Lincoln's Legacy for American International Law

• Jurisdiction: United States,Federal
• Citation: Vol. 28 No. 1
• Publication year: 2014
• topic: Constitutional Law

Lincoln's Legacy for American International Law

Antonio F. Perez

LINCOLN'S LEGACY FOR AMERICAN INTERNATIONAL LAW

Antonio F. Perez^*

Introduction..............................................................................................168

I. The Antebellum Republic's Theory and Practice of International Law.........................................................................169

A. Madisonian Sovereignty-Constitutional and International Law............................................................................................. 170
B. Antebellum Practice................................................................... 175

1. Supranational Law-Free Trade and Neutral Rights .......... 175
2. Tips of the Spear of External State Sovereignty-North and South.............................................................................. 180
3. Supreme Court Practice....................................................... 185

C. Regime Crisis-Popular Sovereignty as a Supranational Pluralist Solution ........................................................................ 190
D. Summary and Transition to Lincoln's International Law and Ethics.......................................................................................... 194

II. Lincoln's Theory and Practice of International Law..........196

A. Rejecting Popular Sovereignty and Self-Determination............. 197
B. Defense and Protectionism Supplant Pluralism, Expansion, and Free Trade...........................................................................203
C. The Laws of Necessity and Public Opinion Supersede the Law of Nations ................................................................................... 208

1. The Blockade and Neutral Rights-The Limits of Custom ... 209
2. Emancipation and Total War-Necessity Takes Hold..........216
3. External Public Diplomacy and Internal Public Reconciliation ....................................................................... 219

III. The Relation to Lincoln's Approach to International Law to Ethical Ideals...................................................................223

A. Reason-Its Form and Substance ............................................... 224

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B. Skepticism-Self-Doubt and Transformative Charity................228
C. Lincoln's Ethical Commitments and International Law.............232

IV. Implications for Present Policy..................................................233

Introduction

Is the United States, as an international actor, different from all other international actors? If so, how is it different? What makes it different? How does American sovereignty fit into a larger conception of international law? These questions go back to the beginning of the Republic, and they remain pressing today. Many have debated this question in terms of the legacy of the Founding. some find in the Founding the seeds of multilateralism and perhaps even cosmopolitanism;¹ others, rejecting this interpretation, advance a nationalist and unilateralist account of the Founding.² But the Founding is not the whole story.

This Article argues that our answers to these questions need to account for the civil War, when the question whether the United states would survive as the continuation of the tradition commenced in 1776 was answered through an unprecedented and, since then, unrepeated violent transformation. The state reconstructed through that war arguably became a new kind of creature in international law, radically different from the arrangements that governed the antebellum regime, thus re-conceiving American sovereignty and refashioning American practice of international law in the image conceived by Abraham Lincoln's rhetoric, statecraft, and worldview. In brief, Lincoln's achievement was to transform the plural United states from a sui generis institutional arrangement in the community of states into a singular nation-state performing a sui generis role in the community of states. In this new role, the United States would serve as an exemplar of a particular kind of society and the kind of person Lincoln thought normatively superior, a vehicle for the formation of a kind of person he believed made such a society possible, and perhaps even a force in the world for the progressive and universal realization of those ideals. Much as Lincoln's achievement was to refashion the American state, Lincoln's vision of American sovereignty made possible and necessary an entirely new

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approach to international law in which the American state re-defined its relation to the world.

To lay the groundwork for Lincoln's achievement, Part I of this Article first describes the Founding conception of American sovereignty. From the standpoint of institutional structure, it was a sui generis supra-national theory-living both in the world of international law and constitutional theory, finding its roots in Madisonian thought, evidenced in antebellum practice, defended in Senator Douglas's contribution in his famous debates with Lincoln, and almost salvaged in the Confederate Constitution. Part II outlines Lincoln's radically different, anti-supranational conception, shows how it expressed itself in Lincoln's criticism of the Mexican-American War, in the international dimensions of his debate with Senator Douglas concerning the relation between the United States and its newly acquired territories in the context of the question of the expansion of slavery, and then finally in terms of his conduct of war diplomacy. The conception of international law revealed in these debates and Lincoln's practice of statecraft subordinated customary international law to the law of reason and good faith in an international system of states in which virtue could multiply and flourish without coercion. Part III explores the ethical foundations of Lincoln's conception of American sovereignty and international law, arguing that Lincoln's vision was rooted in reason rather than experience, the hope for perfection coupled with a mature acceptance of imperfection, and a need to preserve the uniqueness of the American experience as the source of the nation's ability to make a difference in world history-indeed, in its capacity to make men and women like Lincoln himself possible. Part IV offers some preliminary thoughts on the implications of Lincoln's vision for present policy.

I. The Antebellum Republic's Theory and Practice of International Law

To understand Lincoln's achievement, we need to recapture the debate leading to the Civil War about the nature of the United States. The debate need not be conducted in terms of modern assumptions that the United States ceased to be, upon the adoption of the Constitution,³ a confederation of sovereign states, each retaining some international capacity. In many ways, the

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antebellum United States retained elements of a supra-national entity-in ways that were in fact seriously debated during the antebellum era. Under this view, the supra-national character of the United States was closely connected to a pluralist conception of admissible political economies-making space for two distinct political economies based on slave and free labor, as well as combinations of the two. This pluralism was, in turn, connected to a commitment to international legality, through both the practice of free trade and respect for customary international law. These commitments, in turn, made possible and perhaps required competitive territorial expansion for the extension of the two equally admissible systems of political economy. The end of this logic of expansion in the 1850s signaled a regime crisis that forms the backdrop to Senator Douglas's and the Confederate attempts to reformulate the Madisonian supranational regime on a more sustainable basis.

A. Madisonian Sovereignty-Constitutional and International Law

It is fair to say that Madison's own view on the nature of sovereignty in the United States mutated over time. But most would treat Madison's essay in Federalist No. 39 as the launching point for the discussion of his understanding of the Constitution's theory of sovereignty.⁴ Here, he is interpreted by modern commentators as oscillating between national and federalist understandings of the allocation of sovereignty for a single nation.⁵ Given the military and other enforcement attributes of the early federal government, this seems right in light of modern alternatives, radically differing from a supranational entity like the modern United Nations.⁶ In short, under this interpretation of Madison's views, the federation remained one nation for purposes of international law.

A generation later, however, John Calhoun directly challenged the supremacy of federal law in the Nullification Crisis, rejecting the authority of the federation to impose tariffs on foreign imports so as to protect Northern manufacturers.⁷ Northern protection would subject Southern exporters of cotton and other raw materials to the disadvantages of reciprocal protectionism and higher import costs.⁸ Arguing along lines parallel to Calhoun's opposition

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to higher tariffs to protect Northern manufacturers, Jacksonians, especially from the South, opposed the Whig program sponsored by Henry Clay and others for the so-called "American System" of promoting internal improvements to facilitate commercial expansion and market integration between North, South, East, and West.⁹ Under Calhoun's view, if states wanted to join together to create transportation networks or other cooperative projects, then surely they could do so, albeit only with federal approval, through the Constitution's Interstate Compact Clause.¹⁰ Southern export markets were largely European, as the globalization of transatlantic commerce during England's industrial revolution resulted in a flow of European, mainly English, investments in Northern capital coupled with European, again mainly English, purchase of Southern cotton to service...