Abraham Lincoln and the American Regime: Explorations George Anastaplo Loyola University Chicago, School of Law, [email protected]
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Loyola University Chicago, School of Law LAW eCommons Faculty Publications & Other Works 2000 Abraham Lincoln and the American Regime: Explorations George Anastaplo Loyola University Chicago, School of Law, [email protected] Follow this and additional works at: http://lawecommons.luc.edu/facpubs Part of the Constitutional Law Commons, and the Legal Biography Commons Recommended Citation Anastaplo, George, Abraham Lincoln and the American Regime: Explorations, 35 VAL. U. L. REV. 39 (2000) This Article is brought to you for free and open access by LAW eCommons. It has been accepted for inclusion in Faculty Publications & Other Works by an authorized administrator of LAW eCommons. For more information, please contact [email protected]. ABRAHAM LINCOLN AND THE AMERICAN REGIME: EXPLORATIONS George Anastaplo" TABLE OF CONTENTS FOR THIS COLLECTION INTRODUCTION .............................................................................................40 I. OUR DISPUTED "CREATED EQUAL" HERITAGE .............................41 II. THE DECLARATION OF INDEPENDENCE REVISITED .......................66 III. A MURDER TRIAL IN SPRINGFIELD ................................................81 IV. ABRAHAM LINCOLN AND THE PURSUIT OF HAPPINESS ..........92 V. THE COOPER INSTITUTE ADDRESS ....................................................104 VI. A POLITICAL AUTOBIOGRAPHY .......................................................116 VII. THE SECOND INAUGURAL ADDRESS ................................................137 C O N CLUSIO N ...................................................................................................150 A PPEN DIC ES ....................................................................................................151 A. THE BANK BILL CONTROVERSY OF 1791: A PRECURSOR TO THE SECESSIONIST CRISIS OF THE 18 60's ..................................................................................151 B. SONGS OF THE CIVIL W AR ..................................................172 C. "POWER," "RESPONSIBILITY," AND THE AMERICAN B A R ......................................................................................19 1 " Professor of Law, Loyola University of Chicago, Professor Emeritus of Political Science and of Philosophy, Dominican University; and Lecturer in the Liberal Arts, The University of Chicago; A.B. 1948; J.D. 1951; Ph.D., 1964, The University of Chicago. (No e-mail reception). See www.cygneis.com/anastaplo. 39 HeinOnline -- 35 Val. U. L. Rev. 39 2000-2001 40 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 35 INTRODUCTION The American Regime is grounded in the Declaration of Independence, a constitutional document which has as a prominent, and quite influential, feature its "created equal" language. It is that exalted language which provides the point of departure in Part I of this Collection. The "equality" principle took on a peculiar form in the insistence upon the equality and hence virtual autonomy of all the States in the American Union. This contributed to the coming of the Civil War.1 Questions can be raised, of course, as to whether the States (however equal to one another) can properly be regarded as ever have existed 2 outside of the Union. Political people, if they are to remain vital, have to be nourished by a generally accepted morality. The rightness of wielding power is itself a major source of power over the long run.3 The morality of a healthy community is refined and reinforced by the arts.4 We can see in Abraham Lincoln both the moralist and the artist at work-and this most graphically in his speeches. Two of his most influential speeches-one advancing his campaign for the Republican Party Presidential nomination in 1860, the other virtually closing his Presidency in 1865-are discussed in this Collection.5 See GEORGE ANASTAPLO, ABRAHAM LINCOLN: A CONSTITUTIONAL BIOGRAPHY 177, 185 (1999) [hereinafter ANASTAPLO, LINCOLN]. See also GEORGE ANASTAPLO, THE CONSTITUTIONALIST: NOTES ON THE FIRST AMENDMENT 171 (1971) [hereinafter ANASTAPLO, CONSTrrUTONAuST]. 2 See GEORGE ANASTOPLO, THE AMENDMENTS TO THE CONSTITUTION: A COMMENTARY 125 (1995) [hereinafter ANASTAPLO, AMENDMENTS]. See also GEORGE ANASTOPLO, THE CONSTrUTION OF 1787: A COMMENTARY 149 (1989) [hereinafter ANASTAPLO, CONSrITLTION]. 3 See, e.g., GEORGE ANASTAPLO, THE AMERICAN MORALIST: ON LAW ETHICS, AND GOVERNMENT 161 (1992) [hereinafter ANASTAPLO, AMERICAN MORALIST]. See also GEORGE ANASTAPLO, HUMAN BEING AND CITIZEN: ESSAYS ON VIRTUE, FREEDOM, AND THE COMMON GOOD 46,74 (1975) [hereinafter ANASTOPLO, HUMAN BEING]. 4 See, on how the arts can be understood, GEORGE ANASTAPLO, THE ARTIST AS THINKER: FROM SHAKESPEARE TO JOYCE (1983) [hereinafter ANASTAPLO, ARTIST]; GEORGE ANASTAPLO, THE THINKER AS ARTIST: FROM HOMER TO PLATO & ARISTOTLE (1997) [hereinafter ANASTAPLO, THINKER]. 5 See Parts V and VII of this Collection. HeinOnline -- 35 Val. U. L. Rev. 40 2000-2001 2000] ABRAHAM LINCOLN The background to Lincoln's political life, including his career as a lawyer, is also touched upon in this Collection. 6 The craft of the gifted lawyer is evident in virtually every public paper issued by President Lincoln. Lincoln, during a visit to Independence Hall in Philadelphia on February 22, 1861, testified to the importance for him of the Declaration of Independence. (This was on his way to Washington for his Inauguration shortly thereafter.) He said on that occasion: [AII the political sentiments I entertain have been drawn, so far as I have been able to draw them, from the sentiments which originated, and were given to the world from this hall in which we stand. I have never had a feeling politically that did not spring from the sentiments embodied in the Declaration of 7 Independence. The materials brought together in this Collection are bracketed by the two talks given by me, on January 17, 2000, at the Valparaiso University School of Law. One of these talks will serve as the first Part in this Collection; the other talk will serve as the final Appendix to this Collection. I. OUR DISPUTED "CREATED EQUAL" HERITAGE 8 [The signers of the Declaration of Independence] were peace men; but they preferred revolution to peaceful submission to bondage. They were quiet men; but they did not shrink from agitating against oppression. They showed forbearance, but they knew its limits. They believed in order, but not in the order of tyranny. With them, nothing was "settled" that was not right. With them, justice, liberty, and humanity were "final" not slavery and oppression. -Frederick Douglass9 6 See Parts III, IV,and V of this Collection. 7 See ABRAHAM LLwCOLN, 4 COLLECTED WoRKs 246 (Roy P. Basler ed., Rutgers Univ. Press 1953), vol. IV, p. 240. 8 A talk given in a Martin Luther King, Jr. Birthday Program, Valparaiso University School of Law, Valparaiso, Indiana, January 17,2000. For another talk given on that occasion, see Appendix C of this Collection. HeinOnline -- 35 Val. U. L. Rev. 41 2000-2001 42 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 35 i. The "created equal" language enshrined in the Declaration of Independence, and made so much of by Abraham Lincoln, was repudiated most blatantly in the 1850's, Lincoln charged, not by any politician from a Southern slaveholding State but rather by a Senator from the State of Indiana. We have, in the surviving talks of Lincoln, several references by him to this Senator's characterization of the "created equal" language as "a self-evident lie." 10 The Senator thus called to account by Abraham Lincoln was John Pettit of Lafayette, Indiana, a Democratic politician who does not otherwise figure much in the political history of the United States, however important he may once have been both in Indiana and in Kansas. This man-an Easterner in origin who settled in the Midwest (in what had been the Northwest Territory)-was in critical respects a less polished version of his party leader, Stephen A. Douglas, a Senator from the neighboring State of Illinois." Even scholars and others who are very much devoted to Abraham Lincoln are not apt to know much more about John Pettit than what Lincoln says about him. I draw upon three sketches of this challenging Indiana politician, beginning with this account from a book about the Indiana judicial system: Judge John Pettit was born in Sacketts Harbor, New York on June 24, 1807. In his early life, he studied law with a prominent judge in Waterloo, New York and also taught school for a year at Troy, New York. In May, 1831, he moved to Lafayette [Indiana], studied law, and in 1833 was admitted to the bar. Delving into politics immediately, he was elected to the Indiana House of Representatives in the same year. In 1839, President Martin Van Buren appointed him United States District Attorney. He served in that capacity until 1843. In the 9 Frederick Douglass, Fourth of July Oration, Rochester New York, July 5, 1852 in WHAT COUNTRY HAVE I? POLITICAL WRITINGS BY BLACK AMERICANS 30 (Herbert J. Storing ed., 1970). 10See infra text accompanying notes 15, 22, 23, 24, 25. 11 On Senator Douglas, see Paul Finkelman, Stephan A. Douglas (1813-1861), in 2 ENCYCLOPEDIA OF THE AMERICAN CONSTrTrlON 578 (Leonard W. Levy ct. at. eds. 1986). See also HARRY A. JAFFA, CRISIS OF THE HOUSE DIVIDED: AN INTERPRETATION OF THE LiNCOLN-DOuGLAS DEBATES (1959). ANASTAPLO, LINCOLN, supra note 1, at 157. HeinOnline -- 35 Val. U. L. Rev. 42 2000-2001 20M]1 ABRAHAM LINCOLN fall of 1843, Pettit was elected to Congress. He served three consecutive terms until 1849. As chairman of the Judiciary Committee in the [Indiana] Constitutional