede regarded as a menace, “but only as clearly written constitutional right, from it. All who cherish disunion the declared purpose of the Union “it might, in a moral point of view, sentiments, are now being educated that it will constitutionally defend, justify revolution—certainly would, to the exact temper of doing this.” and maintain itself.” if such right were a vital one.” But Was there such perfect identity of Preserving the Union meant ful- this was not the case. “All the vital interests among the states plan- filling the ends of liberty, equality, rights of minorities, and of individu- ning “to compose a new Union, as to and consent for which the nation was als are so plainly assured to them,” produce harmony only, and prevent founded. Lincoln’s position was not he asserted, “by affirmations and renewed secession?”

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Lincoln articulated the principle erroneous decisions from being over- both sides and no gain on either, “you of republican constitutionalism: ruled. “At the same time,” however, cease fighting, the identical old ques- tions, as to terms of intercourse, are Plainly, the central idea of seces- [T]he candid citizen must confess again upon you.” sion, is the essence of anarchy. that if the policy of the govern- Ultimately, Lincoln believed A majority held in restraint by ment, upon vital questions, the fate of the Union depended on constitutional checks and limita- affecting the whole people, is the judgment of the people. Again tions, and always changing easily, to be irrevocably fixed by deci- acknowledging the natural right to with deliberate changes of popu- sions of the Supreme Court, the revolution, he declared: “This coun- lar opinions and sentiments, is instant they are made, in ordi- try, with its institutions, belongs to the only true sovereign of a free nary litigation between parties, the people who inhabit it. Whenever people. in personal actions, the people they shall grow weary of the existing will have ceased, to be their own government, they can exercise their To deny majority rule was to rulers, having, to that extent, constitutional right of amending it, or destroy republican government. practically resigned their gov- their revolutionary right to dismem- “Unanimity as a permanent arrange- ernment, into the hands of that ber, or overthrow it.” ment,” he concluded, “is impossible; eminent tribunal. Lincoln said the executive had no the rule of the minority as a perma- power “to fix terms for the separa- nent arrangement is wholly inadmis- Lincoln did not intend his obser- tion of the States.” “The people them- sible; so that, rejecting the majority vation as a rebuke to the justices, but selves can do this also if they choose,” principle, anarchy or despotism, in as a statement of constitutional com- he argued, “but the executive, as some form, is all that is left.” mon sense. such, has nothing to do with it. His The Limits of Judicial Review. The Fundamental duty is to administer the present gov- Secession was not the only threat to Disagreement over Slavery. ernment, as it came to his hands, and republican government that Lincoln Summarizing, Lincoln said the “only to transmit it, unimpaired by him, to considered in the First Inaugural. A substantial dispute” was that “One his successor.” different kind of danger presented section of our country believes slav- Lincoln also affirmed republi- itself in the practice of judicial ery is right, and ought to be extended, can self-government. “Why should review. while the other believes it is wrong there not be a patient confidence in A few years earlier, in the Dred and ought not to be extended.” the ultimate justice of the people? Is Scott case, the Supreme Court had “Physically speaking,” he observed, there any better, or equal hope, in the upheld the constitutionality of slav- “we cannot separate. We cannot world?” Both sections believed they ery in a decision intended to settle remove our respective sections from were in the right. “If the Almighty the controversy that was tearing the each other, nor build an impassable Ruler of nations, with his eternal country apart. With this case seem- wall between them.” A husband and truth and justice, be on your side of ingly in mind, Lincoln said, “I do not wife might be divorced and go out of the North, or on yours of the South, forget the position assumed by some, the presence and reach of each other, that truth, and that justice, will sure- that constitutional questions are to “but the different parts of our coun- ly prevail, by the judgment of this be decided by the Supreme Court.” try cannot do this. They cannot but great tribunal, the American people.” Lincoln noted that decisions of remain face to face; and intercourse, The South, he advised, still had the Supreme Court properly bound either amicable or hostile, must con- “the old Constitution unimpaired, the parties to a suit with respect to tinue between them.” and on the sensitive point, the laws the object of the suit and that they The question was: “Is it possible of your own framing under it; while were entitled to very high respect then to make that intercourse more the new administration will have and consideration in parallel cases by advantageous, or more satisfac- no immediate power, if it would, to all other departments of the govern- tory, after separation than before? change either.” Urging against pre- ment. Deference to judicial judgment Can aliens make treaties easier cipitate action, Lincoln asserted: was a practice worth preserving, than friends can make laws?” If war “Intelligence, patriotism, Christianity, even at the expense of preventing should occur and, after much loss on and a firm reliance on Him, who has

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never yet forsaken this favored land, made it unmistakably clear that he to execute the laws of the United are still competent to adjust, in the would exercise the power of his office States in seven seceded states against best way, all our present difficulty.” to defend the federal government combinations too powerful to be In conclusion, Lincoln reiterated against unlawful attempts to over- suppressed by the ordinary course his intent to preserve the system of throw it. of judicial proceedings. He declared, government and Constitution under “I appeal to all loyal citizens to favor, which the South’s interests were THE INTEGRITY OF THE UNION facilitate and aid this effort to main- protected. “In your hands, my dis- COMPRISED NOT ONLY THE EXERCISE tain the honor, the integrity, and the satisfied fellow countrymen, and not existence of our National Union, and in mine,” he asserted, “is the momen- OF SOVEREIGN AUTHORITY OVER the perpetuity of popular govern- tous issue of civil war. You can have NATIONAL TERRITORY, BUT ALSO ment; and to redress wrongs already no conflict, without being yourselves THE MORAL VIRTUE OF REPUBLICAN long enough endured.” the aggressors.” Whichever side GOVERNMENT AND SOCIETY. The proclamation epitomized the Almighty might be on, Lincoln’s Lincoln’s construction of the nature constitutional duty was clear. “You of the Union. National security under have no oath registered in Heaven The moment of decision came in the federal principle and popular to destroy the government,” he April 1861. With advance notification government under the republican declared, “while I shall have the most to the Confederate high command, principle were theoretically and solemn one to ‘preserve, protect and Lincoln sent an unarmed relief practically related. What threat- defend it.’” He closed on a sentimen- expedition to U.S. military forces at ened the existence of the Union had tal note: Fort Sumter, South Carolina. The a subversive effect on the character Confederate government ordered of republican freedom. The integrity We are not enemies, but friends. bombardment of the fort, thereby of the Union comprised not only the We must not be enemies. Though assuming responsibility for firing the exercise of sovereign authority over passion may have strained, it first shot in the Civil War. national territory, but also the moral must not break our bonds of While believing the Union ought virtue of republican government and affection. The mystic chords of to rest on fraternal feeling, Lincoln society. memory, stretching from every accepted “the necessity of keeping When the South decided on armed battle-field and patriot grave, to the Government together by force.” rebellion as the means of exercis- every living heart and hearth- This was not because he was a fer- ing its claim to the right of “peace- stone, all over this broad land, vent abolitionist or ideologue of cen- able secession,” Lincoln fulfilled his will yet swell the chorus of the tralized power, but rather because responsibility to reinaugurate the Union, when again touched, as “force or some other form of coercion Union on a more fully realized repub- surely they will be, by the better is an unavoidable aspect of political lican basis. Reversing the course of angels of our nature. life.”17 national disintegration resulting When the secessionists decided from the claims of state and popular “And the War Came” to resolve the conflict of authority sovereignty, Lincoln exercised the The debate over the nature of the by armed force, Lincoln was pre- war power of the government to pre- Union boiled down to a nonnegotia- pared for the coming of war. Treating serve and protect the Constitution to ble conflict of duties, responsibilities, secession as unjustified rebellion, he the end of a more perfect Union. and obligations between the seced- began the process of “reinaugurating” Americans went to war in 1861 to ing states and the United States. Like the authority of the Union on a more determine the nature of the Union Buchanan, Lincoln denied executive truly republican basis. and the moral and legal status of authority to recognize secession or In the Proclamation Calling slavery in republican society. What otherwise determine the relations Militia and Convening Congress, was dimly apparent in earlier sec- between the states as members of April 15, 1861, Lincoln called 75,000 tional disputes now became forebod- the Union. Unlike Buchanan, he state militia into national service ingly clear. The citizenship and civil

17. Paul Eidelberg, On the Silence of the Declaration of Independence (Amherst, Mass.: University of Massachusetts Press, 1976), p. 55.

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rights of black Americans were impli- The Reconstruction amendments unity and individual rights of liberty, cated in the meaning of republican extended the founding principles of equality, and consent. The coun- self-government and intrinsically federal republican liberty and self- try’s political, economic, and social related to the nature of the Union government throughout the nation. expansion in the antebellum era was and the identity of the people of the bound to alter the relative power of United States. ■■ The Thirteenth Amendment North and South as constituent parts Lincoln grasped the gravity and (1865) declared that neither slav- of the nation. depth of the crisis of national integ- ery nor involuntary servitude The status of slavery in republican rity signified in the slavery contro- shall exist within the United society and the nature of the Union versy. His exercise of the executive States or in any place subject to with respect to the relative powers power in the secession crisis, at once their jurisdiction. of the federal and state governments prudent and boldly resolute, honored were fundamental issues of national and upheld the Founders’ intent to ■■ The Fourteenth Amendment existence that required resolu- create a federal republican Union of (1868) conferred national and tion. Clearly, change was imminent: authority and obligation. The situ- state citizenship on all persons The status quo could not be main- ation recalled Lincoln’s warning in born or naturalized in the United tained, and the terms of constitu- the Springfield Lyceum address that States. It further prohibited the tional union needed to be revised. the danger to American institutions states from depriving any person The question was whether sectional was internal, that “As a nation of of life, liberty, or property without conflict would be settled through freemen, we must live through all due process of law or denying to deliberative political means or by time, or die by suicide.” Secession, any person the equal protection of violent military means. Despite the aptly described by Republican the laws. best efforts to arrange a compromise, lawmakers during the Civil War as Americans went to war in 1861. “state suicide,” was destruction from ■■ The Fifteenth Amendment (1870) The Constitution and the Union within. prohibited the federal and state were preserved. Secession was governments from denying or proved to be lawless rebellion. The Completing the Constitution abridging the right to vote of nature of the Union was clarified and Northern victory in the Civil War citizens of the United States on confirmed along two constitutional- left the seceded states in the ironic account of race, color, or previous structural axes: the federal prin- position of seeking readmission to condition of servitude. ciple of divided sovereignty and the the Union. In Lincoln’s words, the republican principle of equal citizen- former Confederate states were “out The recognition of black ship based on the natural rights of of their proper practical relation Americans’ personal liberty and civil individuals. American republican with the Union.” The Emancipation rights expanded significantly the nationality was secured both as an Proclamation, January 1, 1863, political and constitutional identity intrinsic good and for the purpose declared that all persons held as of the people of the United States. of extending liberty throughout the slaves in states designated in rebel- Reconstruction policy, based on the country as a whole. lion “are, and henceforward shall be restoration of federal republican con- Based on the principles of the free.” stitutional authority signified by the nation’s political tradition, the The pretension to independent First Inaugural Address, confirmed Civil War and Reconstruction were sovereignty having failed, southern- and substantiated the “new birth a fulfillment and completion of ers were forced to fall back on the of freedom” to which Lincoln had the Constitution, not a revolution doctrine of sovereign state powers pledged the nation in the Gettysburg against it. under the Constitution. To reclaim Address. —Herman Belz is a professor those powers, however, they were The unity of political meaning in emeritus of history at the University required to accept constitutional the Civil War and Reconstruction of Maryland and academic director amendments that further limited is expressed in the concept of the of the James Madison Memorial states’ powers and guaranteed fun- American regime as a national Fellowship Foundation in Washington, damental civil rights and liberties of democracy based on the distinct D.C. He is the author of several the freed people. yet related principles of national books, including Abraham Lincoln,

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Constitutionalism, and Equal Rights in the Civil War Era (1998); A Living Constitution or Fundamental Law? American Constitutionalism in Historical Perspective (1998); and the Heritage First Principles monograph Constitutionalism and the in America (2009). He is also co- author of The American Constitution: Its Origin and Development (7th ed., 1991).

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