Lincoln and the Constitution

This short book by Professor Brian R. Dirck is another in the Southern Illinois University Press’ “Concise Lincoln Library” series. Short enough to be read in a single sitting, the book gives us the most current scholarship on Lincoln’s constitutional thought and actions.

Professor Dirck begins by tracing the development of Lincoln’s constitutionalism. “Even if he did not often directly encounter the Constitution in the courtroom, Lincoln’s law practice was nevertheless another important brick in the foundation of his constitutionalism. Constitutionalism is, among other things, a sense of how the law should function. Lincoln’s practice gave him an understanding of the various ways that the law worked itself out in the everyday lives of ordinary Americans, experiences that in turn gave him a deep pragmatic streak, as well as an appreciation for legal arguments that were simple and straightforward and avoided flamboyance. ‘In law it is good policy to never plead what you need not, lest you oblige yourself to prove what you can not,’ he admonished. Throughout his life, whenever Lincoln encountered thorny problems, his lawyerly instincts told him to value workable solutions, avoid showdowns, and exercise whenever possible the art of compromise. ‘Discourage litigation,’ he advised fellow attorneys. ‘Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser–in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.’ It was a philosophy that he would apply time and again throughout not only his legal career, but his political career, as well.” [p. 9]

In discussing Lincoln’s view of the Constitution, Professor Dirck writes, “His Constitution was a vigorous, flexible instrument, with the latent power in its language necessary to allow the government room to grow and maneuver, and to meet the exigencies of new times and challenges. Lincoln wanted a Constitution with teeth. This did not mean, however, that he advocated a dangerous, runaway interpretation of the Constitution that might justify any sort of power grab by the national government and its leaders. He was always sensitive to the possibility of tyranny and usurpation of power by ambitious American politicians. ‘Many great and good men sufficiently qualified for any task they should undertake, may ever be found, whose ambition would aspire to nothing beyond a seat in Congress, a gubernatorial or a presidential chair,’ he pointed out in his speech at the Springfield Lyceum: ‘but such belong not to the family of the lion, or the tribe of the eagle[.] What! think you these places would satisfy an Alexander, a Caesar, or a Napoleon? Never! Towering genius disdains a beaten path. … Is it unreasonable then to expect, that some man possessed of the loftiest genius, coupled with ambition sufficient to push it to its utmost stretch, will at some time, spring up among us? And when such a one does, it will require the people to be united with each other, attached to the government and laws, and generally intelligent, to successfully frustrate his designs.” [p. 11]

After his term in Congress ended, Lincoln went into political retirement. The Kansas-Nebraska Act of 1854 brought him out of retirement because it opened all the territories to slavery. Senator Stephen A. Douglas, who became Lincoln’s political nemesis in Illinois, was behind the bill, and he championed “popular sovereignty,” where the people of any territory would decide if it would be a slave territory or free territory. Lincoln searched for a constitutional argument to deploy. “We have seen the essential ingredients of Lincoln’s constitutionalism to this point in his life. His early romanticization of the Constitution and its Founding Father authors, and his robust, Hamiltonian broad constructionism, allowed him to argue for a strong federal government to promote American entrepreneurial energy. We have also seen the limitations on his constitutionalism prior to 1854: his distrust of the document as an instrument of reform, and his belief in a careful, balanced approach to constitutional power. Now Lincoln added in 1854 a new component, one that gave his constitutional vision an added moral impetus while still grounding it in pragmatism and tapping into the shared reverence felt by Lincoln and his contemporaries for the Revolutionary generation: the Declaration of Independence. ‘I have never had a feeling politically that did not spring from the Declaration of Independence,’ Lincoln would boldly proclaim in 1860. He seems to have been exaggerating here, for prior to 1854 he barely mentioned the Declaration at all. But sometime during the years leading up to the Kansas-Nebraska controversy and his political reawakening, Lincoln connected Thomas Jefferson’s ringing declaration of human equality to the cause of ending American slavery.” [p. 27] The Declaration wasn’t the only weapon from the Founders he harnessed. “This was shrewd political strategy, given the sacred place the Revolutionary generation occupied in the hearts of Americans. But Lincoln wanted to use the Declaration for something more than politics. To make his case that the Constitution was a fundamentally antislavery document, Lincoln needed to establish that the Founding Fathers were themselves antislavery, and that they had compromised with slaveholders in drafting the document out of the exigencies of the moment in 1787, hoping all the while to have set the institution on the ‘path of ultimate extinction.’ He did have other weapons besides the Declaration. He often referenced the Northwest Ordinance of 1787, arguing–as had some antislavery activists before him–that the ordinance’s ban on slavery spoke of their essential rejection of slavery. … For him, the Northwest Ordinance proved conclusively the antislavery bona fides of the Constitution’s Framers; and if the American people were interested in adhering to the Framers’ original intent, then they must acknowledge the Framers’ antislavery convictions.” [pp. 28-29] The 1850s saw turmoil in the nation, with Bleeding Kansas and the Dred Scott decision. In 1858, Lincoln ran for the Senate and engaged Stephen A. Douglas, “The Little Giant,” in a series of debates. Throughout the 1850s he articulated his antislavery position. “His Declaration-centered constitutionalism also demonstrates a gulf of intellect and principle between himself and Stephen Douglas. When confronted with a difficult constitutional problem–how to reconcile Dred Scott with popular sovereignty–the Little Giant articulated a solution that was politically expedient but constitutionally unworkable. Lincoln, on the other hand, showed that he was willing to stand upon a consistent constitutional doctrine even when doing so might cost him votes. He seemed to pander politically to the racism of his day by declaring his noncommitment to racial equality, but he also simultaneously told white voters, despite the censure of the Supreme Court and Stephen Douglas and the pervasive racism of the day, that the Declaration of Independence certainly did apply to black people. It was the measure of the man. It showed that Lincoln was indeed quite a bit taller than the Little Giant–and Roger Taney.” [p. 50]

Professor Dirck also addresses Lincoln’s relationship to the Constitution during his presidency, starting with the war the confederates started a little more than a month after Lincoln took office. “The Constitution is after all only scaffolding upon which subsequent generations of Americans have erected the details of the national structure as they have seen fit. Trouble was that in 1860, the war-making scaffolding was especially bare. Lincoln and the American people would be forced to erect the legal and constitutional structure of a very big war on the fly, often improvising to meet rapidly changing circumstances, all while under the tremendous pressure of fighting for the nation’s very existence. This was true not only for matters related to the battle front; the home front created daunting constitutional problems, as well, because in a civil war there often is no clear line delineating friend and enemy. Lincoln had to distinguish between those who expressed a healthy loyal opposition to his administration’s policies, and those whose opposition might cripple the war effort from within. … That mandate to ‘protect and defend’ was a broad-based, powerful legal tool enabling the president to justify serious security measures during wartime. Another tool at his disposal was suspension of the writ of habeas corpus. Latin for ‘have the body,’ the writ of habeas corpus was typically filed by an incarcerated person’s attorney as a way of compelling the government to prove it possessed sufficient evidence to make an arrest and was considered to be one of the most fundamental safeguards of a citizen’s civil liberties against a government that might use its police and military powers to jail people and throw away the key.” [p. 55] Professor Dirck then discusses how the Framers provided the US Government this tool to use in national emergencies to safeguard the public.

He also discusses the admission of West Virginia into the Union. “Strictly speaking, this was Congress’s mess more than the president’s, since the Constitution gives Congress authority over the procedures by which states are admitted into the Union. But Lincoln would have had to either sign or veto the bill that Congress eventually passed for West Virginia’s admission. The president was worried enough about the legality of the whole affair that he took the relatively rare step of soliciting written opinions from each cabinet member concerning the bill’s constitutionality. His cabinet was worried, too: Half supported the bill; the other half were opposed. Lincoln was not about to turn his back on the West Virginians, and half a cabinet was better than no support at all. He signed the bill and forwarded a message to Congress explaining why.” [pp. 70-71]

In a general statement about Lincoln’s view of the Constitution contrasted with another view, Professor Dirck tells us, “Lincoln needed a variety of legal tools, some never before tried or tested. He also needed the will and the means to take action when the existing laws were silent or inadequate to the exigencies of the war. To find the legal means necessary for defending his high end of the Union, Lincoln needed a Constitution that was adjustable to the rapidly changing circumstances of a massive civil war. He needed elasticity. Those Americans who approached the war from the perspective of a James Buchanan or a Roger Taney saw the Constitution as a strong but brittle instrument. Bend its words too far by reading into their meaning powers never intended by the Framers, and their Constitution would break. It was an admirable quality, this dogged tenacity with which they clung to strict constructionist, limited government principles, come what may. Their concerns about tyranny and runaway government authority were valid. But there was also a cure-the-disease-by-killing-the-patient dimension to their principles. Buchanan and Taney would have seen the nation dissolve and its Constitution shattered via a ‘peaceful separation,’ rather than violate their narrow interpretation of Constitutional language. Lincoln could ill-afford such a perspective. He faced a fluid and rapidly evolving situation, calling for constant adaptability and creative thinking. Sometimes the Constitution provided clear, unambiguous guidance–but more often not. More often there were gray areas, empty spaces between the Constitution’s words that needed to be filled, lest the enterprise of American democracy fall to pieces. Lincoln famously saw the war as the ultimate test of that democracy, and he saw its ruin in the success of the Confederacy, secession, and separation. So he acted; and his actions often bent and flexed the law and the Constitution to fit the odd new shape of the war.” [pp. 72-73]

He also looks into Roger B. Taney’s decision in Ex Parte Merryman regarding the suspension of habeas corpus. “Taney cared only about what the president could not do, should not do, and must be prevented from doing. Nowhere in Ex Parte Merryman–or anyplace else–did Taney mention the extraordinary dangers posed to the American community by secession and disunion. At  no point did he hint that a president was bound by oath to resist the destruction of the nation and dissolution of the Constitution’s democratic process. Taney’s Constitution in Ex Parte Merryman is an instrument of restriction, limitation, and restraint–it binds other than expands, and it flexes not at all to meet the unusual circumstances of civil war. Therein lay the problem with Taney’s constitutional vision in the Merryman case: It is myopic, the very soul of ‘cannot.’ Taney did make some valid points, and his concerns about presidential excess still resonate, even today. He spoke truth–yes, the Framers did want to impose boundaries on executive authority, and yes, the Constitution does try to restrict the potential for presidential excess–but only a small part of the truth. The Framers also wanted and expected a degree of energy and vigor in the nation’s chief executive, and they imposed upon the president along with limitations a series of positive duties, a requirement via his oath of office to take the necessary steps to guard the Constitution and the vision of republican government it represented.” [pp. 81-82] Regarding civil liberties and wartime arrests of individuals, we learn, “Serious scholars who have studied Lincoln’s wartime internal security policies–historians like Mark Neely, who investigated the available documentary record in exhaustive detail–conclude that, on the whole, the arrests made under the Lincoln administration’s policies were justifiable. Very few truly innocent people were persecuted, Lincoln and his subordinates strove to verify their suspicions with valid evidence, and they released their prisoners from custody soon after a perceived threat had passed. John Merryman himself was freed in July 1861.” [p. 85]

Professor Dirck also goes into Lincoln’s emancipation actions as well as his Reconstruction actions before his death. This handy book is an excellent summary of Lincoln’s views on the Constitution and his use of that instrument to prosecute and win the Civil War. I can highly recommend it.


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