William Lloyd Garrison’s legendary critique of the Constitution is really just a critique of the Constitution as interpreted by the Taney Court circa 1842.
Abraham Lincoln is in the news again. That means that our politicians are comparing themselves to President Lincoln. This is an old pattern. After David McCullough’s Truman became a bestseller, the political class was busy drawing Truman comparisons. Now they are busy drawing Lincoln analogies. (Perhaps because he is from Illinois, President Obama has been comparing himself to Lincoln for years.) This pattern should not surprise us. John Adams noted that the most fundamental passion in the breast of politicians is the desire to be seen, to be noticed, to be loved: “The desire of the esteem of others is as real a want of nature as hunger; and the neglect and contempt of the world as severe a pain as the gout or stone.” Politicians hope to turn America’s affection to their own benefit by associating themselves with Lincoln, or Washington, or Truman, etc.
Reflecting on Lincoln and our current political impasses, Congressman Davis of Illinois suggested that President Obama should imitate President’s Lincoln’s “Emancipation Proclamation,” and proclaim the federal debt limit raised by executive fiat: “I think that we should have enough faith and confidence in the president and the president ought to have the authority to make that decision without Congress.” Here we have the kind of simplistic analogy that it’s best to avoid. The Emancipation Proclamation was a carefully hedged legal maneuver; it was not simply an end run around a legislative impasse.
Although Southerners have long claimed that President Lincoln essentially assumed dictatorial powers, just as they claimed that the constitution was an essentially racist document, designed to defend slavery, Lincoln, in fact, was at pains to preserve the rule of law, just as he always maintained that the constitution was not a pro-slavery document. The Emancipation Proclamation is a good case in point.
The Emancipation Proclamation declared that “all persons held as slaves within any State or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free.” The proclamation did not address the question of slaves in territory that was not in rebellion. Lincoln lobbied hard for the Thirteenth Amendment to achieve that end. Indeed, some Lincoln critics claim that the Emancipation Proclamation, in fact, freed no slaves–since the President had no practical authority in areas under rebellion.
The Emancipation Proclamation was a war measure. Under the laws of war, the confiscation of property was a legal measure, and, according to the laws of the states in rebellion, the slaves were property. Hence it was perfectly legal, under the laws of war, to confiscate slaves as a certain species of property. Perhaps it would be more accurate to say that the Proclamation made void all claims to slave property in areas in rebellion. Lincoln understood that his authority extended that far, and not farther.
In this, Lincoln was following a path outlined by John Quincy Adams in the 1840s. When abolitionists like William Lloyd Garrison were declaring the Constitution a “a covenant with death and an agreement with hell” for sustaining slavery (in effect, Garrison held that the South was correct about the meaning of the Constitution), and some abolitionists wished somehow to end slavery by fiat, Adams, then the leading anti-slavery statesman in the Union, suggested that the only legal way to end slavery in the Union without a constitutional amendment or action by the Southern states, would be action under martial law, if there were a civil war. (Since the story of South Carolina from 1789 to 1860 was “if at first you don’t secede, try, try again,” it was not unreasonable to think such a war might take place). Were there a civil war, Adams reasoned, the President could do exactly what Lincoln did–free slaves under the President’s war powers.
Following Adams, Lincoln understood that law matters, even in war. The American President has extensive war powers, but he is not a Roman dictator. President Lincoln was in charge of a Union dedicated to the rights of men, which included the rights of men to self-government. That being the case, it was of fundamental importance to achieve the Union’s ends in the war without subverting the rule of law–the idea that law applies to politicians, bureaucrats, elites, and common citizens alike. Dismissing laws for being in the way of achieving good ends would ultimately subvert the very rule of law that Lincoln upheld.
That returns us to historical analogies. Lincoln was very much aware that he was following the example of the founders. They did not end slavery in the South because they could not do so without subverting the rule of law. Lincoln distinguished between the founding generation’s principled opposition to slavery from the practical reality that slavery was, in fact, a legal institution in the U.S. in 1776. Among the leadership class of the Revolution, “all men are created equal” meant all men, and not all white men. That’s why they ended slavery in the North, banned it in the Northwest, ended the slave trade in 1808, and why many who owned slaves, most notably George Washington ultimately set their slaves free. To be sure, a few members of this class, most notably those from South Carolina disagreed.
Change, particularly in a democratic republic, is not easy. The rights of men operate on two levels–the rights of individuals to life, liberty, and to pursue happiness, among other rights, and the rights of individuals, in their political capacity, to live under laws of which they approve. The tension between the individual and the city is inevitable and inescapable. Given the second set of rights, the rights of men to control the laws under which they live, the moves the founding generation made against were not a bad start. As Lincoln knew, doing more against slavery would, quite probably, have subverted the very democratic process which the rights of men demanded.
Quite often, when politicians compare themselves to the great men and women of the past, it is part of an effort to steal a base–to help them forward a pre-approved agenda. Such efforts are probably inevitable in human life. The only way to keep the politicians in line is to know our history. Simplistic historical analogies will be made. To some people, every compromise abroad is a “Munich,” or every troop deployment is a “quagmire,” after the fashion of Vietnam. That won’t do. The only way to combat them is to expose their simplifications to create a better informed citizenry.
David Nichols, “Abraham Lincoln’s Constitutionally Modest Proposal”
Allen Guelzo, “A Complicated and Constitutional Act of Liberty and Justice“