July 9, 2017
LINCOLN’S FAMED LOYALTY to the Constitution is a matter of some curiosity if it is considered in reference to the slave question. It has been said that Lincoln throughout his life regarded slavery un-Constitutional; but most of the evidence for this that I have seen is found in speeches Lincoln made to obviously anti-slavery, and often outright abolitionist, groups. (I hope I need not point out that Lincoln was a thoroughgoing and enterprising politician? But perhaps we have even forgotten this about old Honest Abe?) At any rate, it was true that by the time of his presidency, and surely by the end of the Civil War, Lincoln had resolved to settle the slave question, one way or another – and this together with his status as a “Republican,” and the duty he owed to the particular segment of society that had elected him, put upon his shoulders the task of either sowing the seeds for the dissolution of slavery, or – when the war came – destroying that institution forever.
We have addressed already Lincoln’s position with regard to slavery during the war; so let us concern ourselves for a moment in his position before the war – the position which caused the secession of the South. For this position, and the crisis it ignited, shall tell us very much indeed about the way Lincoln’s Gettysburg Address has become for us a founding document.
The ultimate cause the Civil War was not slavery. This fact needs to be insisted upon in this day, needs to be insisted upon in the face of all the bromides and the homilies and the smug platitudes we hear constantly perpetuated regarding that war. We have had a century and a half to throw off the somnolent chains of pleasant illusion: how many of us can say on behalf of this distance that we see more clearly, more freely of the comforting haze of Opinion and Righteousness? How many of us Americans even now have sufficiently disciplined or honest or piercing eyes for what occurred in those days?.. Nay, slavery was merely the occasion, the precipitation, the catalyst, for America’s Civil War. Neither was the cause of the Civil War the doctrine of state’s rights. Surely this doctrine was bantered about and was argued fiercely during this time; surely, it was upon this doctrine that the South felt it had the right to secede; but this, again, was only an occasional argument as far as the true causes of the war go, meaningful only as the rhetorical response of an enraged South to the actions of the North. Slavery and state’s rights, we might say, are but the fuse on the dynamite; where shall we look for the fire?
We should look nowhere else than in the dispute over the Territories of the United States. It was this that fomented the secession; it was this that made the situation for the South intolerable enough that it was willing to secede.1 And in order to understand these disputes, we must look briefly at their history.
The disputes over the Territories of the United States began in the early eighteen-hundreds, and found their first legal formulation in the Missouri Compromise, a settlement of much-debated Constitutionality, which divided the Territories of the United States into two portions – one in which slavery was absolutely prohibited, and another in which slavery was not prohibited. This compromise definitively settled the question for thirty years, and would have perhaps have remained definitive if not for the politicking of 1850. During the legislative sessions of this year, certain measures were passed which disregarded the line of demarcation accepted in the Missouri Compromise, and instated a new line for the new Territories taken from Mexico: this new line would apply to New Mexico and California. I shall not consider the arguments behind or against this new legislation, nor its practical effects in the new states; it suffices to note that this legislation prepared the way for the Kansas-Nebraska Bill, which in turn prepared the situation which sundered the Union.
The Kansas-Nebraska Bill of 1854 was essentially nothing other than a repeal of the Missouri Compromise. It understood itself as acting, in a more thorough manner, after the spirit of the 1850 legislation, and even went so far as explicitly to name that legislation as its precedent. Its stated purpose was “not to legislate slavery into any Territory or State, nor to exclude it therefrom, but to leave the people thereof perfectly free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States.” It was considered a return to the established practice which had existed prior to the Missouri Compromise. In this established practice, the Territories were subject to a provisional governance through Congress until such a time as they had fulfilled the requisitions to become a state. This was in accord with that part of the Constitution which deals with the acceptance of new states to the Union, Section 3 of Article IV, which reads in part, “The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice and Claims of the United States, or of any particular State.” This passage was traditionally taken to give the Congress power to establish such temporary government as was required to uphold the dictates of the Constitution in the Territories.
The Kansas-Nebraska Bill in and of itself would have caused no or at least comparatively little trouble in the relations between the North and the South, had it not been for a certain peculiar interpretation of that legislation. This interpretation, called the doctrine of “popular sovereignty,” or “squatter sovereignty,” as the pejorative of the South had it, held that the new settlers of the Territories had the right, before unifying into a state, to determine their mode of government and the manner of their institutions. If we are to seek anywhere for the pit of contention between the North and the South, this doctrine must be the place. For there was no requirement set as to the number of people who could fulfill this “popular sovereignty.” Presumably, a dozen would be as sufficient as a thousand. The doctrine merely held that, whenever such numbers as had arrived had established for themselves a government, that government would be considered the sovereign popular will. In the North, which was richer and more populated, no time was wasted in taking full advantage of this doctrine. Associations were formed with no purpose other than sending Northern emigrants and money into the Territories of the United States, often with the explicit purpose of barring slave-owning Southerners from settling. It was apparent that whosoever won the race to populate the Territories would be able to determine their government; and whosoever determined that government, would perforce establish the binding legislative precedent, when the time came to establish on that Territory a State.
Speaking practically, this amounted to a prohibition, not on slavery, but on Southern immigration to the Territories of the United States, and more importantly, on Southern expansion into the Territories. Due to the hostility of Northern settlers, and due to the “personal liberty laws,” as well as the sentiment behind them, both in states and in Territories, it became increasingly impossible for the South to extend its population throughout the inchoate parts of America. Congressional legislation was passed to assuage these problems, and to insure the right of any man to entry into any part of the country – with or without his Negro servants. In 1854, the Dred Scott decision of the Supreme Court not only upheld this legislation, but effectively condemned the personal liberty laws as un-Constitutional. In spite of this, the aggression against slave-holding emigrants continued. Nor was there cessation in the North of the steadily growing call to abolish slavery.
Now, it must be understood, prior to everything else, that slavery in the South was sewn into the very fabric of society. To remove it would be to remove half the stitchings of the cloth; it would be to dissolve the social structure; it would be to undermine the very foundations upon which that whole half of our country was built, as surely as if one put an absolute prohibition on factory ownership in the North. If slavery was to be dismantled, it could not be done with impunity, not all at once, neither for the owners of the slaves nor for the slaves themselves; such demands on the part of certain Northerners were dangerous and ignorant. We are not speaking of an “institution” which could be taken down or put up at will without too many secondary or tertiary effects; we are speaking of a way of life. It is commonplace among us to neglect this fact, for we do not see how anything so abhorrent as slavery could possibly contribute to a way of life. Our notion of a “way of life” is conveniently ringed in by our contemporary democratic standards, and has not the courage to step even two steps beyond.
We must see clearly this state of affairs if we are to get anywhere in understanding the casus belli of the South, or indeed of the Southern reaction to the election of Lincoln. This state of affairs left the South in a position at once precarious and ominous. Southerners were unofficially held out of the free Territories, and could do nothing but watch as the North and the principles of the North gained in area, in population, and thus in legislative power. This, combined with the ever-growing abolitionism in the North, appeared direly threatening to the South, to its very continuation – to its traditions, its customs, its laws, and the very fountainhead of its rich life—to its ethos. If the North could gain a comparative superiority to the South in the legislature, what would stop it from wielding its powers to abolish slavery in the South – that is, to pass legislation against slavery in the United States? And what would stop it from passing legislation barring Southern slave holders from immigrating to the territories? In short – what would stop the North from pressing its own principles legally upon the South, at the expense of Southern principles – indeed, at the expense of the whole Southern social structure and way of life? – And yet, it was not this state of affairs as such that caused the secession.
What, then? What at last drove the South to break from the Union?.. Not that the North threatened these actions, nor that its power to fulfill them was steadily growing, but that these actions were un-Constitutional, that they were against the founding principles of this government. The South broke from the North because the South held the actions of the North were against the tenets of our founding documents.
Now, the Constitution guarantees slavery. This is true, no matter what form this guarantee takes. That the word “slave” is mentioned nowhere in the Constitution, that the Negro is never explicitly called property, does not belie these facts: first, that certain “persons” are mentioned, in three places in the Constitution, such that no discerning and knowledgeable reader can fail to grasp the purport of the passages; second, that these persons are not once called citizens, and at best could be thought of as three-fifths of a person; finally, that in one place, the Constitution sets specific provisions down for the “taxes or duties” to be put upon certain “importation” – that is, on persons who are imported; and no man, I think, can deny that this is explicitly the language of property, that one does not “import” human beings, nor does one lay taxes on them as objects. Let it be known: I have no doubts that the Founders expressed themselves in such an obscure manner because many of them were ashamed of slavery, and hoped that that institution would whither away of its own accord. But let it be also known: slavery was a preserve in the Constitution, and without a Constitutional amendment it could be undone. Slavery was presupposed and guaranteed at the founding of this country, and no amount of wishful thinking or moral indignation can erase this fact from the face of our history.
The Constitution guarantees slavery, supposes that certain states in the Union will be slave states, and builds the South and the North into the Constitution as a sort of extension of the balance of powers – recalling all along that not the majority, but the minority requires the protection of the Constitution. But this means, short of an amendment to the Constitution, the North had no Constitutional right to pass laws prohibiting slave owners from migrating to the Territories. When the South broke the Union, it did so for this reason alone: because the Union no longer preserved the “general Welfare,” because the Union was already split, de facto, into two opposing segments, and because one of these segments had become a faction, seeking to disrupt the Constitutional justice of the nation, and seeking to gain absolute ascendancy over its antagonist.
The Civil War was at its heart a war over the integrity of a way of life of a people, as embodied in the Constitution. Rather say, it was a war between two different ways of life, which demanded two different Constitutions. If they were to remain together, then one or the other had to fail—Lincoln was clear on this from the beginning, for a “house divided against itself cannot stand.” He took the part of the abolitionists—and in doing so set himself against the standing Constitution, in the name of a principle which we shall soon discuss. He recognized, as everyone in those days recognized, that slavery could only be abolished via an amendment to the Constitution—that is, through a legal change to the Constitution’s fabric. And for this same reason South was able to adopt a Constitution which was almost identical to the original, and which merely clarified the two questions the murkiness of which had caused such trouble: slavery on the one hand, and states’ rights on the other.
Let it be a measure of the respective faith these two sides bore to the Constitution, the specific degree to which each of them was compelled to alter its first fabric to defend their customs. Lincoln was right about the centrality of the Constitution: he was wrong about what side it better defended, what side better defended it.
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