Archives for March 2018

Americans declare their independence, assert their right to govern themselves, by announcing their recognition of the natural equality of “all men.” By natural equality they mean equality of “unalienable rights” to life, liberty, and the pursuit of happiness. men institute governments—which are not natural, which are alienable—in order to secure those rights. Governments derive their just powers from “the consent of the governed.” That is, the security of rights depends upon self-government. Tyranny, government without the consent of the governed, fails to secure the rights men institute government for.

In the first essay of The Federalist, Publius raises the question of the feasibility of government by consent. Can “societies of men” establish “good government”—government that really does secure unalienable rights–by “reflection and choice” rather than by “accident and force”? Self-government requires reflection or reason and choice or free will. Neither an accidental accumulation of customs and practices nor acquiescence to superior power can satisfy the nature of rational creatures equally endowed with unalienable rights. But can human beings actually exercise their reason effectively? Can they really govern themselves? Or will self-governing societies fragment into colliding atoms of self-interested ambition?

In the 1850s American self-government began to break down in a dispute over self-government, a dispute that would end in civil war. In the 1860 presidential election, a few months before the secession of the Southern states, each of the four candidates advanced his conception of self-government.

Two of those candidates, the Republican Abraham Lincoln and the Democrat Stephen Douglas, had themselves collided politically several times in their state of Illinois. Although Lincoln discusses the theme of self-government throughout his career, he actually uses the term only in the period 1854-59, i.e., during his Illinois years of rivalry with Douglas. He does this because Douglas had appropriated the term in ways Lincoln found to be contradictory to the moral and political principles of the American founding.

Background
In the years following the ratification of the 1787 constitution, Americans ended slavery in the northern states, where there were relatively few slaves, but failed to do so in the Southern states, where the ratio of free (mostly white) citizens to slaves was only two to one. Worse, while many slaveholders of the founding generation looked forward to the gradual abolition of slavery, subsequent generations began to attempt to justify slavery as the cornerstone of Southern political, social, and economic life. As the Northern states prospered economically and Northerners settled Western territories, slaveholders became increasingly apprehensive of abolitionist sentiment. The prospect of a constitutional amendment banning slavery yearly became more ominous to them. If enough new, free states were admitted to the Union, slavery might be voted out of existence by constitutional amendment.

Northern and Southern politicians assuaged these fears and averted disunion by enacting the Missouri Compromise of 1820. According to its terms, Missouri would be admitted into the Union as a slave state, but no slaves would be permitted north of latitude 36%-30′. Thirty years later, as new territories in the far West were settled, the controversy seemed to be settled by the Compromise of 1850. According to the terms of that act, California, the Oregon territory, and the territory now occupied by the states of Kansas, Nebraska, and Montana were kept slave-free; the New Mexico Territory would be allowed to vote slavery up or down. Finally, the Southern states would benefit from a new, stringent fugitive slave law.

This agreement unraveled in 1854, thanks to the Kansas-Nebraska bill proposed by Senator Stephen Douglas. Douglas envisioned Chicago as the eastern terminus of a railroad to the Pacific. Having invested in railway stock and Chicago real estate, he stood to profit financially as well as politically from this project. But Southern senators wanted a railway on a southerly route. Perhaps in order to overcome their opposition to his plan, Douglas proposed that Kansas and Nebraska settlers be permitted to vote on the question of whether slavery could exist in their territories: popular sovereignty would prevail over the terms of the Missouri Compromise. Some Southerners, attracted by the prospect of adding at least one new slave state to the Union (Kansans leaned toward slavery), allied with northern Democrats to pass the bill.

After opposing the Mexican War as a congressman in the late 1840s on the grounds that adding to American territory in the Southwest would extend slavery, Abraham Lincoln returned to Illinois neither with his shield nor on it. While not abandoning politics altogether, he saw little hope of success as a Whig in predominately Democratic Illinois. But the Kansas-Nebraska Act alarmed anti-slavery men throughout the North. Lincoln ran for the Illinois state legislature in 1854, attacking Douglas, the Democrats, and the repeal of the Missouri Compromise. This election resulted in statewide gains by anti-slavery candidates. But the real collision didn’t come until 1858, when Lincoln opposed Douglas for the United State Senate and confronted him in a series of debates that won national attention. By them, the author of the Kansas-Nebraska Act had won back some support from anti-slavery men by opposing the pro-slavery Lecompton Constitution of Kansas on the grounds that it had not been ratified by a genuine majority vote of Kansas citizens.

 

How Douglas Conceived of Self-Government

Douglas defined self-government as “the great principle that every people ought to possess the right to form and regulate their own domestic institutions in their own way” (Chicago, 7/7/58). Further, self-government means that “every community [may] judge and decide for itself, whether a thing is right or wrong, whether it would be good or evil for them to adopt it.” Self-government so defined is “the birthright of freemen,” and involves “the right of free action, the right of free thought, the right of free judgment”. Slavery is no exception. “You must allow the people to decide for themselves whether it is a good or an evil,” just as they vote yes or no on liquor laws, banking laws, and school budgets.”

The American Founders endorsed such popular sovereignty for the states in order to honor diversity. “The laws and domestic institutions which would suit the granite hills of New Hampshire would be totally unfit for the plantations of South Carolina” (ibid.). Separate and distinct interests and conditions require separate and distinct laws. “Uniformity is the parent of despotism the world over, not only in politics, but in religion.” Diversity is therefore “the greatest safeguard of all our liberties.”

When pressed by Lincoln, who cited the Declaration of Independence’s assertion of natural equality of all men, Douglas demurred. While men of “inferior race to the white man” should enjoy “rights, privileges, and immunities,” “each State must decide for itself the nature and extent of those rights” (ibid.). As for himself, Douglas favored “preserving not only the purity of the blood, but the purity of the government from any mixture or amalgamation with the inferior races.” Racial amalgamation exists in Latin America, and “its result has been degeneration, demoralization, and degradation below the capacity for self-government.” While I do not question Mr. Lincoln’s conscientious belief that the negro was made his equal, and hence his brother… for my part, I do not regard the negro as my equal, and positively deny that he is my brother or any kin to me whatsoever” (Ottawa, 8/21/58). “I hold that this Government was made on a white basis, by white men, for the benefit of white men and none others. I do not believe that the Almighty made the negro capable of self-government” (Jonesboro, 9/15/58). This does not mean that blacks deserve enslavement; Douglas denies any intention to change the status of Illinois from a free to a slave State. But blacks deserve no civil rights in Illinois or anywhere else, and States should decide on blacks’ civil status, “consistent with the public good,” as the voters in each state conceive the public good (Ottawa, 8/21/58).

Further, the phrase “all men are created equal” has nothing to do with all men—only white men. The signers of the Declaration of Independence freed not a single slave (Jonesboro, 9/15/58). They all represented colonies in which slavery was legal. The author of the Declaration himself owned slaves. “Did he intend to say in that Declaration, that his negro slaves, which he held and treated as property, were created his equals by Divine law, and that he was violating the law of God every day of his life by holding them as slaves?” (Galesburg, 10/7/58)

In attempting to remove the issue of slavery from the halls of Congress, by attempting to de-nationalize the issue and make its fate depend upon local majorities, Douglas position himself as a man of moderation, occupying the sensible center between the abolitionists of the North and the slaveholders of the South. Conceived as popular sovereignty, self-government rests on that ostensible middle ground; it alone, Douglas claims, can preserve peaceful constitutional government in the United States. With popular sovereignty acknowledged as America’s fundamental principle, there can be no civil war. With popular sovereignty, the Founders’ legacy of government by choice instead of government by force can endure.

 

Lincoln’s Rejoinder 

Lincoln replied to each of Douglas’s five arguments. In so doing, he deranged Douglas’s balancing act between antislavery Northerners and proslavery Southerners. He lost the Senate race but won the presidency two years later. The middle ground proved untenable. It may not even have been a true middle ground.

Against Douglas’s definition of self-government as community self-determination, Lincoln reminded Americans that no community can override the nature of humanity itself. “[T]he most dumb and stupid slave that ever toiled for a master, does constantly know that he is wronged” (Fragment on Slavery, 7/1/54). Conversely, slaveholders never volunteer to be slaves. Slaves may be treated as property in slave states, but slaves are in fact persons. To introduce slavery into federally-owned—that is to say, nationally-owned—territories must be morally wrong, an attempt to override the human nature of blacks (Speech at Bloomington, 9/26/58). “When the white man governs himself, that is self-government; but when he governs himself, and also governs another man, that is more than self-government—that is despotism” (Speech at Peoria, 10,16/54). Douglas defines self-government as the birthright of freemen, that is of citizens. Lincoln defines self-government as the birthright of man as such.

Lincoln refutes Douglas’s argument from diversity on the same grounds. Douglas’s analogy is wrong. Slavery is not the same as livestock management, because men are not cattle, to be herded by their owner from one place to another. Different laws and customs in response to differences in geography, climate, and soil are no excuse for injuring human nature and violating its rights. Slavery does exactly that (Ottawa, 8/21/58).

Centrally, Lincoln rejects the claim of radical racial inferiority of blacks asserted by Douglas. this is not to say that he proclaims racial equality in all respects. “I agree with Judge Douglas [that the black man] is not my equal in many respects—certainly not in color, perhaps not in moral and intellectual endowment. But in the right to eat the bread, without leave of anyone else, which s own hand earns, he is my equal and the equal of Judge Douglas, and the equal of every living man.” (Ottawa, 8/21/58). The “physical difference” between blacks and whites precludes “the two races [from] living together on social and political equality”; Lincoln leaves open the possibility of living apart in equality, that is, as separate nations. While they do remain together, “I as much as any other man am in favor of having the superior position assigned to the white race” (Charleston, 9/18/58). This does not bespeak ‘racism’; it rather bespeaks a lack of hypocrisy. Black and white men are surely ‘unequal’—that is, not the same—physically, in skin color. This difference will preclude what later generations called racial integration. But such a superficial difference simply gives no warrant for the extension of slavery into national territories, which was the issue before Americans in 1858.

In making slavery a matter of moral indifference on the ground of asserting the radical inferiority of the black man—to treat the black man as property, a being of some other, lesser, species—Douglas “penetrat[es] the human soul and eradicate[es] the light of reason and the love of liberty in this American people” (Ottawa, 8/21/58). Moral complacency with respect to slavery will have the effect of diluting antislavery sentiment where no slavery now exists, weakening resistance to slavery among the citizens of free states. Thus Douglas’s version of self-government will tend to undermine itself by diluting citizens’ fidelity to the principle of liberty as a natural right. If, however, you admit (as Douglas does) that slavery is wrong, you “cannot logically say that any body has a right to do wrong,” to vote for slavery. “You cannot institute any equality between right and wrong” (Galesburg, 10/7/58).

Regarding Douglas’s history lesson on Thomas Jefferson as a slaveholder, Lincoln. cites Jefferson himself against slavery (Galesburg, 10/7/58). On slaveholding, Jefferson wrote, “I tremble for my country, when I remember that God is just.” Jefferson had seen no practicable way to end slavery in the Southern states in his time. (One might add, although Lincoln does not, that as a lifelong debtor, Jefferson had indeed seen no practicable way to end slavery in his own household, although one might wish he had practiced more stringent economy.) Nonetheless, he was an abolitionist, if an ineffectual one. As for the Founders generally, they did not make the nation half-slave and half-free. Or rather they did: putting slavery on the road to extinction in those States where slaves did not comprise a substantial part of the population. And they attempted to place it “in the course of ultimate extinction” by permitting the federal government to prohibit the slave trade (Quincy, 10/13/58; Alton, 10/15/58).

Finally, Lincoln argues, Douglas’s hope that popular sovereignty can serve as an instrument to end America’s constitutional crisis over slavery will not work. The federal constitution refers to slaves not as property but as persons (Alton, 10/15/58). To reverse the constitutional formula is to innovate, not conserve. The Kansas-Nebraska Act represents an attempt to revolutionize the work of the Founders, not to continue it (Jonesboro, 9/15/58). The more recent decision by the Supreme Court is the Dred Scott case, holding that the slaveholder’s property right is absolute and that it extends to slaves. Douglass endorsed that decision, which flatly contradicts not only the language of the U. S. Constitution but also Douglas’s doctrine of popular sovereignty. The incoherence of Douglasian constitutionalism points to the untenability of a Union part slave and part free.

This is the argument of Lincoln’s most famous speech of the 1850s, “A House Divided” (Springfield, 6/16/58). “Either the opponents of slavery will arrest further spread of it, and place it where the public mind shall rest in the belief that it is in the course of ultimate extinction”—thereby returning to the intentions of the Founders—”or its advocates will push it forward, till it shall become alike lawful in all the states….” (ibid.)—returning to the circumstances of 1776 and reversing a principal political effect of the Declaration of Independence and the Constitution, the establishment and enhancement of self-government. Popular sovereignty will collapse right into self-interest (Peoria, 10/16/58). Douglas’s popular sovereignty reverses the Founders’ formula. For Douglas, popular sovereignty flows from constitutionalism and constitutionalism flows from radical racial superiority—the self-interest of whites. For the Founders, constitutionalism flows from popular sovereignty—the Constitution was ratified by the people—but popular sovereignty derives from equal natural rights, from the equal right of every person to the self-government that secures those rights. For Lincoln as for the Founders, the self that is governed must be governed by the better angels of our nature, or else it is not a fully human self at all.

The house did divide. On that, Douglas was right. Self-government as Lincoln conceived it could not vindicated without civil war. That war could only be justified, and was justified in Lincoln’s Gettysburg Address, as a new birth of freedom, an extension of self-government, of secure natural rights for all Americans. The fact that this security did require universal civil rights—again in accordance with the argument of the Declaration—was to be learned and relearned in the following hundred years.

 

Garry Wills: Lincoln at Gettysburg: The Words That Remade America. New York: Touchstone, 1992.

 

At Gettysburg, Garry Wills writes, Lincoln “revolutionized the [American] Revolution by “one of the most daring acts of open-air sleight-of-hand ever witnessed by the unsuspecting” (38). In so doing, he substituted a “new constitution” for the old one. More than a mere rebirth, the new birth of freedom fundamentally transformed American politics.

Lincoln effected this revolution by treating the Declaration as if it were “founding law,” and not simply a declaration (145). By doing so, he constitutionalized the principle of equality, which appears nowhere in the 1787 Constitution itself. Union, which had preceded that constitution, became a legal reality for the first time, no longer only a “mystical hope” (145), as limned in Lincoln’s “mystic chords of memory” speech on the eve of the war. These United States became this United States; we became one, by law.

Wills recognizes that some of the Framers and some of the most prominent constitutional lawyers all along has asserted such a conception of constitutional union founded upon the sovereignty of Americans as one people. But by winning the Civil War and speaking so persuasively at Gettysburg, Lincoln made that theory a political reality. He won the consent of the governed for the idea of national unity.

Well in advance of Garry Wills, Lincoln’s opposite number, President Jefferson Davis of the Confederate States of America, agreed with Wills’s characterization of Lincoln’s accomplishment, although he cannot be said to have shared Wills’s evaluation of it. Unlike Calhoun, who called the equality of unalienable rights a self-evident lie, thereby dismissing the authority of the Declaration of Independence altogether, Davis refused to concede an inch of principled ground to the North. The Declaration of Independence, he said, declared the self-government of the American people as states—i.e., as thirteen sovereign peoples. The 1787 Constitution does not refer back to the Declaration at all. “Unlike the governments of the States, which find their origin deep in the nature of man”—in certain unalienable rights—the federal government “sprang from certain circumstances which existed in the course of human affairs, lacking any authority but the ratification of the sovereign [peoples or] States.” The peoples instituted their State governments in order to secure the unalienable rights of man; the federal government, by contrast, was instituted only to secure the objects enumerated in the Constitution, objects delegated to that government by the states, the peoples. Therefore, no sovereign people can be “disloyal” to the United States government. The sovereignty of the peoples implies the right to secede from the Union. In denying this right, and in enforcing that denial, the United States government effected an “entire subversion of those principles on which the American Union was founded” because “the alternative to secession is coercion,” the abrogation of consent. The dress rehearsal, so to speak, for this subversive drama played out in the North itself during the Civil War, when Lincoln suspended the writ of habeas corpus, ordered warrantless arrests, and otherwise abridged “personal liberty” by “military domination” of “the northern peoples.” [1]

To Davis, then, Lincoln is a revolutionary subversive, an Illinois Cromwell leading a fanatical band of abolitionist neo-Roundheads on a tyrannical adventure of death and destruction. The legal entrenchment of equality in a powerful national government will bring Americans to their knees before a new Moloch, the State, which will replace the States, thereby destroying the very equality it pretends to vindicate.

This is no mean argument in either the benign formulation of Wills or the jaundiced view of Davis. The line of succession goes from Calhoun to the Confederates to Willmoore Kendall to Wills, who knew Kendall at Yale, and retains the Kendallian interpretation of the relation between the Declaration and the ‘old,’ pre-Lincolnian, Constitution with respect to the status of the States. Back in his ‘conservative’ years, Wills was an unabashed Calhounian. [2]  Pats of the Lincoln-as-revolutionary argument closely resemble the truth. In considering the argument I shall first look more closely at the Gettysburg Address and the Second Inaugural Address. I shall then compare Lincoln’s claims not with those of such commentaries as Joseph Story and Daniel Webster but with those of Jefferson and Madison, close colleagues known for their decisive involvement in the events of 1776 and of 1787, respectively.

In declaring their independence, Lincoln said, “our fathers,” the Founders, “brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.” Conceived, brought forth, created: this is the language of childbirth. It is a paradoxical childbirth, associated with fathers, not mothers. “Conceived” and “brought forth” are from Numbers 11. Moses asks his angry God, “Was it I who conceived this people? Was it I who brought them forth, that thou shouldest say to me, ‘Carry them in thy bosom as a nursing father beareth the suckling child, unto the land which thou swearest unto their fathers?'” Americans, the new Israelites, were brought forth from Egypt/the British Empire and the tyranny of Pharaoh/George III. Moses/Washington cannot bear this burden alone. God tells him to gather the elders, and say to the people, “Consecrate yourselves for tomorrow, and you shall eat meat, for you have wept in the ears of the Lord….” The Lord’s Spirit will now be upon not Moses alone, but upon the elders. Moses wishes that the Spirit of prophesy were upon the whole people (Numbers 11.28).

The Declaration calls Americans a people, a people who existed before and after independence. Lincoln describes the bringing forth of “a new nation”; a nation must be an independent people. This independent people was conceived in liberty; long before independence, before George III and parliament designed to reduce them to slavery, Americans had enjoyed civil liberty. The new nation was “dedicated to the proposition that all men were created equal.” In part because Britain had required some colonies to permit slavery and, as recently as 1769, had vetoed a colonial enactment to suppress the slave trade, Americans had not secured the God-endowed unalienable right of equality; the slaves obviously had not, but neither had the free, precisely because the violation of your natural equality potentially threatens mine, even if mine seems secure. Americans rejected the principle of slavery even as they tolerated its practice; this Lincoln had demonstrated unanswerably in his address at the Cooper Institute in New York City in February 1960.

“We hold these truths to be self-evident, that all men are created equal” in their “unalienable rights” of life, liberty, and the pursuit of happiness. The truth of the Declaration has become a proposition in Lincoln’s language, but is no less true therefore; he means that equality is the premise of a syllogism (the Declaration is an extended syllogism) or an axiom of a proof. The nursing fathers of the Declaration had held the truth of human equality to be self-evident. But Americans since then, like the Israelites, had disregarded the laws of Nature and of Nature’s God. “When we were the political slaves of King George, and wanted to be free, we called the maxim, ‘all men are created equal,’ a self-evident truth; but now when we are grown fat, and have lost all dread of being slaves ourselves, we have become so greedy to be masters that we call the same maxim ‘a self-evident lie.'” [3] The loss of the dread of tyrants leads a selfish and stiff-necked people to insufferable pride, bespeaking a less of the fear of God, who created men and endowed them with unalienable rights, and who allows tyrants to serve as the scourge of the wicked (Romans 13).

The Civil War—the judgment of God upon the new Israelites—tests “whether that nation, or any nation so conceived and so dedicated”—Israel old and new are particular nations with universal significance—”can long endure.” In his Independence Day message to Congress two years earlier, Lincoln asked if all republics had the “inherent, fatal weakness” of needing a government too strong for the liberties of the people or else of having  a government too weak to defend itself. A republic, a nation dedicated to natural equality, requires popular sovereignty to secure it. Its government, popular self-government, must find a way to survive an appeal from lawful ballots—the election of Lincoln—to unlawful bullets. As labor is prior to capital, the people are prior to government; only a government that oppresses its people, attacks the people’s own laws, can justly be overthrown by force. The people of Israel left Egypt, the tyrannical rule of Pharaoh, but did not thereby release themselves from the law of God. Just the opposite: to survive, they must bind themselves all the more closely to the life-giving, right-giving God, as “the sheep and the wolf are not agreed upon the definition of liberty” (Sanitary Fair Speech, April 18, 1864). What is self-evident to the sheep is not self-evident to the wolf, a predator who would take the product of labor from others, up to and including their liberty and their lives—destroying political freedom on the same principle.

The consecration by the people of the Gettysburg cemetery, their dedication to “the unfinished work” of the nursing fathers who brought them forth from Egypt but did not see them enter the Promised Land, will mean that the Spirit of the Lord—for the new Israelites, the truths of the Declaration—will be upon not only the nursing fathers but upon all the people. The new birth of freedom means the emancipation of the slaves and the full emancipation of the free, including the former slave-masters, who have contradicted their own right to rule by claiming a universal truth as a particular entitlement for themselves. Contrary to Wills, the Gettysburg Address does not entrench equality in the Constitution; the Address never mentions the Constitution at all. Lincoln never suggests that the Constitution contradicted the Declaration; as Lincoln had argued at the Cooper Institute, the directly unmentioned institution of slavery is acknowledged only in the sense that it is the scaffolding of the Framers’ political construction, intended to be removed once the edifice is completed.

The new emancipation required a new political ‘testament,’ which is the Second Inaugural Address. “Woe unto the world because of its offences! For it must needs be that offences come; but woe to that man by whom the offense cometh!” Those are the words of Jesus of Nazareth, not Moses, of the New Testament, not the Old. They comprise a threat to the proud and a guarantee to the humble. Moses, the humblest man of his time, governed a prideful, stiff-necked people, swollen with new-won liberty. As God starved the Israelites out of their pride, in fourscore wilderness years, so God has punished Americans, slave-masters and non-slaveholders alike, with “this terrible war,” retribution for slavery and for the toleration of slavery. Psalm 19, singing of the perfect law of the Lord, His judgments true and righteous altogether, and of his servants who pray not to commit “presumptuous sins” or transgressions against that law, stands against the self-righteousness of the old, and now the new, Israelites. Lincoln would guard against the continued arrogance of the victorious, not only the Thaddeus Stevenses of the world but any Northerner who might preen himself on victory over the South. A just and lasting peace among Americans, and other nations, eschewing the malice and hard-heartedness of the proud, must proceed with charity and firmness in the right, “as God gives us to see the right.” Truths are truths, whether self-evident or not, but few truths are self-evident to the same people at all times. A people must humble itself to see clearly, to enable itself to hold the truth of equality to be self-evident. In the Second Inaugural, Lincoln seeks to make certain truths self-evident, again, by pointing to the horrors of war as punishment for slavery. Self-government means self-limitation, involving humility in power as well as self-assertion when confronted with tyrannical power. The principle of equality requires the highest degree of self-government in a people and its representatives. Otherwise, God will do harshly what His people should do themselves, gently.

No more than in the Gettysburg Address does Lincoln mention the Constitution in the Second Inaugural. He mentions the nation and the Union. The Declaration did not need to be entrenched in American law because it already was. Madison had held that the Declaration was “the fundamental act of union” of the States (G. Hunt, ed.: The Writings of James Madison, 219-221). The Declaration was placed at the head of the statutes-at-large of the United States Code, and was described as one of the organic laws of the United States. The Declaration and the Union precede the Constitution, which is designed to for a more perfect Union than the one which had existed between 1776 and 1787. Unless a more perfect Union can somehow be claimed to mean one that explicitly supersedes the principles of the Declaration—a claim that could only be sustained by claiming that the Constitution’s indirect acknowledgment of slavery is such a supersession—then the Wills argument collapses and Lincoln must be admitted to be right. That is, Lincoln’s Second Inaugural is to the Constitution what the New Testament is to the Old Testament in the eyes of the Protestant Christians who prepared and used the King James Bible, Lincoln’s Bible. To such readers, the New Testament affirms the Old while extending it beyond the Jewish people to all peoples. Similarly, the Constitution secured equal rights for some Americans; the Second Inaugural points to the constitutional amendments that Lincoln recognized to be necessary in order to entrench that universalization in law.

But what did the American Founders themselves think? Lincoln had canvassed their views in his 1859 speech to the Cooper Institute in New York, finding that they opposed slavery in principle. I shall consider briefly the exchange between Jefferson and Madison on Jefferson’s proposed text for law students at the University of Virginia. The anthology was to include writings by John Locke and Algernon Sidney, the Declaration of Independence, The Federalist, and the Virginia Report of 1799. Madison reviewed these suggestions and agreed with Jefferson’s intent: “It is certainly very material that the true doctrines of liberty, as exemplified in our Political System, should be inculcated on those who sustain and may administer it.” For this purpose, Locke and Sydney “are admirably calculated to impress on young minds the right of Nations to establish their own Governments, and to inspire the love of free ones.” The Declaration is also “rich in fundamental principles.” But such principles “afford no aid in guarding our Republican Charters against constructive violations”—that is, against misconstruing, misinterpretations innocent or malicious. For such aid, the students need to study The Federalist, along with Washington’s First Inaugural and Farewell Address. Law students need to understand the legal, institutional structure that secures rights, as well as the rights themselves. (See Madison’s letter to Jefferson, February 8, 1825.) As both men knew, The Federalist in its central essay links the Declaration of Independence to the Constitution by referring to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions should aim and to which they must be sacrifice. There is simply no suggestion, by any of the principal American Founders, that the natural rights enunciated in the Declaration are contradicted—as distinguished from qualified—by the Constitution. To put it in Lockean terms, the laws of the social compact, of civil society, will differ from the rights of the state of nature. But those laws are intended to secure those rights; they will inevitably do so imperfectly, but unless their overall effect is such security, they are not legitimate. Neither Jefferson, Madison, nor Lincoln disputed the overall security of rights under the Constitution, even as all three men also regarded slavery as a specific contradiction of natural rights.

What, then, of Jefferson Davis’s claim that the Constitution only addresses the relations among States, not the rights of individuals within the States? This is partly true; the Constitution after all constitutes a federal government, under which the States preserve many rights of self-government. But the claim is also partly false. The Constitution does operate on individuals, not only on States; in this it differs from the Articles of Confederation. Publius calls the new governmental system, “party national, partly federal.” Davis and Wills claim that it was wholly federal, against the words of The Federalist. They are antifederalists in disguise—Davis in a thoroughgoing way, Wills (since his turn leftward) only insofar as he interprets the intentions of the Founders. The phrase, “the people of the United States” makes sense as both the peoples of the States and the peoples of all the States collectively. If not, then such phrases as that from The Federalist quoted above, and such a document as the Northwest Ordinance (which prohibits slavery in the territories) simply do not make sense. Otherwise, there is no Union, only an alliance. But the Constitution constitutes a government, not an alliance.

The Federalist shows how the federal government can operate by means of popular consent without the violations of civil and natural rights that undiluted ‘democracy’ in the original Greek sense permitted. The old democracy rested upon pure popular sovereignty; no natural rights were reserved against popular opinion. Tellingly, the Greek democracies also rested upon slavery and religious intolerance. And why not? If justice is what the majority of citizens say it is, and then majority says that slavery and religious intolerance are just—’positive goods,’ so to speak—then there can be no problem. The American Founders resisted pure or ‘majoritarian’ democracy as a threat to the security of rights government is designed by the people to effect. In this, Lincoln follows them, extending the protection of civil rights to Southern blacks by emancipating many of them during the war and by advocating the adoption of antislavery constitutional amendments. This is not a constitutional revolution, but rather a continuation and legitimate extension of the Founders’ enterprise.

As for Will’s claim that Lincoln caused ‘us’ to read the Constitution differently, I think it can be given short shrift. How many constitutional law scholars today connect the Declaration with the Constitution at all? Wills mentions none. Does the general public connect the two document? Perhaps vaguely: But has that changed at any time since the 1780s? Lincoln does not effect a revolution so much as he prevented one: a revolution which would have sundered the principles of the Declaration from constitutional government, by means of Douglasite ‘popular sovereignty’ in the North and in all remaining territories, and/or by means of Calhounite States’ sovereignty in the South. These were doctrines of nineteenth-century white-supremacist nationalism; the only thing to be disputed between them was the size and number of the nations. Lincoln prevented a revolution against natural rights.

Alexander Hamilton sees that impeachment poses a special problem for elective government. In Federalist 65, he writes that impeachment is designed to punish political offenses, that is, “the misconduct of public men,” their “abuse or violation of some public trust”—”injuries done to the society itself.” In a popularly-elected government, “the prosecution of [such crimes]… will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of the parties than by the real demonstration of innocence or guilt.” The Framers lodged the power of impeachment in the House, but lodged the power of conviction in the Senate, precisely so that the popular will could be registered, but at the same time would ultimately be expressed by that elective branch farthest removed from the passions of the moment. Thus the prosecutor (the House) is not also the judge. Thus also, the unelected Supreme Court does not make the decision, but its Chief Justice does preside over the Senate trial.

Given these safeguards, it is not surprising that serious impeachment attempts against presidents have been rare: Andrew Johnson in 1868, Richard Nixon in 1974, Bill Clinton in 1998. But it should be noted that impeachment has become a more likely event in the past 25 years, especially when it is remembered that the Iran-Contra investigation might have spun into an impeachment procedure, had not President Reagan’s alibi—’I didn’t know what was going on’—seemed plausible if one believed his enemies’ own ridicule-Reagan rhetoric for the previous six years. From what we now know about Reagan, it is likely that he cinched them into that very bind, but in any event they stepped right into a snare of their own making.

Despite these safeguard, the U. S. Constitution makes impeachment more likely than it is under, for example, the English Constitution, where the Prime Minister must head the majority party in the legislature, because America can have the presidency and the Congress controlled by opposite parties. As a sort of benchmark, it’s therefore worthwhile to see how impeachment played out in 1868, a time well removed from current political passions.

At that time Congress reaffirmed the Hamiltonian principle that impeachment is intended to check “abuse of power and public trust” for “defined, indictable offenses” (see Kelly et al. II. 342). Johnson allegedly had violated the tenure of Office Act, a statute Congress passed, many historians contend, precisely in order to force Johnson to violate it; defense maintained that the Act was unconstitutional, and therefore it could not be an impeachable offense to disobey, as (they admitted) Johnson had done. Although political in this broad sense, Johnson’s attorneys argued and won the point that the defendant could not be tried merely as the political opponent of the Republican Congressional majority; if solemnized, this standard would of course in effect turn the American federal government into a parliamentary system. Johnson was indeed being tried as the political opponent of the Republicans—or, not to trivialize it, as a very serious policy opponent. But it makes a difference if that can be openly admitted or not. If it can be openly admitted, then the evidence needed for conviction need only be: ‘He disagrees with us.’ If it cannot be openly admitted, then the impeachment proponents must prove that the president has committed high crimes and misdemeanors, and their motives for essaying that proof are legally irrelevant. This in turns feeds into the politics of the situation, inasmuch as voters who may not be quite so partisan as Congressmen will frown upon a too-nakedly-partisan trial.

House managers argued that Congress had as much right as Johnson did to say whether the Tenure of Office Act was unconstitutional. This was actually consistent with the longstanding Jeffersonian-Democrat claim that each branch of the federal government is entitled to interpret the Constitution within its own jurisdiction, so to speak. Johnson was saved not because the constitutional issues were settled, but because a sufficient number of conservative Senate Republicans did not want Johnson removed. As Kelly recounts, “they opposed the political and economic views of radical senator Ben Wade of Ohio, president pro tempore of the Senate, who would become president if Johnson were removed” (II. 345).

It is hard to avoid the conclusion that the one nineteenth-century impeachment was an anomaly, the product of the unusually high political passions engendered by the Civil War. Although divided government was possible then as now, it was uncommon. Divided government occurred only four times in the century, and on two of those occasions it occurred in the last years of the president’s term (Hayes in 1879-80, Cleveland in 1895-96), when it scarcely would have been worth the effort to impeach the fellow, anyway.

By the time of the Nixon contretemps, the divided character of the federal government had become much more pronounced than it usually was in the nineteenth century. Post-World War II presidents frequently endured long periods of majority opposition in Congress: Truman in the last two years of his first term; Eisenhower in the last two terms of his first term and throughout his second term; all six years of the Nixon Administration; all of Ford’s brief administration; all of George W. Bush’s administration; the last two years of Clinton’s first administration and all of his second.

Eisenhower and (for the first three years) Bush were much too popular to be impeached. Congressional Democrats contented themselves with growling about the Iran-Contra transaction and caviling about Sherman Adams’s vicuna coat. Ford was a weak president, slated for electoral defeat. But Nixon and Clinton, though popular generally for most of their terms, were viscerally disliked by core constituencies within the opposition parties, and that is what made the difference.

The Democrats were vastly helped in 1974 because Nixon really had committed impeachable offenses. Buoyed by his landslide victory over George McGovern in 1972, Nixon decided that he had a ‘mandate’ in effect to govern as he pleased—the so-called “plebiscitary presidency” (Kelly et al. II. 665). It is of course true that Nixon’s predecessor, Lyndon Johnson, had thought pretty much the same way, but he had the luck to have a Congress controlled by his own party. Additionally, Johnson had the ill luck to enmesh himself in the increasingly unpopular Vietnam War, which provided all the hook his Democratic Party opponents needed to get rid of him electorally, without legal action; a supremely astute politician when it came to anticipating electoral outcomes, Johnson spared himself considerable embarrassment by bowing out of the Democratic primary elections. At any rate, the political will to attack Nixon and reverse the results of the 1972 election was there, and the only real challenge was to find the decisive evidence against him. This was provided by the famous ‘smoking gun’ section of the White House tapes, in which Nixon specifically instructed his underlings to obstruct justice by lying under oath. Although Nixon resigned before being impeached, he did so because he knew he would be impeached and convicted; in effect, he was the second president to be impeached and the first to be convicted, although, again, neither of these things happened in fact or in law.

Clinton was equally despised by the opposition core. What liberal Democrats were to Nixon the conservative, the conservative wing of the Republican Party was to Clinton. With the examples of Watergate and Iran-Contra before them (the latter, while not resulting in impeachment, effectively hamstrung the second Reagan Administration, and so was an effective piece of political maneuvering), conservative Republicans had not only the motive and the means (a majority in both houses of Congress, beginning in 1995), they also had evidence of wrongdoing that hit the most impassionating ‘hot button’ on their constituents’ dial: passion itself, a sex scandal during the course of which the president committed what were arguable impeachable offenses, namely, perjury and obstruction of justice in a civil lawsuit.

Few but the most naïve partisans believed that Clinton was not a serial adulterer and inveterate liar, but character flaws typically are addressed electorally, not legally, and Clinton had been reelected easily in 1996. These character flaws were precisely the kind that animated the conservative constituency, however, so what was needed was proof that Clinton had committed illegal acts that were public in character, according to the Hamiltonian definition. Such proof eventually came in the forms of telephone tapes and the celebrated DNA dress, lovingly preserved by a former Clinton inamorata. Because in Clinton v. Jones the Supreme Court had ruled that a sitting president can be sued for private actions unconnected to his public duties, Clinton had been forced to testify in the Paula Jones lawsuit case; instead of ‘taking the Fifth,’ his most prudent available move, he decided, as usual, to brazen his way out and to deny everything. Some of ‘everything’ turned out to be true; Clinton was caught in perjury and obstruction of justice, and arguable grounds for impeachment were handed to his political enemies.

In arguments before the House, representatives Inglis and Canady observed that high crimes and misdemeanors are “offenses against public justice, against the public peace, against public trade, and against the public police or economy”; they include perjury and obstruction of justice. Clinton could not consistently respond that he was guilty of merely private wrongdoing (although his handlers did, anyway) because in addition to lying he had invoked executive privilege during the months-long investigation by the Special Prosecutor, in yet another series of attempts to delay the process. The Democrats in Congress were reduced to arguing that, yes, Clinton had indeed perjured himself and obstructed justice, but he had done so in matters that themselves had nothing much to do with his official duties—private liaisons dangereuses, albeit some committed in the president’s offices at the White House. Although admittedly not all ‘private’ crimes could be so waved aside—murder and rape presumably would be off-limits—lying under oath about mere adulterous friskiness shouldn’t count. Democrats could then use words like “reprehensible” and “immoral” to describe Clinton’s behavior, but could also say his crimes did not “rise to the level of impeachable offenses.” That is to say, while Republicans stuck to the rigors of exact legality, Democrats proposed a sort of balancing test.

With 95% of House Republicans voting ‘yes’ and 95% of House Democrats voting ‘no,’ Clinton was impeached. The Senate, whose role ostensibly was to judge innocence or guilt of the crimes as defined rather than to undermine the House’s definition, predictably went ahead nd did what it wanted to do, which was exactly what the majority of their constituents wanted them to do: Let the guy off the hook and get on with other issues. There were the expected rhetorical gymnastics by the senators. My favorite was Olympia Snowe’s “Acquittal is not exoneration,” although Senator Breaux’s “[the President] is not innocent”—though presumably not guilty, either—ran a close second.

The inclination to paralyze rivals by means of Congressional investigations and sometimes impeachment has come to the surface mostly in the post-World War II period. Part of this may have to do with television, which is concurrent with the inclination: TV makes show trials more showy, whether it be McCarthy going after the Truman Administration, Sam Ervin reading from the Constitution during the Watergate hearings, or Bob Livingston immolating himself during Monica Madness Days.

More telling, perhaps, was the tendency of American voters to want two things. First, they have wanted to continue the basic New Deal apparatus of limited social provision. That means they have usually wanted Democrats running Congress, where so much domestic policy gets made. Recently, that has meant that they wanted Republicans running Congress; if the social-provision apparatus gets too extensive or burdensome, and if the people running it are seen as too corrupt, out Democrats will go and in will Republicans come.

Second, American voters have also wanted strong military defense, having decided that the Second World War resulted from the weakness of the democratic republics, and also having decided that communists were no better than fascists. For this stern task they have preferred Republicans, the party that has remained consistently ‘nationalist’ since its beginnings in the 1850s, and which never had a Henry Wallace/George McGovern wing that could be accused of harboring ‘no enemies on the Left’ sentiments.

With long-term partisan splits between the executive and legislative branches brought about by these dual policy goals of the American people, it is no surprise that infighting gets nasty. As always, politicians will be punished when the overreach, as Congressional Republicans were (mildly) in the 1998 midterm elections, and also as Vice President Albert Gore was punished in his attempt to succeed Clinton, a slightly creepy president he’d defended too-loyally. With the Cold War over, and with the Clinton fiasco in recent memory, will voters prefer undivided government for a time? They might have assumed this would cure the impeachment/investigate-to-death syndrome, but as it may happen with President Donald Trump, all you may need is a hostile fourth ‘branch’ of government, the federal bureaucracy, with allies in the ‘fifth estate,’ journalism, to roil the waters.

 

Work Cited

Kelly, Alfred H.; Harbison, Winfred A.; Belz, Herman: The American Constitution: Its Origin and Development. 2 volumes. New York: W. W. Norton and Company, 1991.