Abraham Lincoln of Illinois served as President of the United States during the nation's greatest crisis, the CIVIL WAR. He had previously represented Illinois in the HOUSE
OF REPRESENTATIVES for a single term (1847?1849), during which he introduced the SPOT RESOLUTIONS, implicitly critical of President JAMES K. POLK'S administration of the Mexican War, and supported the WILMOT PROVISO, which would have banned slavery from the territory acquired in that war. Lincoln rose to national prominence opposing the policies of Senator STEPHEN A. DOUGLAS, especially Douglas's KANSAS-NEBRASKA ACT, which extended SLAVERY IN THE TERRITORIES on a local-option basis. In 1856 he joined the fledgling Republican party. Lincoln opposed Douglas's reelection to the Senate in 1858, and the two candidates toured the state together, publicly debating the issues of slavery, POPULAR SOVEREIGNTY, and CONSTITUTIONALISM. During the LINCOLN-DOUGLAS DEBATES, Lincoln severely criticized Chief Justice ROGER B. TANEY'S decision in DRED SCOTT V. SANDFORD (1857) as a betrayal of the principles embodied in the DECLARATION OF INDEPENDENCE.
Lincoln's election to the presidency in 1860 triggered the long-impending SECESSION of several slaveholding southern states. Lincoln's presidency was devoted to saving the Union, which meant, in his mind, the rededication of the nation to the principles of the Declaration of Independence, and especially to the proposition that all men are created equal. This work of saving the Union, tragically cut short by an assassin's bullet, was Lincoln's great contribution to American constitutionalism.
In the Lincoln Memorial, directly behind the statue of the Great Emancipator, these words are inscribed:
In this temple
as in the hearts of the people
for whom he saved the Union
the memory of Abraham Lincoln
is enshrined forever.
Lincoln did indeed save the Union. But the Union Lincoln saved was older than the Constitution; the Constitution was intended to form a "more perfect Union." When Lincoln began the Gettysburg Address with the magisterial "Fourscore and seven years ago ?" he intended his listeners to understand that the birth date of the nation was 1776, not 1787, and that the principles of "government of the people, by the people, for the people" were those of the Declaration of Independence. The Constitution was intended to implement those principles more perfectly than had been done by the ARTICLES OF CONFEDERATION. Lincoln at Gettysburg also intended his listeners?and the world?to know that there would be "a new birth of freedom" that would be accomplished by the EMANCIPATION PROCLAMATION, followed, as he intended that it would be, by the THIRTEENTH AMENDMENT. (We may be confident that, had he lived, Lincoln would also have given his support to the FOURTEENTH and FIFTEENTH AMENDMENTS, as part of that same "new birth.")
To understand the Constitution as Abraham Lincoln did must mean, primarily and essentially, to understand the Constitution as an expression of the principles of the Declaration. To do this is to separate the interpretation of the Constitution from all forms of legal positivism, historicism, and moral relativism, that is to say, from all those forms of interpretation that are dominant today in the law schools, universities, and courts of the nation. For, contrary to Lincoln's expectations, his words at Gettysburg have been greatly noted and long remembered: it is their meaning that has been forgotten.
Lincoln did indeed save the Union. At the time of his inauguration, March 4, 1861, seven states had already seceded and joined together to form an independent government called the Confederate States of America. JAMES BUCHANAN, the outgoing President, had been confronted with the SOUTH CAROLINA ORDINANCE OF SECESSION on December 20, 1860, six weeks after Lincoln's election, and more than ten weeks before his inauguration. Buchanan declared secession to be unconstitutional, but coupled his denunciation of secession with a much harsher denunciation of abolitionism. He denied, moreover, that he as President could take any lawful action against secession. Whatever action the federal government ought to take, he lamely concluded, must originate in laws enacted by Congress. But Buchanan had nothing to suggest to Congress, and Congress, at this juncture?the representatives of eight slave states remaining on March 4, 1861?was as divided as the nation itself. No congressional majority could have been formed then for decisive action against the rebellion. Lincoln waited until Congress had gone home, and cannily maneuvered the South Carolinians into firing those shots against Fort Sumter that electrified the North and consolidated public opinion behind his leadership. He then issued his call for 75,000 troops, and set on foot those measures that eventually resulted in the forcible subjugation of the rebellion.
Lincoln insisted that the Constitution ought not to be construed in such a way as to deny to the government any power necessary for carrying out the Constitution's commands. The Constitution required the President...