Constitutionalism in the Approach and Aftermath of the Civil War [1 ed.] 9780823251995, 9780823251940

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Constitutionalism in the Approach and Aftermath of the Civil War

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The North’s Civil War Paul A. Cimbala, series editor

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Constitutionalism in the Approach and Aftermath of the Civil War Edited by

Paul D. Moreno and Johnathan O’Neill

Fordham University Press New York 2013

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Copyright © 2013 Fordham University Press All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means—electronic, mechanical, photocopy, recording, or any other—except for brief quotations in printed reviews, without the prior permission of the publisher. Fordham University Press has no responsibility for the persistence or accuracy of URLs for external or third-party Internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Fordham University Press also publishes its books in a variety of electronic formats. Some content that appears in print may not be available in electronic books. Library of Congress Cataloging-in-Publication Data Constitutionalism in the approach and aftermath of the Civil War / edited by Paul D. Moreno and Johnathan O’Neill. pages cm Includes bibliographical references and index. ISBN 978-0-8232-5194-0 (cloth : alk. paper) 1. Constitutional history—United States. 2. United States—Politics and government—1865–1933. I. Moreno, Paul D., 1965– editor of compilation. II. O’Neill, Johnathan G. (Johnathan George), editor of compilation. KF4541.C66 2013 342.7302'909034—dc23 2012048025 Printed in the United States of America 15 14 13 5 4 3 2 1 First edition

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For Herman Belz scholar, teacher, friend, constitutionalist

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Contents

Introduction Paul D. Moreno and Johnathan O’Neill | 1 Prologue: A Second American Revolution? George Washington and the Origins of the Civil War Jeffry H. Morrison | 9 Part I 1

Martin Van Buren as Statesman: State Rights and the Rise of the “Free Soil” Party Christian Esh | 29

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Lincoln on Black Citizenship Joseph R. Fornieri | 55

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Lincoln, Secession, and Revolution: The Civil War Challenge to the Founding Herman Belz | 81

Part II

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Constitutionalism Endangered: The Road to Civil War

Legal Change and Constitutional Politics in Reconstruction and the Gilded Age

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The Trial of Jefferson Davis and the Americanization of Treason Law Jonathan W. White | 113

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At Every Fireside: Constitutional Politics in the Era of Reconstruction Michael Les Benedict | 133

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Part III

Contesting the Legacy of Lincoln and the Civil War in the Progressive Era

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Woodrow Wilson and the Meaning of the Lincoln Legacy Ronald J. Pestritto | 183

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The Idea of Constitutional Conservatism in the Early Twentieth Century Johnathan O’Neill | 202 223 269 273

Notes List of Contributors Index

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“The Legitimate Object of Government”: Constitutional Problems of Civil War–Era Republican Policy Paul D. Moreno | 161

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The Constitution is neither a machine that would go of itself, nor a living organism that develops according to laws of progress encoded in the culture. It is a rationally designed complex of principles, forms, and procedures for limited government, an instrument of fundamental law written by prudent and clear-sighted statesmen for a liberal republican people. . . . What is constantly necessary, given the nature of democratic politics, are practical reason, moral conviction, and the political will to reaffirm the first principles of American constitutionalism. The forms and institutional resources for this purpose are at hand in the constitutional tradition. —Herman Belz

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Introduction Paul D. Moreno and Johnathan O’Neill

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his collection of essays examines American constitutionalism from the founding to the Progressive era. At its center is Abraham Lincoln’s statesmanship on slavery and secession. Additional essays consider issues and events leading to the Civil War, as well as its legacy. All the authors are students or colleagues of Herman Belz, the author of the central chapter, who has devoted his career to understanding the American Constitution and its history. “Like law itself,” Belz has written, “a constitution also has a normative content which is intended to guide and control political and governmental action—to state what ought to be rather than what is. In this sense a constitution prescribes official conduct and provides a standard of legitimacy for assessing the validity of governmental action. . . . Constitutionalism, in turn, is the theory and practice of conducting politics in accordance with a constitution.” The authors in this volume share this understanding of constitutionalism. All emphasize that constitutional principles shape political activity and are not mere epiphenomena of other processes. Constitutional principles are in this sense “configurative,” as Belz’s mentor, Arthur Bestor, put in his essay “The American Civil War as a Constitutional Crisis.” Accordingly, these essays treat constitutionalism as a complex and contested practice that involves political “construction” in addition to judicial “interpretation.” They place important figures, disputes, and judicial decisions within the broader context of the constitutional system, explaining how ideas and institutions, independently and in dialogue with the courts, have oriented political action and shaped events over time. This approach is particularly appropriate to the subject matter because the constitutional conflicts resulting in the Civil War roiled just under the surface of American politics since the founding and reverberated for generations after the fighting ceased. These essays focus on that long prelude and enduring legacy, rather than the intricate and unique problems raised by the conflict and confronted by Lincoln in the brief period from 1861 to 1865. Jeffry Morrison begins with a discussion of Lincoln’s fidelity to George Washington’s unionism. Morrison shows that the Union was central to Washington’s

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constitutionalism. Indeed, he had been a confirmed unionist before the Revolutionary War, which advanced this commitment, as it did for many other founders. He also saw the nationalizing potential of the frontier, or what would later be called the “territories.” He envisioned it as a true “empire of liberty”—an asylum for the oppressed of the entire world. It also would be a centripetal force defining a liberal American national identity. Lincoln’s commitment to keeping slavery out of the territories persevered in Washington’s vision. Morrison argues that “Washington had developed a view of the union, and its supremacy and supreme importance for American ‘happiness,’ that was, in its own way, nearly as mystical as Abraham Lincoln’s view of the union during the Civil War.” Additionally, Washington faced the first important threat to the new government’s legitimacy in the West: the Whiskey Rebellion of 1794. He responded with what Publius in the Federalist Papers called “energetic” executive power, showing that constitutionally limited government could still be effective government. In his Farewell Address, Morrison adds, Washington noted that liberty was the most intense attachment of the American people. He told his fellow citizens that their liberty depended on the Union, and the Union on the Constitution. Morrison concludes with a discussion of Washington’s last will and testament as “a postscript to his Farewell Address.” There Washington moved inexorably toward the abolition of slavery and thus toward the issue that most threatened liberty and union. Morrison’s essay and the following one by Christian Esh illustrate what Lincoln observed at the outset of the Civil War: “Our popular government has often been called an experiment. Two points in it our people have already settled—the successful establishing and the successful administering of it. One still remains— its successful maintenance against a formidable internal attempt to overthrow it.” Esh shows how the constitutional principle of federalism helped to maintain the Union. In large measure this was because federalism, or “state rights,” was not a southern monopoly. Martin Van Buren and New York became the most ardent defenders of state rights in the North, picking up the mantle of the Virginia and Kentucky Resolutions. Showing that state legislatures participated in constitutional construction, Esh observes that New York often declared its “enthusiasm for a national union expressed in the language of state rights.” Van Buren allied New York and Virginia to put to rout the revived nationalism of John Quincy Adams. But this alliance was sorely tested by Calhounite nullifiers’ introduction of a new theory of federalism, one that went beyond state rights to state sovereignty and secession. Amid the controversy, Vice President Van Buren got the New York legislature to write a set of resolutions that condemned nullification but defended a moderate or orthodox view of state rights. Nevertheless, the

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idea of nullification had fatefully polarized thinking about federalism. The South moved toward state sovereignty and the North toward national sovereignty, each at the expense of the old Madisonian “compound republic” view. Amid this shift, Van Buren arrayed state rights against the slaveholders’ program of nationalizing slavery and taking over his Democratic Party. Along the way his opposition to Texas annexation and the Mexican War precluded his nomination for the presidency in 1844, and then cost him the leadership of the New York Democracy. Though he was the candidate of the Free Soil Party in 1848, Van Buren remained out of power for twenty years. Esh concludes that, not unlike the philosopher– historian Thucydides, “Van Buren discovered political wisdom amidst disgrace.” He did so by articulating the possibility of a state-centered union that accepted neither slavery nor secession. Who constituted “the people” who ordained, established, and maintained the Constitution? After first exploring the issue of slavery in the original Constitution and the political system that developed from it, Joseph Fornieri engages this question by examining Lincoln’s view of black citizenship. Lincoln consistently defended the founders’ prudence—that they recognized slavery as a moral wrong, but made necessary compromises with it in order to preserve a Union that would put it in the course of ultimate extinction. Just as many have criticized the founders for conceding more than was necessary to slavery, so many have faulted Lincoln for conceding more than was necessary on African American inequality. Fornieri explains that Lincoln’s denial of black citizenship—insofar as it was a denial—was a matter of political necessity. Illinois was a free state hostile to free blacks. Under pressure from Stephen Douglas, Lincoln affirmed that states could extend civil rights to African Americans (as the Supreme Court in Dred Scott said they could not do), even while declaring that Illinois should not exercise such power. But Lincoln left open the prospect for black citizenship via the Constitution’s Privileges and Immunities Clause, as he stated in his First Inaugural. He implied that free black citizens in the states that did confer civil rights were entitled to enjoy civil rights in all the states. If free states had to repatriate fugitive slaves, slave states had to recognize the civil rights of free blacks. Fornieri shows how as President Lincoln began to implement this view. And Lincoln’s expanding view of the range of civil rights, which came to include voting rights by 1865, is what caused his assassination. In the central essay of the collection, Herman Belz takes up Lincoln’s role in construing the Constitution and defining the Union in the secession crisis of 1861. More than any other nation, American nationality was defined by a commitment to political ideas, rather than by race, ethnicity, history, religion, or language.

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The Civil War represented the culmination of a “fundamental disagreement over the type of government the Union was intended to be.” Southern secessionists viewed the Constitution as a pro-slavery document that permitted sovereign states to secede if its pro-slavery guarantees were abrogated. The Republicans viewed the Constitution as anti-slavery and the Union as indivisible. Belz argues that “Lincoln advanced a construction of the Constitution that was faithful to the founding with respect to principles and ends as well as procedural regularity and operational efficiency.” In particular, Lincoln took up the philosophical issues of the right to revolution and social contract theory. In doing so, his “construction affirmed the founding,” while “the construction of the secessionists repudiated the ends and purposes of the founding.” Reluctant to use the language of revolution lest it spread to their slaves, Jefferson Davis and the secessionists interpreted the right to revolution as a right to peaceable secession. This was the same right that the founders exercised, Davis argued, but British resistance made the American Revolution unnecessarily bloody. Lincoln rejected secession as an illegitimate constitutional construction, and from his First Inaugural onward he instructed the American people as to why this was so. The Union victory resulted in no small part from Lincoln’s persuasive rhetorical defense of natural-rights republican constitutionalism. In the next essay Jonathan White further scrutinizes Davis, the antithesis of the previously treated founders, sustainers, and saviors of the American Union. Davis’s treason trial presented the question of how the triumphant Union government would deal with the vanquished rebels. We know today that not one rebel was executed for treason or any other crime. All were pardoned and restored to their political privileges by the end of the nineteenth century, and eventually monuments were erected to them and even U.S. Army forts named for them. No other country treated a rebellion so leniently. But in 1865 harsher options were available and often demanded. White explains the political and constitutional reasons that a treason prosecution of Davis ceased to be an option, and how this was faithful to the founders’ vision. The founders defined treason in the Constitution, and defined it very narrowly. They made it difficult to prove and limited the punishment for it. Yet, before the war, prosecutors had tried continually to loosen this definition, to include—or construe—“constructive” treason. Such efforts met with little success, and White notes that by 1861 “the Constitution’s procedural requirements for accused criminals and the precedents of the first half of the nineteenth century made treason a useless weapon by which to wage war.” Though military tribunals had been used successfully during the war, President Johnson rejected that option for Davis. Treason proceedings ensued,

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despite the established trend against such prosecutions. It was easy to indict Davis, but nearly impossible to convict him—even under the radical judge John J. Underwood, who expressed his ability to “pack” a jury. While Underwood was willing to be an adjunct to the military in this way, Chief Justice Salmon P. Chase (whose circuit included Virginia) was not. Like John Marshall, Chase adhered to constitutional principle for the good of the nation by preventing the enlargement of American treason law (though he was suspected of doing so to curry the favor of Democrats in his perpetual presidential ambitions). Chase finally concluded that the Fourteenth Amendment’s disqualification provision (Section 3) was punishment enough for Davis and that it precluded all others. On Christmas Day 1868, President Johnson put the matter to rest by issuing a blanket pardon. In this way the Davis episode showed how the war and its aftermath shaped legal development by prompting the clarification of principles inscribed the text of the Constitution. Michael Les Benedict examines the construction of constitutional meaning in the politics of Reconstruction. He argues that constitutional change was a product of political controversy, rather than the exclusive preserve of bench and bar, or somehow above immediate partisan concern. At its core Reconstruction pitted the Democrats’ determination to keep the United States “a white man’s country” against the freedmen’s efforts to realize their freedom. Constitutional politics was especially intense in the efforts of blacks and women to obtain the right to vote. Such measures seemed to require a further consolidation of the Union and concentration of national power, which Democrats and state-rights Republicans resisted. These conflicting aims led to the compromise position articulated by Richard Henry Dana Jr. as the “grasp of war” theory—the rebel states would be kept out of the Union until they agreed to respect the fundamental rights of the freedmen. Nevertheless, the fear of a consolidated government led to a Fourteenth Amendment that eschewed direct congressional enforcement in favor of a judicially enforced set of prohibitions on the states. The same conservative approach led Congress to cast it in “no state shall” language. This amendment also introduced the first sex-based language into the Constitution, to ensure that it did not lead to women’s suffrage. Even Frederick Douglass, long a proponent of women’s rights, recognized that popular opposition to women’s suffrage would kill any proposal linked to it. Benedict uses such evidence to argue that the legislation and amendments of the era were shaped and limited by what the public was willing to support, and what it resisted. So even though the Supreme Court is usually blamed for having interpreted Reconstruction’s achievements into futility and oblivion, Benedict concludes that “its interpretation of the Reconstruction

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amendments provided a solid basis for federal action to protect civil and political rights, if the American people wanted the government to take that action.” Insofar as it was a failure, Reconstruction was a political, not a judicial, failure. It revealed the basic problem of what Belz has called the “American conception of constitutionalism”—that a written constitution meant to secure natural rights still depends on positive law enacted by a sovereign people. Lincoln’s detractors have accused him of using the Civil War to overthrow the founders’ Constitution and to effect a “second American Revolution.” Others have similarly claimed that the Republican Congress used the war to establish a “Yankee Leviathan,” the antecedent to twentieth-century Progressive and New Deal statism, by instituting a Hamiltonian program of national mercantilism. Paul Moreno challenges these claims in his analysis of the constitutional and policy aspects of the domestic legislation of the Civil War Republicans. His essay focuses on the three principal elements of the Federalist–Whig “American System” that the Republicans revived: the protective tariff, the national banking system, and internal improvements. The constitutionality of the first of these, the tariff, was relatively well settled by the time of the Civil War; the greatest objections arose from its proliferation. Its unjust redistributionist impact became a staple of the complaints of southern and western Populists, and then later of Progressives. But economic analysts have shown that the alleged effects were largely exaggerated. The second issue, national banking, also had a long and hotly contested constitutional history before the war. The war added the dispute over the federal government’s power to issue paper money and make it legal tender. Secretary of the Treasury Salmon P. Chase, a hard-money Jacksonian Democrat before the war, reluctantly resorted to fiat “greenback” money during his term, but then declared the act unconstitutional as Chief Justice. The Supreme Court dramatically reversed this decision in the Legal Tender Cases (1870). This litigation pitted diametrically conflicting interpretations of the inherent or sovereign power of the federal government against natural law or inherent rights, a development later to be called “substantive due process.” The expansion or contraction of the Civil War currency endured as a dominant political issue in the late nineteenth century, culminating in the gold-versus-silver-standard election of 1896. Moreno argues that on balance the federal government showed a remarkable degree of monetary responsibility in these years, even though the South and West again claimed they were exploited for the benefit of a northeastern plutocracy. The third issue, a federally subsidized railroad system, was even more vilified than were the tariff and the banks. Legislators in both Congress and the states curtailed the grants by 1870,

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but their effects engendered much constitutional argument in the late nineteenth century, particularly in municipal bond and rate-regulation cases. These developments culminated in the creation of the first independent regulatory agency, the Interstate Commerce Commission (1887). Moreno concludes that the Republican system of internal improvements (which extended also to the Homestead Act and land-grant colleges) did not depart fundamentally from antebellum constitutional limitations, nor did it create a new administrative state in the nineteenth century. Republican policy, despite its abuses and excesses, remained consistent with republican constitutional principles of government limited to the public good. The Progressives of the early twentieth century presented a new and fundamental challenge to the constitutionalism of the founding. As the secessionists tried to appropriate George Washington, the Progressives tried to enlist Abraham Lincoln. Likewise, today’s conservative and libertarian enemies of Progressivism endorse this claim by depicting Lincoln as the progenitor of twentieth-century statism. Ronald J. Pestritto analyzes one Progressive who claimed Lincoln’s mantle: Woodrow Wilson. A prominent academic before his political career, Wilson believed that the United States had evolved to a point where the restraints of the original Constitution were no longer necessary. Most Progressives argued that the problems of industrial and urban growth called for greater government power, but Wilson went further by adding that the nation had transcended the basic divisions of faction that the founders feared. The Civil War made the United States a united society. The secessionists had stood athwart the progress of the United States into true nationhood, and Wilson saw them as faithful to an outmoded, pre-national Constitution. Lincoln and the Republicans, to the contrary, boldly adapted the Constitution to the needs of a fundamentally different society. Lincoln also provided a model of presidential leadership for Wilson. On his account, Lincoln began the “plebiscitary presidency,” viewing the office as the embodiment of the people, expressing, even while shaping, their will. Pestritto shows that Wilson’s portrayal of Lincoln was misleading and tendentious: “at such sharp variance with the reality that even a cursory review of Lincoln’s speeches would have revealed, that one is tempted to wonder whether Wilson ever read a word that Lincoln actually uttered.” The Progressive historians perpetrated many historical outrages, but perhaps none so bold as to enlist Lincoln on the side of historicism and against the natural rights philosophy of the founders. In the final essay, Johnathan O’Neill examines the efforts of a group of early twentieth-century conservatives to maintain the principles of American constitutionalism in response to its Progressive and socialist critics. As a generation of

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historians has exploded the Progressive caricature of the early twentieth-century judges as social Darwinist shills of big business, so O’Neill shows the principled basis of this more popular and political strand of constitutional conservatism in the natural rights, social contract philosophy articulated by the founders and preserved by Lincoln. These constitutional conservatives recognized that Progressivism had created a third “critical period” in American history, after the Revolutionary War and Civil War eras. The latter crisis was of course a living memory for them, and they often took their bearings from it. In particular, like Lincoln, they knew that the founders’ Constitution could not survive without popular “maintenance,” particularly through systematic education in its principles. O’Neill explains the conservatives’ defense of the core constitutional principles of federalism, judicial review, and executive power, observing in each area how they found it necessary to recur to the Civil War era to bolster their position in response to the Progressive challenge. The long prelude to the Civil War always involved contests over the meaning and application of the Constitution. When the war arrived, it quickly became a battle to define the principles at the heart of the American regime. Likewise, its resolution, in principle and in the text of the Constitution, stood ever afterward as a referent in the nation’s political life. The war was long feared, and will be even longer remembered. The essays that follow improve our understanding of how constitutional issues configured its approach and aftermath. Portions of the prologue originally appeared in Jeffry H. Morrison, The Political Philosophy of George Washington, pp. 16, 39, 55–57, 120–23, 175–77. © 2009 The Johns Hopkins University Press. Chapter 3 originally appeared in Ronald J. Pestritto and Thomas G. West, eds., Challenges to the American Founding: Slavery, Historicism, and Progressivism in the Nineteenth Century (Lanham, MD: Lexington Books, 2004), 81–112, and is used with permission. Most of chapter 8 originally appeared in an essay in the First Principles series at Heritage.org in 2011.

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Prologue: A Second American Revolution? George Washington and the Origins of the Civil War Jeffry H. Morrison

Introduction: Conscripting George Washington In 1862, the secessionist Congress at Richmond commissioned a Great Seal for their newly formed Confederate States of America featuring a portrait of George Washington, mounted and in Revolutionary War uniform, at its center. The date surrounding the portrait was February 22, 1862—the 130th anniversary (New Style) of Washington’s birth. It was a curious choice for a disunionist Congress to make—for the single greatest commitment in Washington’s half century of public service was to the American union he had fathered, presided over, and, in his Farewell Address, prayed to God would be “perpetual.” Washington’s appreciation for American union long predated his efforts during the founding period of the 1770s and 1780s; in fact, it stretched back nearly as far as Benjamin Franklin’s Albany Plan of Union in 1754. No, the Confederates would have done better to choose as their standard-bearer Washington’s first attorney general, Edmund Randolph, who said, or allegedly said, “I am not really an American. I am a Virginian.” Indeed, Washington’s constitutional philosophy regarding several of the issues embraced by the Confederates—not only disunion, but also nullification of federal laws by states, and the right to hold chattel slaves—was antithetical to their own. This made him, as we shall see, a singularly inapt figurehead for the southern government presided over by Jefferson Davis. For that matter, Davis’s namesake, Thomas Jefferson, would have made a better Confederate emblem than George Washington, who, after all, was the father of one country, not two. In 1798 Jefferson flirted with nullification in his Kentucky Resolutions. To him, the union under the Constitution was a straightforward “compact” between sovereign states, rather than the “compound republic” of popular sovereignty it was to Washington and the Federalists (the phrase is from Federalist 51). Thus to Jef-

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ferson the authority to judge the constitutionality of acts of the federal legislature was retained by the individual states since, at that time, there was no common judge over those states. Therefore federal laws such as the Alien and Sedition Acts judged by states to be unconstitutional were, in Jefferson’s phrase, “unauthoritative, void, and of no force.” In 1799 the Kentucky legislature bolstered Jefferson’s resolutions with an unabashed assertion of Kentucky’s right to nullify the unconstitutional Alien and Sedition Acts. Washington would have none of it. Unlike the state-righter Jefferson, Washington insisted that national identity should trump state identity. He had directed his Farewell Address to a “sacred union of citizens”—not a sacred union of states, and reminded those citizens that the “name of american, which belongs to you, in your national capacity, must always exalt the just pride of Patriotism, more than any appellation derived from local discriminations.” In a confidential letter to Patrick Henry written in 1799, the first president of the United States opined that the nullifiers in Kentucky and Virginia were endeavoring “to disquiet the Public mind among us with unfounded alarms; to arraign every act of the Administration; to set the People at variance with their Government; and to embarrass all its measures. . . . Unfortunately, and extremely do I regret it, the State of Virginia has taken the lead in this opposition.” Washington went on to predict, “Vain will it be to look for Peace and happiness, or for the security of liberty or property, if Civil discord should ensue; and what else can result from the policy of those among us, who, by all the means in their power, are driving matters to extremity[?]” One can only imagine what Washington’s reaction would have been when, a half century later, “Civil discord” became Civil War. During that war President Abraham Lincoln made his own efforts to conscript George Washington into the Union ranks. In truth, not much effort was required, for Washington’s understanding of the nature, purpose, and perpetuity of the union were much the same as Lincoln’s and the North’s generally. Lincoln had first referred to Washington as the “rock” of American freedom in the final lines of his now-famous Address before the Young Men’s Lyceum of Springfield, Illinois, back in 1838: Let those materials [for our future defense] be moulded into general intelligence, sound morality and, in particular, a reverence for the constitution and laws; and, that we improved to the last; that we remained free to the last; that we revered his name to the last; that, during his long sleep, we permitted no hostile foot to pass over or desecrate his resting place; shall be that which to learn the last trump shall awaken our washington.

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Prologue: A Second American Revolution?

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Upon these let the proud fabric of freedom rest, as the rock of its basis; and as truly as has been said of the only greater institution, “the gates of hell shall not prevail against it.” In his Message to Congress in Special Session, July 4, 1861, President Lincoln pointed out that the “adversaries” to the federal government had “adopted a temporary national constitution in the preamble of which, unlike our good old one, signed by Washington, they omit ‘We, the People,’ and substitute ‘We, the deputies of the sovereign and independent States.’ Why? Why this deliberate pressing out of view . . . the authority of the people?” Why, indeed? The answer, of course, was that the nullifiers, like Jefferson before them, saw the union as a compact of sovereign (or at worst semi-sovereign) states that could be dissolved, rather than a compound republican union that was intended to be, as Washington said, “perpetual.” The constitutional union was what Lincoln called a “government proper,” and no proper government, he said in his First Inaugural, ever codified the means of its own destruction. “I hold, that in contemplation of universal law, and of the Constitution, the Union of these States is perpetual,” Lincoln said, echoing Washington. “Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper, ever had a provision in its organic law for its own termination.” The trouble President Lincoln had with asserting this Washingtonian perpetuity, however, was that he was on record as Congressman Lincoln, during the Mexican War, asserting a right of revolution—a right that sounded suspiciously like the one the new Confederate States of America were claiming, with Washington as their standard. But Lincoln had used Washington, too, in his 1848 speech against the Mexican War: The extent of our teritory [sic] in that region [Mexico] depended, not on any treaty-fixed boundary (for no treaty had attempted it) but on revolution. Any people anywhere, being inclined and having the power, have the right to rise up, and shake off the existing government, and form a new one that suits them better. This is a most valuable,—a most sacred right—a right, which we hope and believe, is to liberate the world. Nor is this right confined to cases in which the whole people of an existing government, may choose to exercise it. Any portion of such people that can, may revolutionize, and make their own, of so much of the teritory [sic] as they inhabit. More than this, a majority of any portion of such people may revolutionize, putting down a minority, intermingled with, or near about them, who may oppose their movement. Such

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minority, was precisely the case, of the tories of our own revolution. It is a quality of revolutions not to go by old lines, or old laws; but to break up both, and make new ones. . . . Let him [President Polk] remember he sits where Washington sat, and so remembering, let him answer, as Washington would answer. As a nation should not, and the Almighty will not, be evaded, so let him attempt no evasion—no equivocation. Lincoln’s opponents in the Confederacy knew this speech from 1848; it was there for all to see in the Annals of Congress. Representative Lincoln had asserted the “sacred” right of revolution—a right invoked by Washington and our own Revolutionaries, and a right possessed even by a minority. Moreover, Lincoln had asserted the right of any minority to break up “old laws” (even the “good old” law of the Constitution, “signed by Washington”?) and to make new ones. He gestured at Washington and his fellow rebels, who had rightfully “put down” the Tory minority in our own Revolution. Lastly, he had admonished President Polk by the example of Washington, that truthful first president, the Honest Abe of the founding, who “could not tell a lie” (the boy Lincoln was nourished on Parson Weems’s biography of Washington) and who said in his Farewell Address that in international relations “honesty is always the best policy.” But for all that seeming inconsistency, Lincoln could have argued that the Revolutionary War and the constitutional union that followed were different situations—different in kind, because the Constitution was not a law like other laws. The body that made it, the Federal Convention, was not a typical legislature, and anyway it was ultimately “We the People” who made—and equally important—ratified the Constitution. South Carolinians, Virginians, and the people of the other seceding states of the South had signed on to a compound union in perpetuity; to a union in which they were represented as they had not been represented in the British Parliament of the Revolutionary era. The Constitution made all the difference. This seems to have been Washington’s view as well, as we shall see. By contrast, the Confederates in the Civil War seemed to have forgotten about 1787–88, bypassing that constitutional moment and going back to the Revolution and the Articles of Confederation (“perpetual” but a union of state sovereignty) for their constitutional theory. Washington’s constitutionalism is thus, perhaps, a fitting prologue to this volume dedicated to Professor Herman Belz, a volume on American constitutional principles in a series on the legal history of the Civil War era, both fields of abiding interest to Professor Belz throughout his decorated scholarly career. Several key constitutional issues that faced Washington—secession, slavery, and nullifi-

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cation—were, of course, on an increasingly rapid boil in the decades between his death in late 1799 and the Civil War. (We tend to forget how close in time were the figures of the Revolution and the Civil War: Robert E. Lee was the son of Washington’s trusted cavalry general “Light-Horse Harry” Lee, and Lincoln was already a young man by the time Jefferson and John Adams died.) In fact, the growing divide between North and South was an issue of moment throughout Washington’s career. During the Constitutional Convention of 1787 his sometime adviser James Madison had noted, while Washington sat listening in the president’s chair, that the principal line of division in the convention was not between large and small states, but “between the N[orthern] & South[er]n States. The institution of slavery & its consequences formed the line of discrimination.” That line of discrimination was one over which George Washington brooded for many years, as he brooded over other perceived threats to the union he had done so much to help conceive and nurture. Washington’s Union The received scholarly view is that until middle age, Washington was a narrowminded Virginia provincial whose eyes were finally forced open by his command of the Continental Army beginning in 1775. One historian commends Washington and Benjamin Franklin for their “rapid” transition “from imperial and provincial loyalties to national consciousness” in the mid-1770s. Yet as early as 1756, when he was only a twenty-four-year-old militia officer, Washington was writing to political figures of the need for an American “union” and for cooperation among the colonies. He wrote to Virginia’s governor that spring, “Nothing I more sincerely wish than a union of the colonies in this time of eminent danger, and that you may find your assembly in a temper of mind to act consistently with their preservation.” Though at that time he may have seen American union in terms of imperial federalism, or in military terms, nevertheless Washington was already thinking of consolidating constituent political powers. He had first been impressed as young Virginia surveyor and later soldier by the largely untapped potential of the North American continent, provided a more centralized government and network of infrastructure could be built. Twenty years later, when friction between Great Britain and her colonies was heating up, Washington warned George William Fairfax not to underestimate the growing American commitment to colonial union: “The Ministry may rely on it that Americans will never be tax’d without their own consent, that the cause of Boston, the despotick Measures in respect to it I mean, now is and ever will be considered as the cause of

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America (not that we approve their conduct in destroyg. the Tea) and that we shall not suffer ourselves to be sacrificed by piece meals though god only knows what is to become of us.” Around the same time Washington wrote to another Fairfax, this time his friend Bryan, that “nothing but unanimity in the colonies (a stroke they did not expect) and firmness” could prevent taxation of the colonies by Parliament. Scholars have long noted the effect the Revolution had on Washington’s view of continental America, and on his conviction that greater political centralization—in short, a firmer union—was needed in the new nation. The war had this effect on other future leaders. John Marshall, who as the “Great Chief Justice” did more than any other individual to consolidate national power in the early republic, wrote that “I was confirmed in the habit of considering America as my country and Congress as my government” by his service under Washington in the Revolution. The same can be said of Washington himself—that is, so long as emphasis is placed on the word “confirmed.” For Washington was already in the habit of considering America as his country by the time the war began, more so than the average state-proud Virginian of his day. When Washington corresponded with other Virginians during the war he usually referred to “their” state, not “our state.” In a pleading letter to his neighbor George Mason, Washington wrote, “It would afford me very singular pleasure to be favoured at all times with your sentiments . . . upon public matters of general [i.e., American] concernment as well as those which more immediately respect your own State.” Washington went on to chide Mason subtly for his inactivity and provinciality, suggesting that “no man who wishes well to the liberties of his Country and desires to see its rights established, can avoid crying out where are our men of abilities? Why do they not come forth to save their Country?” To be sure, Washington’s relations as commander in chief with his largely New England army beginning in 1775 were not all cloudless glory, and his aristocratic criticism of northern troops led to one of the few public relations blunders of the war. His attitude also showed that some residue of southern provinciality remained in his mind. To Lund Washington he wrote, the “People of this government [New England] have obtained a Character which they by no means deserved; their officers generally speaking are the most indifferent kind of People I ever saw . . . in short they are by no means such Troops, in any respect, as you are led to believe of them from the accts. which are published, but I need not make myself Enemies among them, by this declaration, although it is consistent with truth.” But his indiscretion did make him enemies, or at the least it incensed

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friends. Unknown to Washington, the contents of his private correspondence were being leaked to prominent New Englanders like John Adams, who had recently recommended Washington for the top post in the army. Thanks to the Virginian Richard Henry Lee, who had formed a friendship with Adams, Washington’s private grousing about the New Englanders was making the rounds in Philadelphia. A letter from his friend Joseph Reed warning Washington of the trouble his letters were causing drew the general’s thanks, and a promise that he would “endeavor at a reformation.” (He made good on that promise, so much so that by the time of the ratification debates thirteen years later, Washington was pointing out how it was “a little strange, that the men of large property in the South, should be more afraid that the Constitution will produce an Aristocracy or a Monarchy, than the genuine democratical people of the East [New England].”) By contrast, Jefferson continued to refer to Virginia as “my country” decades after his retirement from the presidency. After the Revolution, Washington more than ever envisioned an expanding and even imperial American union, though he used the term “empire” in the counterintuitive way that Jefferson referred to an “empire of liberty.” Washington talked enthusiastically of a rising American “empire,” referring to it some forty times in the years following the Revolution. In the autumn of 1783 he wrote to Chastellux with the metaphors of a political surveyor: “I shall not rest contented ’till I have explored the Western Country, and traverse those lines (or great part of them) which have given bounds to a New Empire.” One of the longest letters in his private correspondence was written the following year to the Rev. John Witherspoon, president of the College of New Jersey at Princeton and a former colleague in the Continental Congress; the letter concerned Washington’s western land holdings. Washington wrote glowingly of his thirty thousand acres of “rich bottom lands” in the West, and of his desire to rent those lands to immigrant religious communities who would help settle a new American “empire.” He could thereby help aid the settlement of “particular Societies, or religious Sectaries with their Pastors. It would be a means of connecting friends in a small circle, and making life, in a new and rising Empire.” Washington, Jefferson, and the rest of the founders had two principal conceptions of empire available to them, the ancient Roman Empire and the early modern British Empire. Washington’s “empire” was to be more liberal than either Rome’s or London’s: whereas Great Britain was using its empire to subjugate and control lands and peoples around the globe, America’s “rising Empire” would expand westward and create a safe zone for dispossessed freedom-loving peoples

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everywhere. In his General Orders of April 18, 1783, announcing a cessation of hostilities, the General could not help wishing that all the brave men (of whatever condition they may be) who have shared in the toils and dangers of effecting this glorious revolution, of rescuing Millions from the hand of oppression, and of laying the foundation of a great Empire, might be impressed with a proper idea of the dignifyed part they have been called to act (under the Smiles of providence) on the stage of human affairs: for, happy, thrice happy shall they be pronounced hereafter, who have contributed any thing, who have performed the meanest office in erecting this steubendous fabrick of Freedom and Empire on the broad basis of Indipendency; who have assisted in protecting the rights of humane nature and establishing an Asylum for the poor and oppressed of all nations and religions. In December of that year Washington told a group of new Irish immigrants that the “bosom of America is open to the oppressed and persecuted of all Nations and Religions.” America was to be an empire of liberty, certainly; but it was also to be an asylum of liberty, a refuge where civil and religious liberties would be protected. “The establishment of Civil and Religious Liberty,” Washington wrote to a German Reformed church in late 1783, “was the Motive which induced me to the Field [of battle].” In his Circular to the States at the war’s end (June 1783), Washington noted that the newly independent American states were “not only surrounded with every thing which can contribute to the completion of private and domestic enjoyment, but Heaven has crowned all its other blessings, by giving a fairer opportunity for political happiness, than any other Nation has ever been favored with.” Rather than taking other continents by force as the British had done, the United States would carve out a vast territory on North America, improve unproductive lands, people those lands with freedom-loving and rights-bearing individuals, and benefit from the products of their labor. The Circular contained several statements, and warnings, about the union. “I now make it my earnest prayer,” Washington wrote, “that God would have you, and the State over which you preside, in his holy protection, that he would incline the hearts of the Citizens to cultivate a spirit of subordination and obedience to Government, to entertain a brotherly affection and love for one another, for their fellow Citizens of the United States at large[.]” But in addition to this prayer for union came a stern

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warning against disunion: “The Treaties of the European Powers with the United States of America, will have no validity on a dissolution of the Union. We shall be left nearly in a state of Nature, or we may find by our own unhappy experience, that there is a natural and necessary progression, from the extreme of anarchy to the extreme of Tyranny; and that arbitrary power is most easily established on the ruins of Liberty abused to licentiousness.” Unhappily, when the union dissolved in 1861 those states did indeed find themselves in a state of nature—which is to say, a state of war—with one another. Washington was a political realist whose concerns about the potential threats to the union in the form of geographical divisions over slavery and nullification were, as events subsequently proved, well founded. At the end of his presidency Washington praised his fellow citizens but he also warned them. His solicitude for their union is evident in this stem-windingly comprehensive sentence in the Farewell Address, which contains another outright prayer for its perpetuity: Profoundly penetrated with this idea [of Americans’ support for him], I shall carry it with me to my grave, as a strong incitement to unceasing vows that Heaven may continue to you the choicest tokens of its beneficence; that your Union and brotherly affection may be perpetual; that the free constitution, which is the work of your hands, may be sacredly maintained; that its Administration in every department may be stamped with wisdom and Virtue; that, in fine, the happiness of the people of these States, under the auspices of liberty, may be made complete, by so careful a preservation and so prudent a use of this blessing as will acquire to them the glory of recommending it to the applause, the affection, and adoption of every nation which is yet a stranger to it. There was Washington’s core political philosophy as it pertained to the American experiment, and the first axiom of that philosophy was union. It was followed by the principles of liberty and self-government under the Constitution, administered with virtue as an example to the world, all under the superintendence of a benevolent Providence. The union—barely a union at all under the Articles of Confederation—needed to be “perpetual,” and the friendship of the states that made it possible had to be nurtured. The Constitution that solidified and codified the union would have to be maintained with something like religious awe. The branches of the government under that union had to be administered with wisdom and, if that were not difficult enough, virtue as well. And all had to be

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done in an atmosphere of liberty as an example to foreign nations, as though the American union were to be an extension of the New England Puritans’ “city on a hill.” Washington went on to warn against the “baneful” influence of parties, and especially those founded on geographical lines of demarcation, as Madison had put it in the Convention. “In contemplating the causes which may disturb our Union,” Washington wrote in the Farewell Address, “it occurs as matter of serious concern, that any ground should have been furnished for characterizing parties by geographical discriminations—Northern and Southern, Atlantic and Western; whence designing men may endeavour to excite a belief, that there is a real difference of local interests and views.” There was no real difference of interests, Washington insisted; the interests of the whole union were the interests of the individual regions and states. That is one reason he plumped so hard, during the final years of his life, for the establishment of a truly national university. Washington wanted a kind of federal graduate school in the new capital, a seminary for political leadership that would not only train its students, but break down their regional prejudices. He was keen on seating it in the capital, “where the Youth from all parts of the United States might receive the polish of Erudition in the Arts, Sciences and Belle Letters; and where those who were disposed to run a political course, might not only be instructed in the theory and principles, but (this Seminary being at the Seat of the General Government) where the Legislature wd. be in Session half the year, and the Interests and politics of the Nation of course would be discussed, they would lay the surest foundation for the practical part also.” Washington wanted language in the Farewell Address about a national university, but in the end he bowed to Hamilton’s editorial judgment and left it out. Instead he settled for that long encomium to the virtues of union, the “palladium” of American political happiness that hovered like some civic goddess over the “sacred ties which now link together the various parts.” To Washington, sacred were the ties that bound the union together, and we can surmise that had he been alive in 1861, he would have seen Confederate efforts to dissolve that union as a national sacrilege. Thus by the end of his presidency, and essentially of his public career, Washington had developed a view of the union, and its supremacy and supreme importance for American “happiness,” that was, in its own way, nearly as mystical as Abraham Lincoln’s view of the union during the Civil War. In the final line of his final Annual Message to Congress (the equivalent of our State of the Union message), Washington said, “The situation in which I now stand, for the last time, in the midst of the Representatives of the People of the United States, naturally

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recalls the period when the Administration of the present form of Government commenced; and I cannot omit the occasion, to congratulate you and my Country, on the success of the experiment; nor to repeat my fervent supplications to the Supreme Ruler of the Universe, and Sovereign Arbiter of Nations, that his Providential care may still be extended to the United States; that the virtue and happiness of the People, may be preserved; and that the Government, which they have instituted, for the protection of their liberties, may be perpetual.” As he wrote in the Farewell Address, the was “sacred.” That sanctity was not to be violated or profaned, and Americans’ attachment to union was to be unshakeable in the face of enemies from without or, portentously, from within. The “Unity of Government which constitutes you one people is also now dear to you,” he reminded the American people, that “sacred union of citizens”: It is justly so; for it [union] is a main Pillar in the Edifice of your real independence, the support of your tranquility at home; your peace abroad; of your safety; of your prosperity; of that very Liberty which you so highly prize. But as it is easy to foresee, that from different causes and from different quarters, much pains will be taken, many artifices employed, to weaken in your minds the conviction of this truth; as this is the point in your political fortress against which the batteries of internal and external enemies will be most constantly and actively (though often covertly and insidiously) directed, it is of infinite moment, that you should properly estimate the immense value of your national Union to your collective and individual happiness; that you should cherish a cordial, habitual and immoveable attachment to it; accustoming yourselves to think and speak of it as of the Palladium of your political safety and prosperity; watching for its preservation with jealous anxiety; discountenancing whatever may suggest even a suspicion that it can in any event be abandoned, and indignantly frowning upon the first dawning of every attempt to alienate any portion of our Country from the rest, or to enfeeble the sacred ties which now link together the various parts. Washington, a surveyor and builder, was fond of architectural metaphors. The union was a “Pillar in the Edifice” of independence; the “support” of domestic tranquility and other benefits; a “fortress”; and finally, a “Palladium.” That last word is strange to us, but it was familiar to Washington’s eighteenth-century audience with its cult of the classical world. It was a reference to the statue of Pallas Athene on the citadel of Troy, upon whose protection the safety of the city depended. (Washington once ordered statuary with figurines of Aeneas carrying

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his aged father out of burning Troy.) Lose the union, and you lose everything, Washington was saying. The Whiskey Rebellion and Nullification While president, Washington had faced his own version of nullification, which we might call “popular nullification,” during the Whiskey Rebellion of 1793. The rebellion was occasioned by Secretary of the Treasury Hamilton’s Excise Act of 1791 on “Spirits distilled within the United States.” Though there was widespread popular noncompliance to that act in virtually all states south of the Mason– Dixon Line, in 1794 sporadic violence arose to the north, in four counties in western Pennsylvania, including, most irksomely to the president, Washington County. There, backcountry settlers concluded that their right to scratch out a living on the frontier was being compromised by tax collectors and moneymen from the eastern capital. Washington, haunted by the specter of Shays’ Rebellion of 1787–88, raised an army of nearly thirteen thousand militia, which he shrewdly called the “army of the constitution,” and marched it out from Philadelphia with himself at the head. It was the first and last time a U.S. president led troops in the field. Washington turned back at Carlisle while the army continued on without him, and by the time it arrived, the whiskey rebels had melted away. Only a handful were rounded up and tried, and Washington pardoned the two who were convicted. Jefferson privately mocked the whole venture, and to some opposition congressmen, Washington’s constitutional army resembled the “Macedonian phalanx bear[ing] down all before them” they had prophesied during debate over the Excise Act. Washington, however, in his Sixth Annual Message to Congress put on a good face and even invoked the spirit of the Revolution. Combining classical republican notions of political community and an army of citizen–soldiers with the modern idea of liberty under law, he claimed that the response to the Whiskey Rebellion “demonstrated, that our prosperity rests on solid foundations; by furnishing an additional proof, that my fellow citizens understand the true principles of government and liberty: that they feel their inseparable union.” Washington even implied that the Spirit of ’76 was alive and well in ’93, for Americans were “now as ready to maintain the authority of the laws against licentious invasions, as they were to defend their rights against usurpation. It has been a spectacle, displaying to the highest advantage, the value of Republican Government, to behold the most and least wealthy of our citizens standing in the same ranks as private soldiers; pre-eminently distinguished by being the army of the constitution.”

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Washington was not insensitive to the plight of cash-poor farmers—in a sense he was one himself, and even during Shays’ Rebellion he had counseled redressing the rebels’ grievances if they were legitimate—but he drew the line at disobedience to the Constitution. It was lamentable, he said, that combustible elements had “interrupted the tranquillity of any part of our community,” giving a nod toward the “domestic tranquility” of the union mentioned in the Preamble. But it was intolerable that the true principles of republican government and liberty were to be subverted on his watch as president. Washington also insinuated that the so-called Democratic Societies, early excrescences of Jefferson’s Democratic– Republican Party, had instigated the rebellion and duped the rebels by playing on their “prejudice” and “passions.” Believing they could frustrate the federal government’s constitutional ability “ ‘to lay and collect excises,’ . . . certain self-created societies assumed the tone of condemnation,” Washington said. “Hence, while the greater part of Pennsylvania itself were conforming themselves to the acts of excise, a few counties were resolved to frustrate them.” This mention of the Democratic Societies was impolitic on Washington’s part, and made him appear to be discouraging the people’s rights to free speech and assembly protected in the First Amendment. No great harm came from this slip of Washington’s political tongue, but to some it confirmed their fears about a repressive federal government. His critics need not have worried. Washington may have overreacted somewhat to the Whiskey Rebellion, but overall he was an assertive president without being high-handed. (In fact, his moderate exercise of power without seeming to exercise it prefigured that of a later general–president, Dwight Eisenhower, as profiled in Fred Greenstein’s Hidden-Hand Presidency; also like Ike, Washington became head of a university—Washington at William and Mary, Ike at Columbia—in the years between his war and his presidency.) Washington made a show of being apolitical, and in actuality was thoroughly nonpartisan, but he had excellent political instincts and relied on them in making appointments and negotiating, as when he hammered out the Treaty of New York with the Creek Nation in 1790. Careful not to appear to upset the balance of power established in the Constitution, Washington nevertheless thought and acted as though he had an equal right with the other federal branches to interpret it, for example, withholding treaty documents from the House when he thought only the Senate had the constitutional right to them. While he always favored an energetic federal union, Washington believed that the union’s ultimate purpose was to secure rights. That is why, as president, though he thought a separate bill of rights for the Constitution was superfluous to a document that did not threaten the people’s liberties, he recommended that

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amendments be given the “dispassionate” attention of Congress, provided they were not “incompatible with the fundamental principles of a free and efficient government.” Enumerated rights, yes—but not at the expense of “free and efficient” government, the real guarantor of those rights. That is undoubtedly why Washington’s Annual Messages to Congress during the years surrounding the adoption of the Bill of Rights scarcely mentioned that major textual change to the “supreme law of the land”; that is also why Washington took swift and decisive action in putting down the Whiskey Rebellion two years after the passage of the Bill of Rights. One can only wonder how he would have acted had he been president in 1861 and faced a far more formidable rebellion. President-elect Lincoln himself wondered, and lamented that he did not have any of the Founders around to consult regarding the rebellion of the southern states. He also said, in his farewell address at Springfield, Illinois, en route to his inauguration, “I now leave, not knowing when, or whether ever, I may return, with a task before me greater than that which rested upon Washington.” It was a great task indeed, and it is a curious fact that among all the founders, Lincoln reserved his very highest (indeed, unqualified) praise for Jefferson rather than for Washington. Lincoln gave “all honor to Jefferson” in 1859, and wrote that “it is no child’s-play to save the principles of Jefferson from total overthrow in this nation.” As president-elect, he said, in Independence Hall, “I have never had a feeling politically that did not spring from the sentiments embodied in the Declaration of Independence”—again giving Jefferson pride of place. Perhaps this elevation of Jefferson was due to Lincoln’s overall constitutional theory, which gave Jefferson’s Declaration a more central place even than Washington’s Constitution. To Lincoln the Declaration was that “apple of gold” that was set off by the “frame of silver” of the Constitution: The expression of that principle [of liberty for all], in our Declaration of Independence, was most happy, and fortunate. . . . The assertion of that principle, at that time, was the word, “fitly spoken” which has proved an “apple of gold” to us. The Union, and the Constitution, are the picture of silver, subsequently framed around it. The picture was made, not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple—not the apple for the picture. In the event, it was the Confederacy that formally appropriated Washington’s image and his legacy, when Lincoln’s Union might have wrapped itself in the mantle of America’s first, and perhaps greatest, defender of a perpetual union.

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Washington’s Testament According to Washington family lore, one night in July of 1799 the General dreamt of his own death; the next morning he sat down to amend his will to dispose of his property, and to dispose of himself. He had already bequeathed a political legacy to the American people three years earlier, in his Farewell Address of 1796. But Washington still had unfinished business with his fellow citizens, and even his last will and testament blurred the lines between private and public, containing posthumous lessons in republicanism for those with eyes to see between the lines. His will was to constitute a postscript to the Farewell Address on the topics of union, race, and citizenship. In his clear hand Washington began, “In the name of God amen[.] I George Washington of Mt. Vernon, a citizen of the United States, and lately President of the same,” emphasizing his U.S. citizenship and presidency. In contrast, Jefferson, ever the localist, began his will, “I, Thomas Jefferson, of Monticello, in Albemarle, being of sound mind,” making no mention of his own two-term presidency of those united states he had declared free and independent; indeed, he did not even think his national offices worth mentioning among the most notable achievements inscribed on his obelisk tombstone (a tombstone that strangely prefigured the Washington Monument). While Washington had made his last testament as an American, Jefferson made his as a Virginian. In that will Jefferson freed only a handful of his slaves, all males from the Hemings family. Washington also began his will with an ancient Christian invocation of the deity, the same invocation the Pilgrims had used to begin their Mayflower Compact in 1620. Believing it was in keeping with the justice of the Creator, in the will’s second item Washington freed his slaves. In an undated meditation probably penned ten years earlier, Washington wrote that the “unfortunate condition of the persons, whose labour in part I employed, has been the only unavoidable subject of regret. To make the Adults among them as easy & as comfortable in their circumstances as their actual state of ignorance & improvidence would admit; & to lay a foundation to prepare the rising generation for a destiny different from that in which they were born; afforded some satisfaction to my mind, & could not I hoped be displeasing to the justice of the Creator.” Washington was leaving no doubt about where he stood on the preeminence of the union, on the nullification controversy then threatening it, or on the institution of chattel slavery. He had supposedly once told Edmund Randolph that if slavery ever divided the country, “he had made up his mind to move and be of the northern.” As a young man, Washington unreflectively accepted the race

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distinctions endemic in colonial Virginia. He had of course been born into a slave-owning family in a slave-owning society. His father Augustine’s modest estate, revealed in the inventory taken shortly after his premature death, included some furniture and bedding, a little plate and china, and seven able-bodied slaves. The adult George Washington bought and sold slaves and offered rewards for runaways. After his marriage to the widow Martha Dandridge Custis, he acquired control over many more dower slaves, so that by the time of the Revolution he was overseeing hundreds of enslaved persons. But after time spent in the north during the Revolution and as president of the newly United States, he changed his thinking on what became known as the “peculiar institution.” An exchange with the slave poetess Phillis Wheatley early in the Revolution illustrates Washington’s burgeoning respect for the rights and capacities of African Americans. Wheatley had written and mailed a poem in honor of General Washington that suggested a “crown, a mansion, and a throne that shine / With gold unfailing, Washington be thine!” Washington initially wanted to see the poem published as an example of her “great poetical genius,” but then decided against it because of the poem’s monarchical overtones. He wrote to her instead: I thank you most sincerely for your polite notice of me, in the elegant Lines you enclosed; and however undeserving I may be of such encomium and panegyrick, the style and manner exhibit a striking proof of your great poetical Talents. In honour of which, and as a tribute justly due to you, I would have published the Poem, had I not been apprehensive, that, while I only meant to give the World this new instance of your genius, I might have incurred the imputation of Vanity. This and nothing else, determined me not to give it place in the public Prints. If you should ever come to Cambridge, or near Head Quarters, I shall be happy to see a person so favoured by the Muses, and to whom Nature has been so liberal and beneficent in her dispensations. I am, with great Respect, etc. At his army headquarters Washington did meet with Wheatley, whom he treated with great courtesy, befitting a person of unusual talents and abilities. (Once again in stark contrast to Washington, Jefferson denigrated and dismissed Wheatley in his Notes on the State of Virginia: “Among the blacks is misery enough, God knows, but no poetry. . . . Religion indeed has produced a Phyllis Whately [Wheatley]; but it could not produce a poet. The compositions published under her name are below the dignity of criticism.”)

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Ten years later, in 1786, Washington was writing that he never meant “to possess another slave by purchase” and wanted to see laws that would eradicate slavery by “slow, sure, & imperceptable degrees.” By July 1799 when he revised his will for the last time, Washington’s thoughts on slavery were closer to those of British abolitionists such as William Wilberforce and his Clapham Sect than they were to most of his neighbors’ in Fairfax County, Virginia. A dozen years earlier, Washington had been the largest slaveholder at the Constitutional Convention; now he became the only former delegate, even posthumously, to free his slaves. His executors (and executrix, for he had included Martha) began to carry out the provisions of Washington’s will shortly after his death. They saw to the simple funeral arrangements he had requested. They noted that he had set up a trust fund to provide financially for his freed slaves and their descendants, who were to be taught to read and write, and brought up to some useful occupation, and perhaps to citizenship. Through these provisions Washington implicitly rejected the repatriation schemes favored by other southern founders like Jefferson and James Monroe, and even by President Lincoln during the Civil War era. The executors noted, too, Washington’s imperious tone in the will’s slavery clause: “And I do moreover most pointedly, and most solemnly enjoin it upon my Executors hereafter named, or the Survivors of them, to see that this [cl]ause respecting Slaves, and every part thereof be religiously fulfilled . . . without evasion, neglect or delay.” Washington also left his stock in the Potomac Company to the general government of the United States to fund his treasured pipe dream of a national university in the District of Columbia. There he hoped American youth might learn political theories “friendly to Republican Governmt” and gain “knowledge in the principles of Politics.” Having begun his will with an invocation of the deity, Washington ended it with a benediction on his country: “In witness of all . . . of the things herein contained, I have set my hand and Seal, this ninth day of July, in the year One thousand seven hundred and ninety [nine] and of the Independence of the United States the twenty fourth.” With one final twist of the British lion’s tail, Washington took the kingly custom of giving public documents dual dates from the birth of Christ and also the year of the sovereign’s reign, and republicanized it. This was to be no testament of an elected monarch, done in the reign of our Sovereign Lord King George IV of the United States, the sixteenth year, Anno Domini 1799, as it might have been written had some American officers, who wanted Washington appointed king, gotten their wish at the end of the Revolution. Instead, it

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was simply the will of Citizen Washington, lately president of the United States. It was a fitting epitaph for the founder who, more than any other, had incarnated the political philosophy of the nation he had helped conceive. It was also a characteristically prescient lesson from the pater patriae to his political heirs on the importance of union, and a warning of the dangers that threatened it. Even as the eighteenth century (and his own life) ended, Washington was gesturing toward the coming crisis of union that would result in the Civil War.

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Constitutionalism Endangered: The Road to Civil War

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Martin Van Buren as Statesman State Rights and the Rise of the “Free Soil” Party Christian Esh

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artin Van Buren stands at a significant crossroads of antebellum political thought between old republican partisans of state rights and the Republican Party cause of “Free Soil, Free Labor, and Free Men.” His political thought is indispensable for understanding how the Jeffersonian– Jacksonian coalition gave way to the sectional split of Civil War–era political parties. Van Buren’s long political career exemplifies the persistent northern use of state rights language, even as slavery became the predominant political issue. This chapter analyzes this transformation in three stages: (1) the early history of New York’s republican theory of states as sharing concurrent sovereignty with the federal government, (2) Van Buren’s defense of the states’ vital role in constitutional deliberation amid the Nullification Crisis, and (3) Van Buren’s use of state rights in defense of the Free Soil movement against southern claims of slavery as a national right. Van Buren’s opposition to southern constitutionalism at the end of his career is striking because he devoted the majority of his political life to what he called the “sacred cause of state rights.” His career began with the creation of the Albany Regency, the first Democratic political machine. In order to secure national dominance for his party, he cemented a bisectional alliance with the South that deliberately silenced northern critics of slavery. His disastrous presidency commenced with one of the most severe banking crashes in American history. Defeated for re-election in 1840, he was refused re-nomination by his own party in 1844. Ironically, Van Buren discovered political wisdom amid disgrace. After 1840 he persisted in defending the rights of the common citizen to be free from the combination of slavery, westward expansion, and state sovereignty as advocated by Southern Democrats. Van Buren fiercely opposed this policy because he believed it deviated from old republican principles. In response his opponents engineered his political humiliation and expulsion from national power. In 1847

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he even lost control of the New York Democratic Party to a pro-southern faction. His faction of radical Democrats, called the “Barn Burners,” became exiles from their own party. In 1848 Van Buren was defeated for a third time as a candidate for the presidency, being then the nominee of a small third party called the “Free Soil” Party. Observing this long litany of political failures, it is easy to see why he has been largely forgotten. Yet Van Buren’s career has significance for the constitutional historian because it illuminates the strange career of state rights as a political theory. State rights have suffered some neglect by historians, who see it as a justification for local prejudice to the exclusion of honest constitutional reasoning. Especially with the advent of the Progressive school of historians, it became politically and intellectually fashionable to assume that state rights were a pretext for some ulterior, often sinister motive. As Arthur Schlesinger Sr. put it, “The state rights doctrine has never had any real vitality independent of underlying conditions of vast social, economic, or political significance. . . . This doctrine has served as a species of protective coloration against the threatening onslaughts of a powerful [federal] foe.” The theme was echoed by Hubert Humphrey’s 1948 address to the Democratic National Convention, which distinguished the illegitimate rights claims of southern segregationists under the name of “states’ rights” from the moral, liberal impulse toward “human rights.” Sadly, the history of state rights, which animated the most profound constitutional struggles of antebellum America, has not fully recovered from this false dichotomy. Constitutions, far from being simple rhetorical or procedural devices, offer a normative vision of the regime. As Herman Belz explained, “A constitution is an account of the ways in which a people establish and limit the power by which they govern themselves, in accordance with the ends and purposes that define their existence as a political community.” Martin Van Buren’s defense of state rights and free soil was not simple political rhetoric, but a nuanced normative claim about how and why the Union had agreed to foster a free society, in part through its system of federalism. Van Buren and State Rights Republicanism in the North As the partisan leader of New York’s “Democracy,” Van Buren frequently referred to his party and their ideology as republican, referencing a history of ideas that stretched back through the Jeffersonian resistance to centralized power, through the Anti-Federalists, and ultimately to the Revolution itself. State rights, as it was called, was rooted in the Revolutionary War. Old republicans had asserted that

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the British Empire did not have the authority to bind the colonies “in all cases whatsoever.” Rather, their rights came from God and their status as free Britons living in their autonomous political communities. The Revolutionary solution to imperial injustice was government by voluntary association—a confederation of sovereign states that lacked the power to coerce or tax individual states. The founders agreed that this confederation had failed. It was replaced in 1787 by a national constitution that restricted the rights of the states while not destroying them as political communities. The question the founders faced, as expressed at the founding, was “How are the state rights, individual rights, and national rights [to be] secured?” As these republicans understood it, “state rights” was the species of constitutional interpretation accentuating the reserved rights of the states under the Constitution, especially the Tenth Amendment. They sought to constrain the powers of the national government by strictly limiting it to the enumerated powers. During the early republic, state rights were frequently justified by the claim that the people of the states had formed the union, through a civil compact, and had carefully distinguished the national from the state sphere of action. The Anti-Federalists and Jefferson’s Democratic–Republican Party continued to insist on the vigilance of state governments to guard the rights of the people against the threat of the consolidation of power into the hands of a few. The nationalist parties, the Federalists and the Whigs, tended to dismiss their fears as a paranoid fantasy. But for rural Northern Democrats like Martin Van Buren, state rights remained a potent tool to prevent the consolidation of national authority in the hands of “aristocratic” bankers and merchants. To prevent just this outcome, Van Buren and Jackson launched the Democratic Party, which remained committed to republicanism. A critical part of this republicanism was the constant vigilance by the states over the terms of the constitutional compact. Jeffersonian republicans believed that the small republics, or states, were the most authentic and capable expression of the popular will. Thus they were to be trusted with most of the tasks of governance—even, some republicans asserted, with the task of deciding how the Constitution ought to be interpreted. Before the Civil War, states customarily played an aggressive role in asserting what they thought the principles of republican constitutionalism were and how the national government ought to reflect them. As an expression of their citizens’ sovereignty, state legislatures frequently challenged the constitutional interpretations of the nation. When facing a crisis, one state legislature would draft concurrent resolutions, laying out its reading of the Constitution and calling for assistance from the several states. Legislatures

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hoped that collectively the states might apply political pressure to the national government, coordinate a successful constitutional amendment, or in a grave crisis call for a new constitutional convention. The most famous of these acts of state-centered constitutional deliberation were southern. Resolutions by Georgia engineered the Eleventh Amendment, Virginia and Kentucky’s “Principles of ’98” successfully defended civil liberties against high federalism, and a popular convention in South Carolina promulgated the theory of nullification in 1832. Northern states were equally active in asserting their principles against the embargo act, the national bank, internal improvements, and the varied debates over slavery and abolition after the 1830s. These state resolutions are an invaluable source for the constitutional historian because they give explicit evidence of the way that states understood their place in the Union. New York legislative resolutions between the Revolution and the Civil War naturally do not present a neatly packaged constitutional theory because control of the state legislature shifted from Federalists to Republicans, and from DeWitt Clinton’s Bucktails to Martin Van Buren’s Regency. New York’s resolutions present an enthusiasm for a national union expressed in the language of state rights republicanism. For instance, after the Hartford Convention’s call for constitutional amendments to protect New Englanders from the enhanced voting power given to the South by the Three-Fifths Clause, New York responded with patriotism and moderation. It chastised the “Eastern states” for neglecting the honor and unity of the nation, clearly rejecting the amendments the convention proposed. New York reminded New England that the text of the Constitution expressly forbade private interstate compacts. Though insisting on strict construction of the existing constitution, New York acknowledged that the states were, in fact, “confederated sovereignties,” implying that while state rights were limited by the constitutional compact, states did possess concurrent sovereignty. Nuance also characterized New York’s response to an 1819 Pennsylvania proposal that Congress should be forbidden to incorporate a bank within the states. New York disagreed. The state legislature believed a bank to be necessary for the republic. As the 1823 resolution explained, “The dignity, the welfare, the prosperity, and the permanency of that government (which is our pride and admiration) forbid the adoption of the proposed amendment.” But New York did not object to Pennsylvania’s right to criticize Congress’s interpretation of the Constitution. The legislature simply disagreed with Pennsylvania’s judgment as to the wisdom of the amendment. State legislatures presumed it was appropriate for the states qua states to declare what the Constitution meant.

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In the early republic, New York was jealous of its state rights, simply because the federal government had not yet assumed practical governance in areas of interstate commerce, manufacturing, or patent law. New York’s unique success with state-funded internal improvements like the Erie Canal encouraged this theory of independent economic development. While many states had vigorously contested the right of the federal government to incorporate banks, charter turnpike companies, or finance canals, New York adopted the position that it held concurrent jurisdiction with the federal government in areas of economic development. Moderate republican defenders of state rights would profess a willingness to submit to national power, if by the canons of strict construction a specific conflict could be proved. Until that moment, the state was responsible for developing its economic potential. Before Van Buren’s ascendency, New York’s most controversial expression of the concurrent jurisdiction principle was an exclusive monopoly grant to Robert R. Livingston and Robert Fulton to develop steamboat routes within the Empire State. Livingston and Fulton were continually frustrated by the refusal of other entrepreneurs to respect their sole right to use steamboats on the lucrative New York–Albany line. In 1810 they filed suit in federal circuit court against a group of competitors known as the Albany Company for violating the state monopoly. Justice Henry Livingston, however, refused to accept jurisdiction, noting it would be improper for a federal court to engage in “interposition” against a state. Robert Livingston then filed for an injunction in Chancery court, insisting that the statutory law granting him the monopoly was superior to the defendant’s claim of protection under the U.S. Constitution’s Patents and Commerce Clauses. While Chancellor John Lansing refused the injunction, his ruling illuminates the powerful influence that the idea of legislative sovereignty held within the New York legal community. He acknowledged that New York possessed a sovereign right to regulate a navigable waterway for a public purpose, just as Parliament had in England. While he acknowledged the Constitution’s authority over patents and commerce, Lansing did not understand federal and state authority to be in fundamental conflict. The court’s real task was qualifying the state’s right to regulate, not through the Constitution, but through the traditional restraints on sovereign power found in the common law. Lansing explained that “sound maxims of justice and jurisprudence . . . from able and learned jurists” stretching from Justinian through Magna Carta to Blackstone emphasized the jus publicum of free usage on the seas and navigable rivers, which even the king could not bar. New York’s sovereignty was restrained in this instance, not by the

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federal Constitution, but by the same principles of normative constitutional right that should restrain Parliament. Livingston immediately appealed to the New York Court of Errors for reversal. In oral arguments, his lawyers emphasized that the supreme, sovereign power of the state was bound to protect his property right, which had been granted through the monopoly. Above all, they challenged Lansing’s opinion that monopoly power was inconsistent with the jus publicum of navigation. Such a radical doctrine was inconsistent with the sovereignty of the state. While the U.S. Constitution did limit the sovereignty of the state, counsel for Livingston argued that only a specific grant of power to the national government would deprive a state of its right to produce municipal regulations of “air and water . . . to prevent public injury.” While Congress could regulate commerce, so could the states. As Livingston’s counsel explained, “All power not, in its own nature, exclusively vested in Congress, or not expressly prohibited to the states, remains concurrent in the states. . . . The rights of the states are not to be explained away by metaphors and figures of speech.” Thus republicans derived their moderate state rights principles both from a strict construction of the constitutional text and from a theory of constitutionalism in which sovereignty was shared concurrently between state and federal governments. Because the Court of Errors consisted of New York Chief Justice James Kent, sitting with the State Supreme Court and the entire New York State Senate, their decision vindicating their state’s sovereignty is unsurprising. Kent’s opinion proclaimed that the legislature’s right to regulate its commerce “remains entirely, and I may say exclusively, within the scope of its original sovereignty.” Kent admitted that this claim of sovereignty was not absolute, being limited by a theoretical restraint of the vested rights—“the fundamental principles of all government”— which the people of the union had given to the general government under the U.S. Constitution. But New York would defer only to an actual, established conflict with a federal statute. Kent even endorsed a theory of national sovereignty: “When such a case arises, it will provide for itself; and there is, fortunately, a paramount power in the Supreme Court of the United States to guard against the mischiefs of collision.” New York did not see how the state transportation monopoly might violate the Constitution. Internal commerce lay within the reserved rights of the states, clearly vindicated by New York sovereignty. Kent’s opinion in Livingston v. Van Ingen was recognized for a generation as a byword for the limited but powerful sovereignty of New York. Martin Van Buren would operate from this point of view as he defended state rights during the Nullification Crisis.

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When the United States Supreme Court finally heard a case trying the monopoly in 1823 (Gibbons v. Ogden), the prevailing legal climate turned against the doctrine of concurrent jurisdiction. Counsel for the monopoly (Ogden) contended that New York held the “Supreme legislative power” over local commerce by virtue of the Declaration of Independence. The state remained fully sovereign except where that sovereignty had been delegated by the Constitution. Ogden’s lawyers insisted that the Article I, Section 8 grant of power over interstate commerce should be strictly construed to mean the “transportation and sale of commodities.” In particular, Thomas Emmet offered a stirring defense of state rights as “the only safe and practicable rule of conduct, and the true constitutional rule.” Citing other essentially local management of commerce, the development of the Erie Canal, restrictions of slave importation, quarantine legislation, and laws establishing lighthouses, Emmet argued that New York’s sovereignty over local commerce had long existed in concert with national sovereignty over national commerce. Chief Justice John Marshall’s opinion eviscerated New York’s claims of sovereign legislative authority over commerce. Specifically, it refuted Emmet’s claims by defining commerce broadly, as intercourse, not mere trafficking in goods. The Constitution required that New York submit to the federal regulation of interstate commerce, which would allow any vessel in possession of a federal coasting license to travel between the states despite the monopoly. But Marshall did not destroy state power altogether. New York still held the state right to supervise internal commerce based on health or nuisance regulation, but it could not claim to hold sovereignty concurrently with national sovereignty in an area where the people had clearly granted that authority to Congress in the text of the Constitution. New York accepted the Supreme Court’s inclusion of interstate commerce within the national sphere, as Kent had suggested they must. State Attorney General Samuel Talcott offered his legal opinion to the New York Assembly that the monopoly was dead. Steamboats possessing a federal coasting license were now under federal protection: “The state legislature have not power to interfere with it . . . rendering the monopoly useless.” In this case, the New York legislature chose not to contest the Court’s decision. Other states, however, were not willing to submit to the Marshall Court’s jurisprudence. For instance, Ohio had challenged the Supreme Court’s decision in McCulloch v. Maryland with a “solemn protest” against the Court’s unconstitutional assertion of supremacy. Unless that decision was overturned, “there must soon be an end to state governments.” In New York, a few old republicans echoed this dissent. They insisted that their

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constitutional liberties, under state rights, had been struck a fatal blow. As Emmett argued: If some of the principles of Gibbons v. Ogden are not overruled within twenty years, the Constitution will before then have verged towards a form of government which many good men dread. . . . It is upon State Rights that we stand and State Rights are State liberty. They are more; they are in this land the bulwarks of individual and personal liberty; they are the outposts of the Constitution. While they are preserved entire, our federative Union will stand the shocks of time and the approaches of despotism. . . . Consolidation will be the euthanasia of our constitution. Old republicans like Emmett determined to maintain the claim of state rights and recognized that New York had surrendered a right. Over the next decade, under the leadership of Martin Van Buren, New York would become the most vociferous defender of state rights within the North. Constitutional theorizing by the state legislature, far from dying gently, would play an increasingly vital role in antebellum politics. With the rise of Martin Van Buren’s Albany Regency in the 1820s, New York acquired a reputation as the northern defender of republican constitutionalism. Van Buren’s rise to national power was secured by southern republicans who sought a northern voice to legitimate a strong defense of state sovereignty in the controversy surrounding Cohens v. Virginia. To southern republicans like Thomas Ritchie, editor of the Richmond Enquirer, Van Buren proposed a national coalition, “between the planters of the South and the plain Republicans of the North.” It would be committed to the preservation of state rights and the defeat of politics in the Federalist style, which he labeled “Aristocracy.” This alliance would have the added benefit to southerners of squelching abolitionist tendencies that could lead to disunion. Southern moderates, like James Madison, recognized New York republicans as strong and necessary advocates for state rights against the American System of Henry Clay and the National Republicans. Deeply concerned by the “desperate” question of internal improvements, and the heterodoxy of the younger generation, the aging Jefferson suggested to Madison that perhaps a new set of Virginia Resolutions reviving the principles of 1798 would be desirable. Madison coolly suggested that Virginia, seen as a hotbed of state rights constitutionalism, should remain silent while other voices were available. In the case of New York, Madison averred, “Her Senator Van Buren, it

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appears, has already taken up the subject.” New York’s considerable size and the advanced state of its internal improvements, particularly the Erie Canal, made a nationalist constitutionalism undesirable. Indeed, in December 1825 Senator Van Buren delivered a carefully prepared speech proposing a resolution declaring “that Congress does not have the power to make Roads and Canals within the respective States.” Where Van Buren’s theory of the Constitution was distinguished from his republican predecessors like Madison was in its fierce rejection of aristocracy. Instead of following many founders’ belief in a constitution that balanced aristocracy and democracy, Van Buren stressed that legitimate government arose from “the Democracy,” meaning ordinary yeoman farmers and tradesmen. In good government, as much power as possible was reserved for the democratic element and their chosen instrument, state governments. As Gerald Leonard explains, “A constitution of the democracy alone was necessarily a states’ rights constitution.” Van Buren’s career, then, was distinguished by his advocacy for state rights, strict construction, and a bisectional alliance between northern and southern republicans. Van Buren and Nullification By the 1830s, however, the bisectional alliance between New York and the South faced severe pressure from southern demands for a reduction in the high “Tariff of Abominations” of 1828. Martin Van Buren, as the heir apparent to Andrew Jackson, was especially called on to answer the constitutional claims of Jackson’s vice president, John C. Calhoun, that each state had a right, individually, to nullify the tariff or any law that it believed was unconstitutional. Van Buren’s defense of state rights also carefully distinguished traditional state rights thought from the growing nationalism of Jackson’s presidency. Thus, by 1833, three diverging approaches to the question of state rights were articulated: (1) Calhoun’s theory of individual state sovereignty, (2) the old republican theory of state rights and (3) a nationalistic reading of the Constitution exemplified earlier by John Marshall’s jurisprudence, but now by Jackson’s presidency. Calhoun’s theory of nullification rested on three premises. First, he reasoned that “the general government emanated from the people of the several States, forming distinct political communities,” rather than one nation. Second, Calhoun deduced “that the Constitution of the United States is in fact a compact, to which each State is a party.” Finally, Calhoun insisted that each state had the right to judge when the compact had been violated and, quoting from the

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Virginia Resolutions of 1798, to “interpose for arresting the progress of Evil.” In this third point, Calhoun went further than his northern colleagues. South Carolina’s ordinance of nullification acknowledged that it was based in its right “in the same sovereign capacity in which they adopted the federal Constitution to pronounce, in the last resort, authoritative judgment on the usurpations of the federal government.” South Carolina sought in nullification a constitutional mechanism by which it alone could protect the natural right to consent, and not simply a constitutional right to be free from a protective tariff. Although Calhoun insisted that this extraordinary remedy was conservative in nature, designed to restore the original sectional balance to the Constitution, northern states and Jackson believed the claims to act in “last resort” actually expressed a revolutionary claim of natural right rather than any constitutional mechanism. Nullification was thus a departure from textual argument, in favor of a philosophical argument about the form the Union ought to take. Calhoun argued that sound normative theory dictated that southern minorities ought to hold a constitutional veto power to protect them from abuse by the northern majority—a position eventually expressed in his Disquisition on Government as the theory of the concurrent majority. By resting his theory on an analysis of what the Constitution ought to do, to preserve the “sacred distribution” of powers between the national and state spheres, Calhoun abandoned Jacksonian constitutionalism (with its emphasis on majority rule, strict construction, and a vigorous national executive) for an uncompromising vision of absolute state sovereignty. Jackson believed that his “sacred duty” under his oath of office required him to forcibly suppress Calhoun’s doctrine of nullification because it subverted the Union. He explained, “This abominable doctrine that strikes at the root of our government and the social compact, and reduces everything to anarchy, must be met and put down or our union is gone and our liberties with it forever.” Jackson had so thoroughly repudiated nullification that he undercut the state rights approach of many of his allies. Jackson’s constituency was “a confederated perpetual union, first made by the people in their sovereign capacities, upon which we the people of these United States made a more perfect union.” His first duty was to the people of the Union who had elected him, not the states. Jackson found himself frustrated by a Congress reluctant to pass his Force Bill and by state legislatures that did not support him as readily as he wished. Yet many old republicans still insisted that the Union had been formed by the people of the several states. Thus Jackson subtly induced a fissure into Democratic politics between his nationalist allies and the state rights wing of his own party. Jackson further divided Whigs

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and Democrats along ideological lines. Nationalist Whigs, like Daniel Webster, rallied to Jackson against Calhoun’s position. Democratic state legislatures were placed in a difficult position, believing that they could still collectively speak with authority about the meaning of the constitutional compact, yet bound by partisan loyalty and genuine patriotism to support Jackson against South Carolina’s threats. After the nullification contest, the moderate, republican state rights position espoused by Madison and Van Buren found fewer defenders. Placed in this difficult position, the northern states carefully responded to the crisis through their legislative resolutions. Northern state legislatures universally denounced Calhoun’s theory of nullification without wholly repudiating the theory of state rights. Four of the most nationalist responses (those of New Jersey, Delaware, Pennsylvania, and Massachusetts) entirely denounced the compact theory of the union, asserting that one people had founded the nation. Thus the states’ only proper constitutional role was to amend the text of the Constitution. Otherwise, they should defer to the judgment of the Supreme Court. Other northern states (Maine, New Hampshire, Ohio, New York, and Indiana) exhibited a moderate state rights position. They agreed with South Carolina that the Union had been formed by compact, through the people of the several states. But they praised the value of the Union as beyond calculation. Ohio called it the “first and paramount object of a free people.” Clearly they opposed South Carolina’s willingness to risk the Union over tariff rates. Instead, South Carolina ought to have made a “patriotic sacrifice to the cause of American Liberty and Union.” The actions against the other states were “inconsistent with the spirit of forbearance and compromise in which our Union had its origin.” Northern states stressed their support for Jackson’s strong defense of state rights within a vigorous union—they agreed that “the Union must be preserved.” However, none endorsed Jackson’s request for a Force Bill allowing the coercion of the recalcitrant South Carolina. Above all, they used their voice as states to “interpose” for mutual forbearance to protect the Union from violence until a political compromise could be negotiated. Each northern state denounced the doctrine of nullification as an unconstitutional innovation. Even the other southern states were reluctant to endorse nullification. All agreed that to refuse to pay the federal tariff was to resist the power of constitutionally legitimate government. The “heresy” of nullification, Indiana resolved, contained “internal evidence of their impracticality, absurdity, and treasonable tendency.” As the crisis intensified, pressure mounted on Vice President–elect Martin Van Buren to support the president’s nationalist policy. The president expected his

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political ally to speak on behalf of northern republicans, endorsing his nationalist stance. Jackson directed, “My friend, the crisis must be now met with firmness, our citizens protected and the modern doctrine of nullification and secession put down forever.” When, despite Van Buren’s pressure, the faction-ridden New York legislature could not agree on a set of resolutions, Jackson wrote again: “Let me hear from you soon. [G]ive me your opinion of the plan I have chaulked out to execute the laws and put down nullification, rebellion and secession.” In February 1833, the legislature finally produced a report, authored largely by Van Buren, which offered a republican defense of state rights. While disclaiming any need to choose sides in the partisan debate, Van Buren enlisted New York to defend the moderate practice of state rights. The state resolutions provide a classic defense of the state’s central role in protecting “the general government in its whole constitutional vigor.” The report reminded the “sister” states of their central role in republican constitutionalism. Each state had a patriotic duty to perform in defense of sound constitutionalism: Even at this critical emergency in our public affairs, when so much discredit is apprehended to the sacred cause of State rights from the excesses of South Carolina, the confidence of the Committee in the correctness of that cause is strengthened by the exemplary conduct of her sister States. When we witness the fervent zeal that pervades them all, . . . throwing their great moral and physical weight into the scale of the Union, who can doubt that now, as in the late war, the federal arm, in the hour of its greatest peril, will be upheld by the State authorities? Nullification endangered not only the Union, but also the influence of “state rights” within the Union. The doctrines of state rights in the Virginia and Kentucky Resolutions were being cast into disrepute. Because Calhoun used the old republican principles to justify nullification, it was imperative that the connection between nullification and the legitimate constitutional rights of the state be refuted. This was no less than New York’s “service to the Republic.” The Virginia and Kentucky Resolutions themselves did not justify secession, Van Buren contended. Virginia and Kentucky advanced the position that the central government had been created by a compact to which the states were parties. The states were then obligated to interpose against violations of that compact as a defense of the Constitution and Union. States did not presume to act alone, but they looked to other states to support their resistance. Although the

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other states in 1798 had refused the right of interposition as unconstitutional, Van Buren argued that Jefferson’s electoral victory of 1800 had vindicated statecentered constitutionalism. These principles became the foundation of orthodox constitutional theory. Van Buren insisted that “the future operations of our political institutions are dependent upon the continued respect and confidence of the people in them.” Recognizing Madison as the authoritative republican voice on state constitutional action, Van Buren appealed to “that great man” to settle the controversy. In the Virginia Resolution of 1798, Madison had assumed for the states a prominent role in constitutional deliberation; he did not seek to replace them with calls for a unified constitutional tribunal in the Supreme Court. No such authoritative voice existed. In a constitutional crisis, Madison later explained: a convention of the States must be called, to ascribe the doubtful power to that department which they may think best. . . . But still, in their present state, we consider [our constitutions] not otherwise changeable than by the authority of the people, on a special election of representatives for that purpose expressly: They are until then the lex legum. Because the Constitution had been ratified by all the people in the several states, change must arise from all the people. Democratic constitutional politics provided the solution to consolidation and usurpation. The political revolutions of 1800 and 1828 had functioned to restore the Constitution to its intended limits. In the current crisis, Van Buren believed the people of New York best exercised this political power through the actions of their state legislature, over which they exhibited a tighter control. The relative importance given to the states did not diminish the respect that New York had long maintained for the constitutionally mandated authority of the general government. Within its proper sphere, the judiciary was the “exclusive expositor of the Constitution, in cases submitted to its judgment, in the last resort.” The judicial power bound the other departments of the government, respecting cases before the courts, but “not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts.” Other constitutional actors retained their right to construe the meaning of the Constitution. The people had created the government, and the states must perpetually maintain it. If a state should insist on its natural right to independence, the other states would collectively

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decide whether to release it from its perpetually binding obligation, or to insist on the “preservation of the Union as it is.” The states’ collective right to decide the fate of the Union was the essence of republican government: Strip the States of this right, and a system which but yesterday excited the respect and admiration of the world, must soon, very soon, serve only as an additional argument in the mouths of monarchists and absolutists against the capacity of man for self-government. To deny states the right to defend the Union would make the very notion of selfgovernment absurd. While the New York report ostensibly supported Jackson, by stressing the “obvious and imperative” constitutional duty of the president to enforce the law, it could not support his theory that one national people had composed the Union. Most of Van Buren’s disagreement must be inferred from the report’s refusal to give Jackson the support he had directly requested. He maintained a critical silence on Jackson’s request for congressional authorization to use force. Although the report refrained from direct criticism of Jackson’s nationalism, it explicitly repudiated any suggestion that the Union was composed of one consolidated body of the people. Jackson had subtly undermined state rights orthodoxy by stressing national power to the neglect of state rights. Constitutional authority ultimately lay either in state legislatures or in constitutional conventions. The question of who formed the Constitution figured centrally in Van Buren’s analysis, so he could not afford wholly to avoid significant differences with the president. Van Buren’s analysis of the Constitution depended heavily on the role the states played both as constitutional deliberators and as the wielders of sovereign political power. It mattered a great deal whether the people or the states were sovereign. If the people were a wholly consolidated sovereign power, and not the states, then New York had no real business debating the meaning of the Constitution. In fact, it made Jackson’s own request for New York’s resolutions constitutionally unnecessary. Jackson had insisted that the whole people formed the Union, drawing on the Preamble as his authority that “We the People” were the parties to the Union. Van Buren eluded a direct disagreement with Jackson by defining the states as “the people composing their societies in their highest sovereign capacities.” This allowed the people, through the states, to be the parties to the compact, while preserving the states as constituents of the Union. Thus, he reasoned, “the preamble is reconciled with facts, and that is a Constitution estab-

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lished by ‘the people of the United States,’ not as one consolidated body, but as members of separate and independent communities, each acting for itself, without regard to their comparative members.” Van Buren’s analysis of the Union from first to last offered a qualified defense of the “sacred cause of state rights” against the excesses of South Carolina and the populist nationalism of Jackson. It sought to ground the rights of the states in a careful reading of the Constitution and the old republican tradition of Madison and Jefferson. In the titanic struggles of the 1830s between Jackson and Calhoun, it was the republican tradition of state rights and concurrent sovereignty that lost. When a treasonable confrontation between South Carolina and President Jackson failed to materialize, Congress passed the Force Bill and a compromise tariff allowing both Jackson and Calhoun to claim victory. The “sacred cause” of state rights, which Van Buren sought so earnestly to defend, had indeed been discredited by nullification. As the old republican consensus over state rights shattered, northerners began to gravitate to Daniel Webster rather than Van Buren as the northern spokesperson, while southerners found Calhoun’s theories more attractive. Few participants noticed that the whole nature of the debate had shifted as constitutional theory acquired a decisively sectional character. Van Buren and Free Soil As the South adopted Calhoun’s militant theory of absolute state sovereignty, Van Buren’s constitutional analysis shifted. By the 1840s, he perceived that the largest threat to republicanism came not from Whig bankers, but from the pro-slavery southern wing of the Democratic Party. Far from assuming a defensive posture, southerners were sure of their own superiority. Cotton was the dominant export of the nineteenth century and was as important to the international economy as oil is today. Southerners now insisted that slavery did not require any positive law to create it; slavery was the natural condition of humans, and could be prevented only by a state constitution. Calhoun, in 1837, even denounced Senator Rives of Virginia for his refusal to embrace slavery as “a great good.” Following Calhoun, southerners would demand slavery as a national right. Ironically, Van Buren defended the “sacred cause of state rights” against the southern clamor for the national expansion of slavery. An argument that the South pursued a nationalist policy regarding slavery seems contradictory in light of the militant defense of state sovereignty offered during the Civil War. Yet it helps to explain why northerners like Martin Van Bu-

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ren relied on the theory of state rights. The constitutional historian Arthur Bestor argues that unlike state rights, state sovereignty was not an inherently defensive doctrine. Rather, sovereignty could be used as a tool to promote slavery as national policy. He distinguished the legal postulates of state sovereignty, which were common in the South, from the love of local government and liberty, which were exhibited in state rights theorizing by both the North and the South. State rights protected the right of state and local governments to arrange their local institutions as they saw fit. The North and the South were developing not simply two different views of slavery, but two diverging theories of state rights. Northern efforts to protect their local way of life, whether protecting fugitive slaves or asserting their rights to discuss slavery openly in Congress, or to nominate their choice of candidate within the Democratic Party, should be understood in the context of their constitutionalism and not simply as political resistance of the Jacksonian “people” against the slaveholding “interests.” Bestor explains that northern resistance to southern demands to promote slavery “constituted ‘interposition’ and ‘nullification’ in a pure classical sense.” That is, New York’s resistance stood more squarely in the tradition of the Virginia and Kentucky Resolutions than did the “ingenious theories” of Calhoun. Southern policy, on the other hand, had its roots in a doctrine of sovereignty that promoted the power of southern states over national policy; it was an aggressive, reaching doctrine, not a passive defense of rights. As Bestor argues, “Secession is the alternative to, not the outcome of, the constitutional program that proslavery forces advocated.” Secession was the desperate response to both their failed bid to dominate national policy and the emergence of the “Free Soil” coalition. A pair of resolutions on the question of slavery demonstrates New York’s increasing resistance to southern constitutionalism. In 1836, New York supported a South Carolina resolution attacking abolition societies as a “direct violation” of the compact of union. The New York legislature affirmed the “constitutional right of the several states of the union, to regulate and control within their own limits, the relations of master and slave . . . consistent with their duty, safety and welfare.” Further, the New York legislature boasted of its “determination to abstain from, and to discountenance . . . public discussions of the subject of domestic slavery . . . calculated to produce an exciting, and improper, and a pernicious influence within the limits of other states.” New York explained to the South that by voluntarily repressing this sentiment within its border, it offered a better guarantee of the Union with South Carolina than would congressional legislation. The national postal regulation of abolitionist materials that South Carolina

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demanded, New York quietly deemed “inexpedient.” In reality South Carolina’s demands for national protection of slavery went beyond what state rights really required. Yet New York in 1836 was too deferential to confront its Southern Democratic allies. By 1840 New York proved more willing to challenge the South for denying the right of northern citizens to present antislavery petitions in Congress. An 1840 New York resolution denounced the gag rule as a violation of the “common right of every citizen of this country to be heard by their representatives” on any subject. This right, New York asserted, was a fundamental right guaranteed by the Constitution and the principles of the Declaration of Independence: “the common and natural right of every human being to address his prayers for aid to those who have the power to afford protection and relief.” New York did not go so far as to declare the gag rule “null and void” for this violation—that would clearly exceed the state’s authority. But New York was fully within its right to declare the principles of natural law and constitutional law while suggesting that Congress violated them. New York’s criticism of southern demands further weakened Van Buren’s claim to national Democratic leadership. By the 1840s, Van Buren’s political star was eclipsed by those of his Democratic rivals. The decisive question facing the nation in 1844 was which policy the United States should pursue with regard to the West. The newly independent slaveholding Republic of Texas clamored for annexation by the United States. Militant expansionists called for war against Mexico to build a continental empire in the West. To appeal to land-hungry northern farmers, Democratic expansionists also demanded that the entire Oregon Territory, which was under joint occupation with Great Britain, be added to the Union with the slogan “Fifty-four forty or fight.” Van Buren’s northern rivals for the 1844 presidential bid, Lewis Cass and James Buchanan, eagerly supported annexation and a potential war with Mexico with the hope of stealing the Democratic nomination from Van Buren. In response to these calls for a western empire for slavery, Van Buren exhibited what one biographer has called a “courageous and statesman-like view.” In an April 1844 letter to W. H. Hammet published in the Washington Globe, Van Buren clearly opposed the annexation of Texas by treaty because he feared it would be a pretext for war against Mexico. Van Buren first objected to the manner of the proposed addition of Texas: while territory might be added through the treaty-making power, the Constitution required that Congress admit new states to the Union. He suggested that the proposed addition of Texas would be

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procedurally illegitimate on these grounds. But the annexation of Texas raised the deeper constitutional question of whether it would violate the moral principles of the republic. Van Buren averred: If . . . we cannot avoid the conclusion that the immediate annexation of Texas would, in all human probability, draw after it a war with Mexico, can it be expedient to attempt it? . . . Whilst the lust of power with fraud and violence in its train, has led other and differently constituted governments to aggression and conquest, our movements in these respects have always been regulated by reason and justice. Such a war could not be considered just, because it violated the tradition of American neutrality opened by the statesmanship of George Washington. More fundamentally, it would subvert American claims to be a republic rooted in natural right or “reason and justice.” Recognizing that many southerners would find this appeal to principle unconvincing, Van Buren carefully defended his argument from the inevitable charge of sectionalism. If Mexico renounced all claims on Texas and if the majority of the American people expressed their desire through Congress, Van Buren believed the president was bound to carry out their wishes. But Van Buren recognized that this was not likely to provide the “specific pledges” that the increasingly militant Southern Democratic Party demanded. While not expressly addressing the issue of slavery, Van Buren implicitly recognized that southern demands for more slave states lay at the heart of this issue, and Van Buren could not offer them a guarantee on Texas when he did not believe it to be in the best interest of the whole nation. Van Buren’s principled opposition to annexation undermined his presidential nomination at the 1844 Democratic National Convention. Southern delegates refused to support his candidacy, and under a rule requiring a two-thirds majority, they effectively denied Van Buren the nomination. On the ninth ballot, the Tennessee slaveholder James Polk was nominated as a compromise candidate. He campaigned on the annexation of both Texas and Oregon, and subsequently won the presidency. President Polk immediately set about using the power of the national government to satisfy the southern thirst for western land. The annexation of Texas in 1845 was followed by the wildly successfully conquest of Mexico in 1848. As the price of peace, the Union demanded and received from Mexico extensive territory in what is today the American Southwest. Polk approached the Oregon question with more caution. He used diplomacy, not war, to acquire only a portion of the Oregon Territory from Britain, thus angering Northern

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Democrats who wanted more land free from slavery. Polk believed he had secured for the nation the grounds for its future prosperity. Polk had actually set into motion the forces of sectional conflict that would culminate in the Civil War. Effective opposition to expansion arose, not from the Whig Party, whose mercantile and planter leadership was amenable to slavery, but from the Democratic rank and file. In August 1846 David Wilmot, a Pennsylvania Democrat, proposed legislation that would prevent “slavery or involuntary servitude” from being permitted in any territory that might be acquired from Mexico. The Wilmot Proviso passed the House but failed in the Senate, where the interest of slavery was guarded by the equal number of free and slave states. During the next session, Senator Calhoun introduced a series of resolutions to counter the claim that slavery did not have the right to expand. He charged that the sovereign states had equal rights to the territories. In other words, a congressional ban on slavery would violate the rights of people in the territories to form their own governments. The battle between southern theories of state sovereignty and Free Soil theories of state rights was joined. Alabama’s 1848 Democratic state convention pushed the issue further. Alabama espoused the old Jacksonian causes: opposing a “huge National Bank,” guarding the currency, pushing free trade, and restricting internal improvements. In one respect, however, Alabama’s resolutions undermined the bisectional alliance forged by Martin Van Buren. Resolutions drafted by “Fire Eater” William Lowens Yancy insisted that while southerners would not think of interfering with “the local distinctions and controversies of our sister States,” duty required them to renounce as Democrats any politician who would “de-nationalize the South and its institutions, by restrictions upon its citizens and those institutions.” The resolutions announced that the delegation would require any presidential candidate to denounce the exclusion of slavery from the territories “as being alike in violation of the Constitution, and the just and equal rights of the slave holding states.” While the resolutions disavowed “all intention” of undermining the local institutions and platforms of “our sister States,” in fact they set limits on northern opinion. Any northern sentiment in condemnation of slavery would in their view “de-nationalize” the South. Alabama hoped to drive northern opponents of slavery from the Democratic Party. Ironically, those who opposed this assertion of state sovereignty were to be accused of sectionalism and treason. Yancy successfully persuaded Alabama’s Democrats that the honor of the South was in jeopardy. The national right to slavery was in question and needed to be defended by asserting the sovereign state’s political power. Other southern state legislatures, including South Carolina, Florida, Virginia, North Carolina,

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and Missouri, produced similar resolutions that denounced Northern attempts to limit slavery. Collectively, the southern states pressured Northern Democratic presidents like Franklin Pierce and James Buchanan to support a national right to slavery in the new territories to be won in the West. Martin Van Buren insisted that Alabama did not have the right to forbid New York Democrats from supporting the cause of Free Soil. Many New Yorkers disagreed. Democratic Party politics split into the radical “Barnburner” faction led by Martin Van Buren’s son John, and a “Hunker” faction led by Polk administration loyalists. Neither faction would compromise with the other as to the proper policy on slavery in the territories. In September 1847, the Hunker faction engineered a hostile takeover of the state party at the New York convention in Syracuse. The Hunkers’ use of the committee machinery outfoxed even Van Buren. The Hunkers then adopted an expansionist platform for the state party and chose a pro-slavery delegation for the national convention the following year. Angered by the theft of their own party and the corresponding loss of federal patronage, Van Buren and the Barnburners stayed home in the 1847 state elections. Consequently, the Democrats lost control of New York State. This crisis over slavery in the territories led Van Buren to rethink altogether the party’s position on slavery and his place in the Democratic Party. Van Buren had never been particularly troubled by the fate of African slaves in the South. Now he began to realize that Southern Democratic demands that all northerners support the western expansion of plantation slavery violated the republican principles of personal liberty and yeoman-led local government that New York Democrats had traditionally supported. In his personal correspondence, Van Buren faced accusations from his former southern allies that he had betrayed their cause. In 1847 Thomas Thornton of Jackson, Mississippi, wrote of his former regard for Van Buren and the New York Democracy as a “wall of fire to prevent any undue and unconstitutional interference by those of the free states with the peculiar and perhaps unfortunate condition of the slaveholding states.” Now Thornton suggested that Van Buren had abandoned his principles. Peter Daniel of Richmond likewise sensed a shift in Van Buren. During his earlier career, Van Buren’s “crowning excellence” was his “inflexible fidelity to the Constitution,” especially regarding slavery. Van Buren, Daniel believed, had little experience with slavery, but defended it well. Now it seemed that Van Buren “was about to depart from the clear course of his previous political life, and to sunder at once and forever the bond . . . with the true Constitution of Democracy.” Daniel insisted that Congress lacked the power under the Constitution to either give a portion of the West to a foreign community

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or “arbitrarily bestow it upon another and favored portion of the Union. . . . Every state and its citizens have an equal right in whatsoever belongs to the United States”—namely, the western territories. Thus Southern Democrats charged that Van Buren had departed from constitutional orthodoxy. Over the winter of 1848 Van Buren boarded in a New York City hotel and conferred with his closest political allies: his son John Van Buren, and the future Democratic presidential candidate Samuel Tilden. As the leading Barnburners, they tackled the thorny question of slavery in the territories. Van Buren advised Tilden that their jointly authored manuscript titled “The First Gun for Free Soil” could create a stir: “If you wish to be immortal, take this home with you, complete it, revise it, put it into proper shape, and give it to the public.” Eventually, they presented it as an address to the Democratic members of the state legislature. “The First Gun for Free Soil” contained (1) a rebuke of southern constitutionalism, (2) a defense of the founders’ position on slavery, and (3) a normative constitutional analysis of the Union’s democratic purpose. First, the manuscript laid the charge of constitutional heterodoxy back at the feet of Southern Democrats. Free Soilers charged that the Alabama Platform rendered the idea of state rights absurd. If slavery was really a question of natural rights, Tilden argued, then it was not a matter for any state to regulate. Tilden explained that the southern doctrine destroyed the “foundation of slavery itself, even in the states.” If positive law could not protect freedom in the territories, than how could it protect the existence of slavery in the states? If the contest was truly one of natural rights—between the property rights of southerners and the slaves’ right to freedom—how could southerners expect to prevail? Tilden was willing to grant that that the Constitution gave the states the right to permit slavery within their territory. But southerners should not expect to expand slavery on any other basis than the positive statutory law of a state. The southern doctrine violated the love of local republican liberty that the Jeffersonians and Jacksonians believed to be the essence of the American regime: “It overturns the local institutions, no matter how strongly intrenched in the legislation, the habits and affections of the people; . . . it repeals the local laws if they guarantee personal freedom to all, and authorizes slavery.” Van Buren himself puzzled to explain how his former allies, distinguished for their “liberality,” would turn on him so decisively. In part, “The First Gun for Free Soil” was designed to speak directly to Southern Democrats and persuade them of their leaders’ folly. Van Buren recognized that the Alabama doctrine was a tectonic shift in political thought. He explained, “From that evil hour, also, those whom we regarded as the old-school Democrats of the South appear to

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have entered in a race with their local opponents as to which should outstrip the other in defending and propagating slavery.” In Van Buren’s mind, the hunger for federal patronage and a desire to gain local office by outdoing their opponents in defense of slavery led leading southern statesmen to abandon republican constitutionalism. Most Southern old republicans once “adhered to the doctrines of Jefferson.” With Jackson they renounced the “latitudinarian construction” of the Constitution that promoted national banking, internal improvements, and a protective tariff. But regarding this new doctrine of slavery, Southern Democrats demanded as a constitutional right concessions not actually covered by the Constitution of 1787. Van Buren begged his former allies to realize that “the principle of extending slavery to the territories now free from it can never be made acceptable to the freemen of the North.” Such a concession violated the liberal purpose for which the Constitution was created. Second, Van Buren recurred to republican principles of the American founding to defend his own orthodoxy. He addressed the claim that Congress lacked the textual authority to limit the spread of slavery into western territories. The Free Soilers of New York had disputed this claim in their political platform at the Utica convention. The Northwest Ordinance of 1787 provided concrete evidence that the founders, especially Thomas Jefferson, understood that it was both permissible and desirable to prohibit slavery from expanding west. “The First Gun for Free Soil” built on this argument with a detailed history of slavery and the Constitution beginning with the opinions of diverse founders: Robert Morris, Jefferson, Madison, Monroe, Mason, Franklin, and Patrick Henry. Van Buren selectively omitted the opinions of southern framers like Charles Cotesworth Pinckney or John Rutledge, who expressed positive commitments to slavery. Nevertheless, his evidence demonstrated that most Founders were convinced of the evil of slavery and sought practical ways to limit it. Van Buren, however, did not conclusively demonstrate that the Constitution actually did anything to limit slavery, except allow Congress to end the international slave trade after 1808. Van Buren’s statesmanship lay in his grasp of the constitutional tension between slavery and freedom. He knew that the Constitution had deliberately recognized slavery as a state right. The sectional compromise of 1787 legally bound the North—it did not allow for national action against slavery in the South. Van Buren disavowed any interference with slavery as it existed, identifying it as a tragic necessity and as “this fatal fruit of British Policy.” The founders enacted “every necessary provision to protect the states in which it existed in the exercise of the fullest discretion over the subject within their own boundaries.” Yet

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Van Buren defended the founders’ vision of slavery’s eventual eradication. He could not imagine that the founders were guilty of so “short-sighted” a failing “as to not provide for carrying forward this good work” of liberty with the admission of new territory. Van Buren opposed slavery by looking to the intent of the founders and a strict interpretation of the text. In contrast, southerners did not rely on old republican values, but a new theory of the Constitution: “a sort of mystical common law not expressed, not implied in any particular part, but to be inferred from the general nature of that instrument.” He also eschewed “latitudinarian” antislavery arguments rooted in the broad construction of the Fifth Amendment’s Due Process Clause, which argued that slavery was unconstitutional everywhere because it denied the slave natural rights. Instead, Van Buren defended the founders’ compromise with the existence of slavery while laboring for its eventual demise. Van Buren focused on the limited task of demonstrating that Congress did have jurisdiction over slavery in the territories, as David Wilmot and many Northern Democrats had assumed. As evidence, Van Buren drew on the text of the Constitution, which granted Congress the power to “dispose of and make all needful rules” for the governance of the territories. He used his command of history and law to demonstrate that Congress historically had the power to deny slavery from the territories, whether Ohio, Wisconsin, Iowa, or a future territory. Recognizing that Congress had this power, Van Buren represented the moderate nature of northern state rights thinking. The federal system gave Congress the territories to govern while the states governed themselves. Here again, Van Buren’s evidence was strong, but selective. Southern legislators had infrequently mounted opposition to the power of Congress during this period, as demonstrated by the debates over Benjamin Franklin’s effort to abolish slavery in 1790, the abolition of the slave trade in 1808, and the admission of slave states alongside free states throughout the whole of American history. Van Buren’s argument for the technical power of Congress to create a free state is compelling, but contemporary observers must have perceived that his argument for a West free from all slavery would not persuade the South. Any New York claim to limit the spread of slavery would be as offensive to the South as the Alabama argument that all the West must be open to slavery was to the Free Soilers. So, a compelling constitutional analysis could not rest solely on the scope of congressional power to regulate the territories. Third, Van Buren turned to a careful explanation of normative constitutional principles—that is, of the ends, objects, and purposes toward which legitimate

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constitutional power should be exercised. Southerners had implicitly laid out their case—in the Alabama Platform and more explicitly in Calhoun’s speeches in the Senate—by claiming that the “blessing” of slavery ought not to be denied to Texas or the West. Free Soil constitutionalism, in contrast, sought to restrict the spread of slavery because it destroyed liberty. The project of the republic, they rightly asserted, was “the fullest extension of freedom to man that was consistent with the actual and inevitable condition” of the country. This vision of republican community rested on a theory of justice for the common citizen. Free Soil Democrats stressed that slavery violated the natural rights of not so much the slave, but the “white laborer,” the factory worker, the immigrant, and the farmer. The Constitution was created with an eye to “secure the true happiness of all the people that should seek shelter under the institutions to which our glorious revolution gave birth.” Happiness, for the founders, meant “a home and an honorable station in all the free territories” for this prospective white immigrant. Slavery was another form of “Aristocracy,” a monopoly on the soil, as dangerous as the monopoly on capital had been during the Bank War. The expansion of slavery threatened free laborers with “a sacrifice of all the cherished objects of social and political life, the degradation of himself and his wife and children.” Immigrants came to these shores, Van Buren argued, to be free from class oppression. Because the government had been created to “elevate and ennoble the laboring man,” Van Buren insisted that the Alabama Platform was, in a normative sense, deeply unconstitutional. “The First Gun for Free Soil” represented a significant shift in Van Buren’s political thought. New York Democrats had historically defended slavery as a southern right. Van Buren explained, “For many years have the fearless and honest hearted Democracy of the North exposed themselves to political embarrassment and injury by their efforts to secure to their brethren of the South . . . the enjoyment of the rights guaranteed by the Constitution.” Van Buren now realized that Southern Democrats’ demands violated the republican principles of the New York Democracy: personal liberty, small and independent farmers, and democratic process. Further, the pressure to admit Oregon and California to statehood made the crisis acute. The Union must choose either northern or southern constitutionalism as the policy guiding westward expansion. What culture will they have? he asked, foreshadowing Lincoln’s House Divided Speech. “The question has thus arisen in a practical form. It can no longer be evaded or postponed. It is upon us. We must decide it. Shall these vast communities be the creations of free or slave labor? They cannot be both.”

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So a Free Soil Party was born dedicated to the cause of “free soil, free labor, and free men.” Van Buren’s shift in political allegiance underscored the transformation in Northern Democratic politics. This new party was small, but it anticipated the future Republican Party alliance of the Barnburners, “Conscience” Whigs, and abolitionists. Van Buren’s letter accepting the nomination indicated his reformulation of northern politics along old republican lines: the prevention of the introduction of human slavery into the extensive territories of the United States, now exempt from that great evil, and which are destined, if properly treated, to be speedily converted into a wilderness of freemen. The defeat of the Free Soil Party was a foregone conclusion. While receiving approximately 10 percent of the popular vote, mostly in New York and Massachusetts, Van Buren failed to receive one vote in the electoral college. Yet the adoption of his republican principles within the Free Soil movement informed the rise of the Republican Party. Van Buren decided that the destruction of the Democratic Party was better than the specter of slavery in Oregon or California. Van Buren’s willingness to walk out of his own party created an opening for a new party dedicated to liberty, free soil, and yeoman farmers. His republican vision of a wilderness of freemen was shared by thousands of other northerners. When, in 1850, Southern Democrats extracted a fugitive slave law from Congress as the price for their continued membership in the Union, northerners used state rights to resist. Many northern states protected their African American populations with personal liberty laws that defied the national government. When the United States Supreme Court ordered that the Fugitive Slave Act be obeyed, the Wisconsin courts refused and the legislature nullified the law. In 1859 the state legislature resolved that the Supreme Court’s assumption of jurisdiction was arbitrary, and that the Court’s denial of the writ of habeas corpus was a direct violation of the Constitution and an assumption of undelegated power. Adapting the language of Jefferson’s Kentucky Resolutions, Wisconsin insisted that the government, formed by the Constitution of the United States was not the exclusive or final judge of the extent of the powers delegated to itself; but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

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Although Wisconsin’s nullification went beyond the moderate state rights theory espoused by Van Buren, it demonstrates the surprising persistence of state rights resistance to the slave interest. As civil war loomed, northern Republicans adopted the Free Soil understanding that the Union could no longer be half slave and half free. As Lincoln expressed it, “A house divided against itself cannot stand.” Here, Van Buren’s statesmanship reaped rich rewards.

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Lincoln on Black Citizenship Joseph R. Fornieri

And now I appeal to all—to Democrats as well as others,—are you really willing that the Declaration shall be thus frittered away?—thus left no more at most, than an interesting memorial of the dead past? thus shorn of its vitality, and practical value; and left without the germ or even the suggestion of the individual rights of man in it? —Abraham Lincoln Introduction: “A schizoid quality” Abraham Lincoln first replied to the Dred Scott decision in Springfield, Illinois, on June 26, 1857. Among his several criticisms, he noted that the decision was “based on assumed historical facts which were not really true.” In particular, Lincoln questioned the factual basis of Taney’s argument denying national citizenship to African Americans. The latter had argued that since blacks were never part of the sovereign people of the United States, which he defined narrowly in terms of those who voted at the time of the founding and their descendants, they could never be considered citizens of the United States. Citing Justice Curtis’s dissent to the contrary, Lincoln revealed that “in five of the then thirteen states . . . free negroes were voters . . . had the same part in making the Constitution that the white people had.” The implications of this seemingly benign statement of fact were explosive in the “Negrophobic” state of Illinois at the time. In view of Taney’s own definition, it suggested that “free negroes” and their descendants were entitled to the rights of national citizenship as guaranteed by Article IV, Section 2 of the Constitution: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” The implication made Lincoln politically vulnerable to the charge that he was a radical abolitionist who favored “perfect social and political equality” between the races. Keenly noting that his rival Stephen A. Douglas would exploit racial bigotry against him in the forthcoming Illinois Senate race of 1858, Lincoln

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was compelled to disavow miscegenation in the same speech. “There is a natural disgust in the minds of nearly all white people to the idea of an indiscriminate amalgamation of the white and black races,” he observed, “and Judge Douglas evidently is basing his chief hope, upon the chances of being able to appropriate the benefit of this disgust to himself.” During the debate at Charleston on September 18, 1858, after incessant race-baiting by Douglas, Lincoln conceded that he was “not in favor of negro citizenship.” Lincoln thus walked a political tightrope between his opposition to Dred Scott and the corresponding radical implication that he endorsed black citizenship. To state the matter bluntly: it is one thing to criticize the Supreme Court for its erroneous reading of history; it is quite another to advocate black citizenship in the “Negrophobic” state of Illinois during an election season. In view of this political dilemma, the late historian Don E. Fehrenbacher went so far as to note “a schizoid quality” about the Springfield Address. As I argue, however, Lincoln’s minor concessions to Douglas’s racial pandering did not abolish his core conviction that black citizenship was possible under certain circumstances. Indeed, Lincoln’s view of the principle of equality in the Declaration of Independence implied the right of black citizenship. The dynamic tension between principle and practice on the issue of black citizenship can be demonstrated by tracing Lincoln’s speech and deeds from his first reply to Dred Scott in 1857 through his presidency. Noteworthy in this regard is the fact that in one of his first acts as president, Lincoln took initiative on the controversial issue of black citizenship by suggesting in his First Inaugural Address, on March 4, 1861, that free blacks were entitled to federal protection under the privileges and immunities clause of Article IV, Section 2. Consistent with the implication of the Springfield Address, this initial step was followed by several other measures, buttressed by his authority as commander in chief in wartime. Among these were the following: (1) the de jure recognition of birthright citizenship for free blacks through an opinion of Attorney General Bates on November 29, 1862; (2) the enlistment of black soldiers (a traditional path to citizenship) in the Emancipation Proclamation of January 1, 1863; (3) limited support for black suffrage in the reconstructed state of Louisiana; and (4) public endorsement of black citizenship in his last official address, on April 11, 1865. It was in response to this last action that Booth vowed to assassinate the president. In sum, Lincoln’s statesmanship was crucial in transforming the archaic notion of citizenship based on blood and ancestry (jus sanguinis) into a more consistent republican notion of birthright citizenship (jus soli) based on equality and

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voluntary consent. Though enacted after his death, the Fourteenth Amendment’s guarantee of birthright citizenship may be seen as the logical extension and culmination of his statesmanship: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The inconsistencies noted by Fehrenbacher can be attributed to Lincoln’s prudential effort to reconcile principle in the face of both political necessity and deeply ingrained racism in the state of Illinois. This context is necessary if we are to take the full measure of his words and deeds. Legal and Historical Background: “A general citizenship” To appreciate Lincoln’s statesmanship, it is necessary to understand the legal and historical background of the problem of black citizenship, and to note its unsettled constitutional status at the time of Dred Scott in 1857. The very notion of citizenship raises fundamental questions about membership and inclusion within a political community. Such membership involves a reciprocal relationship between the citizen and the state, whereby the former pledges allegiance to the latter in exchange for its protection. During the Revolution, Americans broke with the traditional notion of British “subjectship” based on hereditary, personal, and immutable bonds to the Crown; and replaced it with a republican notion of citizenship based on the idea of the voluntary consent of equals. A consistent application of the republican principle logically pointed to birthright citizenship among equals. As we are painfully aware, however, in practice, certain nativeborn groups in the United States were excluded from citizenship—most notably, Native Americans and African Americans. The former were excluded because of allegiance to their tribe; the latter because they were regarded as a degraded, inferior race. Aside from delegating to Congress the power to legislate a uniform rule of naturalization (Article I, Section 8), the Constitution did not provide a definition of national citizenship. However, as quoted above, the term was mentioned in connection with the Privileges and Immunities Clause of Article IV, Section 2. The term “privileges and immunities” predates the Constitution and has a long lineage in Anglo-American politics. Its origins can be traced as far back as Roman law and one’s legal status under the jus naturale (natural law), jus gentium (law of nations), or the jus civile (civil law). In the late medieval and modern era, it

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denoted those rights associated with allegiance to and protection by the Crown, thereby prohibiting discrimination between subjects throughout the realm. This meant, for example, that subjects who lived in Wales would be entitled to the same privileges and immunities as those who lived in London. By the time of the American Revolution, the term “privileges and immunities” referred to a litany of common law rights traditionally enjoyed by subjects of the British Empire. For example, the Declaration of Colonial Rights of the First Continental Congress, on October 14, 1774, resolved “that the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privileges of being tried by their peers.” As a precursor to the Constitution of 1787, Article 4 of the Articles of Confederation (1781–87) sheds light on the meaning of privileges and immunities by enumerating some of the specific rights associated with it: “The better to secure and perpetuate mutual friendship and intercourse among the people of the different states in this union, the free inhabitants of each of these states . . . shall be entitled to all privileges and immunities of free citizens in the several states; and the people of each state shall have free ingress and regress to and from any other state, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively.” The distinguished legal historian Herman Belz notes that it was significant that the Articles that Congress “rejected a proposal to restrict the privileges and immunities to free white inhabitants.” This reluctance to mention color or race in the text of the nation’s fundamental law was likewise observed in framing the Constitution, though evasive language was used in making concessions to slavery. For example, the fugitive slave provision of Article IV, Section 2 euphemistically referred to a runaway slave as a “Person held to Service or Labour in one State, under the Laws thereof, escaping into another.” Lincoln’s remarks at Peoria in 1854 are worth quoting in regard to the founders’ deliberately evasive use of language in regard to slavery at the Constitution, which he interpreted as a sign of their moral disapprobation: at the framing and adoption of the constitution, they forbore to so much as mention the word “slave” or “slavery” in the whole instrument. In the provision for the recovery of fugitives, the slave is spoken of as a “person held to service or labor.” In that prohibiting the abolition of the African slave trade for twenty years, that trade is spoken of as “The migration or importation of such persons as any of the States now existing, shall think proper to admit,”

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&c. These are the only provisions alluding to slavery. Thus, the thing is hid away, in the constitution, just as an afflicted man hides away a wen or a cancer, which he dares not cut out at once, lest he bleed to death; with the promise, nevertheless, that the cutting may begin at the end of a given time. Less than this our fathers could not do; and now (more?) they would not do. Necessity drove them so far, and farther, they would not go. But this is not all. The earliest Congress, under the constitution, took the same view of slavery. They hedged and hemmed it in to the narrowest limits of necessity. This interpretation of the founders’ view of slavery as a necessary evil to be placed on a path of ultimate extinction would guide Lincoln’s actions as a statesman. One may say that he observed the same lesson concerning black citizenship: despite the constraints of necessity at the time, the promise of equality remained the long-term goal. The virtue of prudence consisted in realizing the principle of equality as much as possible under the given circumstances. The problem of black citizenship was complicated further by federalism and the double membership of citizens in relation to both the national government and their state. For free whites, nativity in a state within the Union conferred dual status as a citizen of that state and as a national citizen of the United States. It was unclear whether national citizenship was derived from state citizenship or vice versa. As a point of fact, prior to the Civil War, most of the rights of citizenship were defined by the states. Did this mean that the rights of citizenship were entirely relative to local and state prejudices? Or were there privileges and immunities associated with national citizenship that could be invoked as protections against local and state laws to the contrary? Unlike the Articles of Confederation, the Constitution did not enumerate specific rights associated with the privileges and immunities of citizenship. In his Commentaries on the Constitution, Joseph Story construed the Privileges and Immunities Clause of Article IV, Section 2 to include “a general citizenship”: It is obvious, that, if the citizens of each state were to be deemed aliens to each other, they could not take, or hold real estate, or other privileges, except as other aliens. The intention of this clause was to confer on them, if one may say so, a general citizenship; and to communicate all the privileges and immunities, which the citizens of the same state would be entitled to under the like circumstances.

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As interpreted by Story, this “general citizenship” would protect American citizens against discriminatory practices of other states—for example, as in the case of a New York State law that banned New Jersey citizens from entering the Empire State. The future problem of black citizenship in relation to the Privileges and Immunities Clause was anticipated by James Madison in his Notes of the Debates in the Federal Convention of 1787. As worded originally by the Committee of Detail, the clause read, “The free Citizens of each State shall be intitled [sic] to all Privileges and Immunities of free Citizens in the sevl. States.” Did “free Citizens of each State” include free blacks? After a slight revision on August 6, Charles Pinckney of South Carolina objected that he “was not satisfied with [the wording]. He seemed to wish some provision should be included in favor of property in slaves.” Since it was clear from before the Constitution that the guarantee of privileges and immunities included equal commercial rights and the freedom of transit, Pinckney’s demand “in favor of property in slaves” amounted to a federal right to chattel slavery and a corresponding immunity from state laws that restricted the movement and importation of slaves from one state to another. Seventy years later in Dred Scott, Taney would grant Pinckney’s wish by ruling that “the right to property in a slave is distinctly and expressly affirmed in the Constitution.” In response, Lincoln would subsequently argue that the word “slave” and “slavery” are nowhere to be found in the actual text of the Constitution, nor are they ever mentioned in connection with property. Lincoln would contradict Taney further by quoting Madison’s own statement at the convention on August 25, 1787, that he “thought it wrong to admit in the Constitution the idea that there could be property in men.” Despite Pinckney’s objection, however, on August 28, 1787, Madison recorded that the revised version passed with nine states voting aye; one state (South Carolina—that is, Pinckney’s state) voting no; and one state (Georgia) divided. The Federalist Papers, written in defense of the Constitution and in an effort to provide an authoritative interpretation of it, mentions privileges and immunities in Federalist 42 and Federalist 80. In Federalist 42 Madison acknowledges that privileges and immunities in Article 4 of the Articles of Confederation includes rights of “trade and commerce,” but points out the confusion over the use of the terms “free inhabitants” and “free citizens” in the same clause. This confusion suggests that “free inhabitants” who are not “free citizens” of the same state may claim more rights and privileges in another state than in their own. It also sug-

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gests the “very improper power” of each state to naturalize aliens of other states. Madison notes how the Constitution corrects this problem by providing “a uniform rule of naturalization throughout the United States.” In Federalist 80, Hamilton discusses privileges and immunities in connection with the role of the federal judiciary protecting equal rights of national citizenship against encroachments by the states: It may be esteemed the basis of the Union that “the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.” And if it be a just principle that every government ought to possess the means of executing its own provisions by its own authority it will follow that in order to the inviolable maintenance of that equality of privileges and immunities to which the citizens of the Union will be entitled, the national judiciary ought to preside in all cases in which one State or its citizens are opposed to another State or its citizens. To secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary that its construction should be committed to that tribunal which, having no local attachments, will be likely to be impartial between the different States and their citizens, and which, owing its official existence to the Union, will never be likely to feel any bias inauspicious to the principles on which it is founded. The nationalist and republican implications of Hamilton’s broad interpretation of privileges and immunities anticipates Lincoln’s future actions in extending federal protection to free black citizens in his First Inaugural Address and his subsequent actions as president in guaranteeing national citizenship to blacks. According to Hamilton, the Federal Courts are charged with the responsibility to uphold the founding principles of the national union against “evasion and subterfuge” by the different states. Taney would evade the logical extension of this precedent by willfully excluding African Americans from “the principles on which [the Union] is founded.” What then was the meaning of Article IV, Section 2 at the time of the Constitution? In sum, the Privileges and Immunities Clause seemed to imply some unspecified rights of national citizenship, including the right to travel, access to the courts, equal protection in commercial relations, and security of property. Enslaved blacks were clearly excluded from these privileges and immunities since they were regarded as property under the laws of their state. Free blacks, however, raised a constitutional and moral conundrum. Since the Constitution did

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not qualify citizenship in terms of color and since free blacks were neither aliens nor members of a tribe, it could be argued in principle that they, too, were entitled to some of the privileges and immunities of a “general citizenship.” Racism was the only criteria that could be used consistently to exclude them. As James Kettner notes in his seminal work The Development of American Citizenship, the status of free blacks posed a dilemma to the notion of republican citizenship that could not be resolved without sacrifice of either principle or prejudice. In effect, prior to the Civil War, the status of free African Americans was that of a degraded class somewhere between alien and citizen. Though neither the Articles of Confederation nor the Constitution mentioned race or color in connection with citizenship, the first naturalization law enacted by Congress in 1790 did so: “Any alien, being a free white person, may become a citizen, by complying with the requisites hereinafter named.” Not surprisingly, state constitutions also qualified citizenship in terms of race or color. Consider, for example, Jefferson’s Bill Declaring Who Shall Be Deemed Citizens of This Commonwealth of 1779, which stated: Be it enacted by the General Assembly, that all white persons born within the territory of this commonwealth . . . shall be deemed citizens of this commonwealth. . . . The free white inhabitants of every of the states, parties to the American confederation . . . shall be intitled [sic] to all rights, privileges, and immunities of free citizens in this commonwealth, and shall have free egress, and regress, to and from the same, and shall enjoy therein, all the privileges of trade, and commerce, subject to the same duties, impositions and restrictions as the citizens of this commonwealth. Though Jefferson qualified Virginia’s civil rights in terms of race, he made no such distinction in terms of the inalienable rights of the Declaration of Independence. By definition, such rights were universal; they applied to all people at all times. Despite his own racial prejudices (and even hypocrisy), Jefferson indeed believed that African Americans possessed inalienable rights. In the 1780s, he even described slaves as “one half the citizens” of Virginia, suggesting, according to the political philosopher Harry V. Jaffa, the “extraordinary” belief at that time that slaves were “citizens by natural right, if not by positive law.” What then accounts for Jefferson’s color consciousness concerning civil rights and his color blindness concerning natural or inalienable rights? Jefferson’s distinction corresponded to a long-standing tradition at the time of the founding

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between inalienable rights that were universal, pre-political, and abstract; and the more discretionary, customary rights of citizenship that were recognized by the common law, granted by charters, and codified by positive law. The distinction is clearly seen in the Declaration and Resolves of 1774 of the First Continental Congress, which differentiated between the inalienable rights of “life, liberty, and property” and “the rights, liberties, and immunities of free and natural-born subjects within the realm of England.” The resolves further noted “that these, His Majesty’s Colonies, are likewise entitled to all the immunities and privileges granted and confirmed to them by royal charters, or secured by their several codes of provincial laws.” Historically, from the time of the Revolution to the Civil War era, American public law distinguished between three different kinds of rights: (1) inalienable or natural rights; (2) political rights (suffrage and office holding); and (3) civil rights (rights other than suffrage that pertained to citizenship). While complex, this distinction is crucial to an appreciation of Lincoln’s statesmanship on black citizenship. As will be seen, early abolitionist proponents of black citizenship, as well as Lincoln, would distinguish between these kinds of rights. Lincoln maintained that although the self-evident truth of equality was true in the abstract as a moral principle and should therefore guide public policy as much as possible, it could not be applied fully under the social, political, and legal constraints of the time. He cogently articulated this political truth in the same Springfield Address where he denounced Taney and Douglas for doing “violence to the plain unmistakable language of the Declaration”: I think the authors of that notable instrument intended to include all men, but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color, size, intellect, moral developments, or social capacity. They defined with tolerable distinctness, in what respects they did consider all men created equal—equal in “certain inalienable rights, among which are life, liberty, and the pursuit of happiness.” This they said, and this meant. They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained,

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constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere. The crucial distinction between inalienable, civil, and political rights is revealed further in Crandall v. State (1834), a case concerning whether the privileges and immunities of out-of-state blacks entitled them to attend segregated schools in Connecticut. In Crandall, abolitionist proponents of black citizenship argued that the political right “of voting is not the criterion of citizenship: the one has no natural or necessary connexion with the other. Cases may exist where persons vote who are not citizens, and where persons are citizens and do not vote. The right of suffrage is nowhere universal and absolute. It is founded in notions of internal police, varying frequently, even in the same government; whereas citizenship grows out of allegiance, which is every where the same, and is unchanging.” In other words, the political right to suffrage was discretionary to internal police and not a condition of citizenship. After all, women and children were still considered citizens even though they were denied the right to vote under the state’s police powers. The problem of black citizenship and the corresponding distinction between inalienable, civil and political rights came to the fore during the Missouri crisis of 1820. The controversy was sparked over the Missouri Constitution’s exclusion of free blacks from the territory. (As seen, the equal right of transit was traditionally considered a privilege and immunity of American citizenship.) Some northern members of Congress claimed that the exclusion deprived free blacks of their privileges and immunities under Article IV, Section 2 of the Constitution. This precipitated a debate over whether free blacks were citizens of the United States. The remarks of William Eustis, then representative from Massachusetts in the U.S. House, are illustrative of the northern side of the debate. Eustis reminded his opponents that blacks from the middle and northern states had served valiantly in the Revolutionary War. He proudly pointed to the example of Massachusetts, his own state, where free blacks were entitled to “all the broad and essential rights of citizens—the right, in common with the whites, to hold real and personal estate; the right of course to hold and convey land; the right of trial by jury; the right to the writ of habeas corpus; and, in this Government, the all-important right of the elective franchise.” Eustis then rebutted the argument that state laws against miscegenation necessarily denied citizenship to free blacks, a claim that would

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be repeated subsequently by Taney in Dred Scott in 1857. On the contrary, Eustis shrewdly observed, “The same law . . . interdicts the marriage of a white man with a black woman.” Therefore it “applies equally to both, and cannot justify the inference which has been drawn from it.” Finally, Eustis contended that a state’s denial of some civil rights to blacks was not a deciding factor of their citizenship. Ironically, this meant that citizenship was compatible with some forms of discrimination—segregation, for example. Put another way, during the antebellum period, it meant that black citizenship was not dependent on the condition of a perfect civil, political, and social equality between the races. As noted, state laws also discriminated against women and children, who were still considered citizens even though they did not enjoy equal civil and political rights with adult males. In sum, Eustis’s nuanced argument in 1820 that black citizenship does not depend on a perfect equality between the races provides an important context for understanding the nuances of Lincoln’s position in the famous debates against Douglas in 1858 campaign for the Illinois U.S. Senate seat. On February 13, 1821, during the Missouri controversy, Charles Pinckney decided to invoke his authority as a founding father against the preposterous suggestion of black citizenship. (It will be recalled above that Pinckney argued for a national right to property in the form of a slave at the Constitutional Convention.) “At the time I drew that constitution,” he recollected, “I perfectly knew that there did not then exist such a thing in the Union as a black or colored citizen, nor could I then have conceived it possible such a thing could have ever existed in it; nor, notwithstanding all that has been said on the subject, do I now believe one does exist in it.” The views of Pinckney and Eustis thus represented polar opposites at the time of the Missouri Compromise. Despite Missouri’s admission to the Union, the question of black citizenship was left unresolved. The same year, 1821, another dispute over black citizenship ensued. This time it involved the question of whether free black sailors in Virginia were entitled to American citizenship. In his opinion on November 7, 1821, Attorney General William Wirt answered negatively: I am of the opinion that the constitution, by the description of “citizens of the United States,” intended those only who enjoyed full and equal privileges of white citizens in the State of their residence. . . . Upon the whole, I am of the opinion that free persons of color in Virginia are not citizens of the United States, within the intent and meaning of the acts regulating foreign and coasting trade, so as to be qualified to command vessels.

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Four decades later, the same issue involving the right of free blacks to command naval vessels would be raised during the Civil War. This time, Lincoln’s attorney general, Edward Bates, would resolve the issue in favor of black citizenship. Finally, the case of Corfield v. Coryell (1823) merits attention since it was the only ruling by a federal court on the meaning and content of the Privileges and Immunities Clause. Corfield involved the constitutionality of a New Jersey law that prohibited out-of-state citizens from oyster fishing in New Jersey waters. Writing for the district court, Justice Bushrod Washington maintained that there are “privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent and sovereign.” Justice Washington then proceeded to enumerate some of these “fundamental” rights of national citizenship: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for the purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes of impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of the privileges deemed fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. Though Corfield did not deal with black citizenship directly, its legal principle could be extended to include the federal guarantee of legal safeguards to protect free blacks against abuses of the draconian Fugitive Slave Act. While pregnant in its implications, this revealing portion of Justice Washington’s opinion was dictum. In fact, he ruled that the New Jersey law prohibiting nonresidents from fishing oysters in its waters did not violate the Privileges and Immunities Clause.

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Taney versus Lincoln in Dred Scott: “The germ or even the suggestion” The foregoing overview of the unsettled status of free blacks brings us to Taney’s opinion in Dred Scott v. Sandford (1857), of which there were three key aspects: (1) the categorical denial of natural, civil, and political rights to the entire black race; (2) the denial of federal authority to restrict slavery in the territories; and (3) the corresponding affirmation of a national right to property in the form of a slave based on the Fifth Amendment’s Due Process Clause. In sum, Taney’s ruling transformed the status of slavery from that of a local institution protected by positive law to its indefinite perpetuation as a national institution. Lincoln denounced Taney for betraying the founders’ aspiration to place slavery on a path to ultimate extinction. Contrary to the Chief Justice’s suggestion that the country’s estimation of African Americans had improved since the time of the founding, Lincoln decried a steady debauching of public opinion that culminated with the repudiation of the principle of equality as a “self-evident lie.” He contended that at the time of the founding, slavery was regarded as a necessary evil inconsistent with the principles of the Revolution and only to be tolerated by local law. In support of this argument, he noted that the Northwest Ordinance of 1787 had banned human servitude in the territories then owned by the federal government. This act not only established a crucial federal precedent of the restriction of territorial slavery, but it also revealed the founding generation’s presumption toward freedom. It vindicated the future free soil principle of “freedom national, slavery local.” For example, in the case of Harry v. Decker, Walker (1818), a Mississippi Court ruled, “Slavery is condemned by reason and the laws of nature. It . . . can only exist, through municipal regulations, and in matters of doubt, . . . courts must lean ‘in favorem vitae et libertatis.’ ” By the 1830s, however, a change in southern public opinion had taken place. Once viewed as a necessary evil, the institution was now embraced as a blessing and a “positive good.” Historians have adduced a number of factors for this change in southern public opinion: the profitability of cotton on the world market, growing fear of a slave revolt, abolition in the British Empire, a failure of leadership, and a response to the abolitionist crusade. Seeking to resolve the problem of black citizenship from the bench, Chief Justice Taney squarely confronted the fundamental issue of whether free blacks were entitled to the rights of national citizenship. He clearly posed the issue in these terms: “Does the Constitution of the United States act upon him [the African American] whenever he shall be made free under the laws of a State, and

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raised there to the rank of a citizen, and immediately clothe him with all the privileges of a citizen in every other State, and in its own courts?” Answering this question in the negative, he blocked all paths to national citizenship for free blacks. His reasoning also precluded a person of African ancestry from becoming a naturalized citizen of the United States. In sum, Taney’s opinion divested all members of the African race—whether foreign, freeborn, or manumitted—of national citizenship and federal protection thereof. He enshrined the principle of racism in the Constitution. The indiscriminate grouping of the entire black race as a degraded class was done despite the fact that the Constitution nowhere mentioned color or race while it clearly distinguished between “free persons” and “other persons”—the latter term being an oblique reference to slaves. Contrary to Taney’s racial reading of the Constitution, one could argue that the generic term “free persons” could be logically extended to free blacks. At best, Taney conceded that free persons of the African race might be considered narrowly as citizens of the particular state in which they resided, but this was for local purposes only. Unlike white “persons,” it did not entitle them to birthright citizenship and the corresponding privileges and immunities thereof. Heralded as a victory for state rights, Taney’s opinion in Dred Scott was actually based on a broad notion of national citizenship, albeit one reserved exclusively for those of white Anglo-Saxon ancestry. “More especially,” he asserted, “it cannot be believed that the large slaveholding States regarded them [African Americans] as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State.” After enumerating some of the fundamental rights implicit to national citizenship, Taney subsequently scoffed at the suggestion that these “privileges and immunities” were applicable to free blacks: For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public

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meetings upon political affairs, and to keep and carry arms wherever they went. Taney’s naked assertion of racial prejudice in the rhetorical argument above is striking. Herman Belz explains that Taney’s opinion in Dred Scott “placed Negroes in a third category between citizenship and alienage, as subject-nationals or quasi-citizens. This determination was nowhere recognized in the American law of citizenship, but it was not greatly at variance with the actual conditions of Negro life in the antebellum period.” Insofar as free blacks enjoyed any rights at all, they were entirely relative to the discretion of the state in which they resided and were forfeit upon leaving that state. Thus free blacks venturing outside the boundaries of their state could be stripped of due process rights. In particular, the denial of the privilege of the writ of habeas corpus left them extremely vulnerable to deprivations by southern agents who indiscriminately sought to reclaim them as fugitives under the Fugitive Slave Act of 1850. Lincoln warned that the holding of Dred Scott portended the evisceration of state laws that restricted the importation and movement of slaves since they would be infringing on the federal right to chattel slavery. Taney had indeed adopted Pinckney’s pro-slavery reading of the Constitution. Yet Taney’s argument against black citizenship contained the seeds of its own destruction. As Lincoln would deftly point out, it was riddled with internal contradictions. For example, his denial of federal protection to freeborn blacks was based on a novel definition of citizenship that equated it with the exercise of sovereign power by those who voted and ruled at the time of the Constitution, and their descendants. Tailored for the purpose of excluding members of the African race, he applied this definition narrowly to the class of white, propertyowning, male citizens of Anglo-American ancestry, and their descendants, who could vote and exercise power in government at the time of the Constitution in 1787. Throughout his opinion, the Chief Justice emphasized that “We the people” of the Constitution’s Preamble and “All men are created equal” of the Declaration of Independence excluded the African race. As seen at Springfield on June 26, 1857, Lincoln contradicted Taney by assuming his peculiar definition of citizenship. Citing Justice Curtis’s dissent, he revealed that free blacks enjoyed the right to suffrage and voted in state ratifying conventions in five states at the time of the founding (New Hampshire, Massachusetts, New York, New Jersey, and North Carolina). Thus, by Taney’s own novel definition, free blacks exercised sovereign power and were part of the sovereignty of the people at the time of the Constitution. Consequently, it fol-

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lowed that they and their descendants were entitled to bona fide national citizenship under the Constitution. As further noted, however, Lincoln stopped short of explicitly drawing this implication. He merely observed that Taney’s reading of history was erroneous and that it did not support his categorical denial of black citizenship “in every possible event.” He then was compelled to repudiate miscegenation: “There is a natural disgust in the minds of nearly all white people, to the idea of an indiscriminate amalgamation of the white and black races and Judge Douglas evidently is basing his chief hope, upon the chances of being able to appropriate the benefit of this disgust to himself.” A year later, during the debates with Douglas, Lincoln likewise noted, “I am quite aware what the Judge’s object is here by all these allusions. . . . He knows that we are before an audience, having strong sympathies southward by relationship, place of birth, and so on. He desires to place me in an extremely Abolition attitude.” The fact that Lincoln consistently draws attention to Douglas’s racial pandering provides a caveat to the careful reader about his qualified statements about race. For example, though Lincoln’s observes “the natural disgust in the minds of nearly all white people” over racial amalgamation, he never says whether he personally shares this view. His racist remarks are further qualified by affirming in the same speech that black people are nonetheless entitled to inalienable rights: “Now I protest against that counterfeit logic which concludes that, because I do not want a black woman for a slave I must necessarily want her for a wife. I need not have her for either, I can just leave her alone. In some respects she certainly is not my equal; but in her natural right to eat the bread she earns with her own hands without asking leave of any one else, she is my equal, and the equal of all others.” Given the circumstances, one can reasonably argue that Lincoln was bowing to political necessity in his remarks about racial amalgamation and his qualified denial of black citizenship in the state of Illinois. Indeed, the public endorsement of civil rights for blacks in the state of Illinois was tantamount to political suicide for someone running for elected office. In his extensive biography of the sixteenth president, Michael Burlingame describes Lincoln’s Illinois as “one of the most Negrophobic of the Free States.” Indeed, ten years earlier, the state had added a black exclusion law as an amendment to its Constitution, which prohibited free blacks from crossing into its borders. The measure was approved by over 70 percent of the popular vote. During the first debate at Ottawa on August 21, 1858, Douglas accused Lincoln and the “Black Republican party” of seeking to repeal this same law by rhetorically asking, “Are you in favor of conferring upon the negro the rights and privileges of citizenship? . . . Do you desire to strike out

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of our State Constitution that clause which keeps free negroes out of the State, and allow the free negroes to flow in . . . and cover our prairies with his settlements.” In view of the political realities of the time, Fehrenbacher explains that the issue of full racial equality was one that divided the Republican Party and united the Democratic Party, while the issue of slavery divided the Democratic Party and united the Republican Party. Despite minor concessions to Douglas, Lincoln would nonetheless keep alive his core conviction that blacks were entitled to inalienable rights and that the Constitution authorized black citizenship under some circumstances, but did not mandate it. For Lincoln the philosophical recognition that African Americans were entitled to natural rights was not merely an academic question. Rather, it held significant practical consequences. I must therefore disagree with David Donald’s assessment in his Pulitzer Prize–winning biography that the abstract question of inalienable rights “had little practical relevance to this election. For example, the controversy over whether the authors of the Declaration of Independence intended to include blacks in announcing that all men are created equal dealt with an interesting, if ultimately unresolveable, historiographical problem, but it was not easy to see just what it had to do with the choice of a senator for Illinois in 1858.” On the contrary, the affirmation of equality to all human beings served as an important moral compass that guided Lincoln’s leadership and that distinguished his core convictions from the white supremacy of his opponents, Taney and Douglas. Lincoln himself stated, “I submit that the proposition that the thing which determines whether a man is free or a slave, is rather concrete than abstract. I think you would conclude that it was, if your liberty depended upon it.” As a moral end that governed both the regime and his statesmanship, Lincoln saw equality as a normative standard that was to be approximated as much as possible under the circumstances. Indeed, he criticized Taney’s denial of natural rights to blacks precisely because it had “shorn” the Declaration of Independence of “its vitality, and practical value; and left [it] without the germ or even the suggestion of the individual rights of man in it.” As will be seen, Lincoln’s efforts to keep alive this seminal “germ” or “suggestion” would flower into the actual legal recognition of black citizenship during his presidency. The Lincoln Douglas Debates: “In every possible event” Lincoln’s House Divided Speech of June 16, 1858, constituted his opening salvo in the battle for the Illinois Senate seat against Douglas. In it, Lincoln alleged that

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Dred Scott was part of a conspiracy to nationalize slavery. Taney’s denial of black citizenship, according to Lincoln, was the first part of a methodical design to extend slavery and to perpetuate it indefinitely: The working points of that machinery are: First, that no negro slave, imported as such from Africa, and no descendant of such slave can ever be a citizen of any State, in the sense of that term as used in the Constitution of the United States. This point is made in order to deprive the negro, in every possible event, of the benefit of this provision of the United States Constitution, which declares that—“The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” Consistent with the Springfield Address, in the House Divided Speech Lincoln reiterated his criticism of Taney’s ruling on black citizenship. Choosing his words carefully, he pointed out that the opinion deprived African Americans citizenship “in every possible event.” It may be inferred from Lincoln’s wording here that black citizenship was indeed possible under some circumstances; and that his principal disagreement with Taney was that the Chief Justice categorically denied it “in every possible event.” As Lincoln fully anticipated, Douglas seized on the implication of his critique of Dred Scott as a weapon to stigmatize him as a radical abolitionist. In the first debate at Ottawa, on August 21, 1858, Douglas stated: We are told by Lincoln that he is utterly opposed to the Dred Scott decision, and will not submit to it, for the reason that he says it deprives the negro of the rights and privileges of citizenship. That is the first and main reason which he assigns for his warfare on the Supreme Court of the United States and its decision. I ask you, are you in favor of conferring upon the negro the rights and privileges of citizenship? Do you desire to strike out of our State Constitution that clause which keeps slaves and free negroes out of the State, and allow the free negroes to flow in, and cover your prairies with black settlements? Do you desire to turn this beautiful State into a free negro colony, in order that when Missouri abolishes slavery she can send one hundred thousand emancipated slaves into Illinois, to become citizens and voters, on an equality with yourselves? If you desire negro citizenship, if you desire to allow them to come into the State and settle with the white man, if you desire them to vote on an equality with yourselves, and to make them eligible to office, to serve on juries, and to adjudge your rights, then support Mr. Lincoln and the Black

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Republican party, who are in favor of the citizenship of the negro. For one, I am opposed to negro citizenship in any and every form. I believe this government was made on the white basis. I believe it was made by white men, for the benefit of white men and their posterity for ever, and I am in favour of confining citizenship to white men, men of European birth and descent, instead of conferring it upon negroes, Indians and other inferior races. In response to “heavy pounding from Douglas,” as Fehrenbacher describes it, Lincoln declared his opposition to black citizenship on September 18, 1858, at Charleston. Yet even this inconsistency is highly qualified by what Lincoln says subsequently. Fehrenbacher fails to note an important admission that Lincoln adds in the same speech: “Now my opinion is that different States have the power to make a negro a citizen under the Constitution of the United States if they choose. The Dred Scott decision decides that they have not that power.” This affirmation kept the “germ” of black citizenship alive. Lincoln’s denial is not absolute, but qualified by the acknowledgment that states have discretionary authority to elevate blacks to a general citizenship. Granted that during his debates with Douglas, Lincoln opposed the use of this discretionary power in the state of Illinois. “If the State of Illinois had that power,” he confessed, “I should be opposed to the exercise of it. That is all I have to say about it.” Nonetheless, it bears repeating that this did not change Lincoln’s core belief the black citizenship was possible under some circumstances. The Seventh Debate at Alton, October 15, 1858: “An especial objection” A careful reading of the exchange between Lincoln and Douglas during the seventh and last debate at Alton on October 15 reveals further the lengths to which Lincoln went to keep alive the suggestion of black citizenship in his critique of Dred Scott. Playing the race card once again, Douglas accused Lincoln of waging “a crusade against the Supreme Court of the United States because of the Dred Scott decision; urging as an especial reason for his opposition to that decision that it deprived the negroes of the rights and benefits of that clause in the Constitution of the United States which guarantees to the citizens of each State, all the rights, privileges, and immunities of the citizens of the several States” (emphasis added). In reply, Lincoln explained: I never have complained especially [Lincoln’s emphasis] of the Dred Scott decision because it held that a negro could not be a citizen, and the Judge is always

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wrong when he says I ever did so complain of it. I have the speech here, and I will thank him or any of his friends to show where I said that a negro should be a citizen, and complained especially of the Dred Scott decision because it declared he could not be one. . . . I spoke of the Dred Scott decision in my Springfield speech, and I was then endeavoring to prove that the Dred Scott decision was a portion of a system or scheme to make slavery national in this country. I pointed out what things had been decided by the court. I mentioned as a fact that they had decided that a negro could not be a citizen—that they had done so, as I supposed, to deprive the negro, under all circumstances, of the remotest possibility of ever becoming a citizen and claiming the rights of a citizen of the United States under a certain clause of the Constitution [emphasis added]. I stated that, without making any complaint of it at all. . . . I mentioned [this] as evidence tending to prove a combination and conspiracy to make the institution of slavery national. In that connection and in that way I mentioned the decision on the point that a negro could not be a citizen, and in no other connection. Out of this, Judge Douglas builds up his beautiful fabrication—of my purpose to introduce a perfect, social, and political equality between the white and black races. His assertion that I made an “especial objection” (that is his exact language) to the decision on this account, is untrue in point of fact. Again, as someone who chose his words carefully, Lincoln’s emphasis on the adverb especially is telling. The word means “particularly,” “mainly,” “to a marked degree,” “unusually.” Through repetition of this modifier, Lincoln implies that his primary or principal objection against Dred Scott was not that it deprived blacks of citizenship. That is to say, his objection to the portion of Taney’s decision in Dred Scott that dealt with black citizenship was not “an especial objection.” Logically, the adjective “especial” suggests that although black citizenship was not Lincoln’s principal objection against Dred Scott, it may have nonetheless been one objection among other more significant objections. For example, Lincoln may have “especially” objected to the portion of the decision that prohibited the federal restriction of slavery in the territories since it called into question the very legitimacy and existence of the Republican Party. Here Lincoln’s equivocation on black citizenship is reminiscent of his subsequent reply during the war to Horace Greeley on the question of emancipation dated August 22, 1862. It will be recalled that when Greeley confronted him with an either–or scenario, Lincoln likewise chose his words carefully, stating that his “paramount object” or “foremost” goal was to save the Union, not to

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free the slaves. As David Donald and Allen Guelzo have so convincingly demonstrated, Lincoln’s language did not exclude the possibility of freeing the slaves, since in his mind the Union’s preservation and the promise of freedom to all were inextricably linked in the long term. In fact, by the time of his reply to Greeley, Lincoln had already drafted a copy of the Emancipation Proclamation. Additionally, Richard Striner has likewise shown how Lincoln’s parsing of language enabled him to maintain core convictions within the limits of public opinion. Second, consistent with his earlier views, Lincoln attacks the categorical aspect of Taney’s denial of black citizenship, suggesting an openness to the possibility of black citizenship in some circumstances. Lincoln’s parsed and qualified language bears witness to this. He criticizes Taney’s opinion because it seeks to “deprive the negro, under all circumstances, of the remotest possibility of ever becoming a citizen and claiming the rights of a citizen of the United States under a certain clause of the Constitution.” Mindful of the radical implications of this statement, just like at Springfield, Lincoln then sought to minimize the political damage by placing his remarks in context as part of a wider discourse about the conspiracy to nationalize slavery. It was in connection to the conspiracy charge, Lincoln insisted—not to endorse black citizenship or a perfect, social, political equality between the races—that he mentioned this point of fact. Finally, Lincoln’s use of the adjective “perfect” to qualify the kind of racial equality he eschews provides further evidence that he supports black citizenship in some circumstances. Although Lincoln did not endorse the politically untenable position of “perfect social and political equality” between the races, unlike Taney and Douglas, he supported equality as a normative standard that should be approximated as much as possible. Lincoln’s equivocations on black citizenship stated in the heat of political battle during the debates with Douglas are only parts of the greater whole that reveal his prudent statesmanship. For a fuller picture, we must consider the correspondence between Lincoln’s speech and deeds during his presidency. Lincoln’s Presidency: “All the safeguards of liberty” While much has been said about Lincoln’s First Inaugural Address of March 4, 1861, the speech’s suggestion of African American citizenship has been underappreciated. After conceding the North’s obligation to return fugitive slaves, Lincoln remarked, “Again, in any law upon this subject, ought not all the safeguards of liberty known in civilized and humane jurisprudence to be introduced, so that a free man be not, in any case, surrendered as a slave? And might it not be

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well, at the same time, to provide by law for the enforcement of that clause in the Constitution which guarantees that ‘the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States’?” This statement, coupled with his subsequent remark in the same speech that Dred Scott should not be regarded as an authoritative precedent, constituted a bold defiance of Taney’s holding on black citizenship. For those who could read between the lines, the earlier “germ” or “suggestion” of black citizenship was now dropped as a bombshell in the First Inaugural Address. Herman Belz is among those scholars who have recognized the constitutional import of Lincoln’s “rhetorical inquiry” in the First Inaugural as a “significant move.” According to Belz, “[Lincoln] advanced a civil rights proposal that was deeply offensive to southern and border state opinion.” “In addition to setting a dangerous precedent,” Belz further notes that “Lincoln’s proposal would strike at the inequality of the races, the fundamental principle on which slavery rested.” Lincoln’s reply to a Pennsylvania delegation on March 5, 1861—the day after his inauguration—testifies to his prudent commitment to black citizenship in the First Inaugural. Reaffirming his suggestion that federal protection would be extended to blacks, Lincoln explained, “We must remember that the people of all the States are entitled to all the privileges and immunities of the citizens of the several States. We should bear this in mind, and act in such a way as to say nothing insulting or irritating. I would inculcate this idea, so that we may not, like Pharisees, set ourselves up to be better than other people.” Apparently, the Pennsylvania delegates greeted Lincoln’s suggestion in his First Inaugural with enthusiasm, seeing it as an opportunity to advertise the cause of black freedom. Lincoln cautioned them to avoid self-righteous intonations that would gratuitously antagonize the border slave states that precariously remained in the Union. The development of Lincoln’s position on black citizenship was substantially furthered by his administration’s official recognition of birthright citizenship of free blacks through an opinion of Attorney General Bates on November 29, 1862. The issue was occasioned by the detainment of a federal ship captained by a black sailor. The controversy raised the issue of whether African Americans were considered citizens and therefore eligible to captain federal ships. Perhaps it was no accident that the attorney general’s opinion was delivered nearly a month before the final Emancipation Proclamation went into effect on January 1, 1863. Noting the unsettled constitutional status of the issue, Bates explains, “I have often been pained by the fruitless search in our law books and, the records of our courts, for a clear and satisfactory definition of the phrase citizen of the United States. I find no such definition, no, authoritative establishment of the meaning of the

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phrase.” Reiterating the argument of Eustis, Bates then distinguished between the political right of suffrage and the right to citizenship. He observed that there was no necessary connection between the two. The enjoyment of the former was not a condition of the latter. Citizenship, according to Bates, involved a “reciprocal obligation of allegiance on the one side and, protection on the other.” Bates distinguished his opinion from that of Wirt since the latter opinion dealt with a state rather “than a national point of view; and hence we ought not to be surprised to find the whole argument for the exclusion based upon local institutions and state laws.” In other words, Bates read the Virginia case narrowly in applying only to local privileges and immunities, not the rights of a national or “generalized citizenship.” Contrary to Taney’s ruling in Dred Scott, Bates concluded that “if born in the United States . . . the man of color . . . is a citizen of the United States.” Affirming the principle of birthright citizenship, jus soli, that would subsequently be enshrined in the Fourteenth Amendment, he declared that every free person born in the United States was, “at the moment of birth, prima facie a citizen.” Black Citizenship and Military Service: “There is no power on earth which can deny that he has earned the right to citizenship” During the Civil War, military service provided an additional avenue for African Americans to claim the rights of citizenship. In December 1861, Frederick Douglass appealed to Congress to approve the enlistment of black soldiers in the Union Army. Douglass recognized fully the traditional connection between military service and citizenship. He eloquently stated on this subject, “Once let the black man get upon his person the brass letters U.S.; let him get an eagle on his button, and a musket on his shoulder and bullets in his pocket and there is no power on earth which can deny that he has earned the right to citizenship in the United States.” In July 1862, Congress enacted the Militia Act, which was “the first statute aimed at enlisting blacks in the army.” By contrast, many of the states still prohibited blacks from joining their militias. In a surprise to some and horror to others, the enlistment of black soldiers was authorized in Lincoln’s Emancipation Proclamation of January 1, 1863. Despite Lincoln’s earlier reservations about arming former slaves, after the final emancipation, “the recruitment of Negro regiments was undertaken in full earnest.” In Becoming American under Fire: Irish Americans, African Americans, and the Politics of Citizenship during the Civil War Era, Christian G. Samito states that “military service allowed African-Americans to argue that loyalty trumped race . . .

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as a mark of citizenship. Blacks used the contrast between their allegiance and the treason committed by white Confederates, for example, to demand and obtain recognition of their status as national citizens, a more expansive definition of the rights and protections associated with that status, and the vote for men (all in the law, if not always actual practice).” As war president, Lincoln endorsed both citizenship and suffrage for those African Americans who valiantly sacrificed for the Union cause. On March 13, 1864, in a private letter to Michael Hahn, the governor of the first reconstructed free state of Louisiana, he expressed his support for limited black suffrage—a momentous step toward full equality. “Now you are about to have a Convention which, among other things, will probably define the elective franchise,” he told Hahn. “I barely suggest for your private consideration, whether some of the colored people may not be let in—as, for instance, the very intelligent, and especially those who have fought gallantly in our ranks. They would probably help, in some trying time to come, to keep the jewel of liberty within the family of freedom.” Here, Lincoln characteristically affirms the connection between giving freedom to the slaves and maintaining freedom for free whites. “That means nigger citizenship” In his last public speech on April 11, 1865, two days after Lee’s surrender at Appomattox and just three days before his assassination, Lincoln spoke on the momentous issue of Reconstruction in the state of Louisiana. The state had formed a new constitution and was seeking re-admission to the Union. Lincoln hoped that it would serve as a model of Reconstruction. Using his presidency as a bully pulpit, he publicly endorsed the measures taken by Louisiana voters to extend equal rights of citizenship to the freedmen: Some twelve thousand voters in the heretofore slave-state of Louisiana have sworn allegiance to the Union, assumed to be the rightful political power of the State, held elections, organized a State government, adopted a free-state constitution, giving the benefit of public schools equally to black and white, and empowering the Legislature to confer the elective franchise upon the colored man. Their Legislature has already voted to ratify the constitutional amendment recently passed by Congress, abolishing slavery throughout the nation. These twelve thousand persons are thus fully committed to the Union, and to perpetual freedom in the state—committed to the very things, and

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nearly all the things the nation wants—and they ask the nation[’]s recognition and its assistance to make their good committal. Now, if we reject, and spurn them, we do our utmost to disorganize and disperse them. We in effect say to the white men “You are worthless, or worse—we will neither help you, nor be helped by you.” To the blacks we say “This cup of liberty which these, your old masters, hold to your lips, we will dash from you, and leave you to the changes of gathering the spilled and scattered contents in some vague and undefined when, where, and how.” In the audience that day was Lincoln’s assassin, who responded to the president’s speech by saying to a fellow conspirator, Lewis Powell, “That means nigger citizenship. That is the last speech he will ever make.” Booth urged Powell to shoot Lincoln right there on the spot. When he refused, Booth vowed, “By God, I’ll put him through.” Though the “lost cause” interpretation would seek to obscure the centrality of slavery to the Civil War, Lincoln’s critics at the time both feared and loathed him as an implacable opponent of slavery and a champion of freedom to all. The seed of black citizenship planted during the Revolution was kept alive and nourished by Lincoln so that it could flower into birthright citizenship with the Fourteenth Amendment after his death. Conclusion: Prudence as Harmonization of Principle to Practice Notwithstanding some hedging that reflects the political realities of the time, the overall correspondence in both speech and deeds between Lincoln’s first public reply to Dred Scott and his subsequent actions as president confirms that he saw black citizenship as an extension of the principle of equality. Lincoln’s critique of Taney’s opinion on black citizenship in Dred Scott should not be disparaged as a mere hypothetical exercise, devoid of practical relevance. Rather, it was a masterful political stroke of prudent leadership that enabled him to survive Douglas’s onslaught while upholding the core principle that blacks were entitled to civil rights under some circumstances. This principle was a logical corollary to Lincoln’s inclusive view of equality. When the circumstances were ripe, Lincoln acted to extend the principle to include black citizenship. Thus, upon closer reflection, the apparent “schizoid quality” of Lincoln’s Springfield Address of 1857 should be attributed neither to intellectual incoherence nor to political opportunism, but to the prudent leadership of one who confronted the inevitable tension between principle and practice in politics. Frederick Douglass perhaps best described this

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prudence in terms of a rail-splitting analogy in a recently discovered speech. Douglass’s remarks provide a final and fitting word about Lincoln’s statesmanship on civil rights: Already he had expressed himself in favor of extending the right of suffrage to two classes of colored men; first to the brave colored soldiers who had fought under our flag, and second to the very intelligent part of the colored population [of the] South. This declaration on his part, though it seemed to mean but little meant a great deal. It was like Abraham Lincoln. He never shocked prejudices unnecessarily. Having learned statesmanship while splitting rails, he always used the edge of the wedge first—and the fact that he used this at all meant that he would, if need be, use the thick as well as the thin. He saw the absurdity of asking men to fight for a Government which should degrade them, and the meanness of enfranchising enemies and disenfranchising friends. He was a progressive man, a humane man, an honorable man, and at heart an antislavery man. He had exhausted the resources of conciliation upon the rebels and the slaveholders and now looked to the principles of Liberty and justice, for the peace, security, happiness, and prosperity of his country. I assume therefore, had Abraham Lincoln been spared to see this day, the negro of the South would have more than a hope of enfranchisement and no rebels would hold the reins of government in any one of the late rebellious states. Whosoever else have cause to mourn the loss of Abraham Lincoln, to the colored people of the country his death is an unspeakable calamity.

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3

Lincoln, Secession, and Revolution The Civil War Challenge to the Founding Herman Belz

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n political life, to question the desirability or necessity of the survival of the political community implicates the crime of treason. Similarly, conflict over the internal structure of the political community, including the question of who should rule the society, implicates the danger of civil war. Southern secession in 1861 precipitated a crisis of American nationality defined by the convergence of these two fundamental problems. The reality of disunion channeled the passions, interests, and ambitions provoked by debate over the nature of the Union and the status of slavery in republican society into the internecine conflict that Americans had long feared. Facing a crisis without precedent, President Abraham Lincoln cut the Gordian knot that had paralyzed American politics since at least 1850 by using military force to resist armed secession. From the moment he became president-elect in November 1860, Lincoln effectively assumed responsibility for the future of the country. His was the decision not to compromise on the question of excluding slavery from national territory outside the states where it existed. Refusing to evacuate the last remaining federal military outpost in the South, he accepted the Confederate decision for war signified by the attack on Fort Sumter. As commander in chief, Lincoln augmented the principle of republican liberty on which defense of the Union was based by ordering military emancipation of slaves in rebellious states. Not only saving the Union, but making it more worthy of being saved, Lincoln affirmed the principles of the founding by demonstrating the nature of secession as unjustified revolution. Secession and the Civil War challenged the American founding in the most radical and profound sense. Debatable though it was as an expression of federal and republican political theory, there was never any doubt that the framing and ratification of the Constitution confirmed the existence of the United States of America as a nation. While differences of partisan affiliation, ideology, and sec-

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tional interest were sources of conflict, American politics in the nineteenth century was consensual in affirming nationality, union, allegiance, and obligation to fundamental law as essential principles of the polity. As the slavery controversy increasingly divided the country in the 1850s, both sides claimed the authority of the Constitution to support their political ends. When the South decided to defend American political norms by breaking up the Union, it was not obvious where responsibility lay for the ensuing crisis. Politicians and citizens in each section accused the other of intent to subvert the Constitution and overthrow its social order. Each section justified its course of action as a legitimate exercise of constitutional authority in defense of fundamental values and institutions. The inability of Americans to avert war in 1861 did not, as is often argued, prove the intrinsic defectiveness of the Constitution in the face of fundamental political and moral conflict. Nor did the decision for war mean that each side, in its own way, was right: the South in its constitutional claim of a right of secession, the North in its moral claim for the superiority of free over slave labor. Wars are not fought because the political and moral claims of each side are equally justified, and the conflicts leading to them are not resolved by glossing over substantive and irreconcilable differences. I argue that when Lincoln resisted secession, in effect accepting the South’s decision for war, he rightly understood the nature of the Union. The essence of his reasoning was spelled out in the proclamation calling forth and convening Congress on April 15, 1861: “I appeal to all loyal citizens to favor, facilitate and aid this effort to maintain the honor, the integrity, and the existence of our National Union, and the perpetuity of popular government; and to redress wrongs already long enough endured.” Lincoln was not, as historians sympathetic to both the North and the South have argued, a revolutionist who subverted the founders’ Constitution. Far from the indeterminate, at-will compact of state–nations that secessionists claimed it was, Lincoln understood the Union to be a national polity constituted on the principles of republican consent and divided government sovereignty. The position Lincoln assumed was in no way novel. No political organization competing in nineteenth-century American politics regarded the Union, in its relationship to either individual citizens or states, as the kind of government that depended on a voluntary and subjective standard of law enforcement. Although on several occasions political minorities threatened disunion to secure their ends, such threats were not proof that a constitutional and legal right of secession existed. Should the necessity arise, the natural right of revolution, not a

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constitutionally privileged right of state secession, was in the founders’ view the ultimate ground of resistance against unjust and abusive government. The passions and interests aroused by the slavery question supplied the motive needed by southern politicians to undertake the daring project of establishing the right of secession as the sovereign prerogative of independent political communities, as they conceived their states to be. Challenged as no constitutionally elected chief executive had ever been, Lincoln, through his speeches and actions in the secession crisis, disclosed the reality of southern disunion as lawless and unjustified rebellion. To destroy the common good of the Union for the particular good of states where slavery existed was constitutional heresy and moral dereliction. Lincoln knew it must be resisted to preserve American nationality and the federal republicanism of the founding. Social Contract Theory and the Founding “America” was a term of geopolitical reference in the British Empire before it became, in the vernacular of its inhabitants, the name of an independent country. The Declaration of Independence asserted the desire of the people of America to establish a national union for the defense of their individual and corporate liberties. Although exigent circumstances limited the scope of their ability to plan, Americans confidently projected their political union into the future. Permanent nationality, for example, was the legal assumption underlying the Continental Congress’s promulgation in 1776 of the crime of treason against the United States for opposing the Revolutionary War. Directing the course of the war, Congress concurrently organized the internal structure of America as a national polity. The constitutional development of the Union involved the conservative adaptation of existing institutions and the revolutionary invention of new ones. Out of materials furnished by the colonial experience, Americans created a mixed regime of republican states for internal polity and a republican confederation for external security. In the Articles of Confederation, and in a more refined and complete form in the Constitution of 1787, representatives of the people and states of America expressed the desirability and necessity of a permanent national union organized on the principles of a compound federal republic. In establishing “this Constitution” to secure the blessings of liberty to “ourselves and our posterity,” the American people set themselves a challenge for the future. Subsequent generations of Americans, assuming responsibility for constitutional maintenance, would necessarily be required to face up to the found-

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ing. Fidelity to the founding meant, above all, preserving national independence. Under the Constitution this was a matter of duty and obligation, the ultimate and uncontroversial end of the country’s foreign policy in the world of nation-states. But what did preserving the nation mean with respect to the internal domestic conflict that was bound to arise among Americans, as among any people? What were the principles of republican constitutional Union as an expression of American nationality, and what institutional forms and practices did their application in specific political situations require? More than under a constitution of custom and tradition, the project of a written constitution raised the question of the proper attitude of citizens toward the act of foundation. Was it one of blind veneration or utopian perfectionism? Or, in the words of James Madison, prudential improvement and perpetuation of the fabric of government based on “knowledge of their own situation, and the lessons of their own experience”? From this last perspective, constitutional maintenance required adaptations and “inventions of prudence” emulative of, if not comparable to, those of the revolutionary founders. Construction of the Constitution involved exercises of authority that tied changes in government back to the founding, even as they augmented the act of foundation. Moreover, to the extent that the activity of constitutional maintenance was essentially political, it contained an element of uncertainty and contingency. As Ralph Lerner has observed, “Just as the Founders of the American republics looked back to a past that they both cherished and rejected, so too did they look forward to a future that might cherish and yet also in some sense reject them.” From the outset, there was a tendency to conceive of the common good of the American people in the language of perpetual union. Philosophically, the idea of perpetuity can be understood in relation to the problem of contingency and transcendence. Considering the historical existence of “America” as a people and nation, the question arises whether the meaning and significance of American nationality are exhausted by, or reducible to, pure historical contingency as an indeterminate, socially constructed thing? Or, alternatively, does knowledge of America as a historical phenomenon disclose a transcendent moral reality consisting of normative principles, goods, and ideas that are constitutive of the people and nation, as the founders believed? If that is the case, then America can be said to possess enduring moral reality and significance. From the standpoint of an external observer, the constitutional form of the nation—the institutional order through which the people of America became the bearer of the sovereignty of the nation—appears contingent. Nevertheless, it is historically indisputable that, from their internal perspective as political ac-

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tors, the founders understood the Constitution of the country to be normative and enduring in nature. They expressed this understanding in conceiving of the Constitution as “fundamental law” and “higher law.” Even defenders of southern secession, otherwise scornful of the notion of the perpetuity of the Union, recognize this fact. For purposes of the present analysis, the Civil War challenge to the founding resulted from fundamental disagreement over the type of government the Union was intended to be. This theoretical question had momentous practical consequences. To a considerable extent, the way it was understood depended on the intellectual horizon in which American politics existed. Although the political science of the founding included aspects of English common law, Protestant theology, and Scottish moral sentiment, its principal features derived from modern social contract theory. In its Lockean formulation, social contract theory holds that individuals unanimously consent to form a political community, delegating powers to government as a trust for the protection of their safety and rights. Constituting themselves a people, they possess and exercise popular sovereignty, in contradistinction to government sovereignty. Central to the idea of popular sovereignty is the right of revolution: the right of the people to alter or abolish government when it violates its trust, and to institute new government to protect their safety and happiness. Contractarian theory confers moral legitimacy on resistance to abusive and oppressive government. It makes resistance to government lawful, not in the sense of being protected by positive law, but in the sense of being morally justified and permissible. In Lockean theory, the right of revolution was a strong right in the sense that it placed an oppressive government in the wrong, under a moral obligation to desist from wrongful acts and to respect rights claimed to have been violated. The appeal to social contract philosophy defines the American founding as a modern project. Contractarian theory signified a fundamental change from the traditional doctrine that government is ordained by God, and that individuals are under a duty of passive obedience and nonresistance, regardless of circumstances. But was this concept of founding not a contradiction in terms, an unhistorical confusion of ancient and modern political reasoning? How could the constitution of a permanent political order be based on something so apparently destabilizing as the right of revolution? One answer to this question is that the Constitution was not so conceived. Another answer is that, properly understood, the right of revolution is not an invitation to anarchy and disorder. In this construction human nature, and society

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organized as a voluntary association, impose limits on the exercise of the right of revolution. The theory stipulates an element of choice and criteria for exercising the right. As expressed in the Declaration of Independence, human beings “are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.” Guided by prudence, the choice to exercise the right of revolution is limited to conditions of necessity, or a judgment of impending necessity. In Lockean theory, the exercise of the right of revolution is not an assertion of mere will, but rests on considerations of reason and justice. The right of revolution was an essential element in natural rights theory. It differed from the historic practice of revolt against tyranny, by which one ruler was replaced with another without changing the nature of the system of rule. By contrast, the right of revolution was conceived in far broader terms of regime change: its purpose was to secure the natural rights of individuals, place limits on the exercise of political power, and prevent unjust and abusive government. When morally justified, force and violence to achieve these ends were permissible. And where moral opinion against government injustice was shared widely enough to signify consensus, the right of revolution might be secured through peaceful political action, rendering force and violence unnecessary. This point of view may seem counterintuitive today, when “ ‘the right of revolution’ appears embarrassingly naive and rhetorical, an awkward enthusiasm of youth.” By contrast, Americans in the founding era had a vital interest in the right of revolution as the theoretical ground of their national existence. With the achievement of independence, Americans were in a position to reflect on the constructive value of the right of revolution in the establishment of a constitutional republic. The adoption of a fixed, permanent, and amendable constitution was seen as a way of securing the Revolution and transforming the right of revolution into nonviolent political forms. In the Pennsylvania ratifying convention, for example, James Wilson asserted that whereas in other countries “revolutions of government are connected with war, and all its concomitant calamities,” revolution in America took the form of “a gentle, a peaceful, a voluntary, and a deliberate transition from one constitution of government to another.” James Madison similarly justified the revision of the Articles of Confederation by the Constitutional Convention as an exercise of the right of revolution asserted in the Declaration of Independence. In the period following the ratification of the Constitution, the right of revolution can be viewed as in the process of transformation into the right of free elec-

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tions and republican political practices. Reflecting the contingent nature of political life, this development was controversial and to some extent indeterminate. It occurred in the context of—or was primarily manifested in—ideologically polarized electoral competition. At the national level, sectional alliances and identifications were formed in congressional and presidential politics. Perhaps most important, the transformation or sublimation of the violence associated with the right of revolution stimulated the pulse of popular sovereignty. Yet, if emerging forms of peaceful protest and resistance reflected the spirit of the Constitution, they also signaled the advent of a kind of democratic participation and informality that potentially challenged fidelity to the founding. Divided Sovereignty as a Principle of Nationality One measure of informality and challenge was the widespread perception of conspiracy to subvert the Constitution and republican government. Throughout the antebellum period, northern and southern politicians recriminated each other as hostile to their institutions, values, and ways of life. In considering the question of revolutionary intent against the principles of the founding, it is helpful to note the perspective of recent scholarship on this sectional debate. Most historians today regard Lincoln and the Republican Party as the revolutionary force in nineteenth-century American politics. This judgment was long expressed in the economic interpretation of the Civil War as the “second American revolution.” It is extended and augmented in the more recent view of the war as a “civil rights revolution.” Pro-slavery secession, meanwhile, is seen as a counterrevolutionary movement. This assessment parallels the view of historians of the late nineteenth century who, with an eye toward sectional reconciliation, concluded that the North had moral right on its side in abolishing slavery, and the South the Constitution on its side in claiming a right to secede from the Union. This interpretive framework rests on two assumptions: that the Constitution was in essence a pro-slavery document, and that it was silent or contained no meaning with respect to the right of a state to secede from the Union. Secession is seen as legitimate because withdrawal from the Union by a state was not expressly prohibited in the text of the Constitution. The Union, in other words, was the kind of political community in which secession was not constructively or by implication ruled out. Should secession be attempted, the burden of proof lay with defenders of the Union to show why it was constitutionally impermissible. In this view it was not necessary to justify disunion, but merely to reject argu-

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ments denying the right of secession as “untenable.” A not-incidental benefit of this interpretive strategy is to sidestep troublesome questions about the defense of slavery as the purpose of secession, placing the matter under a veil of moral and historical ignorance. It is true that the relative powers of the state and national governments were disputed in the antebellum period. The ambiguity of the nature of the Union can be exaggerated, however, to the point where it appears that nothing about the constitutional structure of the Union, in its essentials, was settled and uncontroversial. On this view, the history of federal–state relations since the ratification of the Constitution was inconclusive on the fundamental norms governing American politics. After the Civil War this line of reasoning had considerable appeal. It is seen, for example, in the assertion of General Robert E. Lee that as the relative powers of the states and the general government were not decided by the Federal Convention, and since the question had to be settled at some time, the necessity to resolve it was a legitimate casus belli. Therefore, Lee argued, “war raised on this issue cannot be considered treason.” The discourse of federal-system politics in the antebellum period was rife with charges of “disunionism.” The meaning and significance of this rhetoric are debatable. Present-day neo-secessionists contend, for example, that political debates over disunion prove that a right of secession existed as the cornerstone of American liberty. In this vein, the conservative writer Frank S. Meyer argued a generation ago that tension between the states and the national government, arising from the undefined nature of the Union, was the key to limited government and individual liberty under the Constitution. “Until the Civil War,” Meyer said, “no one knew whether a state could secede as its last sanction, and this was of the utmost necessity if the Federal Government were not to grow so strong as to destroy the tension that guaranteed liberty.” Meyer implied that if secession was not a clearly defined right, it ought to have been because of the political benefits resulting from claims and threats of disunion. If tension between the federal and state governments was the mainspring of constitutional liberty, however, then it was not only wise, but also necessary, not to push things to the point of finding out whether a state could in fact secede from the Union. Indeed, to do so was to challenge the requirement of prudence inherent in the theory of divided sovereignty on which constitutional union was based. A major concern of the founders after the Revolution was dissension and civil strife arising from the interrelated problems of external and internal security. Weakness in the government of the Union invited foreign invasion, threatening

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national independence and loss of liberty. Internal discord, arising from political factionalism and interstate conflicts, provoked fear of anarchy and threatened individual and local liberties. Reconstitution of the government of the Union, giving it authority to legislate for individuals rather than for states, was the essential constitutional reform the founders believed necessary to preserve public order. Henceforth, should a state wish to obstruct national law it would be forced to take positive action encroaching on national rights, rather than simply refuse to comply with congressional requests. In the view of Alexander Hamilton, “An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority.” In matters of internal security, the states were the front line of defense against civil disorder and insurrection. With authority to legislate for individuals, the federal government would suppress the actions of seditious individuals by the same enforcement authority available to the states. Hamilton believed the Union could command more extensive resources to suppress “partial commotions and insurrections” arising from factional intrigue than could any single state. In a system of divided sovereignty, conflict between states and the government of the Union was to be expected. Indeed, the founders anticipated the emergence of robust political competition between the states and the general government. In Federalist 31, Hamilton speculated on attempts by the federal and state governments to encroach on each other’s rights. Which side prevailed in such a conflict would depend on the means employed as perceived by public opinion. Hamilton was confident that the people held the scales of judgment in their hands, and their “prudence and firmness” would preserve the constitutional equilibrium of the Union. In much the same way, Madison advanced an argument for federal–state equilibrium as essential for the preservation of internal order. He suggested, on the one hand, that the political advantage in federal–state conflicts lay with the states, which could expect to enjoy the support of the people. State officers and legislatures might in fact adopt plans of “noncooperation” with Union officials, coordinating with other states to embarrass and obstruct national policy. On the other hand, a right of “federal interposition” into state affairs was available to the Union government in the constitutional guarantee of a republican form of government to every state in the Union. Madison believed that the “existence of a right to interpose will generally prevent the necessity of exercising it.” The founders were confident that an integrated system of powerful states and a stronger federal Union would preserve national independence and republican

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government. Yet their experience of political life told them that a “more perfect Union” could not ensure perfect peace. Contingencies threatening to the life of the nation might arise that were beyond “any ordinary rules of calculation.” Assessing the ability of the national government to preserve law and order, Hamilton contemplated the occurrence of “those mortal feuds which in certain conjunctures, spread a conflagration through a whole nation, or through a very large proportion of it.” Political upheavals of such magnitude, he observed, arose “either from weighty causes of discontent given by the government or from the contagion of some violent popular paroxysm. . . . When they happen, they commonly amount to revolutions and dismemberments of empire. No form of government can always either avoid or control them.” In the image employed by Hamilton, many historians regard the sectional controversy over slavery as the kind of revolutionary conflict that the framers of the Constitution could foresee but were incapable of preventing because of their flawed moral vision. Most important, the founders did not abolish slavery. Almost as important, they left the nature of the Union ambiguous, thereby giving the slave states political leverage and opportunity to control the nation’s future. Because the debate over the nature of the Union, in the end, came down to a conflict between loyalty to state and section on the one hand, and loyalty to the Union on the other, it is true that uncertainty over the constitutional disposition of the question of citizenship had grave practical consequences. Nevertheless, there was much about the nature of the Union, as revealed in constitutional politics, law, and history in the antebellum period, that was not ambiguous. The United States of America was a nation of people and states. A collective national identity was everywhere assumed and accepted. America was a republic of republics, a polity the common good of which was promoted by electoral competition in a pluralistic society. The political system existed in a horizon constituted by forms, rules, principles, and institutions of divided and reciprocally constrained government sovereignty, and limited and recessed popular sovereignty. The fundamental requirement of constitutional fidelity was that neither the government of the Union nor the state governments could reduce the other to itself or otherwise destroy it. As a state system, the American Union possessed the attributes of nationality, permanence, allegiance, obligation, and consent derived from social contract theory. The historical record of controversy over the relative powers of the national and state government is evidence not that a right of secession existed but that the Union was the kind of political community that could not be broken up at will and with impunity. For the Constitution to serve the ends of federal–

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republican liberty, the mutual recognition and restraints between the political communities and institutions that constituted the Union must endure and have permanence. Constitutional Construction of the Federal Principle The founders’ challenge to future generations was to maintain and preserve the federal republican constitutional order. To the citizen and statesman, constitutional maintenance presented itself in the form of fidelity to the Constitution. Although it may involve legal interpretation of the constitutional text, constitutional fidelity cannot be reduced to legalism. It is essentially political in nature, referring to the public principles and goods that it is the substantive goal of the Constitution to establish. Among these goods are the ends and purposes, as well as the institutional and procedural means, of government action. Fidelity to the Constitution is thus both substantive and procedural. Constitutional construction is the horizon in which the politics of constitutional maintenance exists and judgments about fidelity to the Constitution are rendered. Construction is directed to questions that are raised by the operation of the Constitution, but not answered in its text. Constitutional meaning is created by constitutional construction. In this context, construction refers not to the invention of meaning de novo, but to declaring or giving meaning through explication of the original constitutional text and principles. Properly conceived, construction is an augmentation of the Constitution. As distinguished from interpretation, which is primarily legal, construction is mainly political. In the matter of federal–state relations, constitutional construction of the nature of the Union was political in the deepest sense. Southern secession terminated what can be called the theoretical phase of the debate over the nature of the Union. It provoked a political crisis in which constitutional construction assumed an overwhelmingly practical meaning. In the events leading to the Civil War, Lincoln advanced a construction of the Constitution that was faithful to the founding with respect to principles and ends as well as procedural regularity and operational efficiency. Lincoln’s construction affirmed the founding; the construction of the secessionists repudiated the ends and purposes of the founding. Analysis of antebellum federal system politics as the practical and normative expression of the principles of the founding supports this conclusion. In the federal Union of divided sovereignty, the rule of generality and locality regulated the exercise of state and national powers. In theory, matters of general

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concern to all the states were in the jurisdiction of the federal government, and local matters in the jurisdiction of the states. In practice, the application of the rule was often imprecise. The nature of the Union appeared ambiguous because, in relation to specific policy questions, the powers of the state and federal governments were not, ex ante, unequivocally clear. More broadly conceived with respect to essential principles, however, the nature of the Union was reasonably clear. By profession and practice transcending sectional and partisan affiliation, the Union was defined by the principles of nationality, obligation, and republican consent. Within the public sphere created by these constitutive norms, the general and state governments encountered each other in recurring patterns of conflict and cooperation. The paramount objective in federal-system politics—acknowledged by even the most ardent champions of state sovereignty—was control of the national government. Assertion of states’ rights was a default strategy adopted by the electoral minority, reflecting an attitude of opportunistic and loyal opposition. From this perspective, and in light of the constitutional agency states were given in the operation of the national government, states were in effect encouraged to devise means of protesting measures that they believed consolidated power unconstitutionally in the federal government. By the same token, in the exercise of the legislative powers delegated to it by the Constitution, the Union government justified enforcement of national laws against the acts of individuals and state officers believed to violate the Constitution to the point of being insurrectionary. Both constitutional constructions—state interposition against national usurpation and national interposition against state insurrection—could be seen as aimed at maintaining the Constitution and the Union. Depending on the specific means employed, however, the constructions of the federal and state governments could also be perceived as an abuse of constitutional authority and disunionist in nature. The integrative design of the Constitution, as noted, made control of the federal government the principal goal in federal-system politics. States’ rights protest against the threat of national consolidation was a constant theme in constitutional rhetoric. In the period 1789 to 1860, official state denials of the legitimacy of national authority occurred almost annually. Although most states most of the time supported national authority, state protest against allegedly unconstitutional acts of the federal government was not an uncommon practice. Prudential in nature, derived from social contract theory more than from express provisions in the Constitution, the practice can accurately be described as “interposition” and regarded, in an abstract sense, as arguably constitutional.

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The seminal document asserting a right of state interposition was the Virginia Resolutions of 1798, written by James Madison for the Virginia legislature at the time of the Alien and Sedition Acts. In case of “a deliberate, palpable, and dangerous exercise of other powers not granted” to the federal government by the Constitution, Madison argued, the states “have the right and are in duty bound to interpose for arresting the progress of the evil and for maintaining within their respective limits the authorities, grants, and liberties appertaining to them.” Did interposition, as asserted by Madison, contradict and refute the constitutional logic of the founding? Or did it clarify, augment, and affirm the scope of practical reason under the principle of divided sovereignty? Did the Virginia Resolutions embody the theory of absolute state sovereignty according to which a single state could exercise radical independence of action, irrespective of opinion in the other states? Or was Madison’s theory that of a limited state sovereignty in which states had a right to resist unconstitutional federal measures in the plural or collectively, by aggregating public opinion to repeal them or to enact a constitutional amendment? The consensus of constitutional scholarship on Virginia interposition supports the latter view. The theory of divided-sovereignty federalism implied the necessity of constraints on the state and national governments. Reciprocal “interposition” by the states and the Union can be seen as a constitutional construction aimed at transforming the right of revolution into nonviolent political practices. In the nature of political life, however, such an idea could not, with finality, be conventionally defined or institutionally prescribed. Situations might arise in which unorganized individuals in states, or the people of a state claiming to exercise sovereign power, might determine the necessity of defending their rights through violent means—the “appeal to heaven” referred to by social contract theorists. In the context of long-range secular trends of political democratization and economic development, the dynamic forces driving federal-system politics led politicians to propose more systematic constructions of state interposition. These efforts were intended, and justified rhetorically, as a constitutional prophylactic against disunion threatened by federal consolidation. Defenders of states’ rights argued that the existence of a right of state resistance would have a deterrent effect, obviating its actual use. Facilitated by the convenience of appeals to state sovereignty and stimulated by rising social and cultural tensions, the tendency of this process of construction was inherently destabilizing. The endpoint of the process—logical in terms of state sovereignty theory and irrational from the standpoint of practical reason—was the claim of a right of secession as a constitutionally protected immunity. The ultimate act of interposition,

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secession purported to preserve the existence of endangered states by destroying the Union. It aimed at promoting the particular good of a sectionally identified group of states, at the expense of the common good of the country as a whole. The result was to transform state resistance into a revolutionary threat of national disintegration, challenging the essential meaning of the founding. The decisive step in this construction of the federal principle was taken in the transition from the protest of the New England states in the Hartford Convention in 1814 to the South Carolina protest against the tariff in 1832. Comparison of the two events bears out the truth of Hamilton’s observation in the Federalist Papers that in conflicts between the states and the federal government the outcome, in significant part, “must depend on the means which the contending parties could employ towards ensuring success.” Although the call for a regional convention of states was irregular from a strictly textualist point of view, the Hartford Convention aimed at constitutional revision in the manner provided by the Constitution. Delegates to the convention, appointed by the state legislatures, recommended that the New England states adopt measures protecting their citizens from the operation of laws of Congress subjecting them to conscriptions not authorized by the Constitution. In order to strengthen and perpetuate the Union, the convention further recommended that the states propose constitutional amendments concerning, among other things, apportionment of representation in Congress, admission of new states into the Union, exercise of the national commerce power, and presidential term limits. If petition to the federal government was unsuccessful and the war against Great Britain should continue, it might be expedient to hold another convention “with such powers and instructions as the exigency of a crisis so momentous may require.” In the late 1820s South Carolina politicians protesting national tariff legislation gave state interposition a far more radical construction. They proposed single-state veto or nullification of unconstitutional federal laws based on the theory of sovereign state independence. In 1832 the South Carolina Convention, called by the state legislature, adopted an Ordinance of Nullification. The ordinance declared the tariff acts of Congress to be “null, void, and no law, nor binding upon this State, its officers, or citizens.” Procedures were specified and sanctions imposed to prevent collection of customs duties; the legislature was directed to pass acts enforcing the ordinance; and appeal to the United States Supreme Court of state court decisions questioning the authority of the nullification ordinance and enforcement acts was prohibited. State officers were required to subscribe an oath to obey and execute the ordinance. Finally, should Congress attempt to

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coerce the state into obedience, its measures would be regarded as “inconsistent with the longer continuance of South Carolina in the Union.” The people of the state would “hold themselves absolved from all further obligation to maintain or preserve their political connection with the people of the other States, and will henceforth proceed to organize a separate Government, and do all other acts and things which sovereign and independent States may of right do.” John C. Calhoun, the principal theorist of this constitutional construction, defended nullification as an application of the right of interposition asserted in the Virginia Resolutions. Under the circumstances in which the state found itself, Calhoun believed it was the only logical and effective remedy for maintaining local liberty against an abuse of federal power. In fact, the doctrine of nullification proposed a radical escalation in the exercise of state power. Calhoun’s construction defined interposition as unilateral action by a single state, rather than as an appeal to other states for a concerted political deliberation leading to statutory or constitutional reform. The state convention purported to exercise the sovereignty of the people of South Carolina, “the highest power of the system.” In Calhoun’s view, “the creating becomes the preserving power,” enabling the Constitution to acquire “all the perfection of which it is capable.” In politics as in theology, Calhoun reasoned, “preservation is perpetual creation.” Calhoun argued that nullification was the only sure means of preserving the Union and the Constitution. This argument was counterintuitive, akin to the idea that a rule of unanimity is a practical way of deciding political disputes, solving the problem of authority, and limiting the power of government. It was not persuasive to contemporaries, including states’ rights advocates. Calhoun denied what to most observers seemed obvious: that nullification as a constitutional construction could not be justified politically or legally in relation to the text of the Constitution, and hence must be rejected as revolutionary. Although South Carolina secured tariff reduction in the Compromise of 1833, the doctrine of nullification was rejected as a constitutional construction. President Andrew Jackson, treating it as the equivalent of secession, denounced it as treason against the United States. To hold that a state, while remaining a member of the Union, could exercise a veto over the government of the Union seemed to most political writers self-contradictory, if not a breach of faith. And if nullification and secession appeared to be distinguishable in form, they were the same in practical effect. Both constructions claimed a lawful right to disobey law—nullification directly and secession indirectly, since to take a state out of the Union inevitably would require violation of federal statutes. Indeed, the credibility of nullification as a political strategy depended on the threat of secession,

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as the South Carolina ordinance indicated. Nullification as an exercise of state sovereignty was thus brigaded with the threat of violent disunion. As the sectional conflict over slavery intensified in the 1850s, the South faced the increasingly dreaded prospect of losing control of the federal government. Secession now became the principal strategic alternative for defending southern interests. What recommended it was its availability and arguable validity as an exercise of state sovereignty under the compact theory of the Union. To the extent that the threat of disunion was a rational bargaining strategy for minorities to employ in federal-system politics, the idea of secession had a degree of plausibility. Moreover, although in the social contract tradition appeal to the right of revolution was the theoretically correct response to government injustice and abuse, the high political risk involved in exercising the right was an incentive to invent an alternative or substitute doctrine in the form of a constitutional right of state secession. In social contract theory the right of revolution poses a riddle. Like the doctrine of consent, it makes a powerful rhetorical appeal while appearing to be difficult to apply, if not of slight practical value in actual political life. One drawback is that the right of revolution is a political and moral right. Its exercise is prudential and discretionary, not legally privileged and guaranteed. Good judgment is required in knowing when to resist established authority. Moreover, the right of revolution cannot be exercised at will; it must be justified by moral reasoning, as well as backed by sufficient force to overcome the resistance it is bound to invite. To claim the right is not conclusory; it does not place another party under a legal obligation not to interfere with the action of the revolutionary claimant. In the view of political theorist A. John Simmons, the moral claim “provides the theoretical base needed for a convincing defense of a right of resistance.” Whether defense of this right is convincing and successful depends on a multitude of contingent factors, including the means employed and the end of the contemplated revolutionary action. The risk, inconvenience, and practical difficulty involved in exercising the right of revolution could be avoided if the work it was intended to do could be accomplished by a more reliable theory of rights protection and regime change. Considered from a theoretical point of view, this is what secession advocates may be said to have attempted in the two decades before the Civil War. Because of the strength of unionist sentiment and popular identification with the founding, the effort to gain public approval for secession as a political strategy was an uphill struggle. By 1860, however, it was successful enough to provide the theoretical

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channel through which the tide of revulsion against the election of Lincoln swept eleven states out of the Union. Secession as a Constitutional Immunity Lincoln’s election and southern secession produced a crisis of constitutional fidelity and operational integrity. Two fundamental issues were in dispute. The first was the nature of the Union. The question was whether a state, consistent with its obligation to the other states as a member of the Union, had a right to de-ratify the Constitution and withdraw from the Union. Did the government of the Union exist at the convenience of the states? Or could the federal government legislate for and command the allegiance of any and all individuals in the United States, irrespective of their relationship to a state government? The second issue was whether a right to hold property in slaves was constitutionally affirmed as an essential element of American nationality. Fundamental disagreement on these questions was the final cause of the Civil War, and guided the formulation of war aims by the two belligerents. Among many levels of significance, the deepest meaning of the Civil War lay in the extent to which northern and southern constitutional positions affirmed, or challenged and broke faith with, the principles of the founding. The South’s refusal to accept the result of a procedurally uncontested presidential election, on the face of it, appears a more obvious departure from constitutional practice than does the opposition of the Republican Party to territorial slavery, which made Lincoln’s election unacceptable. Analysis of secession as a constitutional construction—as the South’s way of “facing up to the founding”— therefore has first claim on our attention. Constitutional enforcement is superficially procedural and substantively purposive. Procedural regularity and integrity follow from normative fidelity, resulting in the reality as well as the appearance of government being under an obligation “to control itself.” The South’s avowed purpose in the secession crisis was preservation of slavery-based societies in separate political communities, the sovereignty and independence of which was the aim of the Revolution and the end of the Constitution. From this perspective, asserted Jefferson Davis of Mississippi in a Senate speech on January 10, 1861, the creation of a political party hostile to slavery was a “declaration of war upon our institutions.” It was immaterial “whether that war be made by armies marching for invasion, or whether it be by proclamation, or whether it be by indirect and covert process.” The very

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existence of the Republican Party changed the purpose of the Union, Davis contended. With the election of Lincoln, the Constitution was in effect amended and the South released from any obligation of procedural fidelity. It was at liberty to reject the meaning of the Constitution. It was not enough, however, for southerners to be set at liberty. Essential to the southern project was the assertion of secession as an affirmative right, the supreme power of sovereign communities to establish an impregnable regime of slavery-based liberty. In their own way, southerners believed this ambition was faithful to the principles of the founding. For in the southern mind, secession as the privileged action of sovereign states in the Union represented a correct understanding of the right of revolution on which the country was based. In his Senate speech, answering the argument of President James Buchanan that secession was “a revolution against an established Government,” Jefferson Davis advanced a theory of secession as an affirmative right. Davis conceded that disunion was not a constitutional right in the sense of being granted in the Constitution. It was true that the silence of the constitutional text on the subject of secession showed that the states never agreed not to withdraw from the Union. The more important point, however, was that secession rested on a deeper political basis: it was an exercise of original sovereignty that, much as it might be otherwise, was left undiminished and unqualified by ratification of the Constitution. Secession was the visible sign of a kind of metaphysical political reality: the unalienable and invincible authority of sovereign states, the union of which was always contingent and indeterminate. Not the express claim of perpetuity in the Articles of Confederation, Davis argued, much less any implication of perpetuity in the “more perfect Union” of the Constitution, could make the Union of the American states permanent and enduring. The very idea was inconsistent with “the nature of our Government,” said Davis. It necessarily followed that the Constitution did not establish a sovereign nation or a national government. The Constitution was not adopted by “the mass of the people,” the “whole body of the people” of the United States. Viewing secession as political orthodoxy, Davis was obliged to refute the argument of southern unionists that, rather than revolt against the government, they ought to remain in Congress and fight for southern rights in the Union. Davis rejected this strategy, saying it would amount to attempting “a revolution under the forms of the Government.” This would be a violation of the oath he swore to support the government of the Union. “If I must have revolution,” he declared, “let it be a revolution such as our fathers made when they were denied their natural rights.”

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Davis interpreted the right of revolution as a natural right of peaceable secession, an affirmative right that imposed a duty on others and determined their actions in relation to the possessor of the right. He captiously observed, “We are confusing language very much. Men speak of revolution; and when they say revolution, they mean blood. Our Fathers meant nothing of the sort. When they spoke of revolution, they spoke of an inalienable right.” The right of revolution was the power of the people to abrogate or modify their form of government whenever it did not answer the ends for which it was established. But the right was not to be sustained by brute force. According to Davis, “They meant that it was a right; and force could only be invoked when that right was wrongfully denied.” England denied the right; therefore, the revolution for independence was bloody: yet “if Great Britain had admitted the great American doctrine, there would have been no blood shed.” Davis challenged Americans to honor the founders by recognizing secession as the right of peaceable revolution. This was “the principle on which they took their place among the nations of the earth.” Davis admonished, “Are we, in this age of civilization and political progress, when political philosophy has advanced to the point which seemed to render it possible that the millennium should now be seen by prophetic eyes; are we now to roll back the whole current of human thought, and again to return to the mere brute force which prevails between beasts of prey, as the only method of settling questions between men?” It was unworthy of the descendants of the founders, Davis said, to treat the right of revolution as “one which you can only get as the subjects of the Emperor of Austria may get their rights, by force overcoming force.” The blood of the Revolution was shed in vain if the founding fathers “terminated their great efforts by transmitting posterity to a condition in which they could only gain those rights by force.” Davis averred, “Force was the law of nature before the battles of the Revolution were fought.” The inalienable right of the people to alter or abolish government without force and violence was the new law of nature. This vision of secession came as an epiphany—a kind of civic millennialist dispensation, releasing southerners from the ordinary requirements of both lawfulness and prudence. It was so compelling as to convince them that there would be no opposition to their disunionist acts. After the war this vision persisted. Alexander H. Stephens, vice president of the Confederacy, argued in his apologetic history of the Confederacy that the right of disunion existed either from the nature of the Union as a compact or as a revolutionary right. Although southerners were averse to revolutionary discourse for the effect it might have on their slave population, they seized on northern expressions of the right of revolution when

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it suited their purposes. Thus Stephens, quoting Abraham Lincoln’s prewar assertion that revolution was a “most valuable and sacred right,” wrote, “If it is a sacred right, how can there exist any legal or moral right to prevent its exercise?” The second constitutional construction on which the claim of secession rested was the principle of non-coercion. This argument proceeded from the nature of the Union as an association for the convenience and good of the states. In southern constitutional theory, the Union was a voluntary association based on friendship and fellow feeling. To use force to hold it together was irrational and unthinkable. Accordingly, the framers established as a fixed constitutional rule that the federal government could legislate only for individuals; it could not legislate for or otherwise attempt to control states. The federal government was under a duty and obligation not to coerce or otherwise interfere with internal state polity. The duty of noninterference gave rise to a right of secession. This was a substantive immunity against federal measures aimed at denying the sovereign independence of a state, either directly, by legislating on state governments, or indirectly, by enforcing law on individuals in ways that preempted state sovereignty. Secessionists were confident that, even if it tried, the government of the Union would be incapable of coercing states by executing the laws against individuals. The nature of the Union rendered such an undertaking impossible. Dismissing northern threats that secessionists would be hanged for treason, Judah P. Benjamin, senator from Louisiana, asked, “Where is the marshal to seize, and where is the court to try, where is the district attorney to prosecute, and where is the jury to convict? Are you going to establish all these by arms?” The North could not treat the act of a sovereign state, “issued in an authoritative form, and in her collective capacity, as being utterly out of existence.” Benjamin warned, “You must acknowledge the independence of the seceding State, or reduce her to subjection by war.” In the southern mind, secession recommended itself as an irreproachable claim of reserved right to withdraw from the Union in peace. In the northern mind, secession bespoke imperious pride and political intimidation in the name of popular sovereignty. “Call it what name you will,” declared Jefferson Davis, the founders put the rights of the people above everything else. The people were “the Government de facto.” Secession was an exercise in direct democracy, the action of separate peoples of sovereign state–nations. Resumption of reserved rights, which in many secession ordinances was justified on the ground of northern states’ antislavery measures, only appeared to be a release from political and legal obligation in the Union. According to secession theory, citizens and officers

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of the states were never bound in conscience to obey the laws of the Union. On the contrary, they always had a moral and legal right to disobey those laws if they chose. If state governments appeared to accept the laws of the Union, this was accidental, a matter of expediency rather than an acknowledgment of moral obligation external to the will of individual citizens and state actors. In a moral and constitutional sense, states in the Union possessed perfect independence of action. Whatever the theory used to justify it, in political reality secession was revolution. The question was whether it was justified. Davis’s argument that the right of revolution was debased by identifying it with force and violence was fanciful. The plain meaning of secession was that of a revolutionary movement to overthrow the national government. This is confirmed in contemporary accounts, including those of southerners. In his postwar biography of the Confederate president, for example, Edward A. Pollard described Davis’s role as a leader in “the Secession conspiracy at Washington” that “assumed the powers of a revolutionary junta.” Nevertheless, in one important sense a theoretical and ethical distinction existed between the southern theory of secession and the right of revolution in social contract theory. In the minds of its advocates, the right of secession could be exercised at will or pleasure. In the view of northern unionists, the right of revolution must be exercised for cause and justified on moral grounds. To claim a right of secession—to transform the right of resistance to unjust government into a legal immunity to destroy government at will—was philosophically ambitious. It was also politically risky. Few political observers thought that, after years of threatening to do so, radical secessionists could actually get out of the Union without bloodshed. Nevertheless, after Lincoln’s election southerners believed that swift exercise of the right of secession would place offending northern state governments, and the incoming Lincoln administration, in the moral wrong. They hoped that claiming secession as a constitutional immunity would disarm and immobilize opposition. Previous threats of disunion by northern states gave southerners confidence that their strategy would work. Citing these examples as precedent, Jefferson Davis later wrote, “The only practical difference was that the North threatened and the South acted.” Lincoln’s View of the Union and Secession For a time the southern strategy was successful. To understand why it failed we need to consider Lincoln’s pre-1860 views on revolution and secession in relation to the nature of the Union. Throughout his political career Lincoln was conscious

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of the challenge of facing up to the founding. The Springfield Lyceum Address of 1838, “The Perpetuation of Our Political Institutions,” is the seminal text for understanding the trajectory of his statesmanship toward the challenge of the secession crisis. In the Lyceum speech Lincoln warned against the danger to American civil and religious liberty from lawless popular uprisings throughout the country. The “mobocratic spirit” vitiated the attachment of the people, the strongest support of any government. This affective bond, however, was contingent. Mob lawlessness against the rights of person and property would break it, alienating the affections of the people from the government. Moreover, if the nation should ultimately come to ruin, Lincoln believed the greater danger lay within the country than without. He exclaimed, “If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide.” Lincoln exhorted, “Let every American, every lover of liberty, every well wisher to his posterity, swear by the blood of the Revolution, never to violate in the least particular, the laws of the country.” Let reverence for the Constitution and the laws “become the political religion of the nation.” Noteworthy in Lincoln’s treatment of constitutional maintenance was his recognition of the right of revolution. The immediate danger was that mob rule would open the way for a tyrant bent on pulling down the government and the laws. Lincoln wanted to direct the spirit of the Revolution into constructive law-abidingness. Yet even in a “law and order” crisis, the right of revolution, the basis of national existence, could not be disavowed. Although opposing mob rule, Lincoln did not teach passive obedience and nonresistance. He knew that the American people, enduring evils long and patiently, would, if necessary, eventually alter or exchange their government for another, as in the Revolution. Lincoln clarified that he did not mean that bad laws should not be repealed. Where problems should arise not provided for in the laws, he advised, legal remedies should be adopted and grievances “borne with,” unless they were “too intolerable.” Resistance to unjust and oppressive government was the ultimate safeguard against tyranny. Where the people were dispirited by mob rule, however, exercise of the right of revolution might not be practicable. The first requirement, then, was to counteract this tendency toward arbitrary and irrational mob rule. “There is no grievance that is a fit object of redress by mob law,” Lincoln asserted. In any situation of mob action, the activity that is the object of protest either is right and deserving of legal protection, or is wrong and should be legally prohibited. In neither case was “the interposition of mob law, either necessary, justifiable, or excusable.”

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Lincoln further reflected on the significance of the country’s revolutionary origins in the Temperance Address of 1842. In the Lyceum speech, constitutional reverence functioned as a substitute for the waning appeal of the Revolution. In the temperance speech, Lincoln considered the positive use to be made of the spirit of the Revolution in testing and tempering the American regime. “The Revolution gave Americans political freedom beyond that of any other nation,” providing the world with “a solution of that long mooted problem, as to the capability of man to govern himself.” Lincoln said the Revolution was the source of “the germ which has vegetated, and still is to grow and expand into the universal liberty of mankind.” Transformed and institutionalized in constitutions and civic enterprise associations, such as the temperance movement, the right of revolution provided the basis of ever-expanding political and moral freedom. On still another occasion, in very different circumstances, Lincoln discussed the right of revolution. In January 1848, in a speech in the House of Representatives on the Mexican War, Lincoln identified the right of revolution as the ground on which Texas assumed the status of an independent republic. When Texas was admitted to the Union by annexation, the extent of American national territory in that state, as in the original states, depended on the right of revolution. In the context of a war he opposed, and perhaps influenced in part by partisan motives, Lincoln had reason to define the founding principle of American nationality in broad and positive terms. He declared, “Any people anywhere, being inclined and having the power, have the right to rise up, and shake off the existing government, and form a new one that suits them better. This is a most valuable—a most sacred right—a right, which we hope and believe, is to liberate the world.” Exercise of the right was not limited to situations where “the whole people of an existing government, may choose to exercise it.” Any portion of the people “that can, may revolutionize, and make their own, of so much of the territory as they inhabit.” Moreover, a majority of the people could put down a minority that opposed revolution, as happened in the expulsion of Tories in the American Revolution. “It is a quality of revolutions,” Lincoln summarized, “not to go by old lines, or old laws; but to break up both and make new ones.” Lincoln’s appeal to the right of revolution in this situation has perplexed scholars. Some view it as an imprudent digression that came back to haunt him when the South, citing Lincoln’s 1848 speech as partial justification, claimed a right to secede. Lincoln, it is suggested, had to deny the claim hypocritically, incurring the charge of unprincipled expediency. It is true that Lincoln’s description of revolution—as the act of a people taking possession of and making their own territory that they inhabit—can be regarded

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as secession. It is obvious, however, that the kind of political action Lincoln had in mind was the overthrow of an imperial power to establish national independence, as in the uprisings of Americans against Great Britain in 1776, Mexicans against Spain in 1824, and Texans against Mexico in 1836. Southern secession occurred in an essentially different political context: consent-based, popular republican government in a national union of constitutionally divided sovereignty and mutual constraints. As Jefferson Davis made clear in his 1861 Senate speech, the South did not justify disunion as an exercise of the right of revolution in its received meaning of an “appeal to heaven,” the ultima ratio juris (i.e., reliance on force), posited in Lockean theory. Seceding states repudiated the Constitution on the ground that, while in the Union, they never actually surrendered their sovereignty and hence were under no moral and legal obligation. Lincoln did not misunderstand the right of revolution or confuse revolution and secession. It was southern disunion, not Lincoln’s election to the presidency in 1860, that broke faith with the founding. This can be seen in Lincoln’s views on the nature of the Union, including allegations of disunionism, in events leading to the secession crisis. Lincoln held, with the founders, that the Union was formed to establish national, local, and individual liberty. Events in the 1850s convinced him that the political power of the slave system, which he had long opposed as an intrinsic denial of republican liberty, could threaten the existence of the Union. As a national politician, Lincoln conceived it his duty and responsibility to preserve both liberty and Union under the Constitution. At the time of the annexation of Texas, Lincoln wrote privately, “I hold it to be a paramount duty of us in the free states, due to the Union of the states, and perhaps to liberty itself (paradox though it may seem) to let the slavery of the other states alone.” It was “equally clear,” however, “that we should never knowingly lend ourselves directly or indirectly, to prevent that slavery from dying a natural death—to find new places for it to live in, when it can no longer exist in the old.” Beyond the sectional power struggle lay the deeper question of how the right of revolution might be implicated in the controversy over slavery. Lincoln recognized this in observing, “Of course I am not now considering what would be our duty, in cases of insurrection among the slaves.” Secession ultimately posed the question of the nature and tendency of federal republicanism as the principle of American nationality. On a smaller scale, this issue was central to the controversy over territorial slavery from 1846 to 1860: where did the authority of popular self-government in the territories reside? In

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Lincoln’s opinion, control over the disposition of the slavery question was the test of American nationality and sovereignty in the Union. The Kansas–Nebraska Act of 1854, by repealing the prohibition of slavery in national territory north of the 36°30ʹ line mandated by the Missouri Compromise, adopted Stephen A. Douglas’s conception of territorial popular sovereignty. Lincoln believed that Douglas’s doctrine posed a grave challenge to national authority. Against it, Lincoln argued that Congress, representing the people of the whole country, possessed authority to legislate for individuals in new communities on the public domain. “Is not Nebraska, while a territory, a part of us?” he asked. “Do we not own the country? And if we surrender the control of it, do we not surrender the right of self-government?” As for the argument that the Union should not control Nebraska territory “because it is only part,” Lincoln said that if this were construed as a constitutional rule it would vitiate legitimate national popular sovereignty. He observed, “The same is true of every other part; and when all the parts are gone, what has become of the whole? What is then left of us? What use for the general government, when there is nothing left for it [to] govern?” Lincoln saw in the logic of territorial popular sovereignty a tendency toward the disintegration of republican self-government in the Union. Unlike the situation presented by secession in 1861, in the circumstances of 1854 Lincoln did not treat union as an unconditional good, irrespective of moral considerations. Union existed for the sake of republican liberty, which was the end of national existence. In Lincoln’s view, the Kansas–Nebraska Act rejected the spirit of compromise in which the Constitution was adopted. Opening the way to the expansion of slavery, it threatened the liberty for which the nation was created. With alarm Lincoln declared, “Our republican robe is soiled, and trailed in the dust. Let us repurify it. Let us turn and wash it white, in the spirit, if not the blood, of the Revolution.” Slavery and union were ultimately incompatible: “Let us turn slavery from its claims of ‘moral right,’ back upon its existing legal rights, and its arguments of, necessity.” He exhorted, “Let us readopt the Declaration of Independence, and with it, the practices and policy, which harmonize with it. . . . If we do this, we shall not only have saved the Union; but we shall have so saved it, as to make, and to keep it, forever worthy of the saving.” Mutual recrimination by each section at the alleged disunionism of the other implicitly affirmed the permanence of the Union as the underlying assumption of federal-system politics. Objecting to its overtly antislavery platform, Democrats placed the burden of proof on the Republican Party to show its unionist bona fides. Although otherwise careful to observe contemporary rhetorical conventions

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that regarded the Union as a confederation, compact, business partnership, and family, Lincoln’s response to the charge of disunionism reduced the debate over the nature of the Union to its constitutional essentials. Committed to keeping slavery out of Kansas Territory, Republicans in 1856 were accused of being disunionists. The possibility of a Supreme Court decision aimed at settling the territorial slavery question had become a subject of speculation. Addressing the issue, Lincoln said, “The Supreme Court of the United States is the tribunal to decide such questions, and we will submit to its decisions; and if you do also, there will be an end of the matter. Will you? If not, who are the disunionists, you or we?” Lincoln struck to the heart of the matter: “We, the majority, being able constitutionally to do all that we purpose, would have no desire to dissolve the Union.” And if the South attempted it, he said to his fellow citizens, “We won’t let you. With the purse and the sword, the army and navy and treasury in our hands and at our command, you couldn’t do it. This Government would be very weak, indeed, if a majority, with a disciplined army and navy, and a well-filled treasury, could not preserve itself, when attacked by an unarmed, undisciplined, unorganized minority.” Lincoln concluded, “All this talk about the dissolution of the Union is humbug—nothing but folly. We won’t dissolve the Union, and you shan’t.” The time was approaching when it would be necessary to strip away legalistic refinements and rhetorical glosses on the federal republican principle of divided sovereignty. Lincoln was prepared for the task. It was the nature of the Union that a majority with the power to “compel obedience to the laws enacted . . . would never want to dissolve the Union.” Lincoln made it clear that if disunion should occur, “the South are to bear the responsibility of resisting the majority.” Underlying Lincoln’s analysis was the indisputable fact that the government of the Union had constitutional authority to make and enforce rules of action for individuals. The legitimacy of this power was affirmed in constitutional theory and practice since the beginning of the government. Partisans on both sides of the sectional conflict were prepared to test the meaning and significance of this principle in the situation created by the election of 1860. The Secession Crisis The situation facing Lincoln as president-elect was different in circumstances, although not in essentials, from the disunionism contemplated in 1856. Secession was not, in Lincoln’s estimation, an arguable construction of the Constitu-

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tion. The nature of the Union precluded it as a theoretical and practical matter. Lincoln wrote privately in December 1860, “I believe you will pretend to find but little, if anything, in my speeches about secession; but my opinion is that no state can, in any way lawfully, get out of the Union, without the consent of the others.” In his own mind, Lincoln’s obligation was clear: “It is the duty of the President, and other government functionaries to run the machine as it is.” This terse assessment anticipated Lincoln’s profession of constitutional fidelity in his First Inaugural Address: “Continue to execute all the express provisions of our national Constitution, and the Union will endure forever—it being impossible to destroy it, except by some action not provided for in the instrument itself.” To southerners, Lincoln’s undramatic appeal for constitutional maintenance and regularity was evidence of his inability to grasp the nature of the political reality facing him. The president-elect was clinging to procedural forms and rules, the relevance of which had been superseded by deeper principles of southern political identity and purpose. In reality, recognizing the nature of the challenge to the founding, Lincoln was preparing the country for the eventuality of war from the moment of his election. He knew that if war should come, his primary duty as chief executive would be to explain its purpose and objectives, the reasons for resisting secession, and the necessity for using armed force against unjustified rebellion and revolution. Lincoln took the measure of secession in his First Inaugural Address, delivered on March 4, 1861. He presented his considered judgment on the nature of the Union, republican self-government, and secession and revolution as forms of political action for altering or abolishing government. The permanence of the Union was paramount. Lincoln affirmed, “I hold, that in contemplation of universal law, and the Constitution, the Union of these States is perpetual.” The permanence of the Union as a national government was necessarily implied in the adoption of the Constitution as fundamental law. Observing its origin in the colonies’ resistance to British rule, Lincoln said the Union “was matured and continued” in the Declaration of Independence and Articles of Confederation. The main object of the Constitution was “to form a more perfect union.” Abstractly considered, perfecting the Union meant fulfilling the ends of republican liberty, equality, and consent for which it was created. In the immediate circumstances, the practical meaning of a more perfect Union was disclosed in Lincoln’s determination that “destruction of the Union, by one, or by a part only, of the States,” was not “lawfully possible.” It was the nature of the constitutional order “that no State, upon its own mere motion, can lawfully get out of the Union.”

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Secession ordinances were legally void, and acts of violence in states against the authority of the United States were insurrectionary or revolutionary, according to circumstances. Lincoln’s position was not simply that sound political science did not authorize the disintegration of government, or that the obligation to obey law in a political community cannot coexist with a right to disobey the same law. To preserve the “vital element of perpetuity” in the nature of the Union, Lincoln held that republican government, rightly understood, precluded the claim of secession as a constitutional privilege and immunity. To support this proposition it was necessary to demonstrate the heretical nature of secession in relation to the right of revolution and the principles of social contract, the two theoretical traditions in which disunion might be justified. Protection of constitutional rights in the Union was intended to supersede, without expunging, the right of revolution. Lincoln reasoned that “if, by mere force of numbers, a majority should deprive a minority of any clearly written constitutional right, it might, in a moral point of view, justify revolution,” especially if the right in question were “a vital one.” Lincoln denied that this principle applied in the present situation: “All the vital rights of minorities, and individuals, are so plainly assured to them, by affirmations and negations, guaranties and prohibitions in the Constitution, that controversies never arise concerning them.” Lincoln nevertheless recognized the right of revolution as an attribute of popular sovereignty. Recalling his 1848 speech, he said, “This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it, or their revolutionary right to dismember, or overthrow it.” Defense of the Union required Lincoln further to consider the claim of a right of secession based on the compact theory of the Constitution. He hypothesized, “[If] the United States be not a government proper, but an association of States in the nature of a contract merely, can it, as a contract, be peaceably unmade, by less than all the parties who made it? . . . One party to a contract may violate it— break it, so to speak; but does it not require all to lawfully rescind it?” The brevity of Lincoln’s argument detracts nothing from its substance and persuasiveness. From the time of the Kentucky and Virginia Resolutions, many states’ rights theorists, including James Madison, held that the validity of interposition depended on conjoint state action. After the Nullification Crisis, singlestate secession on the South Carolina model became the preferred construction of interposition. Aware of the inhibiting effect of a rule of conjoint state action, radical secessionists in 1860 rejected it.

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The moral and political necessity to address every conceivable aspect of the crisis led Lincoln to include the contract-theory hypothetical in the case against secession. Unanimity, the highest form of concerted state action, posed a formidable, if not insuperable, barrier to the secession impulse. As a practical matter, of course, a requirement of unanimity was unreasonable in the conduct of politics. Elsewhere in his address, objecting to secession as an instrument of minority rule, Lincoln said unanimity was impossible as a rule for ordinary government and politics. At the deepest level of constitutional construction, however, for the preservation of national existence and republican liberty, there was reason for a rule of unanimity. In this sense, Lincoln’s hypothetical construction of the Union as a contract of states was consistent with the founders’ intent to place effective limits on direct democracy and state sovereignty. In the development of the social contract tradition, Lincoln’s signal achievement was to establish “the right of opposing unjustified revolution.” Essential to the exercise of the right of revolution was the requirement of establishing just cause, and willingness to submit the claim of revolutionary right to political judgment. Lincoln fully grasped these essentials. In the manuscript version of his July 4, 1861, special message to Congress, he wrote: “The right of revolution, is never a legal right. The very term implies the breaking, and not the abiding by, organic law. At most, it is but a moral right, when exercised for a morally justifiable cause. When exercised without such a cause revolution is no right, but simply a wicked exercise of physical power.” The South had no just cause for breaking up the government. To claim secession as either a revolutionary or a constitutional right was a false and treacherous form of popular sovereignty. Lincoln summarized as follows: “Plainly, the central idea of secession, is the essence of anarchy. A majority, held in restraint by constitutional checks, and limitations, and always changing easily, with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people.” In political life, unanimity was impossible, and the rule of the minority was “wholly inadmissible” as a permanent arrangement. Whoever rejected the rule of the constitutional majority, Lincoln concluded, “does, of necessity, fly to anarchy or despotism.” A separatist tendency was inherent in the constitution of a country founded on the right of revolution and the sovereignty of the people. The intent of the founders to create a permanent national Union of authority and obligation was nevertheless unmistakable. It was equally clear that, despite controversy over the warrant claimed for it, secession overthrew the existing governments in eleven states and plunged the nation into a constitutional crisis. The situation recalled

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Lincoln’s warning in the Springfield Lyceum Address that the real danger to American institutions was internal: “If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide.” The secession crisis culminated the debate over the nature of the Union. The South tried to resolve the crisis in firing the first shot at Fort Sumter. The spirit of dominion and sovereignty inculcated by slave society perhaps led southerners to misjudge the requirements of prudence in conceiving of secession as a constitutional immunity to be exercised at will. Contrary to secessionist theory, the Confederate attack served as the “appeal to heaven” recognized in social contract theory as the ultimate means of deciding the reason and justice of revolutionary resistance. By successfully treating secession as rebellion, Lincoln was able to show that the Union was a sovereign government of authority and obligation. Answering the Confederate attack, in the proclamation of April 15, 1861, he called the state militia into national service, convened Congress, and appealed to all loyal citizens to aid the effort to maintain “the existence of our National Union, the perpetuity of popular government; and to redress wrongs already long enough endured.” Lincoln’s execution of the powers and duties of the office of chief executive in the Civil War further confirmed, clarified, and augmented the principles of the founding.

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II

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Legal Change and Constitutional Politics in Reconstruction and the Gilded Age

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4

The Trial of Jefferson Davis and the Americanization of Treason Law Jonathan W. White

A

s the Civil War was concluding, Jefferson Davis, the recalcitrant Confederate president, hoped somehow to maintain the conflict and still bring the North to recognize Confederate independence. Fleeing Richmond on April 10, 1865, Davis made his way south, stopping at several places and encouraging his fellow citizens not to lose heart. “This has been a war of the people for the people,” he told a gathering at Charlotte, North Carolina, in a faint echo of Lincoln’s more famous language at Gettysburg, “and if they desire to continue the struggle, I am still ready and willing to devote myself to their cause.” Though circumstances continued to deteriorate, Davis seemed to be the only Confederate leader who failed to recognize the gravity of the situation. “We can whip the enemy yet, if our people will turn out,” he told his cabinet. But the cabinet, then meeting in a railroad boxcar near Greensboro, found little comfort or encouragement in its president’s words. Time was running out. On May 10, 1865, the Federals finally caught up with Davis’s party near Irwinville, Georgia. According to one account, Varina Howell Davis covered her husband with a shawl and asked the Federal soldiers if she could take her “poor old mother out of the way” because she was “so frightened and fears to be killed.” But a Union soldier noticed Davis’s feet and declared, “Oh no you don’t play that game on us, them boots don’t look very much like they belonged to a woman. Come down old fellow.” The Union forces claimed their prize and sent him under guard to Macon, then Savannah, and eventually northward to Fortress Monroe, in Hampton Roads, Virginia. In addition to an impending incarceration and punishment, Davis faced the humiliation of knowing that newspapers throughout the nation—and in fact the Western world—were depicting him as a fugitive coward dressed in women’s clothing. By 1865 Davis had become a man without a country. He had rejected the nation of his youth; the country he had hoped to create was smoldering in ashes; he had tried to escape to Mexico but had been captured; and his fellow southerners

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looked on him with disgust. There was nowhere left to turn. Indeed, Davis held the unenviable position of being hated not only by his northern enemies but also by his southern friends. “The Northerners wanted to hang him from a sour apple tree,” observed novelist Shelby Foote, “but the Southerners really tore him down after the war.” Former Confederate soldiers also seemed ambivalent about the plight of their commander in chief. “Hey, Johnny Reb, . . . we’ve got your president!” one Union veteran reportedly yelled to a paroled Confederate soldier. “And the devil’s got yours,” came a quick-witted reply. At Fortress Monroe, Davis was placed in irons for five days. He faced sleep deprivation, his mail was censored, and initially he was not allowed to use silverware for fear that he might use it to commit suicide. After spending four and a half months in a casemate with a window overlooking Fortress Monroe’s moat, Davis was transferred to Carroll Hall, where he spent the remainder of his two-year imprisonment. With Davis in custody, Union leaders faced a situation without precedent in American history. The result, which would come despite the motivations of many of those involved, was a shift in the American law of treason which returned it more closely to what the American founders had originally intended. The Law of Treason in Its British and American Contexts The American law of treason derives from the British law of King Edward III (1350). Edward III declared it high treason to compass or imagine the death of the king, to violate the women of the royal household, to levy war against the king, to adhere to the king’s enemies by giving them aid and comfort, to counterfeit the king’s currency or seal, or to murder the king’s chancellor or judges. Over the next several centuries, monarchs sometimes broadened the definition beyond the law of Edward III. In early modern England, monarchs defined treason however they chose, and they often forced judges to convict the accused simply to eliminate political opposition. In Elizabethan England judges held that rioting against public policy or the general execution of the laws was treason. This process of construing a defendant’s words or non-traitorous actions to be treason became known as “constructive treason.” Americans of both the Revolutionary and the Civil War generations were keenly aware of the pernicious effects of constructive treason. “The doctrine of constructive treasons, created by servile judges, who held their office during the pleasure of the king, was used by them in such a way as to enable the sovereign safely to wreak vengeance upon his victims under the guise of judicial condem-

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nation,” wrote William Whiting, solicitor of the War Department, in 1862. “If the king sought to destroy a rival, the judges would pronounce him guilty of constructive treason; in other words, they would so construe the acts of the defendant as to make them treason.” The power to define treason or determine who was a traitor, under the old English law, “was in its nature an arbitrary power.” The founding fathers hoped to prevent partisan and constructive meanings of treason from taking root on American soil. In order to do so, the delegates at the Constitutional Convention included a definition of treason in the nation’s organic document. “As new fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free governments, have usually wreaked their alternate malignity on each other,” wrote James Madison in The Federalist No. 43, “the convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime.” Treason is the only crime defined in the Constitution: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” The next sentence states that treason must be an “overt Act,” thus precluding judges or politicians from declaring that conspiracy or words might be deemed treason. With this narrow definition of treason the framers hoped to keep arbitrary and constructive definitions of treason out of the United States. The limited constitutional definition of treason notwithstanding, British treason law had a profound influence on early American jurisprudence. First, the constitutional definition of treason was derived directly from the law of Edward III. Another noteworthy holdover was the language of “compassing” and “imagining” the death of the king. While this language was excluded from the constitutional definition of treason, American treason indictments from the 1790s until the fourth indictment of Jefferson Davis (1866) routinely charged traitors with compassing and imagining to levy war and of possessing “traitorous compassings, imaginations, and intentions.” Historian Thomas P. Slaughter has noted, “The adaptation of the antiquated term ‘compassing’ from the eliminated phrase of the treason law of 25 Edward III to new American conditions testifies to more than linguistic connections between English and American treason law; it alerts us to much closer ties between the two systems of law than is obvious from perusal of the Constitution’s treason clause.” It was not until Jefferson Davis’s fifth and final treason indictment in 1868 that federal prosecutors eliminated this British monarchical language from the American law of treason. British treason law also provided precedents that helped introduce the doctrines of constructive treason into American jurisprudence—particularly the

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doctrine that rioting against a public law amounted to treason. Prior to the formation of the Confederacy in 1861, all rebellions in the United States had been small regional affairs, usually motivated by narrowly construed grievances and led by charismatic local leaders. A few hundred western Pennsylvanians rebelled in 1794 in protest of a federal excise tax on whiskey. In 1798 another group of tax protestors in eastern Pennsylvania dumped boiling water on tax assessors who attempted to count the number of shutters on their houses. The latter conflict has been known by several names that seem to magnify its significance: John Fries’s Rebellion, the Northampton Insurrection, and the Hot Water War. These two uprisings led to several treason convictions in the federal courts. The Federalist judges presiding over these cases went beyond the framers’ definition of treason, treating it according to the old English law to include rioting against the execution of a public law. But in each case Presidents Washington and Adams, respectively, intervened by pardoning the offenders before they reached their appointed time at the gallows. During the first half of the nineteenth century the federal courts narrowed the definition of treason to require an actual levying of war with intent to overthrow the government. Two cases in particular would have precedential value for the case against Jefferson Davis. The more famous of these resulted from the 1806 expedition of former vice president Aaron Burr into the American West. To this day Burr’s exact intentions are not known with certainty, but many scholars surmise that he hoped to break off the trans-Mississippi territory from the United States, make war on Spain and Mexico, and set up his own western empire. Burr began raising troops at the island paradise of his associate, Harman Blennerhassett, on the Ohio River in western Virginia. On December 10, 1806, the Virginia militia raided Blennerhassett’s Island hoping to stop Burr’s expedition from proceeding. But Burr had already left the island, and in the face of readied muskets the militia was powerless to stop Burr’s men from heading southward. In early 1807 Burr and several of his associates were captured in the Mississippi Territory and brought to Richmond for trial. Burr was indicted for treason for being constructively present at Blennerhassett’s Island during the December 10 standoff. Chief Justice John Marshall, sitting as a U.S. circuit judge, rejected the government’s position. He wrote that “there is no testimony whatever which tends to prove that the accused was actually or constructively present when that assemblage did take place.” The indictment, in other words, was defective. Rather than indict Burr for being constructively present at the treasonable assemblage, Marshall held that Burr should have been indicted for advising and procuring the assemblage. Burr was acquitted.

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The other significant case was U.S. v. Castner Hanway. In this case, the federal government prosecuted a Pennsylvania Quaker for treason because of his refusal to assist a U.S. marshal in the apprehension of fugitive slaves. On September 11, 1851, a group of fugitive slaves and free blacks in Christiana, Pennsylvania, rioted to prevent the capture of four fugitives who were hiding in the house of a local free black person. Castner Hanway, a white resident of Lancaster County, was a bystander. As a Quaker, Hanway loathed both slavery and violence. His scruples therefore would not allow him to aid the marshal. The federal judge at Hanaway’s trial held that his actions did not amount to treason because the riot was not part of a larger conspiracy that sought violently to destroy the government. In sum, then, the trend in treason law from 1807 to 1860 was to narrow the definition of the offense and to make conviction more difficult. Following the secession of the southern states, a treason case arose in Philadelphia that also would have implications for Davis’s postwar case. Shortly before Georgia seceded from the Union, Charles A. Greiner moved from Philadelphia to Georgia to pursue an agricultural livelihood. Greiner joined a militia company in Georgia that, under orders from the governor, seized Fort Pulaski, occupied it for a short time, and then turned it over to the authority of the state. Afterward Greiner rejoined his wife and children in Philadelphia. While back in the North, Greiner was arrested and charged with treason. U.S. District Judge John Cadwalader had to determine whether there was probable cause to believe that Greiner was guilty of treason; and if so, whether the government could imprison and try him in Philadelphia, far away from the scene of the crime. Cadwalader determined that Greiner’s acts constituted treason by levying war. The crux of the case, however, was what ought to be done with him. Two problems quickly presented themselves. First, there was only one witness to Greiner’s alleged overt act, and the Constitution required two witnesses in order to convict. The second problem was one of jurisdiction—no federal courts were functioning in the district where the crime had taken place. Cadwalader decided that the case could have proceeded even though there was only one witness, for the Constitution requires two witnesses to convict someone of treason, but it does not specify a requisite number of witnesses to indict. Nevertheless, the question of jurisdiction proved fatal to the government’s case. Cadwalader denied that his court had jurisdiction because the Sixth Amendment guarantees to accused criminals the right to a speedy trial in the district where the crime had been committed. Since no federal courts were operating in the state of Georgia and it was unlikely that they would be soon, Cadwalader concluded that he had to release the defendant, requiring his “security of the peace and for good

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behavior.” When the district attorney then requested that Greiner be kept in the government’s custody until he could be committed to trial at the next session of the federal court in Georgia, Cadwalader replied that this would set a “dangerous precedent. It would sanction the imprisonment, for indefinitely long periods of time, of persons at great distances from their homes and their friends, where bail might not be found.” So Greiner was released on $10,000 bail to ensure his good behavior and submission to the laws. The decision in U.S. v. Greiner followed Marshall’s opinion in Burr. Defendants had to be tried in a civil court in the place where they had allegedly committed their crime—they could not be tried elsewhere and they could not be held to be constructively present somewhere other than where the overt act of treason had occurred. In many ways, the Constitution’s procedural requirements for accused criminals and the precedents of the first half of the nineteenth century made prosecutions for treason a useless weapon by which to wage war. A leading scholar of the Civil War and the Constitution, James G. Randall, argued that treason law “was of slight importance during the war” because of its impracticality as a legal weapon to suppress disloyalty during such a gigantic rebellion. Instead, according to Randall, Congress and the Lincoln administration relied on emergency legislation aimed at “offenses involving defiance of the Government . . . which needed punishment, but for which the treason law would have been unsuitable.” The Lincoln administration also utilized military commissions to try civilians for offences that might have amounted to levying war, adhering to the enemy, or giving aid and comfort to the rebels. Beginning in September 1861 and extending through much of Reconstruction, Union military authorities utilized military commissions to try thousands of civilians (most of whom resided in the South and border states) for crimes akin to treason. If a civil trial did not offer a promising route for dealing with the rebel president, a military trial might be a more effective means to attain appropriate justice. The Debate over How to Try Davis With Jefferson Davis held securely in Union hands, a national debate emerged over what to do with him. Many in the North called for a swift military trial and execution. Others believed that he should be tried in a federal court. Still others wanted him banished, or punished in some other way. Union commanders had contended throughout the war that even if the rebellion were treated, at times, as a civil war (for the humanitarian purposes of prisoner exchanges, or to justify a blockade of southern ports), rebel leaders could still be tried for treason. “Treat-

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ing in the field the rebellious enemy according to the law and usages of war has never prevented the legitimate government from trying the leaders of the rebellion or chief rebels for high treason, and from treating them accordingly, unless they are included in a general amnesty,” declared the War Department in 1863. Thus, unless pardoned, Confederate leaders like Jefferson Davis could be tried in civil—or perhaps military—courts for the highest political crime known to the law. In many ways, a civil trial seemed the most lawful method of trying Davis. Article III of the Constitution requires that all criminal trials must be civil proceedings: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.” Of course, Davis could have argued that he did not commit any crime within any state that was in the Union, but the Johnson administration would most certainly have contested that claim. The Fifth Amendment further requires that “no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.” Accordingly, members of the military and perhaps enemy combatants may be tried by courtsmartial or military commission (subject to congressional legislation), but American civilians must be tried in civil courts. Finally, the Sixth Amendment states, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” Conviction for treason requires an even higher standard of proof: “the Testimony of two Witnesses to the same overt Act, or . . . Confession in open Court.” These constitutional obligations placed an enormous burden on federal prosecutors. A single man could hang the jury while all twelve jurors were needed to hang Davis. A hung jury, in turn, would undo the question of the illegality of secession that the war had seemed to settle. As Johnson’s attorney general noted, “The risks of such absurd and discreditable issues of a great state trial are assumed for the sake of a verdict which, if obtained, will settle nothing in law or national practice not now settled, and nothing in fact not now history, while no judgment rendered thereon do we think will be ever executed.” Under Article III, the Sixth Amendment, and the Burr and Greiner precedents, Davis had to be tried in Richmond since it was there that he had acted

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traitorously as president of the Confederacy. Of course a Richmond jury would likely be made up of sympathetic former rebels. One way to circumvent that outcome would be to pack a jury with disgruntled Richmond unionists. Another way would be to indict Davis as “constructively present” somewhere outside of the former Confederacy, or in some southern locale that had strong unionist sentiment. Many in the North were wary of reintroducing constructive treason into American jurisprudence. Thaddeus Stevens, the powerful chairman of the House Ways and Means Committee, publicly rejected the early English treason doctrines. “The doctrine of constructive presence, and constructive treason, will never, I hope, pollute our statutes, or judicial decisions,” he told an audience in Lancaster, Pennsylvania. Stevens also believed that packing a jury would amount to “judicial murder.” But Stevens was willing to put Davis before a court-martial as a “conquered enemy” and “belligerent.” According to Stevens, rebel leaders like Davis would not be tried before the military court for treason, but as a vanquished enemy. After recounting the occurrences of the previous five years, Stevens remarked, “Surely, these things are sufficient to justify the exercise of the extreme rights of war—‘to execute, to imprison, to confiscate.’ How many captive enemies it would be proper to execute, as an example to nations, I leave others to judge. I am not fond of sanguinary punishments, but surely some victims must propitiate the manes of our starved, murdered, slaughtered martyrs. A courtmartial could do justice according to law.” The option of a military trial for Davis appealed to many other northerners. Trials of civilians by military commissions had become somewhat commonplace during the Civil War. In fact, at the time of Davis’s arrest, the Lincoln assassination conspirators were themselves before a military tribunal that would eventually sentence four of the eight to death. Rumors of Davis’s complicity in the Lincoln assassination led many observers to believe a military trial would be justified. Historian Mark E. Neely Jr. estimates that at least 14,000 civilians were arrested by the military during the Civil War and that courts-martial or military commissions tried at least 4,271. It would not have seemed extraordinary, then, should the government have decided to try Davis before a military tribunal. Trying Davis before a military court would provide many advantages to the federal government. A military tribunal would not be hamstrung by the constitutional limitations imposed on civil trials. Instead of a jury of Davis’s peers, Davis would be judged by Union military officers; instead of the requirement for unanimity to convict, only a majority would be needed to convict and a twothirds majority to execute; the rules of evidence would be different; and instead

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of having to try Davis in the state or district where he had committed his crime, the military commission could hold its sessions at any place that was convenient. For these reasons, Judge Advocate General Joseph Holt favored the use of a military commission. It would be “unencumbered by the technicalities and inevitable embarrassments attending to the administration of justice before civil tribunals.” Some Union soldiers believed their hard-fought victory on the battlefield had earned them the right to try the rebel president. William Sprague, the former congressman and governor of Rhode Island, told his father-in-law—who happened to be Chief Justice Salmon P. Chase—that Davis ought to be tried before a military tribunal because Chase would face “great difficulty in getting a just verdict or a conviction” if he tried Davis in a civil court in a former rebel state. “Let the power that has been exercised for the overthrow of the rebellion, be the one to try the leading spirits of the rebellion,” Sprague declared. In other words, the army that had striven for four years to defeat the Confederacy now possessed the right to try, convict, and punish its leader. “We have overpowered the rebellion by the Military arm,” Sprague continued, “and we must use that arm to establish firmly the advantages gained. Has Davis or his friends a right to expect a choice of mode of trial[?] . . . Should we not choose that one that seems to us to be best for free institutions, and the claims of Justice?” A civil trial, Sprague sought to convince the Chief Justice, might drag on for years and would not have the same effect as a speedy military conviction. Ultimately, the decision of how to handle Davis rested with one man. In July 1865, President Andrew Johnson convened his cabinet to discuss whether Davis should be brought before a civil court or military tribunal. The radical members of Johnson’s cabinet favored a military trial, but the majority believed that a conviction in a federal court would do more to affirm the illegality of secession. Politicians and court officers throughout the country were more than willing to indict Jefferson Davis for treason. In fact, the first indictment for treason against Davis was returned in the U.S. Circuit Court for the Eastern District of Tennessee on June 3, 1864. A month later the court issued a warrant for his arrest. Unfortunately, criminal case files for that federal court prior to 1893 have been lost, so it is unknown how his alleged crime was framed in the indictment. Davis, in fact, was one of some 2,014 persons to be indicted for treason in eastern Tennessee. The list became so long that the U.S. attorney knew he could only pursue a few of the cases. As a consequence, he “selected a number of names of individuals who have been prominent as very active and relentless in their persecution of Union men.” Of these, a few cases deserved “special attention,” and he

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remarked that “if it were left altogether to me to elect who to try, I should try the heads of the Rebellion,” among whom Jefferson Davis was first on the list. The attorney concluded with the suggestion that since “so many of our East Tennessee Rebels have escaped under the [amnesty] proclamations, and by Pardons” that it might “be better, to send for some of those who were the head and front of the Rebellion, and make [an] example of them.” Unionists in eastern Tennessee, who had been the recipients of vicious treatment at the hands of the rebels, might finally be able to exact some revenge. Davis was indicted for treason at least five times and in at least three different federal courts between 1864 and 1868. The first postwar indictment, brought on May 26, 1865, in the Supreme Court of the District of Columbia (which was essentially a federal district court that also possessed the jurisdiction of a circuit court), charged Davis with being constructively present during Confederate General Jubal Early’s raid on Washington in July 1864. It thus interpreted Davis as being present during the rebel raid on Washington even though he was in Richmond at the time. The indictment stated that Davis, “not having the fear of God before his eyes, nor weighing the duty of his said allegiance and fidelity to the said United States of America, but being moved and seduced by the instigation of the devil, wickedly, devising and intending the peace and tranquility of the said United States of America to disturb . . . with force and arms, unlawfully, falsely, maliciously and traitorously did compass, imagine and intend to raise, levy and carry on war, insurrection and rebellion, against the said United States of America,” by being “leagued in conspiracy with a large number of insurgents and false traitors waging war against the said United States of America.” Davis, as “commander-in-chief of the said insurgents and false traitors,” armed the rebel forces with “drums and colors with cannon, muskets, carbines, pistols, swords, cutlasses and other warlike weapons” and provided sustenance in the form of “flour, corn meal, pork, bacon, beef, beans, and other provisions.” After recounting Davis’s role in the organizing of the rebel raid on Washington, the grand jurors got to the heart of the charge against him: that on July 12, 1864, at the county of Washington aforesaid in the District of Columbia aforesaid and within the jurisdiction of this Court, in pursuance of his traitorous intentions imaginings and purposes aforesaid, he the said Jefferson Davis with the said insurgents so traitorously assembled, armed and arrayed as aforesaid, most wickedly maliciously and traitorously did ordain, prepare, levy and

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carry on war against the said United States of American, for the subversion of the Government of the said United States of America contrary to the duty of his said allegiance and fidelity, against the constitution, peace and Government of the said United States of America. The grand jury also returned a treason indictment against former U.S. vice president and Confederate general John C. Breckinridge, using much of the same antiquated language. The difference was that Breckinridge had actually been present during the rebel raid on Washington. At about the same time that Davis was indicted in DC, the federal court in Norfolk, Virginia, also returned an indictment against him. (That indictment was lost amid the hustle and bustle of the times.) There was a significant temptation to try Davis as constructively present in a federal court outside the South. Finding a jury in Richmond willing to convict— or even just an impartial jury—would not be an easy task. Some politicians in the North encouraged Andrew Johnson to try Davis in a northern state. Writing from Indiana in November 1865, Governor Oliver P. Morton told President Johnson that “if there is no question of jurisdiction in the way,” Davis could be tried in Indiana as the authority behind John Hunt Morgan’s raid there. He added, “There can be no difficulty in getting a jury that will do justice to the Government and to Davis.” The Trial Approaches Ultimately, Johnson’s cabinet rejected both constructive presence and the idea of trying Davis before a military court. Instead, Johnson decided to try Davis for treason in the U.S. Circuit Court for the District of Virginia, where Davis had actually acted as president of the Confederacy. Presiding over the case would be U.S. District Judge John C. Underwood and Chief Justice of the United States Salmon P. Chase, both of whom had been appointed to the federal bench by President Lincoln. This move had the benefit of putting the proceedings in the state in which Davis had committed his crime. Likewise, instituting the proceedings in a place in which the Chief Justice rode circuit would lend added weight to the court’s decision, in the same way that John Marshall’s stature enhanced the significance of the Burr opinion and Roger B. Taney’s presence made Ex parte Merryman (1861) a landmark decision. The judicial temperaments of Judge Underwood and Chief Justice Chase sharply contrasted. Still, both men were extremely ambitious, and both were

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members of the radical wing of the Republican Party. Chase had been a longtime U.S. senator and was Lincoln’s rival for the presidency in both 1860 and 1864. For most of the war years Chase served as secretary of the Treasury, but his desire for the presidency never seemed to abate. Underwood, too, had worked in the Treasury Department during the war, until Lincoln placed him on the federal bench in 1863. In March 1865 the legislature of Virginia elected Underwood to the U.S. Senate, but the Senate refused to seat anybody from the unreconstructed states. Nomination to the federal bench appeared to have very different effects on the two men. Chief Justice Chase approached the business of the judiciary with reservation and humility. He told former abolitionists Horace Greeley and Gerrit Smith that courts “have no policy” and “no right to exercise political discretion.” The business of the judiciary, in his view, was not to “fritter away plain words [in the Constitution] by arbitrary interpretation,” but “to declare their obvious meaning, and leave to the political departments of the government the duty of applying their proper mitigations.” “In political matters I generally accept your views,” Chase told Greeley, “but in questions of law I am and must be a mere judge; or be dishonest.” Unlike his superior, Judge Underwood seemed to be spoiling for a fight. To be fair, Underwood had spent some twenty years as an abolitionist in the slave state of Virginia. Having been cowed and threatened with violence on several occasions, he now finally believed he had the power and authority to fight back. During the war Underwood oversaw more confiscation proceedings than did any other federal judge. He also had interpreted the Second Confiscation Act to mean permanent forfeiture of a rebel’s property, rather than just during the lifetime of the rebel. Indeed, Underwood viewed his wartime court as “an advanced judicial picket station in a hostile country.” Within a week of Lincoln’s death Underwood expressed his desire to President Johnson to pursue the leaders of the Confederacy: “Encouraged by your recent declarations in favor of the punishment of the leading rebels I wish to say that profoundly impressed with its absolute necessity I am ready for official action on my own part; and if in the judgment of the Administration it shall be thought best to call a grand jury at the May term of the U.S. District Court in Richmond for the purpose of presenting the cases of these leaders, we have a Marshal who having tasted the fruits of rebellion by a long confinement in the Libby prison for his loyalty will be certain to summon a jury that will properly & efficiently discharge their duties to the Country.” He continued, “It would give me great pleasure to know the views of the President & Chief Justice not only as to the

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propriety of calling a jury at this time but also the classes & number of persons to be prosecuted by the Government.” The rebel soldiers returning to Virginia “now swarming in our towns are so defiant in their conduct, that the condition of loyal men in this State will be not only uncomfortable but extremely unsafe unless the power of the Government to punish Treason shall be fully demonstrated.” Underwood conveyed similar views to Chief Justice Chase, urging an immediate and “vigorous administration of the laws punishing treason.” Underwood’s aggressiveness as a judge was reminiscent of the partisanship of the Federalist judges who presided over the treason and Sedition Act trials of the 1790s. As an antebellum politician and wartime agent of the U.S. Treasury, Underwood had prided himself for his fearless opposition to the Virginia slaveholding regime (he maintained a scrapbook full of newspaper clippings of his published letters and speeches, as well as newspaper commentary—both positive and negative—in response to his public actions). Underwood encouraged northern friends to purchase property his court had confiscated from Virginia rebels. He was even accused of purchasing confiscated property for himself, although he vigorously denied the charge. Indeed, Underwood continued to play the part of a Radical Republican politician during his time on the federal bench. In January 1866, the judge testified before the congressional Select Joint Committee on Reconstruction, in Washington DC. While being examined by Senator Jacob M. Howard, a Radical Republican from Michigan, Underwood testified that the war had “left great bitterness of feeling” in Virginia and that that bitterness was only increasing. Howard asked whether a “loyal” jury could be obtained in Virginia, to which Underwood replied, “Not unless it is what might be called a packed jury. I do not believe, from what I have seen, that a Union man could expect to obtain justice in the courts of the State at this time; certainly not if his opponent was a rebel.” Howard followed up, “Do you think it practicable to call a jury in Virginia that would convict a man of treason?” Underwood sighed: “It would be perfectly idle to think of such a thing. They boast of their treason, and ten or eleven out of the twelve on any jury, I think, would say that Lee was almost equal to Washington, and was the noblest man in the State, and they regard every man who has committed treason with more favor than any man in the State who has remained loyal to the government.” Underwood testified that Jefferson Davis was not as popular in Virginia as Robert E. Lee was and that many in Richmond had been hostile to Davis during the war. “Could either be convicted of treason in Virginia?” asked Howard, referring to Davis and Lee. “Oh, no; unless you had a packed jury,” answered the

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judge. “Could you manage to pack a jury there?” inquired the Senator. Answer: “I think it would be very difficult, but it could be done; I could pack a jury to convict him; I know very earnest, ardent Union men in Virginia.” Underwood’s obvious bias placed the Johnson Administration in a very difficult position. Having ruled out the possibility of trying Davis anywhere but the federal court in Richmond, Johnson was now also wary of trying Davis in Virginia unless the Chief Justice was also present. On August 10, 1865, Johnson wrote to Chase to see if they could meet to discuss the Davis treason trial. Unlike how Underwood might have responded to such an overture, Chase thought such a meeting would be injudicious. He met with Johnson a few days later but wrote to Senator Charles Sumner that “this did not seem to me a proper subject of conference between the President and chief justice.” In fact, Chase’s response to Johnson was consistent with his earlier, cautious behavior regarding Davis himself. When Chase had had the opportunity to meet with Davis at Savannah, Georgia, just six days after his capture, Chase declined, telling the officer in charge of the prisoner, “No. I would not let any of our party see him. I would not make a show of a fallen enemy.” Chase refused to preside in the circuit court in Virginia until peace was declared and the state was no longer under martial law. “The ‘Anxious’ man can have a trial before Judge Underwood,” Chase told Horace Greeley on June 5, 1866. “That’s one way: the Court will be a quasi-military court as I think under existing circumstances; but no question can be made of the regularity of the trial.” Or, if Johnson would “say in one sentence [that] Martial law is abrogated & the Habeas Corpus is restored,” then “I should hold the Courts in Virginia & North Carolina, & try—whatever cases I should find on the docket.” Chase was not posturing. He told many correspondents—including family, friends, and professional acquaintances—that he would not allow Supreme Court justices to ride circuit in the rebel states because they should not hold court sessions “subject to the Control or Supervision of the Executive Department, exercising military power.” Moreover, Chase told the U.S. attorney in Virginia that “he did not see why Mr. Davis occupied any different position from any other man against whom an indictment had been found for any crime, and that he thought he should be treated the same as any other criminal.” In April and August 1866, Johnson issued two proclamations declaring that “the insurrection is at an end, and that peace, order, tranquility, and civil authority exist throughout the whole of the United States.” Finally Chase was willing to sit at the U.S. circuit court in Virginia. Shortly thereafter, when the Chief Justice expressed some reservations about the safety of holding court in Richmond,

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the military assured Underwood that Chase “would receive ample protection if any protection should be necessary.” On May 8, 1866, a grand jury in Norfolk indicted Jefferson Davis for high treason. He was charged with assembling a hostile army, and, in connection with the rebel raid on Washington, levying war against the United States. The indictment accused the former rebel chief of “not having the fear of God before his eyes,” of forsaking his allegiance to the United States, and of “being moved and seduced by the instigation of the devil” to “wickedly” attempt to disturb “the peace and tranquility” of the nation, to “subvert” the national government, and “to stir, move, and incite insurrection, rebellion and war against the said United States of America.” Davis, according to the indictment, with force and arms, unlawfully, falsely, maliciously, and traitorously did compass, imagine, and intend to raise, levy, and carry on war, insurrection, and rebellion against the said United States of America, and in order to fulfill and bring to effect the said traitorous compassings, imaginations, and intentions of him, the said Jefferson Davis, . . . with a great multitude of persons whose names to the jurors aforesaid are at present unknown, . . . armed and arrayed in a warlike manner, that is to say with cannon, muskets, pistols, swords, dirks, and other warlike weapons, as well offensive as defensive, being then and there unlawfully, maliciously, and traitorously assembled and gathered together, did falsely assemble and join themselves together against the United States of America, and then and there, with force and arms, did falsely and traitorously, and in a warlike and hostile manner, array and dispose themselves against the said United States of America. Like the earlier District of Columbia indictment, the charge of treason against Davis in this Virginia indictment relied on Davis’ role in Jubal Early’s 1864 raid on Washington. Also like the earlier indictment, the Virginia grand jury relied on old English legal language. Davis was morally guilty of siding with Satan in making war against the United States, and of compassing and imagining its destruction. These charges hearkened back to the 1350 treason law of Edward III. Significantly, the indictment failed to state whether Davis was being charged under the 1790 treason law, which declared death to be the punishment for treason, or the Second Confiscation Act (also known as the Treason Act of 1862), which permitted traitors to be punished by fine, imprisonment, or confiscation of their property. This omission left some ambiguity as to how Davis would be punished if he were convicted. Consequently, the lawyers interpreted the charge as aris-

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ing under the 1862 law so that Davis would not be executed. Eighteen other individuals—including Robert E. Lee—were also indicted for treason in the federal court in Virginia, although the U.S. attorney noted that “tens of thousands” could have been indicted. Before a situation like that in Tennessee arose—with thousands of indictments—the attorney general instructed the U.S. attorney “not to proceed any further in any of the indictments against any individual other than Mr. Davis.” As we have seen, the 1866 indictment used language that was common in treason indictments in the United States from the eighteenth century through the Civil War. Lucius H. Chandler, the U.S. attorney for the district of Virginia, testified before a congressional committee that he had received no instructions from the attorney general regarding how the indictment ought to be framed and that it had been “very hurriedly prepared” in less than three hours. Rather than use the 1866 indictment, Chandler believed that a new grand jury ought to be summoned and that a new indictment should be framed. Nevertheless, preparations were made for the trial and a jury was empanelled, half of which consisted of black men. But over the next two years Davis’s trial was postponed for various reasons. Initially, as has been seen, Chase had refused to sit as a circuit judge in Virginia while the state was still under martial law. Later the trial was postponed because of Chase’s Supreme Court responsibilities, and again because of a legislative oversight when Congress reorganized the federal judicial circuits without reassigning the justices to the circuits. Finally, from March 23 to May 16, 1868, it was postponed because Chase was called to preside over President Johnson’s impeachment trial in the U.S. Senate. Some observers believed that Chase was avoiding the Davis trial in order to make another run for the presidency. Chase vigorously denied such rumors, finding “the amount and kind of misrepresentation . . . astonishing.” “I neither seek nor shun the responsibility of trying anybody,” wrote the Chief Justice. “My purpose is to do my duty as a Judge, honestly and faithfully, turning neither to the right nor the left.” And he adamantly denied ever causing a delay in the case, claiming, somewhat awkwardly in the third person, that before May 1867 “he could not try [Davis], and since then he has always been ready.” However, Chase may not have always held so firmly to this position. He allegedly told U.S. Attorney Chandler that “if he was present he would of course take part in the trial; but if he were not present, Mr. Davis should be tried before Judge Underwood.” As delays continued, the country became increasingly divided over the Davis trial. President Johnson received scores of letters, some calling for clemency, others for blood. In October 1866 a former Tennessee judge reminded President

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Johnson that Davis was still under indictment at the federal court in Knoxville and that if Underwood and Chase would not try Davis in Richmond, then the federal court in Tennessee most certainly would. But Johnson refused to resort to constructive treason or constructive presence in order to attain a conviction. For nearly two years Davis sat imprisoned at Fortress Monroe. Finally, on May 1, 1867, Davis’s counsel decided to press the issue and call for a trial or release on bail. When the government was forced to admit that it was not prepared for trial, Underwood set bail at $100,000, much of which was supplied by several leading Republicans and former abolitionists—Horace Greeley, Gerrit Smith, and Cornelius Vanderbilt, among others (these men hoped that amnesty would help clear the way for a peaceful reunion with black suffrage and political rights). On May 13, 1867, two years after his initial capture, Davis was released from captivity. The courtroom erupted in “deafening applause.” An angry New Yorker wrote anonymously to Judge Underwood the following day in disbelief that the “traitor [be] allowed to walk the streets on his own recognizance. Revenge. Revenge, deep & complete, will be carried out on his d—d soul. A traitor’s doom is Slavery or death.” But Davis’s lawyers became convinced that their client would never have to go to trial. Sentiment in the North “for amnesty and the restoration of good feeling,” according to historian Roy F. Nichols, was growing. Memories of wartime animosities were fading. Time, in short, was on Davis’s side. Writing from Washington on the day that Davis was released on bail, Chase thanked Underwood for arranging alternate accommodations for his upcoming trip to Richmond: “I do not know that I should want to be in the same house with Mr. Davis, while he & I occupy our present relative positions.” Unlike Chief Justice John Marshall, who had joined Aaron Burr for dinner during the latter’s treason trial in the same court some sixty years earlier, Chief Justice Chase sought to avoid any appearance of impropriety. The Final Attempt to Try Davis Davis’s release on bail did not end the ex-president’s judicial ordeal. Some leaders in the federal government still hoped to see Davis convicted and hanged. A trial date was set for November 1867, but again, the government, for various reasons, was not ready to prosecute the case. It was postponed until March 1868. On March 26—nearly three years after the close of the war—a Richmond grand jury returned a new, sixteen-page indictment against Davis. Referring to Davis as the “commander-in-chief ” of the rebel forces, the new indictment linked Davis to the Confederate military and its battles in more than a dozen states, and

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from First Manassas to Petersburg. It quoted extensively from his military orders, described planning sessions with leading Confederate generals and cabinet members, and even linked him to specific battles in which he “did order, direct, and command said Robert E. Lee . . . to assault, wound, fight, capture, and kill the officers and soldiers in the military service of the United States.” This new indictment lacked the antiquated and moralistic language of the 1866 document (his being influenced by the devil, for example, or his compassing and imagining to levy war against the United States). Rather, it specifically linked Davis to many actual overt acts of war. Perhaps most important for Davis’s sake, unlike the 1866 indictment, the 1868 one specifically charged Davis with high treason under the treason law of 1790 (as well as the 1862 law), thus making him vulnerable to execution if convicted. The March 1868 indictment of Jefferson Davis stands out as a milestone in the history of American treason law. The government’s lawyers had felt it necessary to write a new indictment that more carefully laid out the evidence against Davis. Indeed, this new indictment had been prepared with great care between November 1867 and March 1868, after examination of numerous witnesses and the culling of an “unarranged mass” of captured Confederate records. Prior to this indictment, treason indictments had followed the old English model. Thereafter, treason indictments generally contained a more modern tone and content. When, in 1892, for example, several workers at the Homestead steel mill were charged with treason against the state of Pennsylvania in indictments that relapsed to use the old English forms, the American Law Review criticized the indictments as “a mass of stale, medieval verbiage, drawn seemingly from some old precedent, not dating later than the reign of William and Mary.” The Review was mistaken in one sense: this “medieval verbiage” had been commonplace in American treason indictments for most of the history of the United States (indeed, from 1794 to 1868). But its larger point astutely captured the direction in which American treason law had been going since 1868. The fifth treason indictment against Jefferson Davis had initiated a process that would make all previous American treason indictments appear medieval and obsolete. Following Andrew Johnson’s acquittal in the U.S. Senate, Chase traveled to Richmond to preside over Davis’s treason trial. He appeared in the courtroom on June 3, 1868, ready to hear the case—but no one else was ready. The lawyers on both sides had previously agreed to postpone the trial, and the court had to concur in that decision. Back in Washington, Andrew Johnson was earning the everlasting enmity of the Radicals in Congress for pardoning nearly any former Confederate who

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was willing to ask. By the spring of 1868 Johnson also had issued two proclamations granting amnesty to the vast majority of former rebels. On June 30, 1868, Secretary of State William H. Seward proposed that Johnson issue an amnesty proclamation on the Fourth of July pardoning all former rebels except for those under indictment, which would have excluded only Jefferson Davis, John Surratt (an accomplice in the Lincoln assassination who had escaped to Italy after the war), and several participants in the Baltimore riot of April 19, 1861. Johnson’s cabinet was divided over whether to include the exception or offer a blanket amnesty to all former rebels, but Johnson ultimately decided to exclude Davis from the pardon. Should Johnson pardon Davis, the Radical Republicans in Congress might again attempt to impeach him, and presidential clemency toward Davis would hurt Johnson and the Democrats in the upcoming presidential election. So on July 4, 1868, Johnson issued his proclamation granting “a full pardon and amnesty for the offence of treason against the United States” to all former rebels “excepting such person or persons as may be under presentment or indictment in any court of the United States . . . upon a charge of treason or other felony.” On November 6, 1868, three days after Republican Ulysses S. Grant won the presidential election, Johnson’s cabinet again met to discuss the Davis trial. Attorney General William Evarts stated that a trial date was set for November 25, but that he believed the case should be dismissed because nothing good could be gained from a conviction. Moreover, at this point he did not believe that Davis should be punished. If Johnson would issue a final proclamation of amnesty— one with no exceptions—Evarts would order a nolle prosequi in the case, ending the prosecution against Davis. By now, even Chief Justice Chase had come to doubt the wisdom of prosecuting treason trials. “I can see no good to come, at this late day, from trials for treason,” he wrote from Richmond in June 1868. “I would rather engage in trials of mutual good will and good help.” Meanwhile, the Fourteenth Amendment was ratified on July 9, 1868. Section 3 of the amendment disqualified certain rebels from holding office in the United States, unless Congress, by a two-thirds vote, removed the disability. Chief Justice Chase let it be known to Davis’s lawyers that he considered this disability a punishment for treason so that any further prosecution would be a violation of the Fifth Amendment’s Double Jeopardy Clause, which prohibits a defendant from being tried twice for the same offense. For several days in late November and early December 1868, Chase and Underwood sat at the U.S. circuit court in Richmond, hearing arguments from both sides regarding the applicability of the Fourteenth Amendment to Davis’s case. His attorneys argued that the court should quash the indictment, claiming that

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Davis had already been punished under the Fourteenth Amendment. The government maintained that the Constitution did not impose a criminal penalty but merely defined the qualifications for holding office in the United States. The two judges disagreed over whether the amendment barred further proceedings. On December 5 they issued a certificate of division so that the Supreme Court could decide the matter. The lame-duck president intervened before the Supreme Court could decide the case. Taking the attorney general’s advice, Johnson issued his final presidential proclamation on Christmas Day 1868, offering “full pardon and amnesty for the offence of treason” to “all and to every person who directly or indirectly participated in the late insurrection or rebellion.” The proclamation effectively ended all prosecution against the former rebel commander in chief, and in February 1869 the federal government entered a nolle prosequi in the case. What might have amounted to the most important treason trial in United States history closed, after three years, before it ever really began. Along the way this process had managed to remove the last antiquated vestiges of English treason law from American jurisprudence in favor of the sounder principles announced in the Constitution.

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5

At Every Fireside Constitutional Politics in the Era of Reconstruction Michael Les Benedict

A

mong the most important characteristics of American society through history have been commitments to constitutionalism, liberty, and the rule of law. Therefore constitutional history was a focus even of pioneer American historians. Once narrowly conceived as the history of evolving legal doctrine and governmental institutions, in recent decades historians have broadened the field’s horizons, linking it closely to political, social, and cultural developments. Legal academics primarily concerned with constitutional doctrine now recognize the importance of the people of the United States in establishing the Constitution and its amendments, and see its provisions at least in part as a social product. They are wrestling with the relationship between legal doctrine and what is being called “popular constitutionalism,” and the even more blurry line between politics and law. They have challenged the notion that courts have been, or should be, solely responsible for interpreting the meaning of constitutional provisions. It is possibly the most significant paradox of American public life that judicial review seems to rely on the notion that constitutional interpretations are matters of law rather than politics, while history teaches that they are contested and contingent, the result of a conversation among an elite of elected representatives, government officers, judges and lawyers, and a more general public, often pressing for change from below. As the political scientist Wayne Moore has urged, “constitutional politics in the United States extends beyond the practice of judges enforcing fundamental norms,” and therefore it is essential “to move beyond excessive preoccupation with the Constitution’s judicial interpretation and enforcement.” This proposition is especially important in an era when the Supreme Court is taking its claims of sole authority over constitutional interpretation to new extremes. Constitutional historians of the Civil War era have, of course, long attended to what is now being called “constitutional interpretation outside the courts.” Herman Belz’s initial publications are outstanding examples. Moreover, some

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of the most innovative work in constitutional jurisprudence has tried to reconcile the messy reality of the constitutional politics of the Reconstruction era with the theoretical clarity crucial to constitutional theory. But the role of the public in constitutional development has remained stubbornly abstract. Constitutional debates in Congress and elsewhere are held to reflect public opinion, without attention to the workings of the political system, to the nexus between the sophisticated constitutional arguments articulated in legislative chambers and the political choices voters made when casting their ballots. The people may have “care[d] little for Constitutional hair splitting,” as exgeneral and future congressman Stephen A. Hurlbut wrote Thaddeus Stevens from downstate Illinois, but they cared deeply about fundamentals. Insisting that the United States was “a white man’s country” may have lacked sophistication, but it certainly was a good approximation of the holding of Dred Scott. Ordinary people influenced political outcomes through their actions—acting out their freedom, adopting the roles of public citizens, or suppressing those activities through intimidation and violence—as well as through the political process, broadly defined to include not only mass voting behavior but letters to political officials, mass meetings, local politics and patronage. At the same time, elites attempted to influence voters, as competing political aspirants tried to frame issues and spin results to their advantage. It was a time of immense constitutional ferment. “Progress goes by periods, by jumps and spurts,” the great cleric Henry Ward Beecher urged fellow reformers. “We are in the favored hour; and if you have great principles to make known, this is the time to advance those principles.” Elizabeth Cady Stanton recalled, “The nation’s heart was thrilled with prolonged debates in Congress and State Legislatures, in the pulpits and public journals, and at every fireside on these vital questions.” To a great degree, both the politics and enforcement of Reconstruction policy turned on how Americans reacted to these campaigns first to transform constitutional principles and then to secure broad or narrow understandings of the resulting Civil War amendments. Republicans responded to the demands of African Americans and their allies by calling for federal enforcement of new laws designed to protect the civil and political rights of American citizens. Democrats honed and articulated the constitutional arguments of those who sought to minimize the constitutional changes inaugurated by the Civil War. This fight was not only over abstruse constitutional doctrine; it was about what activities Americans would sustain as constitutionally legitimate, and it continued for longer than Bruce Ackerman has suggested in his influential account of the Civil War constitutional transformation.

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The Claim of Rights .

As Thavolia Glymph has pointed out, the first time a former slave refused a former master’s order, referred to her residence as “her own house,” and insisted on doing “my own work,” she made a claim of rights implicit in freedom. The mass departure of house servants was an exercise of freedom that crippled the whole structure of the plantation household. Such actions, in Glymph’s words, “ideologically fram[ed] the battles to come.” In effect, African Americans were claiming the rights inherent in citizenship. Most white southerners found the practical results of the exercise of such rights intolerable, and they fought with deadly resolve to reserve the rights of citizenship to themselves alone. Historians who have looked closely at the struggle at the local level have chronicled the shocking depth of the violence that it engendered. Mere claims of rights were not enough. The claim had to have the sanction of law, and African Americans immediately went about securing it. Xi Wang points out that “African Americans seized the opportunity of emancipation to push for a fundamental transformation of American democracy. The relationships between the Constitution, suffrage, citizenship, nationality, and democracy were debated by black leaders, black intellectuals . . . and ordinary black folk across the nation.” Building on an antebellum tradition of conventions and mass meetings to claim the status of citizenship, they petitioned state and federal authorities for recognition of their equal civil rights, and increasingly often equal political rights as well. Only two months after the Confederate surrender, for example, “we, the colored citizens of Petersburg, Va., and true and loyal citizens of the United States of America,” claimed “as an unqualified right, the privilege of setting forth respectively our grievances and demanding an equality of rights under the law.” Note the simple assumption of citizenship, despite the Supreme Court’s ruling in the Dred Scott case that no person of African descent was a citizen of the United States and the 1821 opinion of the attorney general of the United States implying that they were not citizens of Virginia. This assumption of citizenship was made not only in the resolutions of public meetings, but in the very act of coming together in what historians now call the public sphere to participate as citizens. Thus, when President Andrew Johnson agreed to meet with black leaders as he and Congress were negotiating the terms of Reconstruction, the interview took on tremendous importance for African Americans. In a public meeting between the president of the United States and the leaders of the black American community, reported in newspapers across

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the nation, George T. Downing told the president that emancipation was not enough: “The Fathers of the Revolution intended freedom for every American, that they should be protected in their rights as citizens. . . . We are Americans, native born Americans. We are citizens.” As important as claiming a place in the public sphere was the act of taking up arms. The claim to manhood had been central to antebellum African American claims to freedom. The war provided the opportunity to seize on the nexus that had always existed between manly virtu and public citizenship. “The colored man will fight . . . as an American patriot,” a black correspondent assured the white readers of a Boston newspaper. He will fight because his valor will be “among the leading claims he has to your feelings as fellow-countrymen . . . to award to him all his rights as an American citizen.” Public resolutions and petitions consistently reiterated the connection. “We are ready to stand by and defend the Government as the equals of its white defenders . . . for the sake of freedom and as good citizens,” resolved one mass meeting. “Some things have been settled concerning my race, and one of the things settled is this, that the negro will fight,” Frederick Douglass announced proudly before a convention of southern loyalists in 1866. He knew physical courage was the sine qua non of citizenship. Women’s pre–Civil War experience with citizenship was significantly different. For women seeking equal rights, the problem was not the denial of citizenship but rather the claim that citizenship was compatible with the denial of equal rights. Paradoxically, denial of equal rights to black men fueled the argument that African Americans were not citizens. In Dred Scott, Taney made such denials the basis for his argument that African Americans had not been citizens of the individual states when the Constitution was ratified, as had Attorney General William Wirt before him. But no one suggested that similar disabilities meant that women were not citizens. Nowhere was the anomaly of American citizenship clearer. The example of women stood as a stark warning to African Americans: citizenship alone would not guarantee equal rights. This was plainest with regard to political rights. “When we urge our citizenship as a reason why we should be allowed to vote, we are very gravely informed that voting and holding office are not essential to citizenship. It is said, women are citizens, and so are minors, but they are neither allowed to vote nor hold office,” Ohio lawyer and black leader John Mercer Langston complained. But the potential disabilities went far beyond political rights; although many states had passed married women’s property acts, the common-law doctrine of coverture still denied a variety of basic rights to

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married women. True equal rights required a full recognition of citizenship in its broadest meaning—full entitlement to participation in public life. Radical antislavery reformers insisted that political rights were inherent in male citizenship, and therefore they reformulated and recirculated in more formal rhetoric the claims that African Americans were articulating in assemblies and in their actions. The consent of the governed was “the corner-stone of republican institutions,” Charles Sumner affirmed, and “the governed . . . meant all the loyal citizens, without distinction of color.” “Anything else,” he insisted, “is mockery.” Thus for a radical like Sumner there was no need for constitutional amendments to extend political rights. The right of male citizens to participate in government—and female citizens to be represented by their husbands, fathers, and brothers—was inherent in republicanism and therefore implicit in the obligation of the United States to guarantee republican forms of government to the states. That obligation was particularly relevant in the wake of the war, as the South lay in ruins with no state governments, waiting for the federal government to dictate how to reinstitute them. In congressional resolutions and thundering speeches, reprinted in newspapers and circulated as pamphlets around the country, Sumner demanded that Congress secure republican forms of government in the South by enfranchising African Americans. The eminent Republican leader James G. Blaine remembered the influence of those speeches. They did not much impress congressmen in the immediate audience; they were too much like “laborious essays.” But circulated in print, “they were the antislavery classics of the day.” In congressional debates some might aim primarily to persuade their colleagues, forgetting about the million who might read their words in the public press: “Sumner never made that mistake. His argument went to the million.” Sumner and other advocates of black suffrage understood that protection for civil liberty would depend more on the outcome of constitutional politics than constitutional law. Only possession of the ballot would assure African Americans that their rights would be respected. “The ballot is protector,” Sumner orated. Without it, “rights of testimony and all other rights are no better than cobwebs.” Activist women of course came to the same conclusion. Like Sumner, they insisted that any definition of the rights of citizenship include the right to vote. “We demand suffrage for all the citizens of the republic in the Reconstruction,” Susan B. Anthony explained privately. “I would not talk of negroes or women but citizens.” And that is what she did as she framed the Reconstruction issue in the National Anti-Slavery Standard: “No country has ever had or ever will have peace until every citizen has a voice in the government.”

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(Above and opposite) The great political cartoonist Thomas Nast harnessed the republican conception of citizenship, which linked citizenship, manhood, and defense of the community, to advocate full citizenship rights for African Americans. The cartoon appeared in Harper’s Weekly, August 5, 1865, pp. 488–89. (Courtesy of Ohio State University Billy Ireland Cartoon Library and Museum)

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But to secure the full, political rights of citizenship, African American leaders conformed to its expectations. The gendered claim to the vote based on wartime valor, relying on the time-hallowed connection between political rights and military obligations, was a powerful one that resonated with the men who would be making the decision. “Why put us in the category and condition of women and minors?” Langston demanded. “We have behaved ourselves, at all times and under all circumstances, as earnest and devoted patriots. . . . We have rallied at the call of the country, bringing her our strong arms, our indomitable courage, and our unswerving loyalty.” Note the gendered language: black soldiers had rallied to her defense—protected a nation described in female terms—fulfilling their responsibility as men. Thomas Nast’s famous illustration in Harper’s Weekly made the same point, like Langston juxtaposing a black veteran with a female representation of the Union, this time explicitly white. As long as African American men’s Civil War service merely augmented universalistic arguments for the vote, it could only help the cause. Elizabeth Cady Stanton had hoped to “avail ourselves of the strong arm and blue uniform of the black soldier to walk in by his side.” But as it became clear that exploiting the link between masculinity and the franchise undermined the connection between woman suffrage and black suffrage, woman suffragists recoiled. “The right of a black man to a voice in the government was not earned at Olustee or Port Hudson,” the woman suffragist Parker Pillsbury insisted. “It was his when life began, not when life was paid for it.” Douglass had by no means abandoned his long-standing commitment to woman suffrage. She was entitled to vote “because she is a citizen, because she is subject to the laws, because she is taxed.” But he could not give up a gendered appeal for the right to vote that he knew would be compelling to those who would make the decision. “I ask for it because the negro is a man,” Douglass orated in his celebrated stentorian tones. “If he fights against his country’s enemies, . . . he has a right.” Langston likewise demanded enfranchisement for the men of his race both on both universalist and gendered principles. The vote was due black men “in the name of the doctrine that taxation, protection, and representation are naturally inseparable.” But he knew the power of the claim based on the fact that “we have performed for the country . . . such brave and manly deeds.” The Debate in Congress Republicans doubted that voters could be convinced to support the universal enfranchisement of citizens. Although the idea garnered more support than ever

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before, convincing many advocates that its bold assertion would carry the day, neither black suffrage nor woman suffrage appeared to have majority support among the northern electorate in the wake of Appomattox. What began to shift public opinion was a growing concern that the most basic rights of the freed people would be at risk in a restored South if something were not done to secure them. Widely published reports of unpunished outrages against newly freed slaves, descriptions of the hostile attitude of white southerners toward emancipation and free labor, and the passage of the notorious black codes led to a popular demand to empower the federal government to remedy the failure of southern state governments to provide protection. As Congress convened in December 1865, Massachusetts Senator Henry Wilson proposed a law responding to African American demands for equal rights, with provisions that reflected the central problem—a centuries-old system of state-sanctioned oppression: That all laws, statutes, acts, ordinances, rules, and regulations, of any description whatsoever, heretofore in force or held valid in any of the States which were declared to be in insurrection and rebellion by proclamation of the President . . . , whereby or wherein any inequality of civil rights and immunities among the inhabitants of said States is recognized, authorized, established or maintained, by reason or in consequence of any distinctions or differences of color, race, or descent, or by reason or in consequence of a pervious condition or status of slavery or involuntary servitude . . . be, and are hereby declared null and void, and it shall be unlawful to institute, make, ordain, or establish, in any of the aforesaid States . . . any such law, statute, act, ordinance, rule or regulation, or to enforce or to attempt to enforce the same. African Americans had demanded equal rights as a matter of justice, based on their citizenship (a claim not yet recognized in law). But Wilson had to provide a formal constitutional justification to his colleagues and the public. As chairman of the Senate Military Affairs Committee, he claimed constitutional authority for his proposal as an exercise of the war powers—hence its limitation to states in rebellion. After more than 125 years in which the “state action doctrine” has inhibited direct federal protection of black rights, a mere nullification of discriminatory laws can appear conservative to present-day analysts. But the implications for the federal system were in fact radical, even revolutionary. At the Constitutional Convention in 1787, nationalists had proposed to give Congress the power to “negative” state legislation that was inconsistent with the constitution or federal laws—in effect, to veto them. The delegates had rejected that alternative as

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too intrusive on state rights. Instead, they had given that power to state judges in the form of judicial review: the Constitution and federal laws and treaties were declared the supreme law of the land, and state judges were to be “bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding” (Art. VI). In many ways, these alternatives framed the debate over how to secure civil rights in the United States throughout the Reconstruction period. Giving Congress the direct authority to overturn state legislation and criminalize efforts to enforce it embodied a radical transformation in the federal system—in essence, an alternative rejected at the founding. Antislavery constitutionalists themselves had denied that the Constitution’s Fugitive Slave Clause implied such power in Congress, insisting that the Fugitive Slave Act was therefore unconstitutional. Making that argument, opponents of slavery had made a special point that no mainstream legal authority suggested that Article IV, Section 2 of the Constitution, which guaranteed the citizens of each state the privileges and immunities of citizens in the several states, gave Congress the power to enforce it when states failed to fulfill their obligation. Giving the federal government the power to protect civil liberty would have run against the predominant understanding of civil liberty in antebellum America. But the alternative mode, relying on the judiciary to enforce constitutional protections, seemed too uncertain in light of the Supreme Court’s poor record in regard to civil liberties before the war and fears that states might successfully resist court mandates, as they had when the Marshall Court had tried to protect the Cherokee Nation from Georgia’s defiance of federal treaties. No wonder lawyers in Congress declared Wilson’s proposition premature, urging their colleagues to wait until they received formal notification that the Thirteenth Amendment abolishing slavery had been ratified. The second section of that amendment, giving Congress the power to enforce its provisions by “appropriate legislation,” would authorize the sort of legislative action Wilson was advocating, the chairman of the Judiciary Committee, Lyman Trumbull, assured his colleagues. To Democratic objections that Wilson’s proposal went far beyond anything contemplated by the amendment, Trumbull, who had managed it in the Senate, responded that the enforcement section was designed specifically “to see that the first section was carried out in good faith.” Note also the use of the term “appropriate legislation.” Educated Americans, and certainly lawyers in Congress, were well of the controversy over the scope of the powers that the Constitution delegated to Congress. That issue turned on the meaning of the clause of Article I, Section 8, which authorized Congress to

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enact all measures “necessary and proper” to execute expressly delegated powers. Nationalists arguing for a broad construction of federal power insisted that the words must be understood as authorizing the exercise of any power “appropriate” for carrying out enumerated powers, whereas state-rights constitutionalists arguing for a narrow construction of federal power insisted on a stricter definition. The framers of the Thirteenth Amendment thought they had settled the argument by authorizing Congress to enforce it through “appropriate” legislation. “What that ‘appropriate legislation’ is, is for Congress to determine, and nobody else,” Trumbull declared. The potential of such an understanding was radical indeed. It proved too radical to be taken to its logical conclusion once President Andrew Johnson and the Democratic Party began to hammer at the unprecedented centralization of authority it more than implied. Even Trumbull’s Republican colleagues were expressing a desire to cabin the federal powers that had been unleashed during the war. Maine’s William Pitt Fessenden, who served as what we would now call majority leader in the Senate and who would chair the Joint Committee on Reconstruction that devised the Fourteenth Amendment, explicitly warned his colleagues that he would no longer support measures “for which perhaps no strict warrant will be found,” as he had during the war. He intended “to act on different principles now and hereafter in a state of peace, from those which I adopted and defended before.” When Sumner and other radical Republicans advocated a national quarantine in response to the cholera epidemic marching toward America’s borders, a coalition of more conservative Republicans and Democrats defeated the proposal. Neither the war power nor the power to regulate foreign and interstate commerce could be used to enforce a health law, they insisted. Health regulations were reserved to the states. “I trust the time is gone when we are going to be called upon to legislate in the manner which this bill proposes,” an influential Republican expostulated. The war had led to the exercise of a number of doubtful powers: “That time . . . has ceased and ought to cease. Let us go back to the original condition of things, and allow the States to take care of themselves.” The justices of the Supreme Court shared and reflected such concerns. They manifested that fact in Texas v. White, their fullest constitutional articulation of the Civil War and its results. Four years after the close of a war that had so exalted the nation, Chief Justice Salmon P. Chase, previously recognized as the Republican Party’s leading constitutional theorist, stressed that “the perpetuity and indissolubility of the Union, by no means implies the loss . . . of the right of selfgovernment by the States,” each “having its own government, and endowed with

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all the functions essential to separate and independent existence.” The Constitution committed to the states “nearly the whole charge of interior regulation,” he affirmed in Lane County v. Oregon, decided at the same term. In that case, the Court ruled that the Legal Tender Act, which made U.S. notes legal tender for the payment of all public and private debts, did not displace a state law requiring taxes to be paid in coin. As in Texas v. White, Chase took the occasions to emphasize the independent authority and jurisdiction of the states—an independence so fundamental to the constitutional system that he doubted whether the federal government could have subjected the states’ taxing power to the provisions of the Legal Tender Act if it had intended to. With so many anxious for a return to what a later war-weary generation would call “normalcy,” it is not surprising that at the same time that they urged action to protect civil rights in the South, northern controversialists, newspapers, and private correspondents warned against going too far. In doing so, they claimed to be representing widespread public sentiment, and there is no reason to doubt their conviction. In such an environment, Sumner’s argument that Congress already had the power to dictate franchise qualifications in the states in order to guarantee them republican forms of government seemed far too radical, an authority extending not only to the Confederate states but to those of the North as well. Richard Henry Dana, the U.S. district attorney for Massachusetts, also advocated equal civil and political rights for the freedmen, but he urged, “Our system . . . is held together by a balance of powers—centripetal and centrifugal forces. We have established a wise balance of forces. Let not that balance be destroyed. Our system is a system of states, with central power; and in that system is our safety.” The solution, Dana said, was to hold the Confederate states in “the grasp of war” until they agreed to the changes necessary to secure the fruits of victory. It was an attractive proposition, widely endorsed by Republicans, indicating that the extension of federal power was merely temporary, to end when (white) southerners themselves accepted the logical results of the war. As a result of their concerns—and what they saw as the concerns of the public—Republicans searched for a compromise that would both preserve the essentials of federalism and empower the national government to protect rights. Trumbull’s Civil Rights Act of 1866—appropriate legislation, he argued, to carry out the Thirteenth Amendment—illustrates the effort. Trumbull’s bill declared all persons born in the United States, excluding those subject to foreign powers and Indians who did not pay taxes, to be citizens of the United States and securing them “the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit,

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purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.” Although the effect was to nullify state laws, rather than doing so directly, it did so by specifying positive rights of citizenship. Thus the nullification would be effected in the way the Constitution’s framers had established in 1787—through the supremacy clause as enforced by state judges, subject to an appeal to the United States Supreme Court should state judges fail their duty. However, the law did not rely solely on the courts. In Section 2 Congress assumed the positive power to legislate rights and to punish their infringement, making it a crime enforceable in the federal courts to deny the specified rights under the color of state law. “This is the valuable section of the bill,” Trumbull declared. Under the Thirteenth Amendment, the federal government had acquired the authority to make men and women free, “and that can only be done by punishing those who undertake to deny them their freedom.” Insofar as the bill nullified state infringements of civil rights, it constituted the sort of congressional veto of state legislation that the framers had eschewed. But if the Civil Rights Act marked a radical departure by giving the federal government the power to protect rights by positive legislation, Trumbull also responded to Republicans’ sense that the people would not tolerate too radical a transformation in the federal system. Trumbull and other moderate Republicans intended the Civil Rights Act to encourage the states themselves to purge their discriminatory laws and to fulfill their traditional role of protecting rights. They shaped the law to secure the result. The law gave jurisdiction to the federal courts over all causes affecting any person who was “denied or cannot enforce in the courts or judicial tribunals of the State or locality where they may be any of the rights” secured by the new law. Unable to enforce discriminatory laws in their own courts, Trumbull reasoned, states and localities would repeal them rather than lose jurisdiction over their own populations. As Trumbull explained to his nervous allies, the bill “may be assailed as drawing to the Federal Government powers that properly belong to ‘States’; but . . . rightly considered, it is not obnoxious to that objection. It will have no operation in any State where laws are equal, where all persons have the same civil rights without regard to color or race.” Despite Trumbull’s stress on the essential conservatism of the Civil Rights Act, President Andrew Johnson, elected with Republican support only eighteen months earlier, vetoed it. “In all our history, in all our experience as a people

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living under Federal and State law, no such system as that contemplated by the details of this bill has every been proposed or adopted,” he wrote. Trumbull may have argued that the bill would work no practical change in states’ jurisdiction once they eliminated their discriminatory laws, but Johnson struck powerfully at the creation of a congressional negative, appealing effectively to American racism in his examples of its radicalism. “If it be granted that Congress can repeal all State laws discriminating between whites and blacks in the subjects covered by this bill, why, it may be asked, may not Congress repeal in the same way all State laws discriminating between the two races on the subject of suffrage and office? If Congress can declare by law who shall hold lands, who shall testify, who shall have capacity to make a contract in a State, then Congress can by law also declare who, without regard to color or race, shall have the right to sit as a juror or as a judge, to hold any office, and, finally to vote” in every state. It marked “an absorption and assumption of power by the General Government which, if acquiesced in, must sap and destroy our federative system of limited powers and break down the barriers which preserve the rights of the States.” Both perceived political necessities and the concern that a conservative Supreme Court might deny the constitutionality of the Civil Rights Act led Republicans to grapple with a new constitutional amendment to secure equality of rights to the freed people and all Americans. The Joint Committee on Reconstruction, established to deal with the issues surrounding reunion, took the lead. But the limitations that public opinion put on constitutional alternatives were apparent in the response to its first effort to frame a constitutional amendment, led by Ohio Representative John A. Bingham. Bingham had been a leading antislavery constitutionalist before the war, one of those who, in arguing against the constitutionality of the Fugitive Slave Act, had conceded that the Article IV Privileges and Immunities clause had not empowered Congress to protect rights. Now he proposed to remedy the omission with a straightforward amendment that “Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.” He ran into a buzz saw. The amendment would “bring about a more radical change in the system of this Government, to institute a wider departure from the theory upon which our fathers formed it than ever before was proposed in any legislative or constitutional assembly,” a Republican colleague warned. Bingham made clear that his main purpose was to enable Congress to nullify state

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laws that violated the obligations his proposed amendment imposed. But even Bingham’s allies objected to the breadth of his language. Under such an amendment, “all State legislation, in its codes of civil and criminal jurisprudence and procedure, affecting the individual citizen, may be overridden, may be repealed or abolished,” they agreed, and even more than that, “the law of Congress established instead.” “It is a grant of power in general terms,” they objected, “a grant of the power to legislate for the protection of life, liberty, and property.” It would convert the federal government from one of enumerated powers to one of general powers. Judging by his language at the time, Bingham never intended to give Congress more than a veto over state laws, but he was unable to deny the force of the argument. He had to acquiesce in the postponement of his proposal, and it was not heard of again. When the Reconstruction Committee proposed a revised Fourteenth Amendment, it was worded in the “No state shall” form in which it was finally ratified. In that form, the amendment invited judicial enforcement, and despite its fifth section, authorizing Congress to enforce it “by appropriate legislation,” it would become clear that the negative formulation discouraged congressional action. In later years, Bingham, who had continued to play the leading role in devising the first section of the Fourteenth Amendment in the Reconstruction Committee, would insist that he had revised the language because he had become aware that the Supreme Court had held in Barron v. Baltimore that no constitutional guarantee of rights would of itself bar state action unless it contained an explicit prohibition, such as the “No State shall” formulation found in Article I, Section 10. But it is unlikely that so accomplished a lawyer as Bingham would have been unaware of that holding in 1866. Rather he had become aware that his colleagues believed that Americans would support a constitutional provision to protect rights to be enforced primarily by the courts, but would not support an amendment that gave Congress a direct negative over state legislation. The result was the compromise embodied in the Fourteenth Amendment: a ban on state action infringing the rights of citizens or denying due process and equal protection of the law, enforceable in the courts, combined with the delegation to Congress of explicit authority to enforce the rights so secured. So revised, Republicans were able to present the Fourteenth Amendment as a constitutionally conservative way of assuring the basic rights of the freed slaves. When Johnson took the fight directly to the American people in the congressional elections of 1866, making stump speeches attacking Congress’s radical assault

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on federalism and white supremacy in his famous “Swing ’round the Circle” campaign, Republicans responded that “there is nothing in these propositions that the most conservative Unionist can object to.” It is one of the ironies, or perhaps tragedies, of Reconstruction that having transformed the nation by dedicating it to freedom rather than slavery, the constitutional politics of Reconstruction forced Republicans to stress the conservative rather than radical aspects of their program. Equally important, African Americans seemed confident that equal rights were the key to the future. While many sympathizers worried that more was needed, that slavery had imposed burdens on African Americans that required special care in a transition from slavery to freedom, leaders like Frederick Douglass viewed any special status as jeopardizing black claims to equal rights. “I think the American people are disposed often to be generous rather than just,” Douglass said. “What I ask for the negro is not benevolence, not sympathy, but simply justice.” Everyone is worried about what to do with the Negro, he complained. “I have had but one answer from the beginning. Do nothing with us! . . . All I ask is, give him a chance to stand on his own legs! Let him alone! . . . Your interference is doing him positive injury.” By the time Republicans were prepared to brave American racism with a Fifteenth Amendment to bar voting discrimination based on race, the die was cast. Rejecting radical proposals simply to enfranchise black men by statute, Republicans proposed and passed an amendment worded, like the Fourteenth, in the negative, “No State shall” form. As the New York Tribune observed of an initial version, it “confers no power whatever on Congress, but only limits the power of the States.” By doing so it eschewed a more general congressional negative on state voting laws, much less transferring power over voting qualifications to Congress entirely. The amendment “does not determine who shall vote and hold office,” a southern Republican senator complained. “It does not protect any class of citizens against disfranchisement. It simply and only provides that certain classes indicated shall not be disfranchised for certain reasons. . . . For any other reason any State may deprive any portion of its citizens of all share in the Government.” A property or educational requirement would disqualify nine-tenths of the freedmen in the South “without any violation of its letter or spirit.” Moreover, Republicans had come to rely more and more on the enfranchising of African American men as an act of justice to those who had fought for the Union and as a measure necessary to assure access to the more basic right of citizenship, rather than on the universalist grounds that sustained woman suffrage

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as well. Although the conviction that the ballot provided the best protection for all rights had been an element of the argument for universal suffrage for men and women, in the context of the southern black codes and the growing violence aimed at African Americans during Reconstruction it became both a persuasive argument for enfranchising black men and a justification for doing so before turning to the issue of voting rights for women. With women, Douglass argued, suffrage “is a desirable matter; with us it is . . . a question of life and death.” Asserting a claim to the right to vote, women had “never met anything worse than ridicule,” while “all hell is turned loose in the breasts of the people” when black men made the same demand. “The Government of this country loves women. They are the sisters, mothers, wives, and daughters of our rulers; but the negro is loathed.” As his old allies in the woman-suffrage movement criticized him with ever greater vehemence, Douglass responded in kind: “When women, because they are women, are hunted down through the cities of New York and New Orleans; when they are dragged from their houses and hung upon lamp-posts; when their children are torn from their arms and their brains dashed out upon the pavement; when they are subjects of insult and outrage at every turn; when they are in danger of having their homes burned down over their heads, when their children are not allowed to enter schools; then they will have an urgency to obtain the ballot equal to our own.” But Douglass and his Republican allies were not motivated only by the force of these observations. The constitutional politics of citizenship and suffrage compelled the result. From newspapers located in every hamlet, read by the congressmen from their districts, from carefully maintained correspondence with friends and local party activists, politicians and canny advocates like Douglass knew that popular opposition to woman suffrage was strong enough to sink a proposition to enfranchise all citizens regardless of gender. In the wake of ongoing southern violence and intransigence, the argument that African Americans needed the vote to protect themselves from white southerners was gaining traction in a way that the argument that all citizens were entitled to vote had not. They dared not apply that argument to women. It was one thing to convince northern voters— all male—that African Americans needed the vote to protect them from white southerners. It would be quite another to convince them that women needed the vote to protect them from northern men themselves. “Tyranny on a Southern plantation is far more easily seen by white men of the North than the wrongs of the women of their own households,” Elizabeth Cady Stanton lamented. The decision not to press for woman suffrage may have been made at the top, but it

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was in response to a general perception of the attitudes of ordinary American voters—that is, American men Abolitionists’ old allies in the woman-suffrage movement were furious that they had been abandoned at what they knew was the most opportune moment they would have for a generation to secure the vote for women. Worst was writing a recognition of gender discrimination in political rights into the Constitution itself. As the Constitution stood at war’s end, there was nothing standing in the way of black or woman suffrage but state legislation, Stanton pointed out. “But if that word ‘male’ be inserted . . . ,” she warned, “it will take a century at least to get it out again.” It was particularly galling to be told that women, subject to coverture and innumerable instances of discriminatory legislation and practices, did not need the ballot the way African Americans did to protect their basic rights. “We know what absolute power the statute laws of most of the States give man, in all his civil, political, and social relations,” Stanton had observed in 1865. “Mr. Douglass talks about the wrongs of the negro,” Anthony responded to his jeremiad quoted above, “but with all the outrages that he to-day suffers, he would not exchange his sex and take the place of Elizabeth Cady Stanton.” Stanton’s prediction of the effect of inserting “male” into the Constitution proved prescient. The cause of woman suffrage was undermined by the enfranchisement of African Americans on pragmatic grounds rather than on the principle that citizenship and suffrage were inseparably linked. The constitutional language would undermine legal arguments made to judges that voting was among the privileges and immunities of citizenship, but the narrow grounds for enfranchising African Americans would also limit the appeal of universalist arguments in the more important arena of constitutional politics, in the end encouraging suffragists to turn to pragmatic arguments based on women’s special nature. Further, the enfranchisement of African Americans, revolutionary in its symbolism as it was, was widely seen as an alternative to the forceful exercise of federal power to protect rights. The vote would enable black Americans to protect themselves from oppressive state governments. Americans could assure the protection of the freed people’s person and property “either by the provision of a good police or by the admission of the blacks to such a share in the management of state affairs that they can provide a police for themselves,” observed the editor The Nation. “It is in the distinct interest of local self-government and legitimate State rights” to concede black men voting rights, argued another Republican leader. “This is the only way in which a dangerous centralization of power in the hands of our general government can be prevented.”

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Constitutional Politics For all the concerns that the Republican program did not go far enough, the real problem for Republicans was convincing the American public to sustain what most considered a radical change in the American constitutional system, one that transformed slaves into citizens and voters and empowered the federal government to protect their rights when state and local authorities failed to do so. For many, Americans African Americans’ exclusion from citizenship was an essential element of the American constitutional system itself. Nowhere is that clearer than in white southerners’ response to the change. For white conservatives also acted out their constitutional beliefs. “The sole object” of the Ku Klux Klan, a member explained, “is to thwart Radicalism, arrest negro domination in the South,” and “perpetuate the Federal Union and preserve the Constitution as the fathers made it.” The Organization and Principles of the Ku Klux Klan formulated at its founding in 1868 declared one of its main purposes to be “to protect and defend the Constitution of the United States, and all laws passed in conformity thereto, and to protect the States and the people thereof from all invasion from any source whatever.” Klan initiates were asked, “Are you in favor of Constitutional liberty, and a Government of equitable laws instead of a Government of violence and oppression? Are you in favor of maintaining the Constitutional rights of the South?” But constitutional liberty for whom? The initiates were also asked, “Are you opposed to negro equality, both social and political? Are you in favor of a white man’s government in this country?” That is, the Klan’s purpose was to defend a version of the Constitution that guaranteed state rights and denied citizenship to African Americans. Debates over proposals to define and protect the rights of citizens were full of constitutional rhetoric, and they were “broadcast” widely. Urban and even rural newspapers published long excerpts from congressional proceedings, sent by telegraph. Congressmen read formal speeches into the Globe and Record, published them as pamphlets, and circulated them to voters in their districts and states. Politicians, intellectuals, journalists (writing for newspapers that in those days were openly partisan), and intellectuals articulated both sophisticated and simple statements of constitutional positions—in controversial literature appearing in newspapers, pamphlets, posters, slogans, and even songs; in political campaign literature and on the stump; in congressional debates; in legal briefs and oral arguments; in local, state, and federal court opinions. State and national party platforms were a basic tool for communicating positions to voters concisely, often accompanied by the carefully framed acceptance

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Congressmen regularly had speeches delivered in Congress about constitutional principles reprinted, to be circulated to constituents or broadcast more widely, as the great Radical Republican Senator Charles Sumner did in this case. Often these speeches elaborated significantly on what was actually said. (Courtesy of Library Company of Philadelphia)

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letters of candidates. A few words could have great constitutional significance. When the Republican presidential candidate Ulysses S. Grant urged, “Let Us Have Peace” in his acceptance letter of 1868, all understood that his election promised an end to the agitation of the constitutional issues surrounding slavery conditioned on acquiescence in the Republican Reconstruction program. Nothing could have provided voters with a simpler and starker alternative than the Democratic platform: “We regard the reconstruction acts so-called, of Congress, as such an usurpation, and unconstitutional, revolutionary, and void.” The national political platforms of the Civil War and Reconstruction era attest to the centrality of constitutional issues to politics. Between 1856 and 1876 plank after plank explicitly or implicitly dealt with constitutional issues—state rights versus nationalism, equal civil and political rights, separation of church and state, federal authority to engage in internal improvements, general restatements of commitments to limited government. For those twenty years, at least half of all national party planks related directly to constitutional questions. Beginning with 1876, other issues with less constitutional meaning came to the fore, yet national platforms consistently affirmed traditional constitutional positions. In their political platforms, in political addresses, in political cartoons, and in their private correspondence Republicans portrayed themselves as the party of the Union and active government. “It is the first duty of a good government to protect the rights and promote the interests of its own people,” the party resolved in its 1884 platform. Democrats portrayed themselves as the true party of the Constitution, the defenders of constitutional liberty and state rights. In the preamble to the platform of 1880, Democrats “pledge[d] ourselves anew to the constitutional doctrines and traditions of the Democratic party as illustrated by the teachings and example of a long line of Democratic statesmen and patriots.” The Republican satirist David Ross Locke lampooned grassroots Democratic activists, who like his bigoted, semi-illiterate Kentucky creation Petroleum V. Nasby, consistently referred to their party as “the Constooshnel Dimocrisy,” the party of “the yoonun ez it wuz, the constooshun ez it is, and the nigger where he ought to be.” But he understood full well that, however crude the articulation, this was a fair statement of the Democratic Party’s constitutional philosophy. One could hardly say that ordinary Democrats did not know what they were supporting. Political cartoons were effective tools with which to reach the masses. In effect, Republicans counteracted racism by trying to embed protection for rights in a broader constitutional framework, as with the powerful cartoons of Thomas Nast. Democrats understood the tactic, and they consistently tried to bring

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Political parties typically circulated their platforms, often with candidates’ letters of acceptance. This one was circulated in 1872 by the Liberal Republican Party, a movement of dissident Republicans supported by the Democratic Party. Note the exhortation to “read, and hand to your neighbor.” (Courtesy of Library Company of Philadelphia)

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Harper’s Weekly published this powerful cartoon, drawn by the great Thomas Nast, on September 1, 1876, to persuade voters to support the Republican candidates in the elections of that year. Note the direct reference to the rights to life, liberty, and property and to equal protection of the law guaranteed by the Fourteenth Amendment, which Republicans promised to secure through the exercise of national power. (Library of Congress, Prints and Photographs Division)

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Democrats responded to the Republican argument for equal civil and political rights with potent appeals to racism. This cartoon was designed to defeat the Republican candidate for governor in California, George C. Gorham, by identifying him with proposals to enfranchise African Americans. The next step, Democrats suggested, would be the enfranchisement of unpopular Chinese immigrants, then native Americans, then . . . Meanwhile, Brother Jonathan, an early version of Uncle Sam, admonishes Gorham that the ballot was meant for whites alone. (Courtesy of Library Company of Philadelphia)

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Republicans lampooned the anthem to state rights that traditionally led off Democratic political platforms. In this 1880 broadside, Republicans quoted the Democratic platform’s reaffirmation of its traditional state-rights philosophy as articulated by its great leaders, and then reminded voters who those leaders were and what that philosophy had led to. (Library of Congress, American Memory: An American Time Capsule)

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the issue back to race. In response, Republicans worked to remind voters what Democrats meant when their platform promised fidelity to the party’s traditional constitutional principles. Republican campaign songbooks affirmed: Columbia, the greatest of nations, Should be to all citizens free, Whatever their color or station, Though high or though low of degree. Let every American voter Have one honest ballot that’s free; Let that ballot be honestly counted, Whatever the voter may be. Both the politics and enforcement of Reconstruction policy turned on how Americans responded to these campaigns first to transform constitutional principles and then to secure broad or narrow understandings of the resulting Civil War amendments. Republicans answered the demands of African Americans and their allies by calling for federal enforcement of new laws designed to protect the civil and political rights of American citizens. Democrats honed and articulated the constitutional arguments of those who sought to minimize the constitutional changes inaugurated by the Civil War. This fight was not only about abstruse constitutional doctrine; it was about what activities Americans would sustain as constitutionally legitimate. James A. Garfield put it this way in 1876, in one of the finest of the innumerable congressional speeches republished as campaign documents. The United States, according to Garfield, was passing through a revolution of ideas, from slavery to freedom: “I say still passing; for I remember that after the battle of arms comes the battle of history. The cause that triumphs in the field does not always triumph in history. And those who carried the war for union and equal and universal freedom to a victorious issue can never safely relax their vigilance until the ideas for which they fought have become embedded in the enduring forms of individual and national life.” Constitutional amendments alone would not suffice: “exact and equal justice to all” had to be both “chrystalized [sic] into the form of enduring law and become inwrought to the life and habits of our people.” The Supreme Court certainly played an important part in this great constitutional struggle, but not in the way it is usually portrayed. The Justices, most of whom were Republicans, tried to establish in formal constitutional law the

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Democrats “broadcast” this short pamphlet in 1890 or 1892, attacking Republicans’ “centralizing” proposal to protect the rights of voters in federal elections. Democrats called the proposal the “Force Bill” to identify it with more draconian laws Republicans proposed to protect voting rights in the South in the 1870s. (Courtesy of William Oxley Thompson Library, Ohio State University)

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balance between federal power to define citizenship and protect equal rights that Republicans articulated in the realm of constitutional politics. Contrary to much that has been written about the Court, its interpretation of the Reconstruction amendments provided a solid basis for federal action to protect civil and political rights, if the American people wanted the government to take that action. But Garfield’s warning that it took popular commitment to guarantee the transformation from a slave to a free republic proved prescient. After losing control of Congress in 1875, Republicans did not regain it and the presidency simultaneously until 1889. Through all that time they had demanded, with more or less fervor, federal action to protect the voting rights of citizens in the South. But they could not muster enough popular support to pass their Federal Elections Act of 1890, which itself did not go as far as the Court had said Congress might. The transformation from a slave to a free republic would be incomplete. But the great constitutional decision was not made in the courts or by a narrow elite of policy makers. It was rendered by the American people—or, let us say, more realistically, white American men—after a hard and close fight. It was a story of popular constitutionalism and constitutional politics that does not end as we would like. But it is a story with significant lessons for today. Despite the increased role judges and courts play in the process, in the end the American people will determine how we interpret the Constitution of the United States.

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6

“The Legitimate Object of Government” Constitutional Problems of Civil War–Era Republican Policy Paul D. Moreno

I

n his first political speech, a humble Abraham Lincoln said, “My politics are short and sweet, like the old woman’s dance. I am in favor of a national bank. I am in favor of the internal improvement system, and a high protective tariff.” When the Republican Party came to power in 1861, it had the opportunity to implement this program, whose roots lay in Alexander Hamilton and Henry Clay’s policy of national mercantilism. In “Lincoln and the Constitution: The Dictatorship Question Reconsidered,” Herman Belz considered and rejected the view that Lincoln used the Civil War to establish a “dictatorship.” Rather, in the War of the Rebellion Lincoln exercised executive power within the limits of the founders’ Constitution. A cognate claim that the Republican Party used the war to establish a “leviathan state,” or at least its prototype, remains strong. This essay will consider the constitutional and policy impact of Republican legislation in three principal areas—tariff, banking, and internal improvements. The Tariff After Reconstruction, much of American national debate returned to the questions of Hamiltonian national mercantilism. As “a Whig in the White House,” however, Lincoln did not actively promote the Republican revival of Clay’s “American System,” instead deferring to Congress. The question of the tariff ’s constitutionality had provided the proximate cause of the greatest previous threat to the Union, when South Carolina threatened to “nullify” the 1828 “Tariff of Abominations.” Some tariff opponents presented a strict-construction textual analysis that approached what Lincoln called “hypercritical rules.” The Constitution grants Congress “power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare

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of the United States.” Strict constructionists limited the taxing power to defined ends and objects. They marked that a comma, rather than a semicolon, tethered the clauses on means (taxes) and ends (debts, defense, welfare). Who could consider the protection of domestic industry a provision for the common defense and general welfare of the United States? Alexander Hamilton considered the “general welfare” phrase an independent grant of power. But before the New Deal, Madison’s view that “general welfare” was defined by the list of enumerated powers that followed in Article I, Section 8 predominated. Madison and the founders had no difficulty justifying a protective tariff by this standard. The first tariff act declared that “it is necessary for the support of government, for the discharge of the debts of the United States, and the encouragement of manufactures, that duties be laid on goods.” The duties protected, albeit modestly, and no congressman objected on constitutional grounds. Constitutional objections emerged suddenly with the more overtly protective tariffs of 1824 and 1828. These differed perhaps so much as to amount to a difference in kind. While ambivalent about other parts of the Hamiltonian program, Madison never doubted the constitutionality of the protective tariff. In 1828, Madison focused on the Constitution’s grant of power “to regulate commerce with foreign nations.” Though some advocates of protection emphasized its national-security purpose—that a nation should not be economically dependent on potential enemies—Madison warned against this mode of constitutional construction. To defend protection “as an incident to the war power, would be a more latitudinary construction of the text of the Constitution, than to consider it as embraced by the specified power to regulate trade.” Every Congress since 1789 had assumed and exercised the power, giving protection “uniform and practical sanction . . . for nearly forty years.” He warned that “no novel construction, however ingeniously devised, can withstand the weight of such authorities. . . . If it could be so done, there would be an end to that stability in Government and in Laws, which is essential to good government and good laws.” Tariff opponents made stronger arguments against the tariff ’s expediency than against its constitutionality. If the “General Welfare” Clause granted independent power, the welfare still had to be general—not partial, sectional, or class—in order to be constitutional. Statesmen and economists made strong arguments that a protective tariff was not generally beneficial. Madison himself noted, “As a general rule, individuals ought to be deemed the best judges of the best application of their industry and resources,” and that “in all doubtful cases, it becomes every government to lean rather to a confidence in the judgment of individuals.” But he admitted exceptions, particularly when dealing with unfair or hostile na-

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tions. Certainly, factions might turn these exceptions into pretexts for gratuitous transfers of wealth from consumers to domestic producers. As Lincoln put it, “One party insists that such adjustment oppresses one class for the advantage of another; while the other party argues that . . . all classes are benefitted.” The difficulty lay in distinguishing genuinely public goods from bogus claims that masked private goods. The 1828 Tariff of Abominations illustrated the problem. The supporters of Andrew Jackson, a moderate, Madisonian protectionist, concocted a tariff with extraordinarily high rates in hopes of forcing President John Quincy Adams to veto it, thus allowing the Jacksonians to claim the protectionist mantle. To their surprise, Adams signed the bill. Even after the nullification threat led to a lowered tariff, Congress never abandoned protection completely. The reputedly free-trade Walker Tariff of 1846 retained protectionist elements. The Jacksonian Democratic Party did not condemn protection as unconstitutional. From 1840 until 1856, the Democratic platform stated “that justice and sound policy forbid the Federal Government to foster one branch of industry to the detriment of another, or to cherish the interests of one portion to the injury of another portion of our common country,” but never claimed that any particular tariff actually did so. Similarly, the Republicans embraced protection gingerly. Their 1860 platform declared “that, while providing revenue for the support of the general government by duties upon imports, sound policy requires such an adjustment of these imports as to encourage the development of the industrial interests of the whole country,” and stressed the benefits of “liberal wages” for labor and “remunerative prices” for farmers. The Morrill Tariff of 1861 aligned with antebellum tariff acts—President Buchanan signed it before the rebellion began. The senators from the seven seceding states could have prevented it; even after their departure, the bill encountered significant obstructions. As the war continued, however, many of the 1828 tariff ’s abominations returned. “Protection run riot,” as the standard history of the tariff put it, overtook postbellum policy. Even after the Confederate states returned to Congress, they were unable to reduce the rates established in the war years because, unlike the first tariff, which had a sevenyear time limit, the Civil War tariffs were unlimited. The lame-duck Republican Congress in 1875 raised rates even further, and, possessing at least one house of Congress or the presidency, Republicans were able to prevent any reform. It was not until 1893 that the Democrats controlled both the executive and legislative branches. As the nullifiers had produced the 1828 Tariff of Abominations, so the secessionists helped construct the abusive postbellum tariff system.

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How abusive was it? The Populists’ and Progressives’ central villain in an effort to build up the industrial North at the expense of the agricultural South and West actually developed in an ad hoc fashion driven higher by wartime revenue needs. Moreover, though the Democratic presidential candidate Winfield Scott Hancock drew widespread ridicule for claiming in 1880 that “the tariff is a local affair,” this was to some degree accurate—the tariff was always the subject of legislative logrolling, as different manufacturing districts traded favors. While most economists today reject protectionism, they equivocated in the nineteenth century. Even today, despite all the political passion that the issue generated, there are few studies of the economic impact of the tariff. A recent analysis concludes that it did have a significant redistributive impact (as much as 8 percent of GDP), but little negative effect on consumers. The Democrats’ failure to revise significantly the tariff when they had the opportunity in 1894 indicates the complexity of the interests involved. President Cleveland declined to sign the Wilson–Gorman tariff that the Democrats had written, regarding it as a betrayal of the party’s free-trade principles. The free-trade tariff historian Frank Taussig called its reductions “feeble and faltering.” Tariff proponents often argued that it enabled American manufacturers to pay higher wages to American labor. Even before the Civil War, protectionists had begun to replace the national-defense and “infant industries” arguments with a “high wage” one. American labor leaders often supported this view, and some protected industries wrote explicit profit-sharing clauses into their employment contracts. The economist Paul Samuelson in 1941 found “a grain of truth in the pauper labour type of argument for protection,” and an MIT study reported that “the American tariff does indeed protect labor and labor-intensive products.” But the high-wage claim began to wear thin. The Democrats denounced the tariff in their 1892 platform as “a fraud, a robbery of the great majority of the American people for the benefit of the few . . . the culminating atrocity of class legislation.” More free-traders began to argue that protection had produced monopolies in American industry so powerful that they were able to depress wages. The tariff became “the mother of the trusts.” But, tariff chronicler Taussig noted, this argument in fact “describes an exception rather than the normal working of protective duties.” Nevertheless, the emotional and political appeal of linking the tariff and trust demons remained stronger than the economic analysis. Taussig concluded that “too much is ascribed, for good or evil, to the tariff.” Twentieth-century Progressives and New Dealers embraced the argument that the tariff had built up the trusts and failed to protect labor. As Wisconsin Senator Robert La Follette put it in 1913, “The question of how American labor is going to

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protect itself against the trusts is a serious problem fast looming up ahead of us. Certainly we should not reduce the tariff so low as to shut off the hope of better conditions. If their unions are destroyed we must supplement our tariff legislation by labor legislation.” The first significant national act promoting organized labor, the Norris–La Guardia anti-injunction act of 1932, found that corporations had been “developed with the aid of governmental authority for owners of property,” but “the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor.” The National Labor Relations (Wagner) Act of 1935, the centerpiece of New Deal labor law, contained a similar statement. Twentieth-century tariff critics turned one aspect of Republican policy on its head. The National Bank and Legal Tender Acts In 1865, Secretary of the Treasury Hugh McCulloch told Congress that the war “had been fought without an increase in the centralizing tendencies or change in the powers of government.” As one historian notes, “In the realm of financing nothing could be farther from actuality.” Yet its centralizing tendency represented mostly a restoration of legitimate national power under the Constitution, after two decades of state usurpation. While the issue of national paper money posed greater constitutional problems, Congress contained and eliminated the abuse by 1879. By the end of the century, the United States still had a remarkably decentralized and sound financial system. The Constitution says little about monetary issues. In addition to its fiscal powers to tax, borrow, and spend, Congress has the power “to coin money, [and] regulate the value thereof.” Unlike the Articles of Confederation, the Constitution did not grant Congress the power to “emit bills of credit.” While the meaning of this term later caused a great deal of controversy, most in 1787 understood it to mean paper or “fiat” money, of the kind that states issued in the 1780s, and that the Continental Congress emitted even before the Articles went into effect. The Constitution defined more clearly the powers it denied to the states, which are forbidden “to coin money; emit bills of credit; [or] make any thing but gold and silver coin a tender in payment of debts.” The national bank provoked the first significant debate over the interpretation of the Constitution’s grant of power to Congress. Despite Jefferson’s strenuous objections to the bank, he counseled Washington that “unless the president’s mind on a view of every thing which is urged for and against this bill, is tolerably clear that it is unauthorized by the Constitution; if the pro and the con hang so

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even as to balance his judgment, a just respect for the wisdom of the legislature would naturally decide the balance in favor of their opinion.” Madison’s agony over the matter attests to its difficulty as a constitutional question. Hamilton’s proposal to incorporate a national bank drove him to oppose the Washington administration. “From then to the present,” a recent biographer notes, “Madison’s denunciation of the bank has seemed the most surprising episode of his career.” Madison began “a quarrel with himself,” determined to establish some limits to congressional power and constitutional interpretation. He ultimately came to sign the bill creating the Second Bank of the United States in 1816, noting that his doubts about its constitutionality were “precluded in my judgment by repeated recognitions under varied circumstances of the validity of such an institution in the acts of the legislative, executive, and judicial branches of the government, accompanied by indications, in different modes, of a concurrence of the general will of the nation.” Madison bowed to the convictions of other constitutional actors. While not as fully convinced as he was about the protective tariff, he did treat the question as settled. The notes of the first and second national banks provided a national currency, and were redeemable on demand in gold or silver coin. The national banks also ensured that the notes of state banks were redeemable in specie. The Constitution’s reticence about monetary power still invited much political construction and judicial interpretation. The Jacksonian Democrats reopened the question when Jackson launched his “war” against the Second Bank of the United States. After initially using state banks for federal deposits, the Democrats shifted to an Independent Treasury that completely divorced the national government from banking. The notes of various state banks provided the currency of the country. In 1830 the Supreme Court struck a severe blow at such notes, declaring that loan certificates issued by the state of Missouri were unconstitutional “bills of credit.” Chief Justice John Marshall wrote the majority opinion for an uncharacteristically divided (4–3) court. While the state certainly meant the loan certificates to augment the money supply, they bore interest and were a legal tender only for public debts. In proscribing these notes as “bills of credit,” the Court seemed almost to forbid the states to borrow money, and gravely threatened state bank notes. Justice Smith Thompson observed, “If these certificates are bills of credit, inhibited by the Constitution; it appears to me difficult to escape the conclusion, that all bank notes, either by the states, or under their authority and permission, are bills of credit falling within the prohibition.” Justice William Johnson noted in his dissent, “The great difficulty, as it is here, must ever be to determine, in each case, whether it is a loan, or an emission of bills of credit . . . where to draw

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the discrimination line is the great difficulty.” He concluded, “These certificates are of a truly amphibious character,” and urged the court to give the state the benefit of the doubt. Craig v. Missouri was a bold and probably overly nationalistic decision, and the last such decision of the Marshall Court. In 1837 the new, Jacksoniandominated Court executed an amazing about-face in Briscoe v. Bank of Kentucky, an equally exaggerated state-rights decision. Kentucky chartered and held all the stock of a bank, which issued non-interest-bearing notes that were de facto legal tender for all debts. Nevertheless, the Court, in another 4–3 decision, accepted the argument that, since it was not the state itself but a corporation that issued the notes, the state was not emitting bills of credit. Justice Joseph Story, the last holdover from the Marshall Court, wrote a vigorous dissent. Since the case involved an issue “second to none which was ever presented to this Court,” and since “Mr. Chief Justice Marshall is not here to speak for himself . . . I have felt an earnest desire to vindicate his memory from the imputation of rashness or want of deep reflection.” The country operated under the state-banknote currency system until the Civil War. This period of “free banking,” in which many states allowed anybody to establish a banking corporation through the purchase of state bonds to secure their notes, has caused sharp controversy among economic historians. Many depicted a period of reckless, chaotic, wasteful, fraudulent, “wildcat banking,” in which creditors had to battle wildcats in their effort to redeem the worthless notes of frontier banks. Hugh Rockoff has provided a more complex and diverse picture of the free-banking era. He concedes that “a heterogeneous currency did make exchange less efficient,” but no more so than under later systems. The free-banking system caused little overall economic loss. Other historians have gone further, describing a period of “economic tranquility” until “the Civil War put an end to these idyllic conditions.” Nobody expected a revival of the bank issue in 1860. The Democrats’ 1856 platform declared that “the Congress has no power to charter a national bank; that we believe such an institution one of deadly hostility to the interests of the country, dangerous to our republican institutions and the liberties of the people, and calculated to place the business of the country within the control of a concentrated money power.” Neither the Whigs nor the Republicans brought up the issue in their platforms. Nevertheless, Lincoln’s secretary of the Treasury, Salmon P. Chase, turned out to be a determined advocate of a national currency, issued by nationally chartered banks and secured by U.S. bonds. Most accounts consider the National Banking Act a war-related measure to encourage banks to purchase

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Union debt. In fact, the government’s principal goal was to establish a national currency. Chase called this “the great question—which is not second to any connected with the war at this time.” Indeed, far from using the war as a pretext for a constitutionally dubious measure, Chase seemed willing to compromise the war effort in order to achieve his constitutional conviction that the United States must have a national currency. Congress actually titled the National Banking Act “an act to provide a national currency”; the regulatory body that it created was the Office of the Comptroller of the Currency. The bill faced stiff opposition in Congress; this was one of the few domestic issues for which Lincoln actively pressured Congress. Moreover, it did not establish a “Third Bank of the United States,” but adopted the free banking model. It did not succeed in driving state bank notes out of circulation. Not until Congress imposed a 10 percent tax on state bank notes in 1866 did it achieve a uniform national currency. Congress rejected Chase’s national bank plan and demanded an issue of legal tender notes in 1862. Chase, a hard-money man, had to be pressured into supporting the act. “Your feelings of repugnance to the legal tender clause can hardly [be] greater than my own,” he wrote to William Cullen Bryant, “but I am convinced that, as a temporary measure, it is indispensably necessary.” He described the measure as “full of danger” and one that ought to be “temporary, and as temporary as possible.” The half billion dollars in fiat money raised more serious constitutional and policy questions than the national banks had. It conjured up memories of the worthless continental paper-money issues of the Revolutionary War and, even more, the paper-money schemes of the states in the 1780s. The debates at the Constitutional Convention displayed an overwhelming hostility to fiat money. Like the power to incorporate, however, the fact that the convention considered and rejected giving Congress the power to issue “bills of credit” did not clearly indicate whether the power was implied or withheld. Madison denounced paper money in the tenth Federalist as among the “improper or wicked projects” that the Constitution would prevent, and John Marshall repeatedly recalled that these acts “weakened the confidence of man in man, and embarrassed all transactions between individuals, by dispensing with a faithful performance of engagements.” Such acts amounted to forced loans from the people to the government, or redistribution of wealth from creditors to debtors. Nevertheless, Chase conceded that legal tenders were constitutional, however fraught with danger they might be. The Civil War legal tender acts produced a stunning judicial reversal equivalent to that of Craig and Briscoe, dramatic accusations of court-packing, and significant theories of judicial interpretation. The opinions adumbrated both later

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nineteenth-century “laissez-faire” or natural law analysis as well as the view of plenary congressional power associated with post–New Deal jurisprudence. George Boutwell recalled that Lincoln regarded the preservation of the legal tender acts as a major reason for making Chase the Chief Justice in 1864. Lincoln explained that Chase’s known support for administration policies compensated for the qualms he had about Chase’s irrepressible presidential ambitions: “We want a man who will sustain the Legal Tender Act and the Proclamation of Emancipation. We cannot ask a candidate what he would do; and if we did and he should answer, we should only despise him for it. Therefore we must take a man whose opinions are known.” But Chase moved the Court to hold the legal tender acts unconstitutional, at least for debts contracted before their enactment, in Hepburn v. Griswold. Both supporters and opponents of the acts appealed to John Marshall’s standard of interpretation in McCulloch v. Maryland: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” Chase labored to square his support for broad national power in the bank cases with his strict reading on legal tender, while the supporters of the act had to explain how it did not obliterate all limits on congressional power. Chase recalled Marshall’s statement that “should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government, it would be the painful duty of this tribunal . . . to say that such an act was not the law of the land.” Chase denied that giving legal tender status to the Treasury notes was appropriate or plainly adapted to a legitimate end. To accept the legal tender acts would carry “the doctrine of implied powers very far beyond any extent hitherto given to it.” Like Madison in his opposition to the first Bank of the United States, Chase insisted that there must be some limits to federal power. Chase’s strongest arguments against the act rested on substantive or naturallaw grounds. He pointed to the prohibitions of laws that impaired the obligation of contract in the Northwest Ordinance and the Constitution. Although the Constitution forbade only the states to enact such laws, Chase said, “the spirit of this prohibition should pervade the entire body of legislation.” In a case like this, involving an act “not made in pursuance of an express power,” one could more easily conclude that it was “inconsistent with the spirit of the Constitution.” He noted that the Fifth Amendment added a prohibition of the taking of property “without due process of law.” Thus Chase introduced, for the first time after the

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Dred Scott decision and anticipating late nineteenth-century decisions, the idea of “substantive due process.” The dissenters emphasized the danger of Chase’s mode of judicial interpretation. Judicial resort to “the spirit of the Constitution” threatened to establish judicial supremacy. Of course, the Chief Justice put himself in the awkward position of striking down an act that he had endorsed as secretary of the Treasury. He confessed that he and others had adopted unorthodox views “amid the tumult of the late civil war. . . . The time was not favorable to considerate reflection. . . . Some who were strongly averse to making government notes a legal tender felt themselves constrained to acquiesce in the views of the advocates of the measure.” But now, “under the influence of calmer times,” they had “reconsidered their conclusions.” “The Constitution does not permit robbery of citizens by citizens as an appropriate means of carrying on war,” he wrote privately. “Honesty is always correct. Our constitution was written by honest men. No interpretation of it which makes it sanction dishonesty can be right.” Some have accused Chase of changing his opinion in order to ingratiate himself with anti-greenback Democrats, as he continued to seek their presidential nomination. But a constitutionalist can see it as “one of the most astonishing cases of intellectual honesty on the part of a public official.” As a recent biographer notes, his return to hard money was “one of principle rather than opportunism, for his policy as Secretary of the Treasury had been followed reluctantly and only because of the emergency conditions created by the war.” Hepburn turned out to be merely a desperate holding action. Fifteen of eighteen state courts had upheld the acts; Hepburn came from one (Kentucky) that had struck them down. The Court was initially divided, 4–4. Chase then prevailed on Justice Grier, who was approaching senility and retirement, to change his initial vote, producing a 5–3 decision to uphold the Kentucky court. The decision applied only to debts contracted before the acts, of which few remained in 1869, and few in the business and legal communities expected the decision to stand. On the same day that Hepburn was delivered, President Grant sent two new Court nominations to the Senate—to replace Grier, and to fill a vacancy due to Congress’s restoration of the Supreme Court’s ninth seat. Chase attempted to prevent the Court from considering a new legal tender case (Justice Miller wrote that he “resorted to all the stratagems of the lowest political trickery”), but the reconstituted Court held that the legal tender acts applied to contracts made after their enactment, and also overturned Hepburn with regard to pre-existing contracts, in the 1870 Legal Tender Cases.

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The new, five-man majority endeavored to explain the constitutional basis for the act. The newly appointed Justice William Strong wrote the majority opinion, emphasizing the economic impact of holding the acts unconstitutional. “It would be difficult to overestimate the consequences which must follow our decision,” he wrote. “They will affect the entire business of the country, and take hold of the possible continued existence of the government,” provoking “great business derangement, widespread distress, and the rankest injustice.” He stressed the circumstances under which they were enacted—“The necessity was immediate and pressing”—and that Congress must be free as to the choice of means employed to meet the emergency: “It would be an anomaly for us to hold an act of Congress invalid merely because we might think its provisions harsh and unjust.” The other new appointee, Joseph Bradley, made a stronger case for national power in his concurring opinion. He went beyond expressed and implied powers to the sovereign powers inherent in every government. He offered a mirror image to Chase’s natural-law argument against the acts. Where Chase stressed essential principles of morals and justice, Bradley appealed to principles of sovereignty and self-preservation that lay outside the Constitution’s text. The United States possessed “all the attributes of sovereignty . . . inherent and implied powers which . . . belong to every government as such.” A government with the power to compel citizens to risk their lives by conscription could hardly lack the power to command their property; this was “one of those vital and essential powers inhering in every national sovereign and necessary to its self-preservation.” In Hobbesian language, he concluded, “It would be sad, indeed, if this great nation were now to be deprived of a power so necessary to enable it to protect its own existence and to cope with the other great powers of the world.” Bradley did not claim that the legal tender power was a war power, and in 1884 the Court confirmed that the federal government could issue greenbacks in peacetime. The Court gave even fuller expression to the principle of inherent sovereign power, noting that the power to make bills legal tender was “universally understood to belong to sovereignty, in Europe and America, at the time of the framing and adoption of the Constitution.” The court referred to “an important modern case . . . in which the Emperor of Austria, as King of Hungary, obtained from the English Court of Chancery an injunction against the issue in England, without his license, of notes purporting to be public paper money of Hungary.” Bradley had gone far afield. “It seems more than simply odd for an American Supreme Court justice to cite an English case involving an Austrian emperor to settle an American constitutional controversy,” a recent treatment

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observes. “To invoke custom or precedent derived from a Roman-based authoritarian legal system appears troubling, especially when that system is founded upon principles inimical to common-law precepts of individual liberty.” The four-man majority of Hepburn now dissented. Chief Justice Chase reiterated his majority opinion. “It is I think a sad day for the country and for the cause of constitutional government,” he lamented privately. Justice Clifford wrote a lengthy work on the history of coinage, expressing what has been called the “natural” rather than the “nominalist” theory of money. “Commerce requires a standard of value, and all experience warrants the prediction that commerce will have it,” he wrote, “whether the United States agree or disagree, as the laws of commerce in that respect are stronger than the laws of any single nation of the commercial world.” Justice Field’s dissent stressed the founders’ monetary views, to which the majority had given almost no attention. “If anything is manifest from these debates it is that the members of the Convention intended to withhold from Congress the power to issue bills to circulate as money,” he noted, and pointed to the consistent adherence to this original understanding until the Civil War. Field later made a bolder historical claim, that the prohibition of the power to issue legal tender notes could “in the history of the Constitution . . . be established with moral certainty.” While he perhaps overstated his case, history does seem to support Field. He also reiterated Chase’s natural-law reasoning: “For acts of flagrant injustice such as those mentioned there is no authority in any legislative body, even though not restrained by any express constitutional prohibition. For as there are unchangeable principles of right and morality, without which society would be impossible, and men would be but wild beasts preying upon each other, so there are fundamental principles of eternal justice, upon the existence of which all constitutional government is founded, and without which government would be an intolerable and hateful tyranny.” The Legal Tender Cases presented an impasse between the inherent-power doctrine of the majority and the inherent-rights doctrine of the dissenters. Its reversal of Hepburn presented a nationalist equivalent to Briscoe’s reversal of Craig. The antebellum court gave the states monetary powers that the Constitution withheld; now it gave Congress more monetary power than the Constitution granted, and left the national government almost entirely free in monetary matters. As J. Willard Hurst notes, “What the Congress and Court did here pressed our informal practice of constitutional amendment to the limit,” if not beyond the limit. Though granted plenary constitutional power, Congress after the Civil War displayed impressive restraint. Greenbacks could be redeemed for gold by 1879, and the government resisted pressure to inflate via paper or even silver for

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the rest of the century. Hugh McCulloch said in 1865 that the greenbacks “ought not to remain in force one day longer than shall be necessary to enable the people to prepare for a return to the constitutional currency.” Justice Bradley commented, somewhat defensively, in the Legal Tender Cases, “No one supposes that these government certificates are never to be paid—that the day of specie payments is never to return.” As one hard-money critic observes, “So something worked. The question is, was that something devious bureaucratic hypocrisy, fortunate happenstance due to external factors, lucky blundering into the desired results, or some combination of all three?” This restraint engendered the great fin de siècle political controversy, the “money question,” that culminated in the decisive election of 1896. It is difficult to credit the claim that national monetary policy in the late nineteenth century sacrificed the interests of the agrarian South and West to the industrial Northeast, starving the periphery of credit or siphoning off its capital, keeping it in a dependent, “colonial” condition. The economic historian Richard Sylla has argued that the national banking system restricted entry into the banking business and fostered monopoly in the South and West. The national banking acts imposed high capital requirements, and forbade members to lend on real estate. The acts restricted note issue, and the peripheral regions never got their share of bank notes. The 1865 tax on state bank notes had a severe impact on state banks, whose numbers fell from 1,500 to 325 by 1870. But state banks soon rebounded. Their numbers recovered, as the business of banking shifted from note issue to deposit checking. (This promoted better banking practice. As one historian notes, “Notes were a form of liability easily evaded; deposits were not.”) By the end of the century, state banks outnumbered national banks, and state and private bank deposits were 20 percent greater than national bank deposits. Sylla contends that state bank “failure to expand even more rapidly is of greater significance than its actual growth.” The states aggravated the national bank restrictions on competition (which Congress relaxed in 1900), particularly by “unit banking” laws that prohibited branching. Branch prohibitions tried to prevent bank monopolies, but ended up preserving local monopolies. State bankers had always resented the competition that the antebellum Banks of the United States produced, and continued to bemoan the Civil War national banking acts. Here again it appears that critics have exaggerated the ill effects of Republican national mercantilism. The national bank system was less centralized than the antebellum national bank systems. Indeed, central bank advocates lament the degree to which it perpetuated a dual system. Chase’s bastard brainchild “fostered what is probably the greatest mass of redundant, otiose, and con-

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flicting monetary legislation and the most complex structure of self-neutralizing regulatory powers enjoyed by any prominent country anywhere,” leaving “a recondite, meandering watershed marked by ambiguities at every step.” This decentralization comported with the “states-rights nationalism” of the postbellum Republicans. Rather than displacing an idyllic antebellum financial system, the postbellum system performed about equally as well. Railroads and Land Policy One discerns an almost inverse relationship between the policy popularity and the constitutionality of the three legs of the national mercantilist triad. The two parties disagreed most intensely about the issue about which Madison had the least doubt in constitutional terms, the tariff. The parties disagreed less intensely over the bank issue, on which Madison remained ambivalent. Yet the parties agreed most on the one issue that Madison most ardently opposed, federal support for internal improvements. Washington curbed his initial enthusiasm for internal improvements, and Hamilton had serious doubts about their constitutionality. Madison departed the presidency vetoing the “bonus bill,” in which the $2 million bonus paid for the charter of the second Bank of the United States would be “set apart and pledged as a fund for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote, and give security to internal commerce among the several states, and to render more easy and less expensive the means and provisions for their common defense.” Madison observed that “it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation with the power to make laws necessary and proper.” Democratic opposition to internal improvements peaked in the 1840s, but then began to abate, as the party sought to promote railroads. By the 1850s, however, federal grants of land provided the only constitutional means to promote internal improvements. The breakthrough came in the 1850 grant to construct a railroad from the Gulf Coast to Illinois. Congressmen defended such grants by arguing that the railroads would increase the value of remaining federally owned land, and that the government was acting as a “prudent proprietor” in this way. The war provided further justification for federal railroad promotion. Indeed, the transcontinental railroad acts drew more clearly than the tariff or banking acts from the war power. Before the war, the secretary of war (Jefferson Davis) had surveyed various transcontinental routes and recommended the southern-

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most to President Buchanan. Stephen Douglas’s desire for a northerly route led him to propose the Kansas–Nebraska Act, which set in motion the crisis that led to the Civil War. And the Illinois Central Gulf Railroad helped the Union win that war, rerouting commerce from the Mississippi to the Atlantic and strengthening the West’s unionism. Much force inhered in the argument that continental railroads would help maintain the Union against the centrifugal force of such an extended republic. The Mexican government’s loss of Texas in the 1840s provided an object lesson. Even after the Civil War, Canada’s lack of a transcontinental railroad (completed in 1885) might have disunited that commonwealth. President Buchanan urged Congress in his 1857 annual message to promote a Pacific Railroad in order to protect California. The first Civil War Congress, called into special session by President Lincoln, considered railroad legislation because it was deemed war-related. Democrats supported the measure even more enthusiastically than did Republicans. The federally subsidized railroad system soon became the most vilified of late nineteenth-century policies. Railroad promotion epitomizes the profligate corruption and waste of the “Great Barbecue” of the “Gilded Age.” A typical historical assessment in the Populist–Progressive tradition concludes, “The pattern is clear. The concept of the disposal of public lands for the benefit of the entire population was superseded by a concept of the expenditure of federal funds for the benefit of a small but powerful group of individuals and corporations. . . . The federal bounty (both natural and fiscal) was to be distributed selectively and directly, rather than broadly and indirectly. In short, the 37th Congress ushered in four decades of neo-Hamiltonianism: government for the benefit of the privileged few.” But more recent historical analyses have tempered the “land grant legend” that the system looted the public. Private capital balked at the enormous risks involved in spanning a continent with rails, and the government had nothing like the capacity (even absent constitutional scruples) to do the job itself. As one account notes, “The subsidy was a product of weakness rather than of generosity, and its value was diminished as a result. The terms of the bargain were unduly costly to both sides; by its ineptitude the government nearly vitiated its own contribution.” Afterward, critics highlighted the public subsidies and overlooked the private risks. Railroads raised the fundamental republican problem of distinguishing a truly public good from a private interest masquerading as a public good. Lincoln referred to “a rule of generality and locality” to determine whether an internal improvement was within the ambit of national power. In his 1861 Independence

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Day message to Congress he wrote, “This relative matter of national power and states rights, as a principle, is no other than the principle of generality, and locality. Whatever concerns the whole, should be confided to the whole—to the general government; while whatever concerns only the state, should be left exclusively to the state. This is all there is of original principle about it.” A similar analysis took place within states as well. Several state court decisions challenged the use of public funds to promote railroads. These state and local attempts to repudiate their obligations composed an inordinately large part of the late nineteenthcentury Supreme Court’s docket. In the seminal case of Gelpke v. Dubuque, the Iowa Supreme Court held that the city of Dubuque’s railroad-promotion bonds had exceeded the state constitution’s limitation on municipal debt. It also held that railroads were not a “public purpose” for which taxes could be raised. Therefore Dubuque did not have to pay the bonds. The United States Supreme Court overruled this decision in 1864. Although the Court usually deferred to state judicial interpretations of their own constitutions, Justice Swayne held that the Iowa decision violated “the plainest principles of justice.” He added, “We shall never immolate truth, justice, and the law, because a state tribunal has erected the altar and decreed the sacrifice.” Justice Miller alone dissented. Declaiming his brethren’s solicitude for railroad bondholders, he privately called them “if not monomaniacs, as much bigots and fanatics on that subject as is the most unhestitating Mahomedan in regard to his religion.” Constitutional objections to railroad promotion continued after the Civil War. In 1870 Michigan Supreme Court Justice Thomas McIntyre Cooley wrote a remarkable opinion that reaffirmed the holding of the Iowa Supreme Court in the Gelpke case. The Michigan constitution prohibited state support for internal improvements, but the legislature evaded this restriction by permitting municipalities to pledge their credit for them. But Cooley went beyond the question of constitutional irregularity, and struck down the bonds based on “fundamental maxims in the law of taxation [that] inhere in the power to impose any taxes whatever.” Like Chase in the Legal Tender Cases, Cooley resorted to naturallaw jurisprudence, grasping the essential republican principle that public power could be used only for public purposes. Although the railroad might provide incidental public benefits, it was primarily a private enterprise. Cooley here expressed the antebellum Jacksonian animus against monopolies, special privileges, and “class legislation.” He represented the disillusionment of many antislavery Democrats who had joined the Republican Party in the 1850s, and were now drifting back to the Democrats. Despite his reputation as one of the fathers

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of “laissez-faire constitutionalism,” Cooley overturned laws benefiting corporations. But his decision had little impact. Only Wisconsin followed Michigan’s ruling, and diversity jurisdiction ensured that out-of-state bondholders could compel payment in federal courts. The decision came too late. Too much capital had been invested in railroad securities for such a decision to revive the “public purpose” doctrine and upset the industry. National railways, involving matters such as national defense, mail delivery, and the development of federal land, might pass a public-purpose test while state railways did not. The Supreme Court unanimously upheld the 1862 Pacific Railway Act, and emphasized “the circumstances which existed when it was passed. The war of the rebellion was in progress and, owing to complications with England, the country had become alarmed for the safety of our Pacific possessions.” The administration judged that “such a road would bind together the widely separated parts of our common country and furnish a cheap and expeditious mode for the transportation of troops and supplies.” The project was “a national undertaking for national purposes,” with means appropriate to those ends. In addition to being a military necessity, the railroad served the “prudent proprietor” principle of increasing the value of the remaining public lands, as well as providing “an improved and cheaper method for the transportation of the mails and of supplies for the army and the Indians.” The government adopted the joint public–private method because “the policy of the country, to say nothing of the supposed want of constitutional power, stood in the way of the United States taking the work into its own hands.” The United States Supreme Court inverted Cooley’s conclusion as to the private–public benefits. Though it used private profit as a means, “the primary object of the government was to advance its own interests.” By 1872, federal subsidies for railroads had ended, and the states had entered another period of reaction against promotion of internal improvements. Public policy shifted from distribution to regulation. The federal effort to regulate railroads floundered on their hybrid public–private nature. Some policy makers regarded railroads as private enterprises, an industry in which competition should be promoted. Others saw them primarily as public utilities, natural monopolies that needed government ownership or regulation. Railroads were competitive on high-volume, long-distance or “long-haul” lines, but had monopoly power on low-volume, short-distance or “short-haul” lines. Competition in the long-haul market thus depended on discrimination in the short-haul market. Before the Supreme Court stopped them in 1886, the states attempted to prohibit shorthaul discrimination, and thus force the railroads to raise rates for out-of-state

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shippers. State acts like these frequently threatened to “balkanize” the late nineteenth-century national market. Few embraced the necessary alternative to allow or require railroads to collaborate (“pooling”) to raise rates on the long hauls to reduce the need for discrimination in the short hauls. Instead, antirailroad congressmen in the House tried to prohibit both pooling and discrimination. The Senate preferred to allow discrimination, ignore pooling, and create a commission to oversee the industry. The outcome was the ugly compromise of the 1887 Interstate Commerce Act. It mandated that all railroad rates “shall be reasonable and just; and every unjust and unreasonable charge for such service is prohibited and declared to be unlawful.” The act prohibited pooling. It also prohibited discrimination, but only in cases of “substantially similar circumstances and conditions.” And it left the definition of “reasonableness” and discrimination to a commission, whose first head was Thomas McIntyre Cooley. The Interstate Commerce Act exemplified a “legislative deferral”—unwilling to make clear policy choices, the legislature punts to the judicial or administrative branches. Many congressmen objected to its unconstitutional delegation of legislative power to the commission, and its combination of legislative, executive, and judicial powers in that commission. But the commission’s conflicting mandates made it too weak to settle the fundamental conflict that Congress had avoided. Railroads needed coordination, but the Interstate Commerce Act and then the Sherman Antitrust Act frustrated them. But the commission’s weakness perhaps provided some public benefit. It recognized the public’s need for common carriers and public highways, but also protected the indispensable resource of private investment. For all its deficiencies, the regulation of railroads in the Gilded Age compared favorably to their regulation in the coming, Progressive era. The land-grant method of promoting internal improvements undoubtedly presented the most significant departure from antebellum limitations on federal power, going the greatest distance from Madisonian standards of constitutionalism. Congress accomplished many ends through land grants that it could not have attained otherwise. Indeed, one might say that the land-grant power offered the nineteenth-century equivalent to the interstate-commerce and generalwelfare powers of the post–New Deal period, a virtually limitless source of federal power. The Supreme Court declared in 1866 that Congress possessed “entire control of the public lands, [and] can dispose of them for money, or donate them to individuals or classes of persons.” Nevertheless, it remained temporary and limited, if only because the source of federal promotion (land) was finite. The

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same was true of the veterans pension system, which for a time looked like a federal welfare agency. But the veterans and their dependents eventually died out, notwithstanding the Republicans’ best efforts to extend the system. Conclusion The policies of the Civil War–era Republican Party did not fundamentally alter the constitutional restraints on the federal government, nor did they turn the United States into a plutocracy. Constitutionally, the Republicans restored much of the legitimate power of the federal government that had eroded before the Civil War. While the amount of federal activity increased, the nature of its functions did not. Above all, new federal programs did not give rise to a new, bureaucratic or administrative apparatus. This accorded with antebellum government policy, which attempted to promote individual initiative—the “release of energy,” as J. Willard Hurst famously described it. Governmental activity was intended to encourage, not supplant, individual initiative. As Carter Goodrich put it, “When the Erie Canal was built as a great public undertaking, no one advocated a battery of additional governmental measures to make sure that settlers would move to northern Indiana and Michigan, to instruct them that wheat would be an appropriate crop to raise, to encourage merchants to bring the millers to turn it into flour, and to induce New England manufacturers to sell their products to the new settlements.” Lincoln concisely expressed this balancing of state action and individual liberty: “The legitimate object of government is ‘to do for the people what needs to be done, but which they cannot, by individual effort, do at all, or do so well, for themselves.’ ” As Leonard White put it, “An old timer in Washington looking backward from the vantage point of the late 1890s would have found the government establishment bigger but not much different from its essential nature in 1870. Volume of activity had increased, but not new functions or activities.” Thus, for all the corruption that characterized Gilded Age government, it avoided the more profound and enduring corruption associated with the centralized bureaucratic state—the sort of corruption that undermines republican self-government, the ability of free citizens to rule themselves. As the last generation of scholarship in the field of American political development has shown, the United States in the Gilded Age was not the “stateless” entity derided by continental European statists and their progressive American acolytes. But we should be more impressed by the continuity of nineteenth-century American constitutionalism, and the tem-

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porary aberration of state development during the war. The American state remained peculiar because it remained a constitutional one. The United States managed to combine not just industrial development and political democracy, but also constitutional government. As Herman Belz observes, it reflects well on the much-maligned Gilded Age statesmen that the nation “became industrialized at relatively low social and political cost.”

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III

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Contesting the Legacy of Lincoln and the Civil War in the Progressive Era

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7

Woodrow Wilson and the Meaning of the Lincoln Legacy Ronald J. Pestritto

To the Eastern politicians he seemed like an accident; but to history he must seem like a providence. —Woodrow Wilson, 1893

A

mong the many contributions of Herman Belz, perhaps the most meaningful from the perspective of a political theorist is Belz’s artful weaving of history and ideas in his many great works. Belz is among the very best historians of the United States, and he has achieved this accomplishment without suffocating the great, transcendent ideas of the American regime with the methodological assumptions of historicism. He has enlightened those of us in political science with the critical context of American history that we are prone to forget, yet has done so in a way that enhances our ability to talk about the significance of America’s principles across the great epochs of its history. It seems fitting, then, to look to the principles of one of Belz’s favorite subjects—Abraham Lincoln— and to take up the influence of those principles in subsequent eras of American history, and even in our own time. Lincoln is still influential and popular today, to judge by the effort made by politicians of all stripes to claim his legacy—or at least refer to his words—in pursuing their own ends. This was no less the case during the original Progressive era, at the turn of the twentieth century, when conservatives and Progressives alike, from both political parties, drew on Lincoln’s example in the arguments of their own day. The use by original Progressives such as Theodore Roosevelt and Woodrow Wilson of the Lincoln legacy is one of the reasons that some critics of progressivism—both in its original historical manifestation and in its contemporary manifestation—are also sharp critics of Lincoln. While some contemporary critics of progressivism contend that it was the original Progressives who imported a foreign philosophy of government into the American tradition and used it to pursue a fundamentally new direction in American politics, a rather eclectic

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alliance of libertarians and paleoconservatives has emerged to point the finger not only at the original Progressives but also at Abraham Lincoln. The nature of the libertarian–paleoconservative critique of Lincoln has been explored in a recent book by Thomas L. Krannawitter, who summarizes the essence of it this way: The major premise is that the Confederate South was fighting for limited government, trying to protect the states’ rights from an overbearing national government. The minor premise is that Lincoln opposed the Confederacy by opposing secession. The conclusion, therefore, is that Lincoln opposed limited government. And by so opposing the rights of states, which served as powerful checks against an intrusive national government, Lincoln effectively paved the way for the big government we have today. This argument that the transformation to unlimited national government came with Lincoln, and was then seized on by opportunistic liberals in the twentieth century, has been buttressed by the fact that liberals today like to portray Lincoln as a champion of their cause. Krannawitter provides the example of Barack Obama, who wrote in 2006 that “Lincoln’s ‘basic insight’ was ‘that the resources and power of the national government can facilitate, rather than supplant, a vibrant free market.’ ” As Obama saw it, however, this “insight” had to wait for the opportunity of the Great Depression to find an outlet for expression. Krannawitter explains that, “according to Obama, Lincoln first envisioned the principles of New Deal liberalism, while Franklin Roosevelt put them into practice.” These assumptions about Lincoln as the originator of progressive liberalism underlie much of Thomas DiLorenzo’s neoconfederate–libertarian attack on Lincoln, and have given rise to comments such as this from the economist Walter Williams: “Abraham Lincoln opened the door to the kind of unconstrained, despotic, arrogant government we have today, something the framers of the Constitution could not have possibly imagined.” Finally, to the list of those who see Lincoln as a source of progressivism and subsequent iterations of liberalism in American political development, we can add the Progressives themselves. It is a common feature of Progressive-era writings to point to Lincoln as a guide and inspiration; Woodrow Wilson was no exception. It is the object of this chapter to explicate Wilson’s reliance on Lincoln, and to assess the validity of that reliance by looking to the principles of both Lincoln and Wilson.

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Wilson’s Progressivism Wilson drew on a peculiar account of American history and Lincoln’s role in it in making his own multifaceted argument that the United States needed to move beyond the principles of its founding generation. Wilson knew that the progressive policy agenda required an active and centralized national government—not one that was energetic merely within the context of its constitutionally defined ends (after the fashion of Hamilton’s vision in Federalist 23, for instance, where he writes that no “constitutional shackles” should be imposed on the government’s pursuit of its constitutional ends), but one that instead expanded its very ends and purposes to fit the prevailing sentiment of the day. He knew that the political philosophy of the American founding, resting as it did on a natural account of individual liberty which was to be secured through the Constitution’s careful arrangement and limitation of governing institutions, needed to be either discredited or recast in a light more congenial to progressive aims. While there was much discrediting of the founding in Wilson’s work, it was to recasting it in more favorable light that he dedicated the bulk of his scholarship—relying, when useful, on Lincoln to help in the effort. The effort consisted of promoting a vision of both the Declaration of Independence and the Constitution as reinterpreted through a progressive lens. With respect to the Declaration, Wilson objected most to its universal account of individual rights and of the purpose of legitimate government. Under such a view, Wilson knew, government could not redefine itself as it wished from age to age, and it would run up against the inviolable status of humanity’s natural rights even when fueled by a robust majority will. While Progressives contended for a new role for the government based on the alleged demands of the people, the social compact philosophy that undergirds the Declaration maintains that the naturally free individual consents to government only to the extent that it will protect his rights, even in the face of majority sentiment to the contrary. Wilson thus attempted to discredit the Declaration of Independence by exaggerating its abstractness and equating its natural-rights doctrine with that of the French Revolution, notwithstanding the revulsion of most of the founders to that revolution or the decisive differences between its principles and those of America’s own. This was a sleight of hand for which Wilson engaged not only Lincoln, but also Edmund Burke, as I shall show below. Further, Wilson understood the important relationship between the Declaration and the Constitution, seeing that the institutional arrangement contained in the latter was made neces-

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sary by the natural-rights doctrine of the former. Because of the proposition that the permanent end of government is to secure the citizens’ natural rights, the greatest threat in democratic government is faction. The political science of the Constitution was designed to mitigate the problem of faction, and did so, Wilson believed, in a manner that would forever prevent it from being used as a tool of progressive liberalism. Wilson therefore sought a recasting of the American founding grounded in the idea of historical contingency. To the founding’s ahistorical notion of human nature, Wilson opposed the historical argument that the ends, scope, and role of just government must be defined by the different principles of different epochs, and that it is therefore impossible to speak of a single form of just government for all ages. This was a conscious reinterpretation, as Wilson even suggested in one speech that the Declaration ought to be understood by excluding from it the principled arguments of the first two paragraphs. In a 1911 address Wilson remarked that “the rhetorical introduction of the Declaration of Independence is the least part of it. . . . If you want to understand the real Declaration of Independence, do not repeat the preface.” It was this assertion of historical contingency over the permanent principles of American constitutionalism that animated the main tenets of Wilson’s thought. Put briefly, those tenets rest on a coupling of historical contingency with a faith in progress. Wilson believed that the human condition improves as history marches forward, so protections built into government against the danger of such things as faction become less necessary and increasingly unjust. Ultimately, the problem of faction is solved not by permanently limited government but by history itself; history brings a unity of sentiment and fundamental will to the nation. Whereas The Federalist asserts that a diversity of interest will always underlie the extended republic, Wilson contended that history would overcome such particularism (or had already done so) with an increasing unity of mind. So for him, the latent causes of faction are not sown in the nature of humanity, or if they are, historical progress will overcome this human nature. With the unity of national sentiment, political questions become less contentious and less important. We cease to concentrate on the question of what should be done, and concentrate instead on how we should do it. This is the principle behind Wilson’s suggestion that the modern age is one of administration, where we seek to find the specific means to achieving the ends we all agree we want. Government in such an age of unity is not a threat to the individual that has to be checked; rather, the state is the organ of the individuals in society—“beneficent and indispensable,” as Wilson described it. The distinction and tension between the individual

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and government are made largely extinct by the progress of history. Instead, the state becomes the organic manifestation of the people’s spirit, and it must be unfettered in order to effect their will. In this way the Progressives’ liberalism, like its modern descendent, undercuts traditional constitutionalism and champions the prerogatives of the state over the individual, the public over the private. The Use of Lincoln Oddly, Wilson points to Lincoln as a chief ally in this progressive cause. Among the several reasons for this phenomenon, the chief one is Lincoln’s role in the Civil War. Wilson’s narrative here accords very closely with today’s libertarian– neoconfederate critics of Lincoln: that the founding established a decentralized form of government that exalted individuals and states over the central government, that Lincoln was a great champion of centralization as an end in itself, and that the post–Civil War government was a transformation of and departure from the original. This “new” conception of government, necessitated by history and championed by Lincoln, represented a paradigm shift in the American political tradition and served as the springboard for progressivism in subsequent decades. Wilson’s many writings on American history, often overlooked by scholars, provide the clearest picture of this narrative. To understand the Constitution in progressive terms, Wilson contended that the single most important historical lesson to learn was that American history represented a triumph over the narrow individualism of the founding. It had grown into a genuine nation. He elaborated: Our life has undergone radical changes since 1787, and almost every change has operated to draw the nation together, to give it the common consciousness, the common interests, the common standards of conduct, the habit of concerted action, which will eventually impart to it in many more respects the character of a single community. Wilson urged that the Constitution be read in light of these centralizing developments, and that the power of the central government be expanded accordingly. The nation overcame its difficulties, he reasoned, not by sticking to its original principles, but by submitting to progress and growth, by adopting new methods and new political ideas to meet new historical circumstances. History would continue to bring improvement to the United States precisely to the extent that it was willing to let go of its original principles. Ultimately, Wilson possessed the

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confidence of a historical idealist that the United States would make the necessary changes and that the ideal end would be reached. “No one who comprehends the essential soundness of our people’s life can mistrust the future of the nation,” Wilson reasoned. “He may confidently expect a safe nationalization of interest and policy in the end, whatever folly of experiment and fitful change he may fear in the meanwhile.” We could have the confidence that history would bring about a true and complete nation, Wilson explained, because one could see how far the country had come toward this end despite an ill-designed, fractured government with little or no energetic leadership. He proclaimed, “Unquestionably we believe in a guardian destiny! No other race could have accomplished so much with such a system.” Without Lincoln and the Civil War, this old order would have continued and the United States could not have taken the steps necessary to mature. As Wilson summarized in The State, the “Civil War completes the Union,” by which he meant that the last vestiges of the old order, which had stood in the way of progress, were swept away by the conflict. That the Civil War was a decisive step forward in America’s progress as a nation is an important theme of Wilson’s five-volume work, A History of the American People. The significance of the change that Wilson attributed to the war cannot be overstated. The following passage captures the sense of the war’s importance to Wilson: The nation, shaken by those four never to be forgotten years of awful war, could not return to the thoughts or to the life that had gone before them. An old age had passed away, a new age had come in, with the sweep of that stupendous storm. Everything was touched with the change it had wrought. Nothing could be again as it had been. The national consciousness, disguised, uncertain, latent until that day of sudden rally and call to arms, had been cried wide awake by the voices of battle, and acted like a passion now in the conduct of affairs. All things took their hue and subtle transformation from it: the motives of politics, the whole theory of political action, the character of the government, the sentiment of duty, the very ethics of private conduct were altered as no half century of slow peace could have altered them. Several things are worth noting about this characterization of the war’s significance. In particular, once the old historical spirit—“the national consciousness”— has been replaced by a new one, everything changes. Politics, political theory, government, duty, and ethics are all contingent on the historical spirit and become transformed when that spirit advances. Wilson’s five-volume history goes

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on to portray the postwar American spirit as truly national. This new national spirit especially manifested itself in the new mode of understanding the Constitution. Modern America had moved beyond the narrow, legalistic constitutionalism characteristic of the founding generation. Wilson explained that in the new era, the forms of the Constitution cease to be the focus of national life. Instead, what really matters is the unity of will in the nation, and the government’s reflection of that new will. In this regard, the war had “disclosed the real foundations of the Union; had shown them to be laid, not in the Constitution, its mere formal structure, but upon deep beds of conviction and sentiment.” What became most important, then, in national politics, was not the Constitution’s protection of individuals, but rather its ability to put into action “the passionate beliefs of an efficient majority of the nation.” The war helped to overcome an excessive fixation on the forms of the Constitution because the prosecution of the war itself often required that those forms be disregarded. Once the fighting stopped, the nation had been conditioned out of its slavish reliance on the legalisms of the Constitution and there was no looking back. In this way, the legal formula of federalism gave way to a national spirit that invigorated central government. Wilson saw American development in the first half of the nineteenth century as a struggle between the forces of originalism, which wanted to keep the country fragmented, and the forces of union, led by Abraham Lincoln, which were on the side of progress. These two main forces contended for decades in a conflict that led up to, and was decisively resolved by, the Civil War. Wilson saw John Marshall and Daniel Webster as forerunners of Lincoln, and he called them the first true “American” statesmen. They were true Americans because they fought for national unity, which was in accord with the future for which the United States was destined. In his “Calendar of Great Americans,” Wilson reserved some of his strongest praise for Marshall and Webster, particularly because they did not feel constrained by an overly legalistic interpretation of the Constitution. Instead, Wilson contended, they were gifted at taking the written Constitution and reading into it whatever the times required, which Wilson characterized as the ability to find “life” in the Constitution. Marshall and Webster “viewed the fundamental law as a great organic product, a vehicle of life as well as a charter of authority; in disclosing its life they did not damage its tissue; and in thus expanding the law without impairing its structure or authority they made great contributions alike to statesmanship and to jurisprudence.” Marshall and Webster were uniquely American, Wilson explained, because they had to practice a form of statesmanship that formulated broad national policies within the tight framework of a written constitution. His praise for Marshall and Webster is in contrast to his

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sharp criticism of figures like John C. Calhoun. Calhoun did not represent the American spirit of national unity, instead fighting against union by refusing to abandon the originalism of fragmented power and weak national government. So while Marshall, Webster, and Lincoln were genuine Americans who were on the side of historical progress, Calhoun was reactionary and “provincial.” To understand the significance of Lincoln and the union issue to Wilson’s conception of American politics, and to understand why Wilson was no southern partisan, it is vital to know that, for Wilson, it was the southerners who were the constitutional originalists. Once again, Wilson foreshadows today’s libertarian–neoconfederates: the forces of state rights and secession, as Wilson understood them, represented the founders’ constitution as it was originally intended to be—one that placed strict limits on the sphere of federal authority. Those who favored national unity and the cause of the North, then, were the Progressives. Lincoln and the progressive, pro-union forces advocated a departure from the original constitutional understanding and an embrace of national unity and expanded national government. The pro-union forces were progressive because they wanted to adjust political principles to the advances and new circumstances brought about by history. They understood that the United States was growing and evolving, and they wanted to read the Constitution accordingly. The southerners, according to this narrative, had the correct view of the original Constitution, and they wanted the country to stick to it. Secession, therefore, was not an attack on the Constitution, but rather a movement of reactionary forces who wanted to restore original constitutionalism in a fight against progress. In Division and Reunion, Wilson expresses his approval of Webster’s prounion argument—“that the Constitution had created, not a dissoluble, illusory partnership between the States, but a single federal state, complete in itself.” But he makes clear that this interpretation, however much he embraces it, was probably not the view of those who framed the Constitution: “It may, nevertheless, be doubted whether this was the doctrine upon which the Union had been founded.” While the states’ rights view of the southerners may have been the one that most accurately reflected original intent, it was inferior historically and contrary to the march of progress, since “Webster’s position was one toward which the greater part of the nation was steadily advancing.” Wilson explained in a subsequent essay that, despite its inferiority, Calhoun’s “doctrine of the ultimate sovereignty of the States was not new. It had once been commonplace to say that the Union was experimental, to speak of circumstances in which the contracting States might deem it best to withdraw.” The historically inferior understanding

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of federal power that animated the founding generation was simply a reflection of the particular historical environment in which it grew up—one where it was simply more common for the focus to be on the states and their primacy. In the face of this undue attachment to original forms, those who favored a national union adopted what might be called today a “living constitution” understanding of government. Wilson explained, “The legal theory upon which [secession] was taken was one which would hardly have been questioned in the early years of the government. . . . But constitutions are not mere legal documents: they are the skeleton frame of a living organism; and in this case the course of events had nationalized the government once deemed confederate.” In the dialectical contest between the forces of the old order and those of the new, history inevitably and necessarily decided things in favor of the side representing progress. Wilson commented in a letter on the war that “I think the North was wholly right then, and that the South paid the inevitable penalty for lagging behind the national development, stopping the normal growth of the national constitution.” Statesmanship and Leadership Lincoln, according to this Wilsonian narrative, was the agent of historical progress; he helped the country shed its original principles by acting as a man of his times—by his willingness to embrace the new spirit of a new age. It was for this very reason that Wilson put Lincoln in the same category as Edmund Burke, whom Wilson considered the best model for statesmanship. In a view of Burke that was too exclusively influenced by the Reflections on the Revolution in France, Wilson considered Burke’s greatest virtue to be his historical pragmatism—that Burke was guided in his statesmanship, as Wilson saw it, by whichever way the historical winds seemed to be blowing at the time. Like Wilson’s Lincoln, Wilson’s Burke did not theorize about what politics ought to be in form; he did not conjure up abstract principles of political justice to serve as guides to political action. Instead, he constantly adjusted to fit changing circumstances. In his 1893 essay on Burke, Wilson identified a series of key issues that Burke confronted during his career. Wilson contended that Burke approached each of these issues in a consistent manner: he “had no system of political philosophy” but was guided instead by the circumstances of each case. In addition to his alleged Burkean antipathy to abstract principles in politics, Lincoln represented to Wilson the ideal model of presidential leadership. This was a model where the president was to tap directly into the people’s opinion and

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thus circumvent the Constitution as the principal source of presidential power, and the separation of powers system as the principal means of checking that power. For Wilson, a champion of the parliamentary model where legislative and executive powers are united, separation of powers made efficient and accountable leadership impossible. As it pertains to presidential leadership, the problem with the original separation of powers system is that it casts the president merely as leader of a single branch of government, thus denying singular, energetic leadership to the government as a whole. In Constitutional Government in the United States, Wilson urged that “leadership and control must be lodged somewhere.” The president, Wilson pointed out, was the only politician who could claim to speak for the people as a whole, and he called on the president to rise above the separation of powers—to consider himself not merely as chief executive, but as the popular leader of the whole of national life. Wilson even contrasted the “constitutional aspect” of the presidency—its constitutionally defined role as the head of the executive branch—to the considerably more important “political” function of the president, where the president could use his direct connection to public opinion as a tool for moving all national government in the direction demanded by prevailing public opinion. It was in this way that Wilson saw presidential leadership as a means of energizing the kind of active national government that the progressive agenda required, but which the Constitution seemed always to thwart. This Wilsonian notion of presidential leadership rested on the leader’s connection to public opinion and his ability to interpret it and move it. As explained most thoroughly in the essay “Leaders of Men,” Wilson conceived of “leadership” as “interpretation.” The leader embodies, or “reads up” from the people their will, their spirit. But the leader is not merely an empty vessel, responding to whatever direction the public’s opinion happens to give him. This is because the leader, in interpreting, often reads the implicit will of the public better than the public itself does. Therefore the leader must have the ability to persuade the people that his understanding of their will—his vision of their future—is, in fact, their will and their future. “The leader of men,” Wilson explained, “must have such sympathetic and penetrative insight as shall enable him to discern quite unerringly the motives which move other men in the mass.” Wilson most frequently named Abraham Lincoln as this kind of popular leader—at least among American presidents. For Wilson, Lincoln contrasted very favorably to several earlier presidents, especially Thomas Jefferson, whom Wilson believed did not sufficiently seek out

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a close connection to public opinion. Wilson praised Lincoln, by contrast, for serving as a man of the people, for embodying the spirit of the masses. Yet he also praised Lincoln for standing out in front of the masses, for seeing their own will more clearly than they were able to see it themselves: A great nation is not led by a man who simply repeats the talk of the streetcorners or the opinions of the newspapers. A nation is led by a man who hears more than those things; or who, rather, hearing those things, understands them better, unites them, puts them into a common meaning; speaks, not the rumors of the street, but a new principle for a new age; a man in whose ears the voices of the nation do not sound like the accidental and discordant notes that come from the voice of a mob, but concurrent and concordant like the united voices of a chorus, whose many meanings, spoken by melodious tongues, unite in his understanding in a single meaning and reveal to him a single vision, so that he can speak what no man else knows, the common meaning of the common voice. Such is the man who leads a great, free, democratic nation. Wilson described Lincoln as the perfect American. Like Andrew Jackson, he was a man of the people, and came from the frontier. But unlike Jackson, Lincoln was able to interpret the true spirit of the American people and to understand that the American future was one of nationalization. In this respect, Lincoln was the leader for whom the time was ripe. He was the agent of change that the progress of history required. “To the Eastern politicians,” wrote Wilson, Lincoln “seemed like an accident; but to history he must seem like a providence.” Displaying the qualities necessary for any modern leader, Lincoln used popular rhetoric to affect the people, to pull them in the direction of his vision for their future. “He was vastly above [the people] in intellectual and moral stature,” Wilson wrote of Lincoln. “He gained an easy mastery over them, too, by cultivating, as he did, the directer [sic] and more potent forms of speech.” The Abuse of Lincoln In sum, Wilson paints a picture of Lincoln that depicts him as a progressive icon: as a new man for new times who seizes on the circumstances of the day as a justification for abandoning constitutional government, as a visionary centralizer who uses public-opinion leadership to redefine the scope of government, and as

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a man who will not be guided by theories or principles—who refused to hold the nation back or be bound by a stubborn adherence to the outmoded doctrines of the Declaration of Independence and Constitution. The picture of Lincoln that Wilson paints is, in other words, very much like the one painted of him by the libertarians and neoconfederates of our own day. And in both cases, the picture is almost entirely at odds with the reality of Lincoln’s words and deeds. Wilson’s characterization of Lincoln—particularly his narrative of Lincoln as a man unconcerned with the original theory of American government—is at such sharp variance with the reality that even a cursory review of Lincoln’s speeches would have revealed, that one is tempted to wonder whether Wilson ever read a word that Lincoln actually uttered. More closely examined, Wilson’s encounter with Lincoln fits a pattern followed by Progressives generally when celebrating the key figures of America’s political tradition: their celebrations are almost exclusively historical and biographical, and carefully avoid any reference to—or commemoration of—ideas or principles. In this respect, progressive accounts of the founders are remarkably different from Lincoln’s own accounts. If progressive accounts can be identified by their avoidance of the founders’ principles, Lincoln’s primary reason for calling to mind the founders is to recover their principles and bring them to bear on the debates of his own day. In attacking the doctrine of popular sovereignty in the Kansas–Nebraska law, and in contending against the denial of black citizenship in Roger Taney’s Dred Scott opinion, Lincoln’s mode is to refer to the founders for the purpose of calling to mind the principles of the Declaration and Constitution. It was Taney’s view, after all, that the founders were merely men of their time—that their principles reflected the racial animus prevalent in the latter part of the eighteenth century. In refuting this assertion, Lincoln talked not so much about the founders as representatives of their age, but instead explicated the abstract equality doctrine of the founding, paying careful attention to what it meant and what it did not mean, and bringing it to bear on the central questions of the 1850s. As Lincoln explained in his speech on the Dred Scott case, the value of the Declaration of Independence’s equality doctrine did not come from its relevance at the time, but precisely from its applicability across generations: “The assertion that ‘all men are created equal’ was of no practical use in effecting our separation from Great Britain; and it was placed in the Declaration, not for that, but for future use.” It was in emphasizing the historical and biographical approaches that Wilson could write romantically of men of the founding era, or of Lincoln, while at the

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same time offering consistently sharp criticisms of the actual principles espoused by the founders or by Lincoln. Wilson devoted a significant portion of his scholarly career—about ten years—to writing histories and biographies, and it is no accident that these are the works where the key figures of America’s past are most celebrated and held up for admiration. When it comes to the other categories of Wilson’s scholarly work—his writings on the principles of government and administration or his various treatments of American political institutions—there is no celebrating of past figures, documents, or ideas. In fact, any references to the critical figures or documents of American history in these works is normally for the purpose of showing how they are outmoded and how they are inadequate when measured against the more historically advanced ideas and systems of Europe. It was in this way that Wilson wrote an entire biography of George Washington that says very little, if anything, about Washington’s conception of government. And it was in the same way that Wilson’s comments on Lincoln could celebrate his leadership of the Union during the Civil War without once attempting to come to terms with Lincoln’s own explanation of that leadership or Lincoln’s own understanding of the war’s causes and aims. Coming to terms with these things would, of course, have led Wilson to uncover much about Lincoln that would have cast him not as an iconic progressive, but—to use the progressive phraseology—as a reactionary. Lincoln as Burke Wilson’s understanding of Lincoln as a model Burkean statesman shows how he adopted Lincoln for the progressive cause. By this characterization of Lincoln as Burke, Wilson meant, as explained above, that Lincoln’s greatest virtue was his liberation from any overarching set of principles—his willingness to go in the new direction for the country that history was bringing about, unbounded or unlimited by any abstract notions of constitutionalism or natural right. Leaving aside the problematic reading of Burke inherent in Wilson’s view, the relevant point for us is that Wilson simply denied that Lincoln was guided by abstract principles. “What commends Mr. Lincoln’s studiousness to me,” wrote Wilson, “is that the result of it was he did not have any theories at all. . . . Lincoln was one of those delightful students who do not seek to tie you up in the meshes of any theory.” In reality, of course, Lincoln’s statesmanship is characterized by the quality exactly opposite to the one Wilson asserts here. Lincoln’s letter to Henry L. Pierce in 1859 immediately comes to mind, in which Lincoln com-

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mends Thomas Jefferson and the Declaration of Independence for precisely the abstractness that Wilson claims he never exhibits: All honor to Jefferson—to the man who, in the concrete pressure of a struggle for national independence by a single people, had the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men and all times. To show that Lincoln, contrary to Wilson’s assertion, was indeed guided by a certain abstract theory of politics does not suggest that he was a kind of ideologue, after the fashion of the French revolutionaries who carried out their atrocities in the name of some demented version of natural justice. Rather, Lincoln’s model of statesmanship relied on prudence, as his Temperance Address from 1842 shows. The accomplishment of moral reform in politics requires, as Lincoln explained, both a commitment to a “theory” or moral principle, and an understanding of and appeal to the prevailing tradition and popular conventions. Wilson’s objection to this understanding of statesmanship was its mooring in any kind of principle that might transcend history; such a mooring stood as an obstacle to the progressive agenda to remake American government not just in its means but also in its ends. Historical Contingency Both in Lincoln’s celebration of the “abstract” quality of Jefferson’s Declaration, and in his remark from the Dred Scott speech that the principles of the Declaration were “for future use,” we see a quality that pervades his major speeches and writings: a rejection of the historical contingency that infuses the political philosophy of Wilson and other Progressives. For Progressives, the ultimate end or purpose of government was contingent on the particular circumstances of any given historical period. Recalling Wilson’s admonition, previously mentioned, to “not repeat the preface” of the Declaration of Independence, we see that Lincoln celebrates precisely that part of the document that Wilson wishes had never been written, and which Wilson denigrates as a mere “rhetorical introduction.” It was this “rhetorical introduction” from which Wilson wanted to free American government, whereas Lincoln put it at the heart of the most pressing political disputes of his own time. In contending against the doctrine of popular sovereignty espoused by Stephen Douglas and implemented in the Kansas–Nebraska law, the crux of Lincoln’s argument is that the doctrine contradicts the “spirit of seventy-

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six,” which is enshrined in that part of the Declaration that Wilson would have us disregard. In fact, Lincoln takes the passage of Kansas–Nebraska as sad evidence that many Americans had already gone down the path that Wilson would later urge them to take—to disregard the equality and natural-rights principles of the Declaration and deny their applicability beyond their own age. Lincoln laments that “we have been giving up the old for the new faith.” Yet Wilson champions Lincoln precisely because Lincoln was a man, according to Wilson, who happily gave up the old for the new faith—who promoted “a new principle for a new age.” In the Kansas–Nebraska speech, however, Lincoln famously draws on the old principles of the old age, and makes fairly clear what ought to befall those who would replace the old with the new faith: When Petit, in connection with his support of the Nebraska bill, called the Declaration of Independence “a self-evident lie,” he only did what consistency and candor require all other Nebraska men to do. Of the forty odd Nebraska Senators who sat present and heard him, no one rebuked him. . . . If this had been said among Marion’s men, Southerners though they were, what would have become of the man who said it? If this had been said to the men who captured Andre, the man who said it, would probably have been hung sooner than Andre was. If it had been said in old Independence Hall, seventy-eight years ago, the very door-keeper would have throttled the man, and thrust him into the street. While Wilson seems to think Lincoln was the kind of man who bent with the historical winds, Lincoln arguably would have thought Wilson the type of man who would have been throttled by the doorkeeper of Independence Hall and kicked out onto the street. The contrast could not be clearer. While Wilson urges us to disregard the Declaration, Lincoln urges a return to it: “Let us re-adopt the Declaration of Independence, and with it, the practices, and policy, which harmonize with it.” While Wilson’s solution for the imperfections of American republicanism is to bury the principles of the Revolution, Lincoln’s is to resurrect them. “Our republican robe is soiled,” he wrote, “and trailed in the dust. Let us re-purify it. Let us turn and wash it white, in the spirit, if not the blood, of the Revolution.” The Purpose of Statesmanship Such a contrast also helps bring to light the problem with Wilson’s characterization of Lincoln’s statesmanship. As Wilson understood it, Lincoln embraced the

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cause of union as a consequence of having perceptively read the trends of history. The cause of the Union in the Civil War represented, in Wilson’s eyes, the historical triumph of nationalization and centralization over originalism. The essence of Lincoln’s statesmanship was the keenness of his vision of where history was going and the fact that he did not let adherence to outdated principle interfere with his steering the nation down the historically appointed path. A key quality of Lincolnian statesmanship, according to Wilson, seems to have been that Lincoln did not take the principles of the Declaration and the law of the Constitution too seriously, or at least that he was willing to read them flexibly or organically. Not only does this estimation of Wilson’s fly in the face of Lincoln’s actual dedication to the principles and law of the founding, as demonstrated above, but it also misunderstands what Lincoln himself saw as the task of statesmanship. What most disturbed Lincoln in the 1850s was not the actual practice of slavery in those states where it already existed (while he abhorred this, he said repeatedly that nothing could be done about it at the time as a matter of law), but the notion that it could be extended into new territories without doing violence to the principles of the founding. It was what Lincoln referred to as the principle of “indifference” in his Kansas–Nebraska speech—the idea that the establishment of slavery through popular sovereignty was a matter on which our founding principles were neutral—that clearly caused Lincoln the greatest consternation. It did so because it indicated to him that many Americans had ceased both to understand their fundamental law and to practice an attachment to it. The goal of his statesmanship, then, seems not to have been—as Wilson suggests—the liberation of the United States from its fundamental law, but rather a reintroduction of the United States to this law and an encouragement to renew devotion to it. This is why Lincoln called for Americans to “re-adopt the Declaration of Independence.” He worried not that Americans would be held back by a commitment to this old document, but rather that they had become corrupted by abandoning it. The principle of “indifference” represented, for Lincoln, “a dangerous dalliance for a free people—a sad evidence that, feeling prosperity, we forget right— that liberty, as a principle, we have ceased to revere.” The task of the statesman under such circumstances—where the people have detached themselves from their fundamental law—is not to go with the historical trends, but to do as the young Lincoln did in his Lyceum Address in 1838. In that speech Lincoln called not for a progressive remaking of our political institutions, but for a perpetuation of them. Such a perpetuation was to be effected by encouraging a devotion to the law—both to the ordinary civil and criminal law, and to the fundamental law of the Constitution:

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Let every American, every lover of liberty, every well wisher to his posterity, swear by the blood of the Revolution, never to violate in the least particular, the laws of the country; and never to tolerate their violation by others. As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and Laws, let every American pledge his life, his property, and his sacred honor;—let every man remember that to violate the law, is to trample on the blood of his father, and to tear the character of his own, and his children’s liberty. Lincoln saw it as a task of statesmanship to encourage a devotion to the fundamental law, and this devotion took on a religious tone, encouraging a kind of worship of the law and of the great men who had promulgated it. As Lincoln went on to exhort, “Let it become the political religion of the nation, and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues, and colors and conditions, sacrifice unceasingly upon its altars.” The old images of the founders and the founding had served as “pillars of the temple of liberty,” but as time had passed they had come in need of being reestablished through this political religion. The contrast between this Lincolnian exhortation for political religion and Wilson’s own reflections on the Fourth of July in 1907 speaks directly to the essential difference between the two. Wrote Wilson: We are not bound to adhere to the doctrines held by the signers of the Declaration of Independence. . . . We are not here to worship men or a document. . . . Neither are we here to indulge in a mere rhetorical and uncritical eulogy. Every Fourth of July should be a time for examining our standards, our purposes, for determining afresh what principles, what forms of power we think most likely to effect our safety and happiness. Much of the difference at work here comes from the starkly different accounts of American history that underlie Wilson’s as opposed to Lincoln’s political thought. In one important respect, the two men agreed in their assessment of mid-nineteenth-century America: Americans had indeed distanced themselves from the principles of the founding. Yet the similarity ends there. For Wilson, this state of affairs was a positive development, proof that history was a force for progress. Under this narrative the losing side in the conflict—the South—stood for the old principles of the founding, and Lincoln, as the leader of the victorious North, was to be celebrated precisely for his role in overcoming America’s origins. For Lincoln, on the other hand, the events of the 1850s were sad evidence

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that the United States had lost sight of its founding. His speech on the Dred Scott decision makes this very point, taking Taney to task for assuming a moral superiority in the prevailing sentiments of the 1850s as opposed to those of the founding era. Taney, like Wilson, makes a progressive assumption about the course of American history—suggesting that it was the founding generation that had a less just and historically inferior conception of human freedom, and concluding that the founders, consequently, had not intended to include blacks in their vision of natural or civil rights. Lincoln, by contrast, held up the principles of the founding as the standard of justice from which the United States had strayed. “In those days,” said Lincoln, “our Declaration of Independence was held sacred by all, and thought to include all; but now, to aid in making the bondage of the negro universal and eternal, it is assailed, and sneered at, and construed, and hawked at, and torn, till, if its framers could rise from their graves, they could not at all recognize it.” Both Dred Scott and the Kansas–Nebraska law were evidence of a growing ignorance of the political theory of the founding. This move away from the founding was not progress to Lincoln. The South did not, as Wilson contends, represent to Lincoln the founding order that had to be overcome; rather, the conflict between North and South was the result of a house that had become divided over its founding principles and the question of whether the nation should, as Lincoln believed, return to them. Presidential Leadership and Lincoln’s Legacy This difference between Wilson’s Lincoln, who was an integral part of America’s move away from its original constitutionalism, and the real Lincoln, whose statesmanship was animated by a drive to return the country to its original ideas, emerges clearly in the debate over Lincoln’s conception of presidential leadership. While the debate over the propriety of Lincoln’s actions during the Civil War is beyond the scope of this chapter, Lincoln’s own understanding of those actions offers a useful contrast to the Wilsonian vision for presidential leadership (previously explained). For Wilson, the great promise of presidential leadership was in its prospects for transcending the Constitution. Because Wilson worried that the Constitution’s separation of powers system would stand as a barrier to the expansive government favored by Progressives, he looked to the presidency—and especially to the president’s popularity—as the means of surmounting the barrier. The whole point of presidential leadership, for Wilson, was to move the country beyond the Constitution. This is exactly the charge leveled against Lincoln by today’s libertarian–neoconfederate critics, and it is

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one of the reasons they characterize Lincoln as a founder of American progressivism. Yet while Wilson saw the president’s popularity as a mode of overcoming the Constitution (he contrasted the “political” and “constitutional” aspects of the presidency, as previously explained), Lincoln saw popular rhetoric—or an appeal to fashion, as he terms it in his Temperance Address—as a means of pointing the people back to their fundamental principles. All of Lincoln’s great speeches have this quality. Further, Lincoln understood preservation of the Constitution as the primary aim of his presidential statesmanship, even in those cases where his actions may arguably have violated the letter of the Constitution’s law. As he explained in an 1864 letter to Albert Hodges: By general law, life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the Constitution, through the preservation of the Nation. For Lincoln, the cause of the nation and the cause of the Constitution were indistinguishable. For Wilson, the vitality of the nation required moving beyond the Constitution. This is the fundamental difference between the two, and it is why Wilson’s claim to Lincoln’s legacy ought seriously to be questioned.

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8

The Idea of Constitutional Conservatism in the Early Twentieth Century Johnathan O’Neill

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ntil recently, scholars typically argued that social Darwinism and laissez-faire ideology transfixed early twentieth-century American constitutionalism. These doctrines supposedly governed Supreme Court jurisprudence and justified opposition to economic regulation. This interpretation repeated the indictment of Progressive-era reformers, scholars, and judges, but it has been considerably undermined. Revisionists argue that Justices of the so-called Lochner era respected the law as a system of authority that oriented and constrained their actions and preferences. Their jurisprudence had two fundamental requirements: that legislation have a truly public purpose—it could not be “class” or “special” legislation for the benefit of one group at the expense of another—nor could it violate the personal or contractual rights of individuals. The revisionist interpretation holds that the Court judged in good faith based on its understanding of constitutional principle, and rejects the Progressive claim that it merely echoed Herbert Spencer to serve the wealthy. This chapter builds on Lochner revisionism by examining non-jurisprudential constitutional commentary among a small but notable group of intellectuals, officials, and scholars who responded to progressivism and socialism based on their self-understanding as constitutional conservatives. Given the aims of this volume, we shall note as well how frequently they measured the constitutional challenges of their time against those of the Civil War and Reconstruction era. That period of unparalleled tumult was a touchstone for early twentieth-century constitutional conservatives, who confronted many of the same issues and sought guidance especially in the statesmanship of Abraham Lincoln. In 1913 David Jayne Hill, a former ambassador to Germany and former university president, issued a galvanizing call to action in response to socialism, progressivism, and proposals for constitutional change that circulated in the election of 1912. He proposed the National Association for Constitutional Government (NACG) as necessary for the maintenance of American constitutionalism, and he took as his inspiration and model the Union League. The NACG was founded a year later and in 1917 began publishing Constitutional Review. It ran through

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1929 and included work by leading constitutional conservatives, including William Howard Taft; former senator and soon-to-be Supreme Court Justice George Sutherland; Galliard Hunt, the biographer and editor of the papers of James Madison; Max Farrand, the compiler of The Records of the Federal Convention of 1787; and Nicholas Murray Butler, the president of Columbia University. The Review was edited by Henry Campbell Black, an established legal writer known most widely for Black’s Law Dictionary, who contributed detailed editorials to most issues. The NACG included among its honorary members Elihu Root, an influential former secretary of state, secretary of war, and senator. After Black’s death in March 1927, the Review’s editorial board included Charles Warren, the leading constitutional historian of the era, and James M. Beck, a former solicitor general, congressman from Pennsylvania, and noted author. The publication’s circulation was never large, but NACG, the Review, and a few other like-minded public figures sustained a conservative constitutional position throughout the 1920s. Their views were articulated in the statesmanlike idiom of constitutional principle, and in more popularly accessible and persuasive writing and speech. Of course, some conservatives spoke in the laissez-faire and social Darwinist categories that abounded in intellectual discourse of the time. Much Progressive thought too was informed by social Darwinism, and both Progressives and conservatives sometimes used it to justify eugenics and racism. But in insisting that self-interest, private property, and competition were rooted in nature, and that these and limited government were the basis of a free and prosperous society (as Lincoln always did), conservatives restated classical liberal propositions that long antedated social Darwinism. Scholars also recently have noted that “ethical libertarian” or “moral individualist” ideas, often religiously derived, grounded the perspective of many Justices and conservative constitutional commentators. Most educated Americans of the nineteenth and early twentieth centuries were taught that individuals were responsible for their actions in a world where ordering principles and moral duties could be rationally discerned, and where labor, property, and competition were irreducible facts of human existence to be accounted for in any realistic and decent regime. When discussing property, leading constitutional conservatives such as Hill and Taft articulated this basic view, even while rejecting monopoly and recognizing that “the regulation of industry cannot be wholly denied to Government.” Thus recent scholarship teaches that rather than reducing conservative constitutionalism to post hoc ideological justification or selfish greed, we should recognize that the doctrines of laissez-faire and social Darwinism washed over but did not dictate how conservatives responded to progressivism.

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Constitutional Principles and the Progressive Challenge The mostly lawyerly constitutionalists considered here were not philosophers of the first rank, but they almost never rejected the traditional American understanding of natural rights, as did William Graham Sumner and other famous laissez-faire, social Darwinist intellectuals. Instead, they routinely recurred to that understanding, following Lincoln in principle and often in name. Perhaps the period’s most famous example was President Calvin Coolidge’s sesquicentennial speech on the Declaration of Independence. Other constitutional conservatives often made similar statements. As Henry Campbell Black put it, the Declaration “enunciated a political philosophy” in which “the ascription of human rights to the gift of the Creator grounds the title to them in man as an individual human being, morally responsible, and establishes the American conception as entirely antithetical to the idea of rights as the beneficent permission of the state.” Based on the logic of natural rights, or on the conception of man as a created and ensouled being, contributors to the Review thought that protection of the individual from arbitrary or illegitimate authority was a core purpose of constitutionalism. Moreover, despite the legal segregation surrounding them, at least some of these people knew what Progressive historiography would obscure for generations: Abraham Lincoln saved the Constitution and the Union by insisting that slavery be measured and then overcome by the Declaration’s natural rights principles. Hill explicitly stated the point in these terms, and Black further emphasized it by reproducing a long portion of Lincoln’s letter to Henry L. Pierce (abbreviated here): He who would be no slave must consent to have no slave. Those who deny freedom to others deserve it not for themselves, and, under a just God, cannot long retain it. All honor to Jefferson—to the man who, in the concrete [pressure of a] struggle for national independence by a single people, had the coolness, forecast, and capacity to introduce into a merely revolutionary document an abstract truth, applicable to all men and all times, and so to embalm it there, that today and in all coming days it shall be a rebuke and a stumbling block to the very harbingers of reappearing tyranny and oppression. The conservatives’ defense of liberty and natural rights nonetheless accepted that government must account for the lower, appetitive, and irrational side of human nature. This idea was expressed through defense of established American conceptions of limited government and religious notions of creation and fall. For

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example, David Jayne Hill treated American constitutionalism as a “system of voluntary renunciation of arbitrary power.” The American people as the popular sovereign had done “what no other sovereign had ever before voluntarily done in the history of the world—they freely and formally renounced the power to impose their personal arbitrary will upon the organs of government or upon one another.” Others saw in the traditional idea of the Constitution as fundamental law the importance of restraint: “Self-government, if it means anything, means the exercise of sufficient self-restraint on the part of the people to uphold their own fundamental law against every temptation to subvert it.” Thus, Americans were “a self governing people because we are a people of self imposed limitations.” Inherent human flaws that tended toward self-aggrandizement meant that selfgovernment rightly understood must always involve self-restraint. Objections to “class legislation” as an affront to limited, neutral government abounded in conservative constitutional discourse, as revisionist accounts have established they did in jurisprudence. A direct condemnation appeared in the NACG’s statement of founding purposes. Constitutional Review frequently defended, in the older formulation, “equal rights for all and special privileges for none.” Often such statements occurred with criticisms of unions, socialism, or communism—the latter two being regarded as the ultimate violent expression of class legislation. Thus the growing conservative resistance to the collectivist notion of class emerged from and built on a key principle of liberal constitutionalism. Closely related to the themes of rights, restraint, and class legislation was the often-reiterated statement that the United States was “a republic, not a democracy”—and therefore that progressivism’s move toward more direct and plebiscitary popular rule should be stopped. Like the founders, constitutionalists defended representative government because it fostered deliberation and moderation, and America’s institutional arrangements because they put some distance and delay between public opinion and the creation of law. In the words of Henry Cabot Lodge, the founders’ goal was that there “should be abundant time for discussion and consideration, that the public mind should be thoroughly and well informed, and that the movements of the machinery of government should not be so rapid as to cut off due deliberation.” Examples could be multiplied of how constitutional conservatism cohered around America’s foundational conceptions of natural rights, limited and neutral government, and republicanism. To be sure, individuals sometimes disagreed on particulars or supported specific reforms as consistent with their principles. The point to be emphasized here, however, is the same basic one made in revisionist studies of Lochner-era jurisprudence: conservatives met progressivism with

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principled arguments rooted in the constitutional tradition, not by aping Herbert Spencer or William Graham Sumner. Indeed, according to the older historiographical view, we would expect a 1916 edition of Spencer’s The Man versus the State featuring commentary by leading constitutional conservatives to contain a fawning embrace of Spencer’s social Darwinism and quasi-anarchist laissezfaire doctrine. What we find instead are carefully phrased qualifications about not taking Spencer whole or agreeing with his conclusions. The commentators merely used Spencer as a trenchant and increasingly relevant warning about the danger to the individual of statist expansion. Butler did so by setting Spencer within the extant American tradition of natural rights and limited government, quoting the second paragraph of the Declaration of Independence in its entirety. Lodge praised Spencer as a defender of “individualism” against the socialistic tendencies that had already gone far in “breaking down those constitutional limitations” created by the founders. Hill, too, placed Spencer with the individual on the side of “certain inherent rights which the State should not be permitted to take away,” and thus on the side of America’s “original and traditional conception of government.” Hill recognized the roots of progressivism in modern European theories of the state, despite the older trend in Western civilization toward limitations on absolutist conceptions of politics. America’s natural rights, limited government constitutionalism clearly opposed the idea that “there exists somewhere an exclusive sovereign power, whose sphere is undefined, whose operation is incessant, whose decrees are materially irresistible, and whose authority is, therefore, not to be questioned.” But now modern mass democracy, including progressivism, threatened a return to absolutism. Hill developed this argument in numerous scholarly yet politically pointed writings. Others at Constitutional Review routinely bemoaned the “paternalist” trend of modern statism, sometimes linking it to the “Hegelian conception of the incarnate state” and urging Americans to excise from their political science the “alchemy and astrology that Europe has interwoven into it.” Recent scholarship has delved more deeply into the philosophical core of progressivism than did Hill and others, but they saw well enough the fundamentality of its challenge. Their sense of crisis was abiding, and innumerable articles echoed John Fiske, a historian of the founding era, to speak of the early twentieth century as another “critical period” that was putting American constitutionalism on trial. The Civil War and Reconstruction era was another common referent in this regard. For example, Lodge urged that Americans faced the “gravest questions” they had confronted since 1860 because “the very fabric of our Constitu-

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tion” was involved. Hill had modeled the NACG on the Union League, and both he and Lodge quoted Lincoln’s Cooper Union address (1860) for a statement that in many respects summarized the period’s efforts at constitutional preservation: “If we would supplant the opinions and policy of our fathers in any case, we should do so upon evidence so conclusive, and argument so clear, that even their great authority, fairly considered and weighed, cannot stand.” Reflective conservatives understood that the endurance of any regime required education in its principles—as well as loyalty to those principles among people not necessarily able fully or theoretically to articulate them. Beck often reiterated this point, sometimes calling on Aristotle, as in this somewhat truncated quotation: “The best laws[, though sanctioned by every citizen of the state,] will be of no avail unless the young are trained by habit and education in the spirit of the Constitution.” He bemoaned attribution to the Constitution of some kind of a “magical effect” whereby it could maintain itself. In reality it “would have been a failure if there had not been a people with a sufficient genius for free government to maintain its principles.” Ignorance of constitutional principles and disengagement from political life would bring the end of the republic. Charles Warren agreed, stating that “our political system will break down, only when and where the people, for whom and by whom it was intended to be carried on, shall fail to receive a sound education in its principles and in its historical development.” Warren knew that this idea was central to the American founding and restated it in that era’s famous formulation: the preservation of free government required “frequent recurrence to fundamental principles.” Warren’s large scholarly output advanced this goal, in part by amassing detailed primary source evidence to refute Progressive historians such as Charles Beard. A major aim of the NACG was to remedy the ignorance its members thought had made citizens susceptible to radical and Progressive schemes. Preservation of constitutionalism necessitated “dissemination of knowledge regarding theories of government and their practical effects” and wider “comprehension of the distinctive principles upon which our political institutions are founded.” Together these would create a “higher type of American patriotism through loyalty to those principles” that would help maintain constitutionalism. The NACG aimed “to form and guide the higher intelligence of the country,” while Constitutional Review understood its appeal as “necessarily limited” to readers “of an intellectual type.” NACG and the Review also supported state-level movements to require teaching constitutional principles and history in colleges and public schools, oratorical contests, and the first celebration of “Constitution Day” on September 17, 1919. NACG also distributed some of the first pocket-sized copies

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of the Constitution. These efforts aided those of the American Bar Association, then still a conservative organization, which created a Committee on Citizenship to help lawyers communicate constitutional principles to popular audiences at the local level. Leaders of the bar frequently urged lawyers to perform this kind of public service. Such efforts, as the people organizing them intended, transmitted not only a basic understanding of constitutional principles, but also fostered patriotic and affectionate attachment to them. Such educational efforts were sometimes dismissed by critics then and since as a boosterish “cult of the Constitution.” Perhaps for some it amounted only to that, but Aristotle’s insight is not so easily dismissed—particularly given that concern about deliberative self-government was widespread amid the period’s mass democracy and mass immigration. Federalism Although Progressives welcomed state or local initiatives that served their ends, scholars rightly note that ultimately they favored centralized power. Consequently, Progressives attacked the established understanding of federalism with approaches that tended toward elimination of any restraints on the federal government. Scholars have analyzed the jurisprudential and constitutional controversies surrounding major Progressive measures, including the era’s four Amendments; the expansion of regulation under the Commerce and General Welfare Clauses; the growth of federal grants-in-aid and regulatory commissions (whose genesis preceded Progressivism); the child labor issue; and the move to create a federal department of education. It is unsurprising that as an enduring if always contested principle, federalism configured debate about each of these issues. Rather than again reciting the details or weighing the merits of all the above-listed controversies and their scholarly literatures, or others that could be added, I emphasize that conservatives defended federalism on principle and not merely as cover for social Darwinism or economic self-interest. Partisanship was present, as always in constitutional politics, but so were considered arguments about the place of federalism in the constitutional order. Constitutional conservatives adhered to the foundational American understanding of federalism as the division of authority and responsibility between levels of government for the sake of individual liberty and local self-rule. They often bemoaned centralization as a grave threat. Indeed, “centralization” resounded as a pejorative throughout conservative constitutional commentary, as did “bureaucracy,” “regimentation,” “standardization,” “usurpation,” and “collectivism.”

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As scholars often have observed, a major theme of anti-prohibitionism was opposition to the federal takeover of an issue long subject only to local regulation. For the same reason Charles Warren defended judicial review against Congressional attacks and criticized the Court’s due process jurisprudence (both treated in more detail below). Federal grants-in-aid, which typically derived from a broad interpretation of the General Welfare Clause, faced sustained opposition from Governor Albert C. Ritchie of Maryland and Senator James W. Wadsworth of New York. Not only did these programs financially entice states to trade their own authority for federal supervision, but they were bad policy (they inequitably redistributed wealth and resulted in maladministration by functionaries ignorant of local conditions). More fundamentally, however, critics echoed Tocqueville’s point: continued compulsion by a distant central authority “shall most certainly smother the ability of our people to govern themselves in the several states and in their home communities.” Conservatives derided many centralizing Progressive initiatives as irresponsible and costly bureaucracies that tended toward socialism and perhaps Bolshevism. Thus the child labor amendment was defeated, after the Supreme Court had twice overturned statutory versions, with the help of constitutional conservatives. They advocated local control as necessary to accommodate diverse circumstances, and they were part of a larger coalition that abhorred statist intervention into a traditionally private issue. Henry Campbell Black and many others similarly opposed the proposed Department of Education, regarding it as “the entering wedge for national centralization and standardization of education.” Only the continued vitality of the states could halt the drift toward a stifling yet remote government that reduced self-governing citizens to dependent subjects. Defense of federalism was no mask for inaction: many conservatives thought that averting centralized federal control required constructive responses in the states, both individually and collectively. Elihu Root made this point in a 1906 address that was discussed and echoed by major figures throughout the period. Modern economic and technological developments created problems that ignored state lines, he said, and citizens who demanded solutions would have them one way or another. States could maintain their established governing authority only by awakening to “their own duties to the country at large.” A state whose laws or inaction flouted widespread calls for reform undermined “the conditions upon which alone its power can be preserved” and promoted “the movement for national control and the extinction of local control.” This logic informed the movement for uniform state legislation, led initially by the American Bar Association and then the National Civic Federation, which involved Root, Taft, and

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other conservatives. The movement was fundamentally conservative because it aimed to preserve the inherited federal structure from more far-reaching centralization by convincing states to cooperate and enact model reform statutes. It had some success across a range of policy areas but ultimately was swept aside by the New Deal. Some conservatives also supported individual centralizing initiatives: Taft, Lodge, Root, and Coolidge advocated some of the Progressive measures noted above. In general, however, they and other conservatives regarded the centralizing tendency in so many policy areas at once as an unsound alteration of American constitutionalism. In a speech hailed by conservatives, President Coolidge warned at length that nothing less than liberty and self-government were at stake. People who asked more of the federal government “than it was ever intended to provide” should recognize that “if we permit some one to come to support us, we cannot prevent some one coming to govern us.” Once again, the Civil War served as an intellectual touchstone in this argument. Conservatives repeatedly quoted a famous sentence from Texas v. White (1869): the Constitution looked to “an indestructible Union, composed of indestructible States.” When first announced, the decision brought a kind of closure to the constitutional tumult of the Civil War by holding that the perpetuity of the Union made secession legally impossible. Yet the constitutional conservatives examined here used this passage to protest that local self-government in the states was being destroyed by federal regulation. Nicholas Murray Butler spoke for many in observing that while “states’ rights” had once meant nullification and secession, it “now signifies the preservation of that just and wise balance between local self-government and central authority upon which our social order and our system of government itself have alike been built.” The Judiciary Judicial review became increasingly controversial at the end of the nineteenth century, especially after a trio of Supreme Court decisions in 1895. In U.S. v. E. C. Knight, the Court limited the effect of the Sherman Antitrust Act (1890) on corporations, while In re Debs permitted its extension to labor unions. Pollock v. Farmers’ Loan and Trust voided the recently passed federal income tax. A large segment of public opinion angrily claimed that these and other decisions proved that the judiciary favored property owners and corporations. Moreover, numerous radicals, Progressives, and sympathetic scholars alleged that judicial review itself was constitutionally illegitimate. Charles A. Beard’s famous histori-

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cal studies went far to refute this charge by concluding that judicial review was originally intended, though supposedly as protection for property and capitalist greed against the democratic masses. This intellectual and political atmosphere encouraged periodic proposals to reduce the power of courts. Theodore Roosevelt advocated recall of judicial decisions and judges in 1911–12; Senator Robert L. Owen and Walter Clark of the North Carolina Supreme Court advocated varying plans to curtail judicial review, including abolition (most intensely in 1913–17). In the 1920s other Senators proposed bills to withdraw federal question and diversity jurisdiction, and to prevent federal district court judges from instructing juries. The American Federation of Labor advocated abolishing judicial review or permitting Congress to re-enact overturned statutes. In 1922–24 Senator William Borah proposed that overturning an act of Congress require the votes of at least seven of nine members of the Court; while Senator Robert M. La Follette proposed that Congress be able to re-enact any statute overturned by the Court, and that lower federal courts be unable to overturn them at all. Accompanying such proposals was not only the charged rhetoric of economic populism, but the notion that courts were inherently suspect because they could negate democratically enacted legislation. Thus, even though attacks on the judiciary in this period failed to alter the constitutional system, they raised fundamental questions about the basis and justification of its principles. What, if anything, justified a court in opposing the popular will? On this topic the anti-judicial proposals of the 1920s raised constitutional problems as old as the republic itself. Constitutional conservatives took up the challenge. Most fundamentally, they defended judicial review and the Supreme Court as integral to a constitutional order which, though it insisted that the majority must govern, also acknowledged that it could err. Conservatives characterized recall of judges or judicial decisions as a particular threat to individual liberty and the rule of law because they tended toward unfettered majoritarianism. Conservatives thus associated the recall with abandonment of the republicanism, restraint, and deliberation central to constitutionalism. Since the Progressive call for more direct popular government appeared as a kind of rebellion against constitutional authority and principle, the analogue of the Civil War once again came to mind. In particular, leading constitutional conservatives’ defenses of the judiciary often included a passage from Lincoln’s First Inaugural: “A majority held in restraint by constitutional checks and limitations and always changing easily with deliberate changes of popular opinion and sentiment is the only true sovereign of a free people. Whoever rejects it, does of necessity fly to anarchy or to despotism.”

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On these principles Elihu Root opposed a judicial recall provision in the proposed Arizona constitution, and in 1911 President Taft likewise vetoed the legislation admitting Arizona to the union. Taft also repeatedly denounced Roosevelt’s anti-judicial position in the presidential election of 1912. In a speech accepting the nomination, he stated that preserving the Constitution “as it is” from attacks on the judiciary was “the supreme issue” of the campaign. Like Taft, in the 1912 campaign Root and Henry Cabot Lodge argued that recall of judges or decisions ultimately would elevate the will of majorities above the rule law, limited government, and natural rights. Both men withdrew support from their friend Roosevelt in 1912 due to his attack on the courts—despite recognizing the increased likelihood of Wilson’s victory. Recall proposals provoked Charles Warren to rebut the claim that the Court routinely used the Fourteenth Amendment to overturn regulatory or “social welfare” legislation passed under the states’ police powers. In two influential articles examining such decisions from 1887 to 1911, Warren found only three statutes overturned. He concluded that demands for fundamental constitutional change such as the recall were not only unwise, but also unnecessary: in fact, the Supreme Court was “progressive” and a “bulwark to the state police power.” Another matter altogether was state court decisions overturning state law based on a federal constitutional claim. Reformers dissatisfied with state courts should not frontally attack the Supreme Court, but should press Congress to amend section 25 of the Judiciary Act of 1789 so the Court could hear these claims, too, and not solely state decisions upholding state statutes against federal claims. In widely publicized writings, Warren also led the response to the Borah and La Follette proposals of 1922–1924. He showed that from 1789 to 1923 the alleged scandal of 5–4 decisions overturning federal statutes, which so exercised Borah in his goal of requiring 7–2, actually reached a grand total of only nine decisions. Other decisions Progressives welcomed were by 5–4 margins, while still others which angered them were by larger margins, including the second child labor decision (with the votes of Holmes and Brandeis in the majority). Warren had little difficulty concluding that the 5–4 line of argument was unprincipled, mere “camouflage” for Progressive dislike of a few recent decisions. It did not justify the “radical” constitutional change represented by the proposals. Regarding the proposals’ constitutionality, Warren argued that the terms “judicial power” and “Court” used in Article III were always understood at common law to have embodied the long established practice of deciding cases by a majority of the tribunal. Decision by a majority inhered in the concept of a court. Moreover, for Congress to direct, numerically or otherwise, what consti-

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tuted a judicial decision was a “palpable usurpation by Congress of the judicial power.” Additionally, those who thought the Exceptions Clause could support the proposal fundamentally misunderstood the difference between “jurisdiction” and “judicial power.” Indeed, Borah’s proposal could be accomplished only by amending the Constitution (which Borah himself later conceded). The La Follette proposal, that a statute repassed by Congress after rejection by the Court should become constitutionally valid, Warren dismissed with the observation that “a bad statute shall become good by repetition.” He then listed twenty-five explicit constitutional limitations, including the guarantees of the Bill of Rights, that Congress could overcome with a twice-passed statute, as well as several acts of Congress affecting individuals that the Court had held to be violations of the Constitution. Warren emphasized throughout that first principles were at stake: La Follette’s proposal would “change our whole system of government” and would put an end to constitutionalism, because “to make Congress absolute and final judge of the extent of its own power is to give it unrestricted power.” Amid these developments, Warren published his Pulitzer Prize–winning The Supreme Court in United States History (1922, rev. 1926), followed by Congress, the Constitution, and the Supreme Court (1925, rev. 1935). Both books aimed at an educated general audience and were intended to help quell attacks on the Court. They showed how Progressive proposals were merely the latest in a long line of condemnations and ill-advised nostrums motivated by dissatisfaction with particular recent decisions rather than constitutionalist principle. The second title expanded on several of the articles analyzed above, pointedly attacking the Borah and La Follette proposals. Recognizing that such efforts still benefited from earlier Populist and Progressive charges that judicial review itself was illegitimate, Warren again presented much of the countervailing evidence from the past several decades of historical scholarship. Warren thus used his considerable skill and reputation as a historian to resist attacks on the judiciary. Other constitutional conservatives reiterated, in varying levels of detail, the historical case for the legitimacy of judicial review and the propriety of Marbury v. Madison. Such efforts were undertaken by David Jayne Hill, president of NACG; Robert Von Moschzisker, chief justice of Pennsylvania; William M. Meigs, who had offered some of the first such arguments in the late nineteenth century; and Henry Campbell Black, editor of Constitutional Review. Taft became Chief Justice in 1921 and grew more circumspect in his public defense of the Court, but still declared that “a judiciary whose judgments must be made to follow popular clamor and the inconstancy of mob opinion indi-

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cates a people lacking that conservative and conserving self-restraint without which popular government is foredoomed to failure.” He doubted that the Borah or La Follette proposals would become law, but was concerned enough privately to encourage members of the bar and journalists to respond to the attacks. He praised those who did (including Warren, who received the thanks of several other Justices). Additionally, Taft shielded the Court from attacks via his long-pursued and largely successful program of jurisdictional, procedural, and administrative reform. Culminating in the Judiciary Acts of 1922 and 1925, his efforts were both sincere and strategically intended to preserve the established constitutional order. For nearly two decades he had been calling for reform in the name of efficiency and fairness to poorer litigants. He reiterated this point before, during, and after the 1912 campaign, while also arguing that reform would increase respect for the law and courts—thereby undermining movements for more radical change. Taft aimed to take “away from the enemies of constitutional government and the institutions of civil liberty, the only real arguments they have against our judicial system.” He also worked behind the scenes in the 1920s to defeat bills that would have withdrawn the Court’s federal question and diversity jurisdiction, and another that would have prevented federal district court judges from exercising the ancient common law authority of commenting to juries on the evidence and credibility of witnesses in criminal trials. As Robert Post has shown, Taft worked somewhat counter to the norms of judicial neutrality by coordinating opposition in the press and providing to President Coolidge and several senators what was essentially an advisory opinion against one of these measures. Whether Taft’s activity was unconscionable partisan zeal or prudential statesmanship in defense of the constitutional order is perhaps not as simple a question as it may first appear. When considered in the context of developments analyzed above, however, it seems fair to conclude that Taft shared the view expressed by the American Bar Association, with whom he was in close contact, that such proposals must be fought because they were “part and parcel of a vicious plan to destroy the powers and independence of the Federal Judiciary, and to invade its constitutional prerogatives.” Despite the Court majority’s traditional legalist self-understanding in this period, scholars have recognized that it was moving toward the modern, legislative form of judicial review and judicial supremacy—the idea that the Court was the ultimate and final arbiter of constitutional meaning. Paeans to Marbury v. Madison, limited government and the rule of law, and individual rights, including some by figures analyzed above, occasionally articulated notions of judicial supremacy. Yet judicial supremacy was not yet fully rooted in the conservatives’

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conception of constitutionalism. This was partly due to historical studies that illustrated that the separation of powers had long been a strong limit on courts’ understanding of their function, as well as by the related history of nonjudicial constitutional interpretation. For example, William Meigs, a respected attorney and conservative critic of progressivism, drew on the seminal work of the historian Andrew C. McLaughlin (and the earlier work of George Bancroft) to argue that judicial supremacy reflected neither the original understanding nor early practice of American constitutionalism. Rather, the judiciary had thought of itself as a coequal constitutional interpreter whose decisions bound litigants in a dispute, but not as an authority able to issue decrees that were “absolutely final, and must be accepted by all,—Departments of Government as well as individuals.” Other constitutional conservatives did not hesitate to criticize the Court, sometimes explicitly rejecting judicial supremacy and the notion that the Court was somehow the sole arbiter or savior of constitutionalism. There was “vital distinction between criticising the Supreme Court because it does not sustain Congress” as opposed to when “it has failed to sustain the Constitution.” Respect for the Court was “consistent with a lack of belief in its infallibility and with an even greater admiration and respect for the fundamental law.” Too often courts showed “a strong disposition to acquiesce in whatever the legislative department may choose to enact.” Conservatives often opposed the Court’s validation of increased regulation through expansion of the Commerce Clause, while its due process jurisprudence was so vague and unpredictable that litigants were left with a mere “gambler’s chance.” Charles Warren warned (accurately, as it turned out) that the incorporation doctrine as used in Gitlow v. New York (1925) was an ominous harbinger of how the Court’s vague notion of liberty might be used to eviscerate federalism. Moreover, the Court’s rapid rejection of challenges to the Eighteenth Amendment meant that it could not be “looked to for redress” on other pressing federalism issues. Henry Cabot Lodge similarly defended the judiciary but rejected judicial supremacy by returning to Lincoln’s position on Dred Scott. In one of the period’s most insightful and extended engagements with Lincoln’s statesmanship, Lodge defended the true constitutionalist principle by analyzing Lincoln’s speeches, his debates with Stephen A. Douglas, and his First Inaugural Address. While an individual Court decision resolved the litigants’ particular dispute, it was not therefore “a rule of political action for the people and all the departments of government.” On the contrary, if the Court’s decisions “irrevocably fixed” government policy “upon vital questions affecting the whole people,” then “the people will have ceased to be their own rulers, having to that extent practically resigned

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their government into the hands of that eminent tribunal.” Lodge emphasized the contrast between Lincoln’s “calm words, uttered under the greatest provocation, with the violent attacks now made on the courts,” and concluded that Lincoln had in fact offered the “strongest arguments for an independent judiciary that can be found anywhere.” Conservatives further held that leaving to courts all considerations of constitutionality shirked legislative duty and fostered a dangerous ignorance and apathy among both legislators and citizens. The “duty of upholding the Constitution does not devolve upon the Supreme Court alone. It rests upon all departments of government and, in the last analysis, upon the people themselves.” This understanding of the limited efficacy and responsibility of the judiciary derived from the more fundamental view that maintaining the constitutional order required citizens educated in and dedicated to the principles and ethos of constitutionalism. Hence the “battle for preservation of American political institutions must be fought out, not in the courts[,] but in the forum of public opinion.” Such thinking shows that the tendency toward judicial supremacy had not yet wholly displaced the older, sounder understanding of the constitutional system. Constitutional conservatives respected the separation of powers and the deliberation it was intended to foster, knew that the Court often upheld intrusive regulations, and insisted that constitutional maintenance required education in first principles rather than uncritical acquiescence to any department of government. Few regarded the Court as the sum total of constitutionalism, nor did they think that it would consistently uphold the interests of business, the states, or anyone else. It is not too much to suggest that some of their expressions that tended toward modern judicial supremacy were compensatory overstatements in favor of a sound institution that was under attack, rather than firm commitments to the doctrine as we now know it. The Presidency Constitutional conservatives, led at first by Taft, confronted the beginning of the modern presidency in Theodore Roosevelt’s “stewardship” theory. It held that the president legally could do “whatever the needs of the people demand, unless the Constitution or the laws explicitly forbid him to do it.” Roosevelt’s Autobiography exemplified the theory’s accrual of discretionary power in the executive in the name of the public good. Prime examples were his plan to use force in the Pennsylvania coal strike of 1902 and his circumvention of Congress via executive orders and advisory commissions. According to Senator James Watson’s memoir,

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Roosevelt’s position abruptly surfaced when the possible unconstitutionality of the Pennsylvania plan was raised. Roosevelt supposedly responded, “To hell with the Constitution when the people want coal!” Roosevelt allied his theory with Andrew Jackson’s and Lincoln’s strong, statesmanlike conception of the presidency, while associating his successor, Taft, with James Buchanan’s inaction on the eve of the Civil War. The “Buchanan–Taft” model of the presidency was weak, timidly legalistic, and too deferential to party and Congress. Taft responded that constitutionalism required all power to be checked and limited. Roosevelt’s theory was “unsafe” and “a little startling in a constitutional republic”—ultimately it could not be regarded “as anything but lawless.” The “true view of the executive functions” was that the president had no power “which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant.” Contrary to Roosevelt, there was no “undefined residuum of power which he can exercise because it seems to him to be in the public interest.” Taft clearly regarded the stewardship theory as dangerously anti-constitutional. Therefore he also rejected Roosevelt’s appropriation of Lincoln. Judging Lincoln’s justification for the suspension of habeas corpus as “well founded” and impressed with the “great weight” of his legal arguments for emancipation, Taft pointed out that in these instances and others Lincoln, unlike Roosevelt, “always pointed out the source of the authority which in his opinion justified his acts,” and never claimed that “whatever authority in government was not expressly denied to him he could exercise.” Taft thus showed that a proper understanding of Lincoln required the distinction between an energetic executive whose discretion and dispatch were exercised in emergencies— and who yet did so on behalf of constitutionalist principle—and the Rooseveltian view in which “the Executive is charged with the responsibility for the welfare of the all the people in a general way, that he is to play the part of a Universal Providence and set all things right, and that anything that in his judgement will help the people he ought to do, unless he is expressly forbidden not to do it.” Supporters of the modern presidency have long endorsed Roosevelt’s dismissal of Taft. However, careful analyses have shown that Taft held a broad view of the “Take Care” Clause (Article II, Section 3), which permitted ample executive discretion in the interpretation of statutes, rule making in administrative agencies, and enforcement of treaty obligations absent congressional approval. As president he made executive agreements with foreign governments and instigated a national budgeting system in the executive branch against the wish of Congress. To be sure, Taft was not particularly charismatic or adept at public relations, but “it is a fundamental distortion to characterize Taft’s theory of the

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presidency as juridical, administrative, apolitical, or passive.” As Chief Justice Taft wrote the detailed and scholarly majority opinion in Myers v. United States (1926), which remains one of the strongest articulations of the “unitary executive.” It held that the president alone (without the consent of the Senate) could remove at will officials in the executive branch—a position Taft had long supported in prior writing. What stands out in Taft’s constitutionalist understanding of the presidency, then, is not the Rooseveltian canard of weakness or immobility. Rather, it is fidelity to just what was being undermined by Roosevelt (and then Wilson): a principled awareness that the office of president had limits, as did every other office—its occupant could not legitimately claim as much power and discretion as his temerity or guile permitted. Another legacy of Roosevelt was what is now called the direct or “plebiscitary” connection between the presidency and the electorate. This shift advanced a fundamental aim of progressivism: replacement of the locally based party system with an unmediated relationship between the individual and the modern regulatory state. At the time, clear-sighted conservatives recognized this change. Taft opposed it, and Roosevelt’s part in it, based on his understanding of how parties and the presidency should serve the moderating, deliberating, and limiting functions of constitutionalism. As one recent study put it, Taft’s “major concern [was] that parties and elections should play the role assigned the presidency by the Rooseveltian view.” In the 1912 campaign Taft warned that Roosevelt so “lightly regard[ed] constitutional principles” and so “misunderstood what liberty regulated by law is” that he could not be trusted with a third presidential term— and that he was unlikely stop at just one more. Americans had not given “into the hands of anyone the mandate to speak for them as peculiarly the people’s representative.” Taft agreed that corruption and bossism afflicted the two-party system and required reform, but he insisted that parties were crucial for the safe and successful operation of constitutional government. Parties integrated the diverse interests and priorities of various social strata across a vast country, cohering the electorate around shared principles and policies: “Without them, the proper interpretation of the popular will into effective governmental action becomes very difficult.” Because of their integrative and deliberative function, parties tended to minimize “class and selfish spirit” and were “more likely to be American in their view and purpose, much more likely to be considerate of the whole country, and much less likely to be narrowly moved by the ambition of a selfish faction.” In short, the maintenance and discipline of parties were “essential to the carrying on of any popular government.” Taft never doubted that the president must

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be the primary voice of his party in defense of its policies and in working with Congress for their enactment. But the president also represented a program that had been deliberated and mediated by a party acting as a cohesive and integrating force in national life. He was not the embodiment of some vague national destiny or harbinger of historical progress on behalf of “the people.” The latter view, apparent to Taft in Roosevelt, tended toward the demagogy and executive usurpation that historically had ended popular government. All but forgotten today was another issue in the 1910s and 1920s that impelled constitutional conservatives to respond to the growth of executive power: recurrent proposals for allowing cabinet officials to debate and answer questions (but not vote) on the floor of Congress. The “cabinet in Congress” had been provided for (but little used) in the Confederate Constitution and was offered by George Pendleton in the House in 1864, and again in the Senate in 1879 and 1881 (on the basis of the Article I, Section 5 power of each chamber to make rules for its proceedings). Pendleton and his supporters hoped it would decrease executive influence in Congress by making it more public and accountable; opponents abhorred it as an offense to the separation of powers and said that in practice it would lead to executive domination. Woodrow Wilson, who thought the separation of powers a great error and favored English parliamentary government, once had proposed amending the Constitution so that cabinet officials could be members of Congress, and later advocated the admission of cabinet officials to debate. Taft’s final annual message in late 1912 recommended the idea. It also had the support of Nicholas Murray Butler and President Warren Harding, and some version of it was offered in many successive Congresses. Its conservative supporters did not share Wilson’s antipathy for the separation of powers or his conviction that the Constitution was an anachronism. Taft defended the proposal partly as an efficiency and coordination measure needed to cope with the volume and complexity of modern legislation, while Butler and others also hoped that it would elevate the level of political debate and increase the transparency of lawmaking. Taft further endorsed it as a way of giving the president a means of shaping and advocating legislation commensurate with the public’s conception of his responsibility for national policy. Henry Campbell Black, editor of Constitutional Review, opposed the idea in a careful but now neglected book that differed from Taft and Butler about how the cabinet proposal was related to the problem of increasing executive power. He argued that though the president had “considerable discretion” during wartime or domestic emergency, he was neither a “sovereign nor a ruler.” The office existed “within the bounds of defined powers” and was “hedged about with law and

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amenable to law.” Black found that the modern conception of the presidency, though intimated in Hamilton’s “Pacificus” letters, had arrived not with Lincoln, but as Taft, too, had said, with Theodore Roosevelt (whose autobiography Black criticized at length). Under Roosevelt and Wilson the president and the public came more regularly to see the office not only in the older role of party leader, but also in the new role of voice of the people in domestic affairs. World War I amplified these trends, and as a matter of both his own political theory and practice, Wilson had so dominated Congress that the president had “drawn to himself powers which very much resemble those of a British prime minister.” Like advocates of the cabinet proposal, Black, too, deplored the president’s pervasive and often hidden influence on Congress, whereby his views were transmitted to committee chairs and political favors were offered to supporters who proposed legislation drafted in the executive branch. And Black further agreed that in this way executive power had undermined honest political debate and the integrity of the legislative process. But he argued that adoption of the cabinet proposal would lead to more executive influence, not less. The separation of powers mandated that Congress could remove cabinet officials only by impeachment—absent this extraordinary circumstance, they were not responsible to the legislature. Additionally, the history of parliamentary systems showed that executive officials in the legislature, though accountable to it, still led to executive domination. However much the cabinet in Congress might reduce the complexity of modern government or increase efficiency, “the preservation of liberty requires the separation of powers.” A return to the “due balancing of power” in the constitutional system would come not from further aggrandizement of the presidency, but the opposite. Black thought any such reversal was unlikely, but he was convinced that the cabinet proposal would intensify the problem. So instead he proposed that Article II, Section 3 be followed strictly so that bills recommended to Congress come only with the explicit public approval of the president, not from his subordinates or allies via back channels. Further, each house should create a “Committee on Presidential Bills” to refer such legislation to its appropriate standing committee, which in turn would be required to report it to the full chamber within a limited time, perhaps with a privileged place on the legislative calendar. This change would constitutionalize what everyone knew went on, the new formality serving to limit and control the practice by clothing it with “the respectable vestments of due process of law.” Equally important, Black’s proposal did not capitulate to executive domination but rather maintained the separation of powers and kept legislation in the ultimate control

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of Congress. Against the growth of executive power, and against the tendency of the cabinet proposal, Black sought to preserve the opportunity for independent judgment by “senators and representatives who are not content to be mere rubber stamps, nor merely to register another’s will.” Nevertheless, Black and other conservatives were not uniformly opposed to the presidency or to Wilson’s actions. Black supported as constitutional Wilson’s (congressionally authorized) assertion of temporary control over much of national life during World War I, while Taft and Charles Warren supported American membership in the League of Nations. But constitutional conservatives more typically saw in Wilson continued aggrandizement of the presidency and elaboration of the statist trend that threatened constitutional government. Of course, many were dissatisfied with the Treaty of Versailles, created via Wilson’s personal negotiation without Senate input, and then his subsequent insistence that it be ratified without change to include the United States in the League of Nations. Constitutional conservatives such as Henry Cabot Lodge, David Jayne Hill, and James M. Beck saw these actions as typical of Wilson’s consistent disregard of constitutional norms and his attempt to accrue power in the executive. Lodge intensely disliked Wilson, but a careful modern scholar credits the senator with constitutional scruple in the League fight. Neither should such rectitude be denied to Hill, who judged that Wilson’s thought and action marked him as “a convert to the idea of the omnipotent administrative State and the uncontrolled predominance of its head.” Beck made the same point in an occasionally hilarious short play that mocked Wilson’s constitutional ideas, foreign policy, and imperious character. (For example: “Wilson: The solution was very simple. I converted a Newtonian form into a Darwinian, and, in the struggle for existence between the different branches of the Government, proved myself the fittest to survive.”) Sarcasm aside, Beck, Hill, and others were genuinely concerned that Wilson advanced “a seemingly irresistible tendency toward one-man power” apparent in mass democracy, centralized bureaucracy, and the cult of efficiency. If the drift of modernity was toward “Napoleonic” democracy and rule “not by discussion and deliberation, but by plebiscite,” Hill asked, why not follow Wilson’s apparent inclination and “place all power in the hands of the president? Of course, we could not call him ‘emperor,’ but we should in that case have a law-maker who could be held ‘responsible to the people.’ ” All that was necessary was to accept Wilson’s claim that the supposedly Newtonian Constitution had been superseded by a Darwinian one. But just as Darwinism had not repealed Newton’s discovery of the law of gravity to which all things were subject,

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evolve as they might, “in like manner, we shall be compelled to return to the great principles of human justice underlying the Constitution for a defensible theory of the state.” Conclusion Just as the constitutional system emerged from the Civil War and Reconstruction, it confronted the challenge of industrialization, and with it the demands for sweeping change that abounded in the Progressive era. Amid this practical and theoretical tumult the earlier crisis over slavery and Union stood as a referent for constitutional conservatives, informing their approach to the issues of the period. Their concerns were constitutional, and their arguments no more copied laissez-faire economics or social Darwinism than did the era’s jurisprudence. Instead, conservatives returned to first principles to explain, preserve, and adapt American constitutionalism in response to Progressives’ centralization of authority in the federal government, attacks on the judiciary, and increased presidential power. When the New Deal rapidly invigorated these trends to build an even larger and more interventionist modern state, constitutional conservatives saw more of a continuation than a revolution. An embattled and dwindling group fought on, but after the New Deal victory in 1937 they met the same fate as those in jurisprudence. But it is highly significant for the idea of constitutional conservatism that the New Dealers themselves experienced a “failure of nerve” by claiming to have restored rather than abandoned constitutional orthodoxy—a claim often repeated by later scholars. This assertion manifested the same imperative for maintenance or preservation that appears to be integral to the American understanding of what it means to be a constitutional regime. Just what restoration or preservation of American constitutionalism might entail in the era of the modern state, with its adjuncts in new forms of political science and law, remained an abiding concern for the rest of the twentieth century.

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Notes

Introduction / Paul D. Moreno and Johnathan O’Neill 1. Alfred H. Kelly, Winfred A. Harbison, and Herman Belz, The American Constitution: Its Origins and Development, 7th ed. (New York: W. W. Norton, 1991), xix–xx. 2. American Historical Review 19 (1964): 325–52. 3. Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning (Cambridge: Harvard University Press, 1999). 4. “Message to Congress,” 4 July 1861, in Abraham Lincoln: His Speeches and Writings, ed. Roy P. Basler (Cambridge, MA: Da Capo, 2001), 608. 5. Kelly, Harbison, and Belz, American Constitution, 63. 6. James M. McPherson, Abraham Lincoln and the Second American Revolution (New York: Oxford University Press, 1991).

Prologue: A Second American Revolution? George Washington and the Origins of the Civil War / Jeffry H. Morrison This chapter was improved by suggestions from reviewers for Fordham University Press and Professor Susan Hanssen of the University of Dallas. 1. George Washington, Farewell Address, Sept. 19, 1796, in George Washington: Writings, ed. John Rhodehamel (New York: Library of America, 1997), 963 (hereinafter GWW). 2. Randolph quoted in Catherine Drinker Bowen, Miracle at Philadelphia (Boston: Little, Brown, 1986), 258. Randolph was inverting a phrase of Patrick Henry’s. Henry had said, “The distinction[s] between Virginians and New Englanders are no more. I am not a Virginian but an American.” Henry quoted in Paul Johnson, A History of the American People (New York: HarperCollins, 1997), 148. 3. Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, ed. Clinton Rossiter (New York: Penguin, 1961), 323. 4. Thomas Jefferson, Draft of the Kentucky Resolutions, Oct. 1798, in Thomas Jefferson: Writings, ed. Merrill D. Peterson (New York: Library of America, 1984), 449. 5. Washington, Farewell Address, Sept. 19, 1796, in The Writings of George Washington from the Original Manuscript Sources, 1745–1799, ed. John C. Fitzpatrick, 39 vols. (Washington: U.S. Government Printing Office, 1931–44), 35:220 (hereinafter WGW). 6. Washington to Patrick Henry, Jan. 15, 1799, in WGW, 37:87–89. 7. Abraham Lincoln, Address to the Young Men’s Lyceum of Springfield, Ill., Jan. 27, 1838, in Abraham Lincoln: Speeches and Writings, ed. Don E. Fehrenbacher, 2 vols. (New York: Library of America, 1989), 1:36 (hereinafter ALW). 8. Lincoln, Message to Congress in Special Session, July 4, 1861, in ALW, 2:259. 9. Lincoln, First Inaugural Address, Mar. 4, 1861, in ALW, 2:217.

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10. Lincoln, Speech in the U.S. House of Representatives on the War with Mexico, Jan. 12, 1848, in ALW, 1:167. 11. GW, Farewell Address, in GWW, 975: “ ’Tis our true policy to steer clear of permanent Alliances, with any portion of the foreign World. So far, I mean, as we are now at liberty to do it—for let me not be understood as capable of patronising infidility to existing engagements (I hold the maxim no less applicable to public than to private affairs, that honesty is always the best policy).” 12. James Madison, speech of July 14, 1787, in Notes of Debates in the Federal Convention, ed. Adrienne Koch (New York: W. W. Norton, 1987), 295. 13. John Shy, “Franklin, Washington, and a New Nation,” Proceedings of the American Philosophical Society 131 (1987): 321. 14. Washington to Gov. Robert Hunter Morris, Apr. 9, 1756, in George Washington: A Collection, ed. William B. Allen (Indianapolis: Liberty Fund, 1988), 21 (hereinafter GWC). 15. Washington to George William Fairfax, June 10, 1774, in GWC, 31 (emphasis added). 16. Washington to Bryan Fairfax, Aug. 24, 1774, in GWC, 39. 17. John Marshall quoted in Ron Chernow, Alexander Hamilton (New York: Penguin Press, 2004), 157. 18. Washington to George Mason, Mar. 27, 1779, in WGW, 14:301. 19. Washington to Lund Washington, Aug. 20, 1775, in WGW, 3:433. 20. Washington to Joseph Reed, Dec. 15, 1775, in WGW, 4:165. 21. Washington to Lafayette, June 19, 1788, in WGW, 29:525. 22. See, for example, Jefferson to J. Correa de Serra, Oct. 24, 1820, in Works of Thomas Jefferson, Federal ed., ed. Paul Leicester Ford, 12 vols. (New York: G. P. Putnam’s Sons, 1904–5), 12:167: “I shall feel, too, the want of your counsel and approbation in what we are doing and have yet to do in our University [of Virginia], the last of my mortal cares, and the last service I can render my country.” 23. Jefferson to George Rogers Clark, Dec. 25, 1780, in Papers of Thomas Jefferson, ed. Julian Boyd et al. (Princeton: Princeton University Press, 1950–), 4:238. 24. Washington to Chevalier de Chastellux, Oct. 12, 1783, in WGW, 27:190. 25. Washington to John Witherspoon, Mar. 10, 1784, in WGW, 27:352. 26. Washington, General Orders, Apr. 18, 1783, in WGW, 26:335–36. 27. Washington to the Members of the Volunteer Association and Other Inhabitants of the Kingdom of Ireland Who Have Lately Arrived in the City of New York, Dec. 2, 1783, in WGW, 27:254. 28. Washington to the Reformed German Congregation of New York, Nov. 27, 1783, in WGW, 27:249. 29. Washington, Circular to the States, June 8, 1783, in WGW, 26:485. 30. Ibid., 26:496, 489. 31. Washington, Farewell Address, in WGW, 35:217–18. 32. Washington, Farewell Address, in WGW, 35:223. 33. Washington to Alexander Hamilton, Sept. 1, 1796, in GWC, 649. 34. Washington, Farewell Address, in WGW, 35:218–19.

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35. Washington would be called out of retirement one last time in an abortive role as commander in chief of American forces as war with France loomed during the Adams administration. 36. Washington, Eighth Annual Message to Congress, Dec. 7, 1796, in WGW, 35: 319–20. 37. Washington, Farewell Address, in WGW, 35:218–19. 38. For a further discussion of the “Whiskey Insurrection,” see Diaries of George Washington, ed. Donald Jackson and Dorothy Twohig, 6 vols. (Charlottesville: University Press of Virginia, 1976–79), 1:170–98. 39. Washington, Sixth Annual Message to Congress, Nov. 19, 1794, in WGW, 34:34. 40. Ibid., 34:29. 41. See, generally, Fred I. Greenstein, The Hidden-Hand Presidency: Eisenhower as Leader (Baltimore: Johns Hopkins University Press, 1994 [1982]). 42. Washington, Discarded First Inaugural Address, 1789, in GWC, 451–52. 43. Lincoln, Farewell Address at Springfield, Illinois, Feb. 11, 1861, in ALW, 2:199. 44. Lincoln to Henry L. Pierce et al., Apr. 6, 1859, in ALW, 2:18–19; Lincoln, Speech at Independence Hall, Feb. 22, 1861, in ALW, 2:213. 45. Lincoln, Fragment on the Constitution and the Union, ca. Jan. 1861, in Collected Works of Abraham Lincoln, ed. Roy P. Basler et al., 9 vols. (New Brunswick: Rutgers University Press, 1953–55), 4:168–69. 46. See Henry Wiencek, An Imperfect God: George Washington, His Slaves, and the Creation of America (New York: Farrar, Straus and Giroux, 2003), 3–4. 47. Washington, Last Will and Testament, July 9, 1799, in GWW, 1022. 48. Thomas Jefferson, “Testament,” March 16–17, 1826, in The Complete Jefferson, ed. Saul K. Padover (New York: Duell, Sloan and Pearce, 1934), 1297. 49. Washington, “Reflection on Slavery,” ca. 1788–89, in GWW, 701–2. 50. Washington quoted in A Necessary Evil? Slavery and the Debate over the Constitution, ed. John P. Kaminsky (Madison, WI: Madison House Publishers, 1995), 244; see also Wiencek, Imperfect God, 362. 51. James Thomas Flexner, Washington: The Indispensable Man (Boston: Little, Brown, 1974 [1969]), 4; see also GWW, 1055. 52. Wheatley quoted in James Thomas Flexner, George Washington, 4 vols. (Boston: Little, Brown, 1965–72), 2:63. 53. Washington to Joseph Reed, Feb. 10, 1776, in WGW, 4:323. 54. Washington to Phillis Wheatley, Feb. 28, 1776, in WGW, 4:360–61. 55. Jefferson, Notes on the State of Virginia, Query XIV, in Peterson, Thomas Jefferson, 267. 56. Washington to John Francis Mercer, Sept. 9, 1786, in GWW, 607. 57. See Garry Wills, Cincinnatus: George Washington and the Enlightenment (Garden City, NY: Doubleday, 1984), 235. 58. The trust fund began paying out when Martha manumitted the slaves ahead of the schedule in Washington’s will, and continued to do so until 1833. See WGW, 37:277n; and Wills, Cincinnatus, 234. 59. Washington, Last Will and Testament, in GWW, 1026.

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60. An early instance of this American spin on a British custom appeared in the Articles of Confederation (1777), which ended, “Done . . . the ninth day of July, in the Year of our Lord one Thousand seven Hundred and Seventy-eight, and in the third year of the independence of America.”

1. Martin Van Buren as Statesman: State Rights and the Rise of the “Free Soil” Party / Christian Esh 1. While recent historical scholarship favors the term “states’ rights,” mirroring the way the topic was discussed during the civil rights movement of the 1960s, antebellum theorists consistently used the term “state rights.” Because this chapter attempts to recapture the moderate, republican use of the term, I have chosen to use the term as it appeared in the nineteenth century. 2. Arthur Schlesinger Sr., “The State Rights Fetish,” in New Viewpoints in American History (New York: Macmillan, 1922), 243. Despite a revival of interest in federalism at the end of the twentieth century, no full-length history of American federalism has been written. The best historical overviews of federalism in the early republic are Forrest McDonald, State Rights and the Union: Imperium in Imperio, 1776–1876 (Lawrence: University Press of Kansas, 2000); Rogan Kersh, Dreams of a More Perfect Union (Ithaca: Cornell University Press, 2001); and Andrew Lenner, The Federal Principle in American Politics, 1790–1833 (New York: Roman and Littlefield, 2001). Michael Les Benedict offers an account of state rights and nullification that deftly captures the trifurcation of antebellum thought into the moderate Jeffersonian theory of state rights, the more nationalistic views of Daniel Webster, and the state sovereignty views of Calhoun in “States’ Rights, State Sovereignty, and Nullification,” in Congress and the Emergence of Sectionalism: From the Missouri Compromise to the Age of Jackson, ed. Paul Finkelman and Donald R. Kennon (Athens: Ohio University Press, 2008), 252–87. My interpretation differs significantly from Benedict in that he emphasizes the importance of the Virginia–New York–Georgia alliance of state sovereignty ideas in Democratic politics, whereas I identify Martin Van Buren and northern republicans with the moderate state rights position. Keith E. Whittington’s Constitutional Construction: Divided Powers and Constitutional Meaning (Cambridge: Harvard University Press, 1999) was an invaluable aid to my thinking about the important role that nonjudicial governmental institutions like the states play in determining constitutional meaning. 3. Herman Belz, A Living Constitution or Fundamental Law? American Constitutionalism in Historical Perspective (New York: Roman and Littlefield, 1998), 1. 4. The eighteenth-century history of the federal principle is best traced through Daniel J. Elazar, Covenant and Constitutionalism: The Great Frontier and the Matrix of Federal Democracy (New Brunswick, NJ: Transaction Publishers, 1998); and Alison L. Lacroix, The Ideological Origins of American Federalism (Cambridge: Harvard University Press, 2010). 5. Jonathan Elliot, United States, Constitutional Convention, and James Madison, The Debates in the Several State Conventions . . . , 2nd ed. (Philadelphia: Lippincott, 1937), 3:513. 6. H. Jefferson Powell, “The Principles of ’98: An Essay in Historical Retrieval,” Virginia Law Review 80 (1994): 722–27; and K. R. Constantine Gutzman, “The Virginia and Ken-

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tucky Resolutions Reconsidered: ‘An Appeal to the Real Laws of Our Country,’ ” Journal of Southern History 66 (2000): 473–96. 7. The antebellum state session laws are replete with legislative resolutions that instruct the federal government and the several states as to the meaning and proper interpretation of the Constitution. Nearly every state, including northern states like New York, drafted spirited resolutions against what they believed was federal malfeasance. Consider Maine’s concern over the northeastern border (J. Chris Arndt, “Maine in the Northeastern Boundary Controversy: States’ Rights in Antebellum New England,” New England Quarterly 62 [June 1989]: 205–23); New Hampshire’s resistance to the Supreme Court’s opinion in Penhallow v. Doane’s Administrators (3 U.S. [3 Dallas] 54 [1795]); the resistance of Massachusetts, Rhode Island, and Connecticut to the Embargo of 1807 and the use of their militias during the War of 1812; New York’s resistance to federal jurisdiction in the steamboat cases (discussed below); Pennsylvania’s interposition during the Olmstead case (Margaret Ruth Reilly Kelly, “State Rebellion, State’s Rights, and Personal Politics: Pennsylvania and the Olmsted Case [U.S. v. Peters], 1778–1810” [PhD diss., State University of New York, Buffalo, 2000]); Ohio’s resistance to the national bank in Osborne v. U.S. (22 U.S. [9 Wheat.] 738 [1824]); and the resistance of northern states like Vermont, Massachusetts, Pennsylvania, and Wisconsin to the fugitive slave laws (Thomas D. Morris, Free Men All: The Personal Liberty Laws of the North, 1780–1861 [Baltimore: Johns Hopkins University Press, 1974]). The best starting point for research into these state resolutions is Herman V. Ames, ed., State Documents on Federal Relations: The States and the United States (New York: Da Capo, 1970). 8. “The Reply of the Legislature of New York,” April 17, 1815, in Ames, State Documents on Federal Relations, 87–88. 9. “Extract from the Reply of New York,” 1823, in Ames, State Documents on Federal Relations, 92. 10. John Lauritz Larson, Internal Improvement: National Public Works and the Promise of Popular Government in the United States (Chapel Hill: University of North Carolina Press, 2001), 73–80. Larson’s argument stresses how the zeal for state-driven economic development met with disappointment, excepting New York’s remarkable success. The federal government also proved unable to resolve the problem on a national level. Larson blames the republican defense of state rights, specifically “strident debates about the legitimate use of power, the consolidation of the federal Union, and the rights of the sovereign states under the Constitution” (107), for the failure of the national campaign for internal improvement. 11. Thomas Hughes Cox, “Courting Commerce: Gibbons v. Ogden and the Transformation of Commerce Regulation in the Early Republic” (PhD diss., State University of New York, Buffalo, 2004), 112; Livingston et al. v. Van Ingen et al.15 F. Cas. 697 (C.C.D.N.Y. 1811). 12. Robert R. Livingston and Robert Fulton v. James Van Ingen, H. Boyd and Twenty Others, Respondents, Court for the Correction of Errors, 9 Johns. 507 (NY Ch. 1811). 13. Ibid., 17–41. The jus publicum are the collective public rights to the use and enjoyment of lands and water for the purposes of commerce, recreation, fishing, or other public purposes. Blackstone himself said that “the elements of air and flowing water, are incapable of any other than a usufructary property” (Lansing citing, but not quoting Blackstone

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[2 Bl. Comm., 14]). The Justinian Code, the basis of much European civil law, in several places emphasized that the rivers and seas are public property. Holt (6 Mod., 73) ruled that a royal grant could not impair the public right of passage (ibid., 20–27). Traditionally, the state cannot transfer these properties into private ownership. 14. Ibid., oral argument, 41–48. 15. Ibid., 48–54, 87–99. 16. Ibid., 153–54. 17. Ibid., 157. A fuller treatment of the case is available in Christian Esh, “The Sacred Cause of State Rights: Theories of Union and Sovereignty in the Antebellum North” (PhD diss., University of Maryland, College Park, 2006), 178–88. 18. Gibbons v. Ogden, 22 U.S. (9 Wheat. 1824), 100–102. 19. While the Marshall Court’s nationalistic decisions did generate considerable resistance from the states, especially Virginia, the opinion in Gibbons did not evince the unqualified nationalism later attributed to it by later historians. For instance, Charles Warren emphasized that Gibbons represented a trajectory of increased political power for the Court. According to Charles Warren, “The political effect of Marshall’s opinion was . . . potent; for it marked another step in the broad construction of the Constitution, and became at once a mighty weapon in the hands of those statesmen who favored projects requiring the extension of federal authority.” The Supreme Court in United States History, 3 vols. (Boston: Little, Brown, 1935), 1:610–11. Melvin I. Urofsky and Paul Finkelman describe the philosophy of the Marshall Court as “unrestrained judicial nationalism and pro-business attitudes.” A March of Liberty (New York, Oxford University Press, 2002), 246. More recent scholars have seen Marshall’s jurisprudence as something less than a striking endorsement of modern judicial supremacy. For the argument that Marshall’s opinion in Gibbons should be taken as an example of judicial restraint, see Robert Lowry Clinton, “Judicial Review, Nationalism, and the Commerce Clause: Contrasting Antebellum and Postbellum Supreme Court Decision Making,” Political Research Quarterly 47 (1994): 857–76. 20. The Watchtower (Cooperstown, NY), April 19, 1824. 21. Benedict, “States’ Rights, State Sovereignty, and Nullification,” 168–75. 22. “The Report and Resolutions of Ohio Relative to the Bank and the Powers of the Federal Judiciary,” January 3, 1821, quoted in Richard E. Ellis, Aggressive Nationalism: McCulloch v. Maryland and the Foundation of Federal Authority in the Young Republic (New York: Oxford University Press, 2007), 164. 23. North River Steamboat Company v. John R. Livingston, 1 Hopk. Ch. 149, 189, 197 (1824) (emphasis added). 24. Benedict, “States’ Rights, State Sovereignty, and Nullification,” 169–73; Ellis, Aggressive Nationalism, 131–35; Cohens v. Virginia 19 U.S. 264 (1821). 25. Jonathan H. Earle, Jacksonian Anti-slavery and the Politics of Free Soil, 1824–1854 (Chapel Hill: University of North Carolina Press, 2004), 50. 26. Thomas Jefferson to James Madison, December 24, 1825, James Madison Papers at the Library of Congress; Joseph Hobson Harrison Jr., “Martin Van Buren and His Southern Supporters,” Journal of Southern History 22 (1956): 446. 27. Gerald Leonard, “Party as a ‘Political Safeguard of Federalism’: Martin Van Buren and the Constitutional Theory of Party Politics,” Rutgers Law Review 54 (2001): 245.

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28. John C. Calhoun to Frederick W. Symmes, “The Fort Hill Address,” July 26, 1831, in The Papers of John C. Calhoun, ed. Clyde N. Wilson, 28 vols. (Columbia: University of South Carolina Press, 1978), 11:415. 29. Calhoun, “Address to the People of the United States,” in Wilson, Papers of John C. Calhoun, 11:670. 30. Esh, “Sacred Cause of State Rights,” 234. 31. Calhoun, “Fort Hill Address,” 11:419. For further analysis of Calhoun and nullification see Lee Cheek, Calhoun and Popular Rule: The Political Theory of the Disquisition and Discourse (Columbia: University of Missouri Press, 2001); Richard Ellis, The Union at Risk: Jacksonian Democracy, States’ Rights, and the Nullification Crisis (New York: Oxford University Press, 1987); David F. Ericson, The Shaping of American Liberalism: The Debates over Ratification, Nullification, and Slavery (Chicago: University of Chicago Press, 1993); and James H. Read, Majority Rule versus Consensus: The Political Thought of John C. Calhoun (Lawrence: University Press of Kansas, 2009). 32. Andrew Jackson to Martin Van Buren, December 23, 1832, Correspondence of Andrew Jackson, ed. John Spencer Bassett, 7 vols. (Washington, DC: Carnegie Institute of Washington, 1926–35), 4:504. 33. Jackson to Van Buren, December 25, 1832, in Bassett, Correspondence of Andrew Jackson, 4:505–6. 34. Benedict, “States’ Rights, State Sovereignty, and Nullification,” 174–85. 35. Esh, “Sacred Cause of State Rights,” 250–54. For the full text of the quoted resolutions see Massachusetts, General Court, Committee on the Library, State Papers on Nullification (New York: Da Capo, 1970), 105–6, 205–7, 289–92. 36. Indiana State Legislature, “Resolves,” in Massachusetts, State Papers on Nullification, 213. 37. Jackson to Van Buren, January 13, 1833, in Bassett, Correspondence of Andrew Jackson, 5:2–4. 38. Jackson to Van Buren, December 15, 1832, in Bassett, Correspondence of Andrew Jackson, 4:501. 39. New York, “Report,” in Massachusetts, State Papers on Nullification, 137–38. 40. Ibid., 137. 41. Ibid., 135, 138. 42. Ibid., 140. 43. James Madison to Major John Cartwright, June 1824, quoted in Massachusetts, State Papers on Nullification, 146. 44. New York, “Report,” in Massachusetts, State Papers on Nullification, 137. 45. Ibid., 140. 46. Ibid., 140–41. 47. Ibid., 148. 48. Ibid. 49. Ibid., 133, 149–50. 50. “The Blessings of Slavery,” Plain Dealer (New York), February 25, 1837. 51. Arthur Bestor, “State Sovereignty and Slavery: A Reinterpretation of Proslavery Constitutional Doctrine, 1846–1860,” Journal of the Illinois State Historical Society 54 (1961): 119, 137, 180.

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52. “Resolutions of New York,” May 23, 1836, in Ames, State Documents on Federal Relations, 216–20. 53. “Resolutions of New York on the Right of Petition,” February 16, 1840, in Ames, State Documents on Federal Relations, 223. 54. John Niven, Martin Van Buren: The Romantic Age of American Politics (New York: Oxford University Press, 1983), 528. 55. Martin Van Buren to W. H. Hammet, April 20, 1844, in History of American Presidential Elections, 1789–1968, vol. 1., ed. Arthur M. Schlesinger Jr. (New York: Chelsea House, 1971), 824–25. 56. Ibid., 827. See also Michael A. Morrison, “Martin Van Buren, the Democracy, and the Partisan Politics of Texas Annexation,” Journal of Southern History 61 (1995), 695–724; Niven, Martin Van Buren, 526–29. 57. McDonald, State Rights and the Union, 136, 150–54; Morrison, “Martin Van Buren, the Democracy, and the Partisan Politics of Texas Annexation,” 697–716; Charles Sellers, “Election of 1844,” in Schlesinger, History of American Presidential Elections, 770–77. 58. McDonald, State Rights and the Union, 152–55; Earle, Jacksonian Anti-slavery and the Politics of Free Soil, 123–43. 59. Journal of the Democratic Convention . . . (Montgomery, AL: M’cormick and Walsh, Printers, 1848), Resolution 12, p. 12 (emphasis added). 60. Ibid., Resolution 13. 61. Ames, State Documents on Federal Relations, 253. 62. Earle, Jacksonian Anti-slavery and the Politics of Free Soil, 62–74; Niven, Martin Van Buren, 573–76. 63. Joseph G. Rayback, “Martin Van Buren’s Desire for Revenge in the Campaign of 1848,” Mississippi Valley Historical Review 40 (1954): 707–16. 64. Thomas C. Thornton to Martin Van Buren, September 1, 1847, Library of Congress, Manuscript Division. 65. Peter V. Daniel to Martin Van Buren, November 1, 1847, Library of Congress, Manuscript Division. 66. Martin Van Buren, quoted in Letters and Literary Memorials of Samuel J. Tilden, ed. John Bigelow, 2 vols. (Port Washington, NY: Kennikat Press, 1971), 1:49. 67. Tilden anticipated Chief Justice Taney’s argument in Dred Scott v. Sandford, 19 Howard 393 (1857) by nearly a decade. 68. Samuel Tilden, John Van Buren, and Martin Van Buren, “First Gun for Free Soil,” in The Writings and Speeches of Samuel J. Tilden, ed. John Bigelow, 2 vols. (New York: Harper and Brothers, 1885), 2:563–64. 69. Ibid., 2:563–65. Van Buren authored this portion of the argument. 70. Ibid., 2:564–66. 71. Ibid., 2:561. 72. Ibid., 2:563–65. 73. Alvan Stewart, “A Constitutional Argument on the Subject of Slavery,” in Jacobus tenBroek, Equal under Law (New York: Collier Books, 1965), 281–95. 74. Tilden, “First Gun for Free Soil,” 2:555–60. 75. Ibid, 2:545. 76. Ibid.

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77. Ibid., 2:570. 78. Ibid., 2:572. 79. Ibid., 2:563. 80. Ibid., 2:569. 81. Martin Van Buren, quoted in “Buffalo Convention,” Niles National Register, August 16, 1848. 82. “Wisconsin Defied the Federal Courts,” in Ames, State Documents on Federal Relations, 304–5; Ableman v. Booth, 63 U.S. 506 (1859). For more on the state rights tradition in Wisconsin see Frederick J. Blue, No Taint of Compromise: Crusaders in Anti-slavery Politics (Baton Rouge: Louisiana State University Press, 2000); Michael J. McManus, Political Abolitionism in Wisconsin, 1840–1861 (Kent: Kent State University Press, 1998); Joseph A. Ranney, “ ‘Suffering the Agonies of their Righteousness’: The Rise and Fall of the States’ Rights Movement in Wisconsin, 1854–1861,” Wisconsin Magazine of History 75 (Winter 1991–92): 82–116.

2. Lincoln on Black Citizenship / Joseph R. Fornieri 1. “Springfield, Illinois, June 26, 1857,” in Collected Works of Abraham Lincoln, ed. Roy P. Basler et al., 9 vols. (New Brunswick: Rutgers University Press, 1953–55), 2:401. 2. Ibid., 2:403. 3. Michael Burlingame, Abraham Lincoln: A Life, 2 vols. (Baltimore: Johns Hopkins University Press, 2008), 1:486. 4. “First Debate with Stephen A. Douglas at Ottawa, Illinois, August 21, 1858,” in Basler, Collected Works of Abraham Lincoln, 3:16. 5. “Speech at Springfield, Illinois, June 26, 1857,” in ibid., 2:405. 6. “Fourth Debate with Stephen A. Douglas at Charleston, Illinois, September 18, 1858,” in ibid., 3:179. See also 3:222, 249, 300, 401. 7. Don E. Fehrenbacher, The Dred Scott Case (New York: Oxford University Press, 1978), 436. In providing the context of Lincoln’s “seemingly” racist remarks, Fehrenbacher explained that “if Lincoln had responded differently at Charleston and elsewhere, the Lincoln of history would not exist. Words uttered in a context of such pressure may be less than reliable as indications of man’s lifetime and attitude.” See “Only His Stepchildren” in Lincoln in Text and Context: Collected Essays (Stanford: Stanford University Press, 1987), 105–6. 8. Joseph R. Fornieri, “Abraham Lincoln and the Declaration of Independence: The Meaning of Equality,” in Abraham Lincoln: Sources and Styles of Leadership, ed. Frank J. Williams, William J. Pederson, and Vincent Marsala (Westport, CT: Greenwood Press, 1994), 45–69. 9. Doris Kearns Goodwin, Team of Rivals: The Political Genius of Abraham Lincoln (New York: Simon and Schuster, 2005), 728. 10. For a discussion of the virtue of prudence see St. Thomas Aquinas, Summa Theologica: Volume Three, II–II (Westminster, MD: Christian Classics, 1981), II–II Q. 47–51, 1383–1406. See also Joseph R. Fornieri, “Lincoln, the Natural Law, and Prudence,” in The Language of Liberty, ed. Joseph R. Fornieri (Washington, DC: Eagle Publishing, 2003), xix–lxi; Ethan Fishman, “Under the Circumstances: Abraham Lincoln and Classical Pru-

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dence,” in Abraham Lincoln: Sources and Style of Leadership, ed. Frank J. Williams et al. (Westport, CT: Greenwood Press, 1994), 1–15. 11. See James H. Kettner, The Development of American Citizenship, 1608–1870 (Chapel Hill: University of North Carolina Press, 1978). 12. Ibid., 131–209. 13. Ibid., 295–97. 14. Douglas G. Smith “Natural Law, Article IV, and Section One of the Fourteenth Amendment,” American University Law Review 47 (1997): 351–420. 15. Ibid., 381–83. 16. Ibid., 381. 17. Quoted from The Founders’ Constitution, ed. Philip P. Kurland and Ralph Lerner, 5 vols. (Indianapolis: Liberty Fund, reprinted from University of Chicago Press, 1987), 4:506. 18. Herman Belz, A New Birth of Freedom: The Republican Party and Freedmen’s Rights, 1861–1866 (New York: Fordham University Press, 2000), 18. 19. “Speech at Peoria Illinois, October 16, 1854,” in Basler, Collected Works of Abraham Lincoln, 2:274. 20. Quoted from Kurland and Lerner, Founders’ Constitution, 4:506 (emphasis added). 21. James Madison, Notes of the Debates in the Federal Convention of 1787 (New York: Norton, 1987), 545. 22. Quoted from Kurland and Lerner, Founders’ Constitution, 4:488. 23. Madison, Notes of the Debates in the Federal Convention of 1787, 545. 24. Dred Scott v. Sandford, 60 U.S. 393, 393–425 (1857). 25. Madison, Notes of the Debates in the Federal Convention of 1787, 532; Basler, Collected Works of Abraham Lincoln, 3:549. 26. Madison, Notes of the Debates in the Federal Convention of 1787, 545. 27. Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, ed. Clinton Rossiter (New York: Mentor, 1999), 237–38. 28. Ibid., 446. 29. Kettner, Development of American Citizenship, 288. 30. Quoted from Kurland and Lerner, Founders’ Constitution, 4:513. 31. Quoted from ibid., 4:487–88 (emphasis added). 32. Harry V. Jaffa, A New Birth of Freedom (Lanham, MD: Rowman and Littlefield, 2000), 20–29. 33. Ibid., 21. 34. Quoted from Alfred H. Kelly, Winfred A. Harbison, and Herman Belz, The American Constitution: Its Origin and Development (New York: Norton, 1983), 60. 35. Basler, Collected Works of Abraham Lincoln, 2:405–6. 36. Crandall v. State, 10 Conn. 339 (1834), quoted from Kurland and Lerner, Founders’ Constitution, 4:510. This is an important case that anticipates Lincoln’s debate with Taney in Dred Scott over Negro citizenship. It is noteworthy that Taney’s arguments in Dred Scott highly resemble the arguments, in both wording and content, of the attorney for the state in Crandall.

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37. Kelly, Harbison, and Belz, American Constitution, 280. 38. William Eustis, Admission of Missouri, House of Representatives 12 December 1820, Annals of Congress, 37:635–38, quoted from Kurland and Lerner, Founders’ Constitution, 4:494. 39. Charles Pinckney, Admission of Missouri, House of Representatives, 13 February 1821, Annals of Congress, 37:1129, 1134, quoted from ibid., 4:495. 40. Quoted from Kurland and Lerner, Founders’ Constitution, 4:495–96. 41. George Anastaplo, Reflections on the Constitution (Lexington: University Press of Kentucky, 2006), 126. 42. Corfield v. Coryell, 6 Fed. Cas. 546, no. 3,230 (C.C. E.D.PA 1823), quoted from Kurland and Lerner, Founders’ Constitution, 4:502. 43. Fehrenbacher, Dred Scott Case. See also Joseph R. Fornieri, “Lincoln’s Critique of Dred Scott as a Vindication of the Founding,” in Lincoln and Freedom: Slavery, Emancipation, and the Thirteenth Amendment, ed. Harold Holzer and Sara Vaughn Gabbard (Carbondale: Southern Illinois University Press, 2007), 20–36. 44. Quoted from Kettner, Development of American Citizenship, 304. 45. On February 6, 1837, John C. Calhoun delivered his infamous “slavery as a positive good” speech in the U.S. Senate: “But I take higher ground. I hold that in the present state of civilization, where two races of different origin, and distinguished by color, and other physical differences, as well as intellectual, are brought together, the relation now existing in the slaveholding States between the two, is, instead of an evil, a good—a positive good.” See http://teachingamericanhistory.org/library/index.asp?document=71. 46. Kettner, Development of American Citizenship, 302–9; Allan Nevins, Ordeal of the Union, 2 vols. (New York: Scribner, 1947), 1:242–43; James M. McPherson, Battle Cry Freedom: The Civil War Era (Oxford: Oxford University Press, 1988), 78–116. 47. Dred Scott v. Sandford, 60 U.S. 393, 406 (1857). 48. Ibid., 416–17. 49. Kelly, Harbison, and Belz, American Constitution, 279. 50. The pending case was Lemmon v. People, 20 N.Y. 562 (1860). See Fehrenbacher, Dred Scott Case, 60–61, 444–45, 692. 51. “Seventh and Last Debate with Stephen A. Douglas at Alton, Illinois, October 15, 1858,” in Basler, Collected Works of Abraham Lincoln, 3:300. 52. Ibid., 2:405. 53. Fehrenbacher, Dred Scott Case, 490–491. 54. Burlingame, Abraham Lincoln, 1:486. 55. Quoted from ibid., 1:488. 56. Fehrenbacher, Dred Scott Case, 437. 57. David Herbert Donald, Lincoln (New York: Simon and Schuster, 1995), 226. 58. “Speech at Springfield, Illinois, June 26, 1857,” in Basler, Collected Works of Abraham Lincoln, 2:406. 59. Ibid., 2:407. 60. “ A House Divided’: Speech at Springfield, Illinois, June 15, 1858,” in ibid., 2:464. 61. “First Debate with Stephen A. Douglas at Ottawa, Illinois, August 21, 1858,” in ibid., 3:9.

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62. Fehrenbacher, “Only His Stepchildren,” 105. 63. “Fourth Debate with Stephen A. Douglas at Charleston, Illinois, September 18, 1858,” in Basler, Collected Works of Abraham Lincoln, 3:179. 64. “Seventh and Last Debate with Stephen A. Douglas at Alton, Illinois, October 15, 1858,” in ibid., 3:299. 65. “To Horace Greeley, August 22, 1862,” in ibid., 5:388–89. Lincoln explained, “My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery. If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that. What I do about slavery, and the colored race, I do because I believe it helps to save the Union; and what I forbear, I forbear because I do not believe it would help to save the Union. I shall do less whenever I shall believe what I am doing hurts the cause, and I shall do more whenever I shall believe doing more will help the cause. I shall try to correct errors when shown to be errors; and I shall adopt new views so fast as they shall appear to be true views. I have here stated my purpose according to my view of official duty; and I intend no modification of my oft-expressed personal wish that all men every where could be free.” 66. See Allen C. Guelzo, Lincoln’s Emancipation Proclamation: The End of Slavery in America (New York: Simon and Schuster, 1999), 157–81; Donald, Lincoln, 368; Fehrenbacher, “Only His Stepchildren,” 105. 67. Richard Striner, “Lincoln, Race, and Moral Strategy,” in Lincoln Lore 1891 (Winter 2008): 6–10. 68. Basler, “First Inaugural Address, March 4, 1861,” in Basler, Collected Works of Abraham Lincoln, 4:264. 69. Herman Belz, “Lincoln’s Construction of the Executive Power in the Secession Crisis,” Journal of the Abraham Lincoln Association 27, no. 1 (2006): 34, 35. 70. Ibid., 35. 71. Basler, Collected Works of Abraham Lincoln, 4:274. 72. Attorney General Edward Bates, “Opinion of Attorney General Bates on Citizenship” (Washington, DC: Government Printing Office, 1862). 73. Ibid., 3, 7, 17, 12. 74. Quoted from Belz, New Birth of Freedom, 21. 75. Ibid., 21–22. 76. Ibid., 22. 77. Ibid. 78. Christian G. Samito, Becoming American under Fire: Irish Americans, African Americans, and the Politics of Citizenship during the Civil War Era (Ithaca: Cornell University Press, 2009), 5. 79. “To Michael Hahn, March 13, 1864,” in Basler, Collected Works of Abraham Lincoln, 7:243. 80. “Last Public Address, April 11, 1865,” ibid., 8:402–4. 81. Goodwin, Team of Rivals, 728. 82. Ibid. 83. The Civil Rights Act of 1866 guaranteed birthright citizenship and enumerated some of the fundamental rights, privileges, and immunities that would be guaranteed to

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black citizens against deprivation by the states. The Radical Republicans passed it over President Johnson’s veto. Fearing that the act was vulnerable to being overturned, the Radicals pushed for the Fourteenth Amendment. Like the Privileges and Immunities Clause of Article IV, Section 2, the Civil Rights Act can be seen as a precursor to understanding the protections and guarantees of the Fourteenth Amendment. The relevant portions of the Civil Rights Act of 1866 concerning the privileges and immunities of citizenship state “that all persons born in the United States and not subject of any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude . . . shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings of security of person and property, as is enjoyed by white citizens.” See Civil Rights Act of 1866, 14 Stat. 27 (1866). 84. Quoted from Burlingame, Abraham Lincoln, 2:802–3.

3. Lincoln, Secession, and Revolution: The Civil War Challenge to the Founding / Herman Belz Research for this essay was supported by the James Madison Program in American Ideals and Institutions, Princeton University, and the Earhart Foundation. 1. Leo Strauss, The Rebirth of Classical Political Rationalism: Essays and Lectures (Chicago: University of Chicago Press, 1989), 54. 2. See Clinton Rossiter, The American Quest, 1790–1860: An Emerging Nation in Search of Identity, Unity, and Modernity (New York: Harcourt Brace Jovanovich, 1971), 114–15: “Was the Union a nation—and if it was, what kind of nation? . . . All Americans between Hamilton at his most quixotic and Calhoun at his most logical would have answered the first part of the question ‘yes’ . . . and the second ‘a federal nation.’ . . . Federalism was a given of American life that the men of the new Republic inherited without protest and believed in without qualm.” 3. For an illuminating discussion of this question, see John E. Alvis, “The Slavery Provisions of the U.S. Constitution: Means for Emancipation,” Political Science Reviewer 17 (1987): 241–65. Don E. Fehrenbacher, The Slaveholding Republic: An Account of the United States Government’s Relations to Slavery (New York: Oxford University Press, 2001), provides the most complete account of the problem. 4. The classic twentieth-century statement of this view is Robert Penn Warren, The Legacy of the Civil War: Meditations on the Centennial (New York: Vintage Books, 1961). For recent discussion, see Eugene D. Genovese, The Southern Tradition: The Achievement and Limitations of an American Conservatism (Cambridge: Harvard University Press, 1994), 28–29; David Gordon, ed., Secession, State, and Liberty (New Brunswick, NJ: Transaction Publishers, 1998). 5. Roy P. Basler et al., eds., The Collected Works of Abraham Lincoln, 9 vols. (New Brunswick: Rutgers University Press, 1953–55), 4:332. 6. For a sampling of recent writing on Lincoln as a revolutionary, see George P. Fletcher, Our Secret Constitution: How Lincoln Redefined American Democracy (New York: Oxford

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University Press, 2001); Gordon, Secession, State, and Liberty; Garry Wills, Lincoln at Gettysburg: The Words That Remade America (New York: Simon and Schuster, 1992); James M. McPherson, Abraham Lincoln and the Second American Revolution (New York: Oxford University Press, 1991); Dwight G. Anderson, Abraham Lincoln: The Quest for Immortality (New York: Alfred A. Knopf, 1982); M. E. Bradford, “The Lincoln Legacy: A Long View,” Modern Age 24 (1980): 355–63; Otto H. Olson, “Abraham Lincoln as Revolutionary,” Civil War History 24 (1978): 213–24; Gottfried Dietze, America’s Political Dilemma: From Limited to Unlimited Democracy (Baltimore: Johns Hopkins University Press, 1968). 7. Clinton Rossiter, ed., The Federalist Papers (New York: New American Library, 1961), no. 14, pp. 104–5 (hereafter cited as, for example, Federalist 14, 104–5). 8. Federalist 51, 322. 9. Hannah Arendt, On Revolution (New York: Viking, 1963), 203. 10. Ralph Lerner, “Facing Up to the Founding,” in To Form a More Perfect Union: The Critical Ideas of the Constitution, ed. Herman Belz, Ronald Hoffman, and Peter J. Albert (Charlottesville: University of Virginia Press, 1992), 258. 11. M. E. Bradford, one of Lincoln’s more hostile critics, in a study of the making of the Constitution concluded that some form of national union was inevitable. The “perennial problem of American politics,” Bradford wrote, was “the conviction that as a people we cannot live at ease either with or without a national government and therefore will be forever at odds about which side of this antithesis we should prefer to emphasize in our own time.” The nature of the constitutional compact “makes us, though many, in some sense one people,” and establishes “a regime both federal and national.” Original Intentions: On the Making and Ratification of the United States Constitution (Athens: University of Georgia Press, 1993), 12–13, 86. 12. A. John Simmons, On the Edge of Anarchy: Locke, Consent, and the Limits of Society (Princeton: Princeton University Press, 1993), 152. 13. In the view of Jeffrey K. Tulis, the Constitution, in the language of “We the People,” invokes the concept of popular sovereignty and thus “seeks to preserve a place for revolution within its conception of an ordered polity.” However, although its legitimacy requires the intelligibility of revolution, Tulis says the political order established by the Constitution makes revolution “a theoretical impossibility.” “Constitution and Revolution,” in Constitutional Politics: Essays on Constitution Making, Maintenance, and Change, ed. Sotirios A. Barber and Robert P. George (Princeton: Princeton University Press, 2001), 116. 14. Harvey C. Mansfield Jr., The Spirit of Liberalism (Cambridge: Harvard University Press, 1978), 72–80. 15. Ibid., 72. 16. David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776– 1995 (Lawrence: University Press of Kansas, 1996), 68. 17. Federalist 40, 253. 18. See William Caleb Loring, Nullification, Secession, Webster’s Argument, and the Kentucky and Virginia Resolutions (New York: Putnam, 1893); Charles Francis Adams, Lee at Appomattox, and Other Papers (1902; Freeport, NY: Books for Libraries Press, 1970). 19. This argument is advanced in Forrest McDonald, States Rights and the Union: Imperium in Imperio, 1776–1876 (Lawrence: University Press of Kansas, 2000), 8. 20. New York Herald, April 29, 1865, 5.

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21. See Donald W. Livingston, “The Secession Tradition in America,” in Gordon, Secession, State, and Liberty, 1–33. 22. Frank S. Meyer, “Lincoln without Rhetoric,” National Review, August 24, 1965, 725. 23. Peter S. Onuf, “Anarchy and the Crisis of the Union,” in Belz, Hoffman, and Albert, To Form a More Perfect Union, 272–302. 24. Federalist 15, 108. 25. Federalist 16, 117. 26. Ibid. 27. Federalist 31, 197. 28. Federalist 46, 297. 29. Federalist 43, 276. 30. Federalist 16, 18. 31. Daniel H. Deudney, “The Philadelphian System: Sovereignty, Arms Control, and Balance of Power in the American States–Union, circa 1789–1861,” International Organization 49 (1995): 191–228. 32. Keith E. Whittington, “Yet Another Constitutional Crisis?” unpublished manuscript, 12. 33. Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning (Cambridge: Harvard University Press, 1999), 1–9. 34. For example, the states chose U.S. senators, appointed electors for the election of the president, and prescribed the times, places, and manner for holding elections for senators and representatives. 35. Leslie Friedman Goldstein, “State Resistance to Authority in Federal Unions: The Early United States (1790–1860) and the European Community (1954–94),” Studies in American Political Development 11 (1997): 159–66. 36. In the rhetoric of federal-system politics, the word “interposition” was identified with state rights. The supremacy clause of the Constitution functioned rhetorically to justify federal law enforcement that in effect amounted to national interposition against individuals in states or state offices. 37. Philip B. Kurland and Ralph Lerner, eds., The Founders’ Constitution, 5 vols. (Indianapolis: Liberty Fund, 2000), 5:136. 38. An important recent contribution to the debate is Christian G. Fritz, “A Constitutional Middle Ground between Revision and Revolution: A Reevaluation of the Nullification Crisis and the Virginia and Kentucky Resolutions through the Lens of Popular Sovereignty,” in Law as Culture and Culture as Law, ed. Hendrik Hartog and William E. Nelson (Madison, WI: Madison House, 2000), 158–226. Sotirios A. Barber discusses Madison’s later denial that single-state nullification of federal law, as claimed by South Carolina in 1833, was within the meaning of interposition in the Virginia Resolutions. Barber says, whether or not Madison’s account accurately describes his thinking in 1798, his final commentary on interposition was constitutionally significant. Analogizing interposition to the states’ role in the Article V amendment process, where nonbinding opinions of a small number of states have awakened public interest in constitutional questions, Barber concludes, “Practiced with sufficient regularity by enough states, the tamest kind of interposition might have had a strong influence on the pace and direction of constitutional

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change.” “Interposition,” in Encyclopedia of the American Constitution, 4 vols., ed. Leonard W. Levy and Kenneth L. Karst (New York: Macmillan, 1986), 2:993. 39. Major events in the development of the tradition of state resistance included the Kentucky and Virginia Resolutions, 1798; the Hartford Convention, 1814; the South Carolina Convention, 1832; the Massachusetts General Court resolutions on fugitive slaves, 1842; the Southern Convention at Nashville, 1850; and the secession conventions, 1860–61. 40. Federalist 31, 197. 41. William McDonald, ed., Selected Documents Illustrative of the History of the United States, 1776–1861 (New York: Macmillan, 1915), 205–7. More than the content of its recommendations, the secrecy of the convention and its failure to publish its proceedings led critics to charge it with treasonable and disunionist objectives (p. 198). 42. Ibid., 269–71. 43. Whittington, Constitutional Construction, 80; Ross M. Lence, ed., Union and Liberty: The Political Philosophy of John C. Calhoun (Indianapolis: Liberty Fund, 1992), 357 (emphasis in the original). 44. This is not to say that Calhoun accepted the right of revolution in his political theory. Mark E. Brandon notes that Calhoun “implicitly recognized a Lockean right to withdraw from established government or at least from the decisions of such a government.” Fearing anarchy and insurrection in slaveholding society, he did not invoke the right of revolution. Mark E. Brandon, Free in the World: American Slavery and Constitutional Failure (Princeton: Princeton University Press, 1998), 48, 48n. 45. In the famous Webster–Hayne debate over nullification in 1830, Daniel Webster made this point with great skill. He said that if Senator Hayne, in protesting the tariff, “had intended no more than to assert the right of revolution, for justifiable cause, he would have said only what all agree to.” Webster recognized that “there is an ultimate violent remedy, above the Constitution, and in defiance of the Constitution, which may be resorted to, when a revolution is to be justified.” He denied, however, “that there can be a middle course, between submission to the laws, when regularly pronounced constitutional, on the one hand, and open resistance, which is revolution, or rebellion, on the other.” South Carolina’s claim of a right to annul a law of Congress could be maintained only on the ground of revolution. With oratorical brilliance, Webster proceeded to show how, if the tariff laws were constitutional, the nullification ordinance in practical application would constitute treason, a highly dangerous undertaking. Herman Belz, ed., The Webster–Hayne Debate on the Nature of the Union: Selected Documents (Indianapolis: Liberty Fund, 2000), 125, 140. 46. Simmons, On the Edge of Anarchy, 152. 47. I do not claim that this was a consciously conceived motive on the part of the secessionists. They were engaged in a high-stakes political battle that they waged to the best of their prudential and theoretical abilities. 48. David M. Potter, Lincoln and His Party in the Secession Crisis (New Haven: Yale University Press, 1942), 208–12. 49. Federalist 51, 322. 50. Jefferson Davis, “Remarks on the Special Message on Affairs in South Carolina, Jan. 10, 1861,” in Southern Pamphlets on Secession: November 1860–April 1861, ed. Jon L.

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Wakelyn (Chapel Hill: University of North Carolina Press, 1996), 137; Whittington, “Yet Another Constitutional Crisis?” 5–12. 51. Under the compact theory of the Union, secession was most widely viewed as the states’ release from contractual obligations and resumption of sovereign independence, resulting from northern states’ adoption of measures hostile to slavery in violation of the Constitution. 52. Wakelyn, Southern Pamphlets on Secession, 126–27. 53. Ibid., 128. 54. Ibid., 129. 55. Ibid., 128–29. 56. Alexander H. Stephens, A Constitutional View of the Late War between the States, 2 vols. (Philadelphia: National Publishing, 1868), 1:520. 57. Wakelyn, Southern Pamphlets on Secession, 112–13. 58. Ibid., 130. 59. Jesse T. Carpenter, The South as a Conscious Minority, 1789–1861: A Study in Political Thought (New York: New York University Press, 1930), 200–213; Yves R. Simon, Philosophy of Democratic Government (Chicago: University of Chicago Press, 1951), 150–54. Simon states that in direct democracy each member of society possesses a personal right of consent to law, and legal obligation depends on personal volition. He observes that to apply this theory with strict consistency would be to destroy society by secession. 60. Pollard wrote that when the Union government moved troops to Fort Sumter in mid-December 1861, “the question of disunion and war was practically decided.” Meeting secretly as “a revolutionary junta,” Davis and other southern senators were “able to dictate . . . without detection or interruption, the plan of a great rebellion.” They “pledged themselves to overthrow the existing government. . . . The secret Senatorial council of the 5th of January can then only be historically known as a revolutionary body. It really dates the commencement of the war.” Edward A. Pollard, Life of Jefferson Davis with a Secret History of the Southern Confederacy (Philadelphia: National Publishing, 1869), 52, 61–64. 61. George Anastaplo, The Amendments to the Constitution: A Commentary (Baltimore: Johns Hopkins University Press, 1995), 100–1. 62. Jefferson Davis, The Rise and Fall of the Confederate Government, 2 vols. (New York: D. Appleton, 1881), 1:76. 63. According to Harry V. Jaffa, after Lincoln’s inaugural, “the worst thing that could happen in the weeks ahead would be for the authorities in Charleston to have invited the Fort Sumter garrison to remain as their guests, for as long as they wished, and to have supplied them with all their needs. As time passed, and as the two governments lived side by side, it would have become extremely difficult, if not impossible, for Lincoln not to acquiesce in a peaceful separation.” A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War (Lanham, MD: Rowman and Littlefield, 2000), 354. 64. Basler, Collected Works of Abraham Lincoln, 1:108–12. 65. Ibid., 1:112–13. 66. Ibid., 1:113. 67. Ibid., 1:278–79. 68. Ibid., 1:438–39.

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69. David Herbert Donald, Lincoln (New York: Simon and Schuster, 1995), 128. Southern commentary on Lincoln’s alleged hypocrisy is found in Stephens, Constitutional View of the Late War between the States, 1:520; Albert Taylor Bledsoe, Is Davis a Traitor; or Was Secession a Constitutional Right Previous to the War of 1861? (1865; Richmond, VA: Hermitage Press, 1907), 143–44. 70. One might ask whether, in his 1848 speech, Lincoln disregarded the requirement of moral justification for claiming the right of revolution. Considering the American historical context that is apparent in the speech, it is reasonable to conclude that this was not his meaning. To express the hope that the right of revolution will liberate the world implies resistance to tyranny as a moral justification for exercising the right. 71. Harry V. Jaffa, Crisis of the House Divided: An Interpretation of the Lincoln–Douglas Debates (1959; Seattle: University of Washington Press, 1973), 325–26, 344; Jaffa, New Birth of Freedom, 267–68. 72. Basler, Collected Works of Abraham Lincoln, 1:348. 73. Ibid., 2:267. 74. Ibid., 2:276. 75. Ibid., 2:354–55. 76. Ibid., 2:372–73. 77. Ibid., 4:154. 78. Ibid., 4:264–65. 79. Ibid., 4:265. 80. Ibid., 4:269. In 1848 Lincoln assumed an imperial context in which the right of revolution is exercised to secure national independence, a result that could be described as secession in the sense of a people extruding a foreign power and making the territory they inhabit their own. Lincoln’s use of the term “dismember” in 1861 conveys a similar meaning of revolution to establish legitimate self-government by the inhabitants of a territory. 81. Ibid., 4:265. 82. The practical effect of the idea of concerted state action was apparent in the politics of secession. With southern opinion divided, secessionists pursued a strategy of unilateral state action, rather than seeking state cooperation in a southern convention. Separate state action, it was thought, would force the hand of neighboring states. This strategy changed the focus of debate from the wisdom of secession, which was highly debatable, to the question of a right of secession, on which most southerners agreed. In the view of David Potter, the strategy was intended to provoke passionate emotional reaction rather than “true deliberation.” The result was the rapid approval of separate state ordinances of secession that were perceived as a revolutionary uprising. See David M. Potter, Lincoln and His Party in the Secession Crisis (New Haven: Yale University Press, 1942), 210–12. 83. Basler, Collected Works of Abraham Lincoln, 4:268. 84. Thomas J. Pressly, “Ballots and Bullets: Lincoln and the ‘Right of Revolution,’ ” American Historical Review 67 (1962): 660. 85. Basler, Collected Works of Abraham Lincoln, 4:434n83. 86. Ibid., 4:268. 87. Liah Greenfeld, Nationalism: Five Roads to Modernity (Cambridge: Harvard University Press, 1992), 431.

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88. Basler, Collected Works of Abraham Lincoln, 1:109. 89. Robert Toombs, Confederate secretary of state, advised Jefferson Davis on April 9, “The firing upon that fort will inaugurate a civil war greater than any the world has yet seen. . . . It is suicide, murder, and will lose us every friend at the North. You will wantonly strike a hornet’s nest which extends from mountains to ocean, and legions, now quiet, will swarm out and sting us to death. It is unnecessary; it puts us in the wrong; it is fatal.” Maury Klein, Days of Defiance: Sumter, Secession, and the Coming of the Civil War (New York: Knopf, 1997), 399. 90. Basler, Collected Works of Abraham Lincoln, 4:332.

4. The Trial of Jefferson Davis and the Americanization of Treason Law / Jonathan W. White 1. Jefferson Davis, Speech at Charlotte, April 19, 1865, in The Papers of Jefferson Davis, ed. Lynda L. Crist et al., 15 vols. (Baton Rouge: Louisiana State University Press, 1971–), 11:549–50. 2. Quoted in William C. Davis, Jefferson Davis: The Man and His Hour (New York: HarperCollins, 1991), 615. 3. James H. Wilson to Adam Badeau, May 13, 1865, in “ ‘Your Left Arm’: James H. Wilson’s Letters to Adam Badeau,” ed. James P. Jones, Civil War History 12 (September 1966): 243. 4. The Civil War, Episode 9: The Better Angels of Our Nature, directed by Ken Burns (Florentine Films, 1990). 5. Quoted in Mark E. Neely Jr., Harold Holzer, and Gabor S. Boritt, The Confederate Image: Prints of the Lost Cause (Chapel Hill: University of North Carolina Press, 1987), 235. 6. Edward K. Eckert, “Fiction Distorting Fact”: The Prison Life, Annotated by Jefferson Davis (Macon: Mercer University Press, 1987), xxi–xl. 7. Henry Hallam, The Constitutional History of England, 3 vols. (New York: W. J. Widdleton, 1877), 3:149. 8. U.S. Constitution, Article III, Section 3 (1787); James Willard Hurst, The Law of Treason in the United States: Collected Essays (Westport, CT: Greenwood Publishing, 1971), 3–56; George P. Fletcher, “The Case for Treason,” Maryland Law Review 41 (1982): 197–205. 9. William Whiting, The War Powers of the President, and the Legislative Powers of Congress in Relation to Rebellion, Treason, and Slavery (Boston: John L. Shorey, 1862), 94. 10. George W. Carey and James McClellan, eds., The Federalist: The Gideon Edition (Indianapolis: Liberty Fund, 2001), 224. 11. Thomas P. Slaughter, “ ‘The King of Crimes’: Early American Treason Law, 1787– 1860,” in Launching the “Extended Republic”: The Federalist Era, ed. Ronald Hoffman and Peter J. Albert (Charlottesville: University Press of Virginia, 1996), 98. 12. See John Marshall to William Cushing, June 29, 1807, in The Papers of John Marshall, ed. Charles F. Hobson et al., 12 vols. (Chapel Hill: University of North Carolina Press, 1974–2006), 2:60–62; Bradley Chapin, The American Law of Treason: Revolutionary and Early National Origins (Seattle: University of Washington Press, 1964), 81–97.

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13. U.S. v. Burr, 25 Fed. Cases 2 (1807). 14. Slaughter, “King of Crimes,” 89–135. 15. “A Pennsylvania Judge on Treason,” New York Times, May 22, 1861; U.S. v. Greiner, 26 Fed. Cases 37 (1861); 1 Cadwalader’s Cases 448; Monthly Law Reporter 24 (June 1861): 91–102. 16. U.S. v. Greiner, 26 Fed. Cases 37–41 (1861). 17. James G. Randall, Constitutional Problems under Lincoln, rev. ed. (Urbana: University of Illinois Press, 1964), 75–78. 18. Mark E. Neely Jr., The Fate of Liberty: Abraham Lincoln and Civil Liberties (New York: Oxford University Press, 1991); Jonathan W. White, Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman (Baton Rouge: Louisiana State University Press, 2011), 64–89. 19. Three entrepreneurial men from Iowa, for example, offered to pay $300,000 to the federal government for permission to take Davis around the country as part of some sort of public exhibition. The Iowans offered to post a $100,000 bond to ensure that they would return Davis “in good physical condition.” They also promised to give the government half the profits they earned from the admission charges. See Eckert, “Fiction Distorting Fact,” xiv. 20. General Orders No. 100, “Instructions for the Government of the Armies of the United States in the Field,” April 24, 1863, in Official Records, ser. 3, vol. 3, p. 163. 21. U.S. Constitution, Article III, Section 2 (1787). 22. U.S. Constitution, Article III, Section 3 (1787); Fifth and Sixth Amendments (1791). 23. Roy F. Nichols, “United States vs. Jefferson Davis, 1865–1869,” American Historical Review 31 (January 1926): 281; William Blair, Why Didn’t the North Hang Some Rebels? The Postwar Debate over Punishment for Treason (Milwaukee: Marquette University Press, 2004), 15. Notably, the 1867 trial of John Surratt, a conspirator in the Lincoln assassination case who had fled the country in April 1865, resulted in a hung jury. 24. Thaddeus Stevens, “Reconstruction,” speech in Lancaster, Pennsylvania, September 6, 1865, in The Selected Papers of Thaddeus Stevens, ed. Beverly Wilson Palmer and Holly Byers Ochoa, 2 vols. (Pittsburgh: University of Pittsburgh Press, 1997), 2:15–18. 25. Neely, Fate of Liberty, 168, 233–34. 26. The Supreme Court decided in Ex parte Milligan, 71 U.S. 2 (1866), that civilians could not be tried before military tribunals when the civil courts were open; however, the Milligan decision was largely disregarded and military commissions continued to try and convict southern civilians during Reconstruction. 27. Quoted in Blair, Why Didn’t the North Hang Some Rebels?, 15. 28. William Sprague to Salmon P. Chase, August 21, 1865, in Salmon P. Chase Papers, Manuscript Division, Library of Congress (hereafter LC). 29. Howard K. Beale, ed., Diary of Gideon Welles: Secretary of the Navy under Lincoln and Johnson, 3 vols. (New York: W. W. Norton, 1960), 2:335–39, 365–68. 30. U.S. v. Jefferson Davis, criminal case no. 53, criminal docket book, RG 21 (Records of the U.S. Circuit Court for the Eastern District of Tennessee at Knoxville), National Archives at Atlanta. Thanks to Mary Evelyn Tomlin for providing photocopies of these records.

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31. Crawford W. Hall to James Speed, March 1, 1866, RG 60 (General Records of the Department of Justice), Entry 9–A (Letters Received by the Attorney General, 1809–1870), Tennessee Box 1, National Archives at College Park, Maryland. The list of indictments, in two columns, is thirty-eight pages long. 32. Hall to Speed, May 24, 1865, and April 2, 1866, both in ibid. 33. RG 21 (Records of the United States District Court for the District of Columbia), Entry 77 (Criminal Case Files, 1863–1934), case numbers 2350 and 2351, National Archives and Records Administration, Washington, DC. 34. Dunbar Rowland, ed., Jefferson Davis, Constitutionalist: His Letters, Papers and Speeches, 10 vols. (Jackson: Mississippi Department of Archives and History, 1923), 7:142. 35. Oliver P. Morton to Andrew Johnson, November 14, 1865, quoted in Armistead C. Gordon, Jefferson Davis (New York: Charles Scribner’s Sons, 1918), 315. 36. Congressional Serial Set, 39th Cong., 1st sess., House Misc. Doc. No. 6 and House Report No. 104; Nichols, “United States v. Jefferson Davis,” 266–67; William Hanchett, “Reconstruction and the Rehabilitation of Jefferson Davis: Charles G. Halpine’s Prison Life,” Journal of American History 56 (September 1969): 280–89; James Speed, “Case of Jefferson Davis,” January 6, 1866, in 11 Opinions of the Attorneys General 411–13. 37. “Compilation of Senate Election Cases from 1789 to 1885,” in Congressional Serial Set, 58th Cong., special sess., Sen. Doc. 10, pp. 310–21. 38. Chase to Horace Greeley, June 25, 1867, and Chase to Gerrit Smith, June 25, 1867, both in The Salmon P. Chase Papers, ed. John Niven et al., 5 vols. (Kent: Kent State University Press, 1993–98), 5:159–63. 39. Nathan K. Cummings, “United States v. The Right, Title, and Interest of Hugh Latham: Judge John Underwood’s Radical Civil War Interpretation of Forfeitures for Treason,” Journal of Southern Legal History 55 (1998): 55–95. 40. John C. Underwood to William T. Otto, July 8, 1868, RG 60, Entry 58 (Letters Received Relating to Judiciary Accounts, 1849–89), Box 694. 41. John C. Underwood to Andrew Johnson, April 21, 1865, RG 60, Entry 9–A, Virginia Box, National Archives at College Park. 42. Underwood to Chase, April 28, 1865, Chase Papers, LC. 43. Edwin D. Morgan to Underwood, January 9, 1865, Underwood Papers, LC; Cummings, “United States v. The Right, Title, and Interest of Hugh Latham,” 71; various newspaper clippings in Underwood scrapbook, Underwood Papers, LC. 44. Congressional Serial Set, 39th Cong., 1st sess., House Report No. 30, Testimony Part 2, pp. 6–10. 45. Ibid. Contrary to Underwood, the U.S. attorney for the District of Virginia believed that “an intelligent” jury willing to convict any criminal where the facts were plain—including Davis—could be found in Richmond. See Congressional Serial Set, 40th Cong., 1st sess., House Report 7, p. 509. 46. Andrew Johnson to Salmon P. Chase, August 10, 1865, in The Papers of Andrew Johnson, Vol. 8: May–August 1865, ed. Paul H. Bergeron (Knoxville: University of Tennessee Press, 1989), 554; Chase to Charles Sumner, August 20, 1865, Chase Papers, LC; Charles Sumner to Carl Schurz, August 28, 1865, in The Selected Letters of Charles Sumner, ed. Beverly Wilson Palmer, 2 vols. (Boston: Northeastern University Press, 1990), 2:330. Chase

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also refused to accept briefs on the subject of a possible Davis treason trial before the case came before his court. See Chase to unknown, September 14, 1865, in The Salmon P. Chase Papers, ed. John Niven et al. (Frederick, MD: Microfilm Project of University Publications of America, 1987), reel 36, frame 90. 47. Chase, diary entry for May 16, 1865, and Chase to Johnson, May 17, 1865, in Niven, Salmon P. Chase Papers, 1:550, 5:49. Chase and Davis had known each other prior to the war—they had served in the U.S. Senate together during the 31st and 32nd Congresses. 48. Chase to Gerrit Smith, May 31, 1866, Chase to Horace Greeley, June 1 and 5, 1866, Chase to Janet Chase, June 5, 1866, Chase to Jacob W. Schuckers, September 24, 1866, all in ibid., 5:98–102, 105–7, 125–29; Congressional Serial Set, 40th Cong., 1st sess., House Report 7, p. 508. 49. Proclamations “Declaring the Insurrection at an End in Certain States of the Union,” April 2, 1866, and “Declaring the Insurrection in Texas at an End, That the Insurrection Is at an End, and That Peace, Order, Tranquility, and Civil Authority Exist throughout the Whole of the United States,” August 20, 1866, both in 14 Stat. 811–17. 50. Chase to Schuckers, September 24, 1866, in Niven, Salmon P. Chase Papers, 5: 125–29. 51. John M. Schofield to Underwood, March 30, 1867, Underwood Papers, LC. 52. Rowland, Jefferson Davis, Constitutionalist, 150–52, 172; New York Observer and Chronicle, June 1, 1865. 53. Congressional Serial Set, 40th Cong., 1st sess., House Report 7, p. 510. 54. Ibid., 503–4; Nichols, “United States v. Jefferson Davis,” 269–82. 55. “The First Integrated Jury Impaneled in the United States, May 1867,” Negro History Bulletin 33 (October 1970): 134. 56. Chase to Underwood, November 23, 1867, Underwood Papers, LC; Nichols, “United States v. Jefferson Davis.” 57. See, for example, Lewis D. Campbell to Andrew Johnson, November 20, 1865, in The Papers of Andrew Johnson: Volume 9, September 1865–January 1866, ed. Paul H. Bergeron (Knoxville: University of Tennessee Press, 1991), 406–8. 58. Chase to Thomas W. Conway, January 1, 1868, in Niven, Salmon P. Chase Papers, 5:182–84. 59. Congressional Serial Set, 40th Cong., 1st sess., House Report 7, p. 508. 60. John S. Brien to Andrew Johnson, October 18, 1866, in The Papers of Andrew Johnson: Volume 11, August 1866–January 1867, ed. Paul H. Bergeron (Knoxville: University of Tennessee Press, 1994), 363. 61. Rowland, Jefferson Davis, Constitutionalist, 7:144–145, 154–176. 62. A New Yorker to Underwood, May 14, 1867, Underwood Papers, LC. 63. Nichols, “United States v. Jefferson Davis,” 267–74. 64. Chase to Underwood, May 13, 1867, Underwood Papers, LC. 65. Rowland, Jefferson Davis, Constitutionalist, 7:176–95; Congressional Serial Set, 51st Cong., 1st sess., House Report 3104, p. 2. 66. William M. Evarts and Richard Henry Dana Jr. to Henry Stanbery, November 2, 1867, and Evarts to Lucius H. Chandler, February 18, 1868, both in Lucius H. Chandler Papers, Special Collections Research Center, University of Chicago. 67. Quoted in Hurst, Law of Treason in the United States, 200.

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68. “By the President of the United States of America: A Proclamation,” July 4, 1868, in 15 Stat. 702; Nichols, “United States v. Jefferson Davis,” 280–84. Abraham Lincoln had instituted this policy of excluding persons under indictment for treason in an amnesty proclamation of March 26, 1864. For background to Lincoln’s decision, see White, Abraham Lincoln and Treason, ch. 3 and 5; and Robert J. Chandler, “The Release of the Chapman Pirates: A California Sidelight on Lincoln’s Amnesty Policy,” Civil War History 43 (June 1977): 129–43. 69. Chase to Milton Sutliff, June 3, 1868, in Niven, Salmon P. Chase Papers, 5:227. 70. Nichols, “United States v. Jefferson Davis,” 281–84; Randall, Constitutional Problems under Lincoln, 111–15.

5. At Every Fireside: Constitutional Politics in the Era of Reconstruction / Michael Les Benedict 1. See, for example, George Ticknor Curtis, History of the Origin, Formation, and Adoption of the Constitution of the United States . . . , 2 vols. (New York: Harper, 1854–58); Curtis, Constitutional History of the United States, from Their Declaration of Independence to the Close of Their Civil War, 2 vols. (New York: Harper, 1889–96); George Bancroft, History of the Formation of the Constitution of the United States of America (New York: D. Appleton, 1882). 2. For a discussion of this development, with special reference to the constitutional history of the Civil War, see Michael Les Benedict, “A Constitutional Crisis,” in Writing the Civil War: The Quest to Understand, ed. James M. McPherson and William J. Cooper (Columbia: University of South Carolina Press, 1998), 154–73. For a further discussion, see Michael Les Benedict, “Expanding the Scope of American Constitutional History: Is the Constitution a Text and Its Interpretation, or the Experience of the American People?” Teaching American Constitutional History Conference, College Park, MD, March 19, 1999, posted on the website of H-Law, http://www2.h-net.msu.edu/~law/cons/ index.htm. 3. This perception is especially evident in the attention legal academics pay to the cultural and intellectual context of republicanism in which the Constitution was framed and ratified. One index of this is the number of citations to the work of Gordon Wood, whose Creation of the American Republic, 1776–1787 (Chapel Hill: University of North Carolina Press, 1969) conveyed to legal academics the importance of the republican context for understanding the ideas the Constitution embodied. A Lexis-Nexis search in law reviews found 335 articles that cited Wood’s book between 1990 and 2005. For legal academics’ turn to cultural and intellectual history as a source for understanding the Constitution, see Laura Kalman, The Strange Career of Legal Liberalism (New Haven: Yale University Press, 1996), 142–63. 4. Cass R. Sunstein, The Partial Constitution (Cambridge: Harvard University Press, 1993); Wayne D. Moore, Constitutional Rights and Powers of the People (Princeton: Princeton University Press, 1996); Mark Tushnet, Taking the Constitution away from the Courts (Princeton: Princeton University Press, 1999); Larry D. Kramer, “The Supreme Court 2000 Term: Foreword: We the Court,” Harvard Law Review 115 (November 2001): 4–168. 5. Moore, Constitutional Rights and Powers of the People, 3, 9.

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6. See Kramer, “We the Court”; Ruth Colker and James J. Brudney, “Dissing Congress,” Michigan Law Review 100 (October 2001): 80–144. 7. Mark V. Tushnet, “Constitutional Interpretation outside the Courts,” Journal of Interdisciplinary History 37 (Winter 2007): 415–22. 8. Herman Belz, Reconstructing the Union: Theory and Policy during the Civil War (Ithaca: Cornell University Press, 1969); Belz, A New Birth of Freedom: The Republican Party and Freedmen’s Rights, 1861 to 1866 (Westport, CT: Greenwood Press, 1976); Belz, Emancipation and Equal Rights: Politics and the Constitution in the Civil War Era (New York: W.W. Norton, 1978). For other examples of social and political histories of constitutional development in the Civil War era, see Michael Les Benedict, A Compromise of Principle: Congressional Republicans and Reconstruction, 1863–1869 (New York: W.W. Norton, 1974); Benedict, Preserving the Constitution: Essays on Politics and the Constitution in the Reconstruction Era (New York: Fordham University Press, 2006); Harold M. Hyman, A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution (New York: Knopf, 1973); Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment (New York: Cambridge University Press, 2004); Xi Wang, The Trial of Democracy: Black Suffrage and Northern Republicans, 1860–1910 (Athens: University of Georgia Press, 1997). 9. Bruce Ackerman, We the People, Vol. 2: Transformations (Cambridge: Harvard University Press, 1998) has been particularly influential and controversial in this regard. See “Moments of Change: Transformation in American Constitutionalism,” Yale Law Journal 8 (June 1999): 1917–2350. 10. Hurlbut to Stevens, December 25, 1865, in Selected Papers of Thaddeus Stevens, ed. Beverly Wilson Palmer, 2 vols. (Pittsburgh: University of Pittsburgh Press, 1999), 2:58. 11. Henry Ward Beecher, addressing the second annual meeting of the American Equal Rights Association, May 10, 1867, in History of Woman Suffrage, ed. Elizabeth Cady Stanton, Susan B. Anthony, and Matilda Joslyn Gage, 6 vols. (Salem, NH: Ayer Co., 1985; orig. 1881–1922), 2:218. 12. Stanton, Anthony, and Gage, History of Woman Suffrage, 2:90. 13. Ackerman, We the People, Vol. 2: Transformations, passim. Likewise, William E. Nelson stresses too exclusively the Supreme Court’s role in determining the meaning of the vague general principles of the Fourteenth Amendment. See William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine (Cambridge: Harvard University Press, 1988). 14. Thavolia Glymph, Out of the House of Bondage: The Transformation of the Plantation Household (New York: Cambridge University Press, 2008), 138. 15. John M. Bryant, How Curious a Land: Conflict and Change in Greene County, Georgia, 1850–1885 (Chapel Hill: University of North Carolina Press, 1996); Susan Eva O’Donovan, Becoming Free in the Cotton South (Cambridge: Harvard University Press, 2007); Stephen Kantrowitz, “One Man’s Mob Is Another Man’s Militia: Violence, Manhood, and Authority in Reconstruction South Carolina,” in Jumpin’ Jim Crow: Southern Politics from Civil War to Civil Rights, ed. Jane Dailey et al. (Princeton: Princeton University Press, 2000), 67–87; Stephen Budiansky, The Bloody Shirt: Terror after Appomattox (New York: Viking, 2008); Christopher Waldrep, “Black Political Leadership in Warren County, Mississippi,” in Local Matters: Race, Crime, and Justice in the Nineteenth-Century

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South, ed. Christopher Waldrep and Donald G. Nieman (Athens: University of Georgia Press, 2001), 225–49; LeeAnna Keith, The Colfax Massacre: The Untold Story of Black Power, White Terror, and the Death of Reconstruction (New York: Oxford University Press, 2008); Charles F. Lane, The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction (New York: Henry Holt, 2008); George C. Rable, But There Was No Peace: The Role of Violence in the Politics of Reconstruction (Athens: University of Georgia Press, 1984). 16. Xi Wang, “Make ‘Every Slave Free, and Every Freeman a Voter’: The African American Construction of Suffrage Discourse in the Age of Emancipation,” in Contested Democracy: Freedom, Race, and Power in American History, ed. Manisha Sinha and Penny von Eschen (Ithaca: Cornell University Press, 2007), 118. 17. The very first convention of free African Americans addressed “Respected Brethren and Fellow Citizens,” The Liberator, October 22, 1831, reprinted as “First Annual Negro Convention, 1831,” in A Documentary History of the Negro People in the United States, ed. Herbert Aptheker, 2 vols. (New York: Citadel Press, 1951), 1:115. 18. New York Tribune, June 15, 1865, reprinted as “Resolutions of Petersburg Negroes,” in ibid., 1:537. See also Equal Suffrage: Address from the Colored Citizens of Norfolk, Va., to the People of the United States . . . (New Bedford, MA: E. Anthony, 1865), reprinted in ibid., 2:535–36. 19. Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). An opinion of the attorney general preceded Dred Scott in finding that free black Virginians were not embraced by the term “citizens of the United States.” See “Rights of Free Virginia Negroes,” 1 Opinions of the Attorney General 506 (1821). 20. “The Claims of Our Race: An Interview with President Andrew Johnson in Washington, D.C., on 7 February 1866,” in The Frederick Douglass Papers Series One: Speeches, Debates, and Interviews, 5 vols. (1864–80), ed. John W. Blassingame and John R. McKivigan (New Haven: Yale University Press, 1991), 4:98. 21. R. J. Young, “Manhood and Freedom,” chap. 4 of Antebellum Black Activists: Race, Gender, and Self (New York: Garland, 1996), 55–91; James Oliver Horton and Lois E. Horton, “Violence, Protest, and Identity: Black Manhood in Antebellum America,” in A Question of Manhood: A Reader in U.S. Black Men’s History and Masculinity, ed. Darlene Clark Hine and Earnestine Jenkins, vol. 1: “Manhood Rights”: The Construction of Black Male History and Manhood, 1750–1870 (Bloomington: Indiana University Press, 1999), 382–98. 22. For the traditional connection between the gendered concept of virtu and citizenship, see R. Claire Snyder, Citizen–Soldiers and Manly Warriors: Military Service and Gender in the Civic Republican Tradition (Lanham, MD: Rowman and Littlefield, 1999), 15–101; Dana D. Nelson, National Manhood: Capitalist Citizenship and the Imagined Fraternity of White Men (Durham: Duke University Press, 1998); Robert E. Shalhope, “The Armed Citizen in the Early Republic,” Law and Contemporary Problems 49 (Fall 1986): 126–33. 23. Letter to the editors, Boston Daily Atlas and Bee, n.d., reprinted as “To the Editors of the [Boston] Daily Atlas and Bee,” in Aptheker, Documentary History of the Negro People in the United States, 1:463–64. 24. Resolutions of amass meeting published in The Liberator, May 31, 1861, reprinted as “Resolutions of Negro Mass Meeting,” in ibid., 1:464–65.

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25. Douglass, “We Are Here and Want the Ballot-Box: An Address Delivered in Philadelphia, Pennsylvania on 4 September 1866,” in Blassingame and McKivigan, Frederick Douglass Papers Series One, 4:129. 26. Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). Attorney General William Wirt advised that free black Virginians were neither citizens of their state nor citizens of the United States because of the “incapacities which distinguished them from the white citizens of Virginia.” 1 Opinions of the Attorney General 507, 508 (1821). 27. John Mercer Langston, “Citizenship and the Ballot: The Relations of the Colored American to the Government and Its Duty to Him—A Colored American the First Hero of the Revolutionary War: Address Delivered Before the Colored Men’s Convention of Indiana, in Masonic Hall, at Indianapolis, October 25, 1865,” in Selected Speeches Given by John Mercer Langston (1829–1897), symposium on “John Mercer Langston and Oberlin’s Antebellum African American Heritage,” http://www.oberlin.edu/external/EOG/ Langston/Langston.html. 28. Norma Basch, “Invisible Women: The Legal Fiction of Marital Unity in NineteenthCentury America,” Feminist Studies 5 (Summer 1979): 346–66. 29. Sumner, letter to a Committee of Colored Citizens at Savannah, July 8, 1865, in Charles Sumner, The Works of Charles Sumner, 15 vols. (Boston: Lee and Shepard, 1870–83), 9:431. 30. This is a difficult conception for present-day Americans to understand. It seems obvious that women’s interests are not identical to those of men. Insisting that they were represented through male relatives is no more persuasive to us—or to woman suffragists at the time—than the argument that Americans were “virtually represented” in the British Parliament was to most Americans in the 1760s and 1770s. Moreover, both contemporary woman suffragists and modern Americans see citizens’ rights as pertaining to the individual, as did many who advocated black and woman suffrage. But the notion that rights belonged to “the people” as a more general entity persisted. This concept was reflected in what became the dominant argument that it was necessary to enfranchise African American men to enable them to protect the rights of African Americans in general. 31. See, for example, “Guaranty of Republican Governments in the Rebel States: Resolutions in the Senate, February 25, 1865,” in Sumner, Works of Charles Sumner, 9:329–32; “Part Execution of the Guaranty of a Republican Form of Government: Bill in the Senate, December 4, 1865,” in ibid., 10:14–15; “Scheme of Reconstruction on the Basis of Equal Rights: Bill in the Senate, to Enforce the Guaranty of a Republican Form of Government in Certain States, December 4, 1865,” in ibid., 10:21–29; “Rights of Loyal Citizens, and a Republican Government: Resolutions in the Senate Declaring the Duty of Congress, December 4, 1865,” in ibid., 10:35–37; “Equal Rights for All: The Great Guaranty and Present Necessity, for the Sake of Security, and to Maintain a Republican Government: Speech in the Senate . . . , February 5 and 6, 1866,” in ibid., 10:115–37; “Political Equality without Distinction of Color. No Compromise of Human Rights: Second Speech in the Senate . . . , March 7, 1866,” in ibid., 10:283–345. As the appendix following “Equal Rights for All” said, that speech “was extensively circulated, and awakened much attention.” Ibid., 10:247. Using only materials from Sumner’s own papers, Sumner’s editors reprinted excerpts from correspondence and editorial reactions from leading papers in fourteen cities, ranging

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from New York to Dayton, Ohio, and Belfast, Maine, as well as private letters from correspondents from around the nation. Ibid., 10:247–66. 32. James G. Blaine, Twenty Years in Congress: From Lincoln to Garfield . . . , 2 vols. (Norwich, CT: Henry Bill, 1884–86), 1:318. 33. Sumner, “Equal Rights of All,” 10:222, 224. 34. Susan B. Anthony to Thomas Wentworth Higginson, January 13, 1868, in The Selected Papers of Elizabeth Cady Stanton and Susan B. Anthony, ed. Ann D. Gordon, 5 vols. (New Brunswick: Rutgers University Press, 1997), 2:127. 35. “Universal Suffrage,” in ibid., 1:550. 36. Langston, “Citizenship and the Ballot.” 37. Elizabeth Cady Stanton, “This Is the Negro’s Hour,” National Anti-slavery Standard, December 26, 1865 (letter to the editor), reprinted in Gordon, Selected Papers of Elizabeth Cady Stanton and Susan B. Anthony, 1:546–65. 38. Stanton, Anthony, and Gage, History of Woman Suffrage, 2:205. 39. Douglass, “Let No One Be Excluded from the Ballot Box: An Address Delivered in Albany, New York, on 20 November 1866,” in Blassingame and McKivigan, Frederick Douglass Papers Series One, 4:148. 40. Douglass, “We Are Here and Want the Ballot-Box,” in ibid., 4:131. 41. Douglass, “Govern with Magnanimity and Courage: An Address Delivered in Philadelphia, Pennsylvania, on 6 September 1866,” in ibid., 4:145. 42. Langston, “Citizenship and the Ballot.” 43. In the summer of 1865 a series of state black enfranchisement proposals went down to defeat in popular referenda. The racist Democratic Party uniformly opposed the idea. Although most Republicans backed the measure, enough abstained or opposed to defeat it. The results reflected not only white racism but also the political situation at the time, in which President Andrew Johnson, elected with Abraham Lincoln on a unionist ticket, opposed black enfranchisement, counteracting what had been a movement in favor of the measure and limiting its appeal as a party measure. See Benedict, Compromise of Principle, 110–16. 44. Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877 (New York: Harper and Row, 1988), 199–201, 208–9; Benedict, Compromise of Principle, 121–22. See generally Theodore B. Wilson, The Black Codes of the South (Tuscaloosa: University of Alabama Press, 1965). 45. Cong. Globe, 39 Cong., 1 Sess., 39 (December 13, 1865). 46. See Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Alfred A. Knopf, 1996), 51–53, 81–82. 47. Michael Les Benedict, “Salmon P. Chase and Constitutional Politics,” Law and Social Inquiry 22 (Spring 1997): 466. 48. See Jill Norgren, The Cherokee Cases: The Confrontation of Law and Politics (New York: McGraw-Hill, 1996); R. Kent Newmyer, John Marshall and the Heroic Age of the Supreme Court (Baton Rouge: Louisiana State University Press, 2001), 440–58. For a succinct summary, see Stephen Breyer, “The Cherokee Indians and the Supreme Court,” Journal of the Supreme Court Historical Society 25, no. 3 (2000): 215–27. 49. Cong. Globe, 39 Cong., 1 Sess., 43 (December 13, 1865).

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50. Ibid. 51. Ibid., 27 (December 12, 1865). 52. Senator James K. Grimes (R-IA), in ibid., 2446 (May 8, 1866). See also Michael Les Benedict, “Contagion and the Constitution: Quarantine Agitation from 1859 to 1866,” Journal of the History of Medicine 25 (April 1970): 177–93. 53. Texas v. White, 74 U.S. (7 Wall.) 700, 725 (1869), in part quoting Lane County v. Oregon, 74 U.S. (7 Wall.) 71, 76 (1869). 54. Lane County v. Oregon, at 76. 55. Ibid., at 76–78. 56. Richard Henry Dana Jr., “The Grasp of War,” in Speeches in Stirring Times and Letters to a Son, ed. Richard Henry Dana III (Boston: Houghton Mifflin, 1910), 259. 57. For the importance and wide acceptance of the “grasp-of-war” justification for temporarily expanded federal power and the rejection of more radical, permanent alternatives, see Michael Les Benedict, “Preserving the Constitution: The Conservative Basis of Radical Reconstruction,” Journal of American History 61 (June 1974): 65–90. 58. U.S. Statutes at Large, 14 (1866): 27. 59. Cong. Globe, 39 Cong., 1 Sess., 475 (January 29, 1866). 60. Ibid., 476 (January 29, 1866). 61. Andrew Johnson, “Veto of the Civil Rights Bill,” in A Compilation of the Messages and Papers of the Presidents, ed. James D. Richardson (New York: Bureau of National Literature, 1897), 8:3606, 3610–11. 62. Cong. Globe, 39 Cong., 1 Sess., 1034 (February 26, 1866). 63. Robert S. Hale (R-NY), in ibid., 1063 (February 27, 1866). 64. Ibid., 1063–64. Hale was among the most conservative Republicans, but the degree of disquiet became clear when the influential New York Republican Roscoe Conkling, a fellow member of the Reconstruction Committee, moved its postponement, announcing that he had opposed the measure in committee. Ibid., 1094 (February 28, 1866). 65. Ibid., 1095 (February 28, 1866). 66. Ibid., 2286 (April 30, 1866). 67. Cong. Globe, 42 Cong., 1 Sess., app. 84 (March 31, 1871). In Barron v. Baltimore, 37 U.S. (7 Peters) 243 (1833), the Supreme Court had distinguished the Bill of Rights, which contained no explicit prohibition of state action, with the explicit prohibitions of Article I, Section 10, saying that the difference indicated that the Bill of Rights applied only to the federal government. 68. Toledo Blade, June 13, 1866, 2. 69. For Republicans’ stress on the conservatism of their program to blunt the force of Democratic and Johnsonian attacks, see Benedict, “The Elections of 1866,” chapter 9 of Compromise of Principle, 188–209. See also Benedict, “Preserving the Constitution.” 70. Frederick Douglass, “What the Black Man Wants: An Address Delivered in Boston, Massachusetts, on 26 January 1865,” in Blassingame and McKivigan, Frederick Douglass Papers Series One, 4:67–68. 71. New York Tribune, December 1, 1868, 4. 72. Senator Willard Warner (R-AL), Cong. Globe, 40th Cong., 3 Sess., 862 (February 9, 1869).

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73. Douglass, “Let No One Be Excluded from the Ballot Box,” in Blassingame and McKivigan, Frederick Douglass Papers Series One, 4:147; Douglass, “Equal Rights for All: Address Delivered in New York, New York, on 14 May 1868,” in ibid., 4:177. 74. Douglass at the fourth meeting of the American Equal Rights Association, May 12, 1869, in Stanton, Anthony, and Gage, History of Woman Suffrage, 2:382. 75. Stanton in The Revolution, January 14, 1869, quoted in ibid., 2:318. 76. Elizabeth Cady Stanton to Gerrit Smith, January 1, 1866, in Gordon, Selected Papers of Stanton and Anthony, 1:569. 77. Stanton to the editor of the National Anti-slavery Standard, December 26, 1865, in Stanton, Anthony, and Gage, History of Woman Suffrage, 2:94. Ironically, the recipient and publisher of Stanton’s letter was the then more sympathetic Douglass. 78. Anthony at the 1869 anniversary celebration of the Equal Rights Association, May 12, 1869, in ibid., 2:383. 79. Woman suffragists would make this argument in Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875). For the background of the case, see Ellen Carol Dubois, “Outgrowing the Compact of the Fathers: Equal Rights, Woman Suffrage, and the United States Constitution, 1820–1878,” Journal of American History 74 (December 1987): 852–60. 80. Dubois, “Outgrowing the Compact of the Fathers,” 848–51, discusses the shift from a universalist argument for suffrage to one stressing the differences between men and women and the need to incorporate the feminine side into the body politic. By the Progressive era, this “essentialist” argument would develop into one stressing woman’s maternal and nurturing nature. See Aileen Kraditor, Ideas of the Woman Suffrage Movement, 1890–1920 (New York: Columbia University Press, 1965), 52–74. 81. [Edwin L. Godkin], “Universal Suffrage and Universal Amnesty,” The Nation, November 29, 1866, 430. 82. Carl Schurz, “The True Problem,” Atlantic Monthly 19 (March 1867): 377. 83. Jerry L. West, The Reconstruction Ku Klux Klan in York County, South Carolina, 1865–1877 (Jefferson, NC: McFarland, 2002), 37. 84. John C. Lester and D. L. Wilson, The Ku Klux Klan: Its Origin, Growth, and Disbandment (New York: Neale, 1905), 154. 85. Originally, “broadcasting” referred to planting crops by casting seeds widely rather than sowing them carefully in rows. In terms of media, of course, it meant publishing widely rather than targeting a specific audience. 86. Kirk H. Porter and Donald Bruce Johnson, comps., National Party Platforms, 1840– 1972, 5th ed. (Urbana: University of Illinois Press, 1975), 38. 87. The following discussion is based on Republican and Democratic national platforms printed in ibid., 22–96. 88. David Ross Locke, “Swingin’ ’round the Cirkle”: By Petroleum V. Nasby, Late Pastor of the Church of the New Dispensation, Chaplain to His Excellency the President, and P.M. at Confederate X Roads, Kentucky: His Ideas of Men, Politics, and Things, as Set Forth in His Letters to the Public Press, during the Year 1866 (Boston: Lee and Shepard, 1867), 56. 89. Brooklyn Young Republican Club, Young Republican Campaign Song Book, comp. Henry Camp (Brooklyn: Brooklyn Young Republican Club, 1888), 62.

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Notes to pages 158–62

90. James A. Garfield, Can the Democratic Party Be Safely Intrusted with the Administration of the Government? Speech of Hon. James A. Garfield, of Ohio, in the House of Representatives, Friday, August 4, 1876 (n.p., 1876), 4, 16. 91. See Michael Les Benedict, “Preserving Federalism: Reconstruction and the Waite Court,” Supreme Court Review (1978): 39–80; Pamela Brandwein, Rethinking the Judicial Settlement of Reconstruction (New York: Cambridge University Press, 2011).

6. “The Legitimate Object of Government”: Constitutional Problems of Civil War–Era Republican Policy / Paul D. Moreno 1. “Reputed First Political Speech,” Mar. 1832, in Selected Writings and Speeches of Abraham Lincoln, ed. T. Harry Williams (New York: Hendricks House, 1943), 3. On the reputation, see Gabor S. Boritt, Lincoln and the Economics of the American Dream (Memphis: Memphis State University Press, 1978), 93; Donald and Virginia Fehrenbacher, ed., Recollected Words of Abraham Lincoln (Stanford: Stanford University Press, 1996), 150. See also Reinhard H. Luthin, “Abraham Lincoln and the Tariff,” American Historical Review 49 (1944): 609–29. 2. Herman Belz, “Lincoln and the Constitution: The Dictatorship Question Reconsidered,” in Abraham Lincoln, Constitutionalism, and Equal Rights, ed. Herman Belz (New York: Fordham University Press, 1998), 17–43. 3. The argument can be seen in Charles A. and Mary R. Beard, The Rise of American Civilization, 2 vols. (New York: Macmillan, 1927), 2:53, 108–11; Roy F. Nichols, American Leviathan (New York: Harper and Row, 1966), 202; Leonard P. Curry, Blueprint for Modern America: Nonmilitary Legislation of the First Civil War Congress (Nashville: Vanderbilt University Press, 1968), 147; Wilfred M. McClay, The Masterless: Self and Society in Modern America (Chapel Hill: University of North Carolina Press, 1994), 24; James McPherson, Battle Cry of Freedom: The Civil War Era (New York: Oxford University Press, 1988), 452; Jeffrey Rogers Hummel, Emancipating Slaves, Enslaving Free Men: A History of the American Civil War (LaSalle, IL: Open Court, 1996), 358; Richard F. Bensel, The Political Economy of American Industrialization, 1877–1900 (Cambridge: Cambridge University Press, 2000), 201. 4. David Donald, Lincoln Reconsidered: Essays on the Civil War Era, 2nd ed. (New York: Vintage, 1956), 187–208. 5. The final cause was slavery. See William W. Freehling, Prelude to Civil War: The Nullification Controversy in South Carolina, 1816–36 (New York: Harper and Row, 1965), 255–57; Hummel, Emancipating Slaves, Enslaving Free Men, 19. 6. “First Inaugural Address,” 4 Mar. 1861, in Williams, Selected Writings, 116. 7. Annals of Congress, 19 Jun. 1798, p. 1976; 19 Apr. 1828, p. 2427; A. P. Winston, “The Tariff and the Constitution,” Journal of Political Economy 5 (1896): 44. 8. Leonard R. Sorenson, Madison on the “General Welfare”: His Consistent Constitutional Vision (Lanham, MD: Rowman and Littlefield, 1995). 9. 1 Stat. 24 (1789). 10. William Hill, “Protective Purpose of the Tariff Act of 1789,” Journal of Political Economy 2 (1893): 54–76. 11. Winston, “The Tariff and the Constitution,” 55; Frank W. Taussig, The Tariff History of the United States (New York: Putnam, 1892), 220, 293.

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12. James Madison, Letters on the Constitutionality of Congress to Impose a Tariff for the Protection of Manufactures (Washington, DC: S. C. Ustick, 1829), 7, 10–11. 13. Ibid., 17–18; Taussig, Tariff History of the United States, 18. 14. “Speech at Pittsburgh,” 15 Feb. 1861, in The Collected Works of Abraham Lincoln, ed. Roy P. Basler, 9 vols. (New Brunswick: Rutgers University Press, 1953–55), 4:213–14. 15. Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning (Cambridge: Harvard University Press, 1999), 99–100; George Dangerfield, The Era of Good Feelings (New York: Harcourt, Brace, 1952), 409. 16. Taussig, Tariff History of the United States, 114. 17. Donald Bruce Johnson and Kirk H. Porter, ed., National Party Platforms, 1840–1972 (Urbana: University of Illinois Press, 1973), 2, 3, 10, 16, 24. 18. Ibid., 33; Heather Cox Richardson, The Greatest Nation of the Earth: Republican Economic Policies during the Civil War (Cambridge: Harvard University Press, 1997), 108. 19. Taussig, Tariff History of the United States, 159. 20. Edward Stanwood, American Tariff Controversies in the Nineteenth Century, 2 vols. (New York: Russell and Russell, 1967 [1903]), 2:123. 21. Taussig, Tariff History of the United States, 166. Justin Morrill himself tried to have the tariff lowered after the war. 22. Ibid., 155; Edward C. Kirkland, Industry Comes of Age: Business, Labor, and Public Policy, 1860–97 (Chicago: Quadrangle, 1961), 183–88. 23. Stanwood, American Tariff Controversies in the Nineteenth, 2:200; Morton Keller, Affairs of State: Public Life in Late Nineteenth-Century America (Cambridge, MA: Belknap Press, 1977), 376. 24. Boritt, Lincoln and the Economics of the American Dream, 103. 25. Douglas A. Irwin, “Tariff Incidence in America’s Gilded Age,” Journal of Economic History 67 (2007): 582–607. 26. Frank W. Taussig, The Tariff History of the United States, 8th ed. (New York: Augustus M. Kelly, 1967 [1931]), 318. 27. George B. Mangold, The Labor Argument in the American Protective Tariff Discussion (Madison: University of Wisconsin Press, 1906); Taussig, Tariff History of the United States, 64; James L. Huston, “A Political Response to Industrialism: The Republican Embrace of Protectionist Labor Doctrines,” Journal of American History 70 (1983): 35–57. 28. Bensel, Political Economy of American Industrialization, 490; Kirkland, Industry Comes of Age, 395. 29. Wolfgang F. Stolper and Paul A. Samuelson, “Protection and Real Wages,” Review of Economic Studies 9 (1941): 73; William P. Travis, “Does the American Tariff Protect Labor?” MIT Working Paper, 1967. 30. Johnson and Porter, National Party Platforms, 87. 31. They made the common error of confusing monopoly power in product markets with monopsony power in labor markets. 32. Taussig, Tariff History of the United States, 8th ed., 317. 33. Thomas K. McCraw, “Rethinking the Trust Question,” in Regulation in Perspective: Historical Essays, ed. Thomas K. McCraw (Cambridge: Harvard University Press, 1981); Melvin I. Urofsky, Big Steel and the Wilson Administration: A Study in Business– Government Relations (Columbus: Ohio State University Press, 1969), 45, 52.

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Notes to pages 164–68

34. Taussig, Tariff History of the United States, 215 35. Quoted in Huston, “Political Response to Industrialism,” 56. 36. 47 Stat. 70 (1932). 37. 49 Stat. 449 (1935). 38. Kirkland, Industry Comes of Age, 24. 39. “Opinion on the Constitutionality of the Bill for Establishing a National Bank,” 15 Feb. 1791, in The Papers of Thomas Jefferson, ed. Julian P. Boyd, 36 vols. (Princeton: Princeton University Press, 1950–2009), 19:280. 40. Lance Banning, The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic (Ithaca: Cornell University Press, 1995), 329. 41. “Veto Message,” 30 Jan. 1815, in A Compilation of the Messages and Papers of the Presidents, ed. James D. Richardson, 20 vols. (Washington, DC: Bureau of National Literature, 1897–1917), 2:540. Madison objected on policy, rather than constitutional grounds. He signed a revised bill in 1816. 42. Banning, Sacred Fire of Liberty, 331, 383; Drew R. McCoy, The Last of the Fathers: James Madison and the Republican Legacy (Cambridge: Cambridge University Press, 1989). 43. Craig v. Missouri, 29 U.S. 410 (1830). 44. Ibid., 449. 45. Ibid., 444. 46. Ibid. Both dissenters agreed that the bills would be unconstitutional if made legal tender for the payment of private debts, but that issue was not before the Court. 47. 36 U.S. 257 (1837). 48. Ibid., 308–9, 316. State judges also helped make state bank notes effectively legal tender. See James Willard Hurst, A Legal History of Money in the United States, 1774–1970 (Lincoln: University of Nebraska Press, 1973), 175. 49. Briscoe v. Bank of Kentucky, 350. 50. Bray Hammond, Sovereignty and an Empty Purse: Banks and Politics in the Civil War (Princeton: Princeton University Press, 1970), 291; Hammond, Banks and Politics in America from the Revolution to the Civil War (Princeton: Princeton University Press, 1957), 601. 51. Hugh Rockoff, “American Free Banking before the Civil War: A Reexamination,” Journal of Economic History 32 (1972): 417–20; Rockoff, “The Free Banking Era: A Reexamination,” Journal of Money, Credit and Banking 6 (1974): 141–67; Rockoff, “New Evidence on Free Banking in the United States,” American Economic Review 75 (1985): 886–89. 52. Rockoff, “Free Banking Era,” 144–45, 156. 53. Richard H. Timberlake, Monetary Policy in the United States: An Intellectual and Institutional History (Chicago: University of Chicago Press, 1993), 84. 54. Johnson and Porter, National Party Platforms, 24. 55. McPherson, Battle Cry of Freedom, 444. 56. Hurst, Legal History of Money in the United States, 189; Curry, Blueprint for Modern America, 206. 57. Chase to Horace Greeley, 28 Jan. 1863, in The Salmon P. Chase Papers, ed. John Nivin et al., 5 vols. (Kent: Kent State University Press, 1993–98), 3:375. 58. Hammond, Sovereignty and an Empty Purse, 39, 90, 137, 351. 59. 12 Stat. 665 (1863).

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60. “Annual Message,” 1 Dec. 1862, in Abraham Lincoln: His Speeches and Writings, ed. Roy P. Basler (New York: Da Capo, 2001), 671; Richardson, Greatest Nation of the Earth, 85; Boritt, Lincoln and the Economics of the American Dream, 197; Curry, Blueprint for Modern America, 198–204. 61. 14 Stat. 146 (1866). 62. Chase to William Cullen Bryant, 4 Feb. 1862, in Nivin, Salmon P. Chase Papers, 3:129. 63. Chase to William Pitt Fessenden, 10 Feb. 1862, in ibid., 3:132. 64. Max Farrand, ed., The Records of the Federal Convention of 1787, 4 vols. (New Haven: Yale University Press, 1937), 2:309; Hammond, Banks and Politics in America from the Revolution to the Civil War, 92, 108. 65. Dartmouth College v. Woodward, 17 U.S. 518 (1819), 628. Marshall used the same phrasing in Sturgis v. Crowninshield, 17 U.S. 122 (1819), 204; and Ogden v. Saunders, 25 U.S. 12 (1827), 355. 66. Chase to Jesse Baldwin, 18 May 1864, in Nivin, Salmon P. Chase Papers, 3:383. 67. James A. Dietz, “Personal Policy and Judicial Reasoning: Salmon P. Chase and Hepburn v. Griswold,” Northern Kentucky Law Review 21 (1993): 235–52; Kevin Walsh, “The Legal Tender Cases and Post–Civil War Origins of Modern Constitutional Interpretation,” PhD diss., Southern Illinois University at Carbondale, 1999. 68. George Boutwell, Reminiscences of Sixty Years in Public Affairs, 2 vols. (New York: McClure, 1902), 2:29; Fehrenbacher and Fehrenbacher, Recollected Words of Abraham Lincoln, 38; Brian McGinty, Lincoln and the Court (Cambridge: Harvard University Press, 2008), 340. 69. 75 U.S. 603 (1869). 70. 17 U.S. 316 (1819), 421. 71. Hepburn v. Griswold, 615; McCulloch v. Maryland, 423. 72. Hepburn v. Griswold, 617. 73. Ibid., 623. 74. Ibid., 638. 75. Ibid., 625. 76. Chase to Edward D. Mansfield, 11 Feb. 1870, in Nivin, Salmon P. Chase Papers, 5:327; Chase to James W. Ward, 15 May 1870, in ibid., 5:333. 77. Bernard Schwartz, From Confederation to Nation: The American Constitution, 1835–77 (Baltimore: Johns Hopkins University Press, 1973), 226. 78. Hummel, Emancipating Slaves, Enslaving Free Men, 330. 79. Frederick J. Blue, Salmon P. Chase: A Life in Politics (Kent: Kent State University Press, 1987), 303. 80. Charles Fairman, Reconstruction and Reunion, 1864–88, Part One (New York: Macmillan, 1971), 716; Walsh, “Legal Tender Cases and Post–Civil War Origins of Modern Constitutional Interpretation,” 77. 81. Dietz, “Personal Policy and Judicial Reasoning,” 245; Joseph M. Cormack, “The Legal Tender Cases: A Drama of American Legal and Financial History,” Virginia Law Review 16 (1929): 143. 82. “The nominations were actually on the desk of the Senate, which met at the same hour as the Supreme Court, before the announcement by the Court of its decision.” Cormack, “Legal Tender Cases,” 142.

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Notes to pages 170–74

83. 79 U.S. 457 (1870); Fairman, Reconstruction and Reunion, 755. 84. Legal Tender Cases, 529, 540, 552. The Court decided the cases in May 1871, but did not read its opinions until January 1872. 85. Ibid., 555–56, 563–64, 569. 86. Juilliard v. Greenman, 110 U.S. 421 (1884). 87. Ibid., 447. 88. Walsh, “Legal Tender Cases,” 142. 89. Journal, 15 Jan. 1872, in Nivin, Salmon P. Chase Papers, 1:669. 90. Thomas F. Wilson, The Power “to Coin” Money: The Exercise of Monetary Powers by the Congress (Armonk, NY: M. E. Sharpe, 1992). 91. Legal Tender Cases, 601. 92. Ibid., 655. 93. Juilliard v. Greenman, 451. 94. Kenneth W. Dam, “The Legal Tender Cases,” Supreme Court Review (1981), 383, 389; Hammond, Banks and Politics in the Civil War, 92, 108. 95. Legal Tender Cases, 670. 96. Hurst, Legal History of Money in the United States, 195. 97. Ibid., 186. 98. Wilson, Power “to Coin” Money, 169. 99. Legal Tender Cases, 561. 100. Timberlake, Monetary Policy in the United States, 87. 101. Richard Sylla, “Federal Policy, Banking Market Structures, and Capital Mobilization in the United States, 1863–1913,” Journal of Economic History 29 (1969): 657–86. 102. Timberlake, Monetary Policy in the United States, 87–93. 103. Hammond, Sovereignty and an Empty Purse, 299. 104. Kirkland, Industry Comes of Age, 32. 105. Sylla, “Federal Policy, Banking Market Structures, and Capital Mobilization in the United States,” 662. See also Gerald Berk, Alternative Tracks: The Constitution of American Industrial Order, 1865–1917 (Baltimore: Johns Hopkins University Press, 1994), 34–42, on the “nascent industrial oligarchy” fomented by the federal financial system. 106. Charles W. Calomiris, U.S. Bank Deregulation in Historical Perspective (Cambridge: Cambridge University Press, 2000), 167; Charles W. Collins, The Branch Banking Question (New York: Macmillan, 1926). National banks could not branch, but state banks with branches could keep them when they joined the national system. 107. Stephen Haber, “Political Competition and Economic Growth: Lessons from the Political Economy of Banking in Mexico and the United States,” unpublished MS (2004), 29. 108. Hammond, Sovereignty and an Empty Purse, 349, 363. See also Herbert L. Baer and Larry R. Mote, “The United States Financial System,” in Banking Structures in Major Countries, ed. George G. Kaufman (Boston: Kluwer, 1992), 469–553. 109. Michael Les Benedict, “Preserving Federalism: Reconstruction and the Waite Court,” Supreme Court Review (1979): 39–79; Alfred H. Kelly, Winfred A. Harbison, and Herman Belz, The American Constitution: Its Origins and Development, 7th ed. (New York: W. W. Norton, 1992), 329; Earl Maltz, Civil Rights, the Constitution, and Congress, 1863–69 (Lawrence: University Press of Kansas, 1990), 3.

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110. Wilson, Power “to Coin” Money, 9, 173. 111. John Lauritz Larson, Internal Improvements: National Public Works and the Promise of Popular Government in the Early United States (Chapel Hill: University of North Carolina Press, 2001), 19. 112. “Veto Message,” 3 Mar. 1817, in Richards, Compilation of the Messages and Papers of the Presidents, 2:569. 113. Lloyd J. Mercer, Railroads and Land Grant Policy: A Study in Government Intervention (New York: Academic Press, 1982), 3; Congressional Globe, 12 Jun. 1862, in American Landmark Legislation, ed. Irving J. Sloan, 5 vols. (Dobbs Ferry, NY: Oceana, 1975–84), 1:164. 114. Carter Goodrich, Government Promotion of American Canals and Railroads, 1800–90 (New York: Columbia University Press, 1960), 169. 115. Ibid.; Charles Warren, Congress as Santa Claus; or, National Donations and the General Welfare Clause of the Constitution (Charlottesville: University of Virginia Press, 1932). 116. Robert W. Johannsen, Stephen A. Douglas (Urbana: University of Illinois Press, 1997), 390–400, 435–39; Frank H. Hodder, “The Railroad Background of the Kansas– Nebraska Act,” Mississippi Valley Historical Review 12 (1925): 3–22. 117. Albro Martin, Railroads Triumphant: The Growth, Rejection, and Rebirth of a Vital American Force (New York: Oxford University Press, 1992), 18. 118. See the debate on the bill in the Congressional Globe, in Sloan, American Landmark Legislation, 1:105, 127–33. 119. Ibid., 1:281. 120. “First Annual Message,” 8 Dec. 1857, in Richards, Compilation of the Messages and Papers of the Presidents, 7:2987. 121. Curry, Blueprint for Modern America, 116, 126; Boritt, Lincoln and the Economics of the American Dream, 213; Lewis H. Haney, A Congressional History of Railways in the United States, 2 vols. (New York: Augustus M. Kelley, 1908–10), 2:149. 122. Curry, Blueprint for Modern America, 147. 123. Mercer, Railroads and Land Grant Policy, xv. 124. Wallace D. Farnham, “ ‘The Weakened Spring of Government’: A Study in Nineteenth-Century American History,” American Historical Review 68 (1963): 671. 125. Kirkland, Industry Comes of Age, 55–59; Martin, Railroads Triumphant, 285; Mercer, Railroads and Land Grant Policy, 148; James W. Ely Jr., Railroads and American Law (Lawrence: University Press of Kansas, 2001), 24; Richardson, Greatest Nation of the Earth, 206. 126. “Message to Congress in Special Session, July 4, 1861,” in Basler, Abraham Lincoln, 604; Herman Belz, “Lincoln and the Nature of ‘A More Perfect Union,’ ” in Lincoln’s America, 1809–65, ed. Joseph R. Fornieri and Sara Vaughn Gabbard (Carbondale: Southern Illinois University Press, 2009), 202. 127. Fairman, Reconstruction and Reunion, 919. 128. Gelpke v. Dubuque, 68 U.S. 175 (1864). 129. Ibid., 206–7. 130. Fairman, Reconstruction and Reunion, 919. 131. People v. Salem, 20 Mich. 452 (1870), 474–75, 495.

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Notes to pages 176–79

132. It is remarkable that a Progressive-era article that dismisses the private/public distinction as historically groundless and “largely a matter of opinion” fails to mention Cooley’s Salem decision. See Howard Lee McBain, “Taxation for a Private Purpose,” Political Science Quarterly 29 (1914): 185–213. 133. Alan R. Jones, “Thomas M. Cooley and the Michigan Supreme Court, 1865–85,” American Journal of Legal History 10 (1966): 102; Jones, The Constitutional Conservatism of Thomas McIntyre Cooley: A Study in the History of Ideas (New York: Garland, 1987); Michael Les Benedict, “Salmon P. Chase and Constitutional Politics,” in Preserving the Constitution: Essays on Politics and the Constitution in the Reconstruction Era (New York: Fordham University Press, 2006). 134. Michael Les Benedict, “Law and the Constitution in the Gilded Age,” in The Gilded Age: Essays on the Origins of Modern America, ed. Charles W. Calhoun (Wilmington, DE: Scholarly Resources, 1996), 299. 135. Ely, Railroads and American Law, 27. 136. U.S. v. Union Pacific Ry. Co., 91 U.S. 72 (1875), 79–81. 137. Ely, Railroads and American Law, 29, 58. 138. Ibid., 96. 139. Bensel, Political Economy of American Industrialization, 321; Kelly, Harbison, and Belz, American Constitution, 391–93. 140. Thomas K. McCraw, Prophets of Regulation (Cambridge, MA: Belknap Press, 1984), 7. 141. 24 Stat. 379 (1887); Albro Martin, “The Troubled Subject of Railroad Regulation in the Gilded Age: A Reappraisal,” Journal of American History 61 (1974): 361–62; Haney, Congressional History, 2:302. 142. George I. Lovell, Legislative Deferrals: Statutory Ambiguity, Judicial Power, and American Democracy (Cambridge: Cambridge University Press, 2002); Keith E. Whittington, Political Foundations of Judicial Supremacy (Princeton: Princeton University Press, 2007). 143. Haney, Congressional History, 2:308. 144. Martin, “Troubled Subject of Railroad Regulation in the Gilded Age,” 370. 145. Haney, Congressional History, 2:312. 146. Kirkland, Industry Comes of Age, 134; Albro Martin, Enterprise Denied: Origins of the Decline of American Railroads, 1897–1917 (New York: Columbia University Press, 1971). 147. Witherspoon v. Duncan, 71 U.S. 210 (1866), 219. 148. Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge, MA: Belknap Press, 1992); Mary R. Deering, Veterans in Politics: The Story of the GAR (Baton Rouge: Louisiana State University Press, 1952). 149. James G. Randall, Constitutional Problems under Lincoln (New York: Appleton, 1926), 432; Kelly, Harbison, and Belz, American Constitution, 310, 318. 150. James Willard Hurst, Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison: University of Wisconsin Press, 1956). 151. Goodrich, Government Promotion of American Canals and Railroads, 293. 152. “Fragment on Government,” ca. 1 Apr. 1854, in Basler, Collected Works of Abraham Lincoln, 2:221.

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153. Leonard D. White, The Republican Era, 1869–1901: A Study in Administrative History (New York: Free Press, 1958), vii, 2. 154. William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996). 155. Most academics share what might be called a Progressive–Whig view of the inevitable rise of the national (and ultimately global) administrative state. The term “American political development” signifies this view of state growth as natural, indeed normative. The popular phrase of the movement, “Bringing the state back in,” was not just a descriptive or methodological admonition, but also a hortatory one. 156. Bensel, Political Economy of American Industrialization, 511. 157. Herman Belz, “The American Response to Industrialism: A Conservative Interpretation,” Reviews in American History 5 (1977): 541.

7. Woodrow Wilson and the Meaning of the Lincoln Legacy / Ronald J. Pestritto The support of the Earhart Foundation during the preparation of this chapter is gratefully acknowledged. 1. See Ronald J. Pestritto, Woodrow Wilson and the Roots of Modern Liberalism (Lanham, MD: Rowman and Littlefield, 2005); see also John Marini and Ken Masugi, eds., The Progressive Revolution in Politics and Political Science: Transforming the American Regime (Lanham, MD: Rowman and Littlefield, 2005); Charles R. Kesler, “Separation of Powers and the Administrative State,” in The Imperial Congress: Crisis in the Separation of Powers, ed. Gordon S. Jones and John A. Marini (New York: Pharos Books, 1988), 20–40; and Kesler, “The Public Philosophy of the New Freedom and the New Deal,” in The New Deal and Its Legacy, ed. Robert Eden (New York: Greenwood Press, 1989), 155–66. 2. Thomas L. Krannawitter, Vindicating Lincoln: Defending the Politics of Our Greatest President (Lanham, MD: Rowman and Littlefield, 2008), 290. 3. Ibid., 293. 4. See, for example, DiLorenzo’s defense of the Confederacy as the model of limited government in The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War (Roseville, CA: Prima Publishing, 2002), 273–74. 5. Walter Williams, “Why the Civil War,” syndicated column published December 2, 1998, http://economics.gmu.edu/wew/articles/98/civil-war.htm (accessed May 14, 2009). 6. Woodrow Wilson, “An Address to the Jefferson Club in Los Angeles,” May 12, 1911, in The Papers of Woodrow Wilson (hereafter cited as PWW), ed. Arthur S. Link, 69 vols. (Princeton: Princeton University Press, 1966–93), 23:33–34. 7. Woodrow Wilson, The State (Boston: D. C. Heath, 1889), 658–59. 8. Wilson, Constitutional Government in the United States (New York: Columbia University Press, 1908), 46–47. 9. Wilson, “The Making of the Nation,” April 15, 1897, in PWW, 10:231, 235. See also “A Commemorative Address,” April 30, 1889, in PWW, 6:177. 10. Wilson, The State, 480. 11. Wilson, A History of the American People, 5 vols. (New York: Harper and Brothers, 1902), 4:265.

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12. Ibid., 5:128–29. For a discussion of Wilson’s vision of the Civil War as necessary for progress, see the following: Niels Aage Thorsen, The Political Thought of Woodrow Wilson 1875–1910 (Princeton: Princeton University Press, 1988), 15; David Steigerwald, “The Synthetic Politics of Woodrow Wilson,” Journal of the History of Ideas 50 (July–September 1989): 476; Anthony Gaughan, “Woodrow Wilson and the Legacy of the Civil War,” Civil War History 43:3 (1977): 227–38. 13. Wilson, “A Calendar of Great Americans,” September 15, 1893, in PWW, 8:371. 14. Ibid., 8:372. 15. Wilson, Division and Reunion: 1829–1889 (1893; repr., Longmans, Green, 1901), 44–47. 16. Wilson, “State Rights,” December 20, 1899, in PWW, 11:311–12. 17. Wilson, Division and Reunion, 211. 18. Wilson, “To Hermann Eduard von Holst,” June 29, 1893, in PWW, 8:271–72. 19. Wilson, “Edmund Burke: The Man and His Times” August 31, 1893, in PWW, 8:334–36. 20. See Wilson’s chapter on “The President of the United States,” from Constitutional Government in the United States, 54–81. See especially pp. 54, 66–67. 21. Whether, in seeing presidential leadership this way, Wilson actually promoted something new in the American tradition or simply tapped into something that had been there all along, is the subject of debate among scholars. While scholars such as James Ceaser, Glen E. Thurow, Jeffrey Tulis, Joseph M. Bessette, Paul Eidelberg, and Robert Eden see Wilson as the founder of the modern presidency, others, such as David K. Nichols, question the very idea that there is a “modern presidency,” and suggest that Wilson was mistaken if he thought that his vision of presidential leadership could be achieved only by transcending the Constitution. See Ceaser, Thurow, Tulis, and Bessette, “The Rise of the Rhetorical Presidency,” Presidential Studies Quarterly 11 (Spring 1981): 158–71; Tulis, The Rhetorical Presidency (Princeton: Princeton University Press, 1987), 132–44; Eidelberg, A Discourse on Statesmanship (Champaign: University of Illinois Press, 1974); Eden, “Opinion Leadership and the Problem of Executive Power: Woodrow Wilson’s Original Position,” Review of Politics 57 (Summer 1995): 483–503; Nichols, The Myth of the Modern Presidency (University Park: Pennsylvania State University Press, 1994), esp. 13–20. I avoid entering into that debate here; instead, in this chapter I endeavor only to show how Wilson relied on Lincoln as a model for his view of the presidency, and how such a reliance defies the facts of both Lincoln’s words and deeds. 22. Wilson, “Leaders of Men,” June 17, 1890, in PWW, 6:659. 23. Ibid., 6:649. 24. Wilson, “An Address on Thomas Jefferson,” April 16, 1906, in PWW, 16:363. 25. Wilson, “Abraham Lincoln: A Man of the People,” February 12, 1909, in PWW, 19:42. 26. Wilson, “Calendar of Great Americans,” 8:378–79. 27. Wilson, Division and Reunion, 216. 28. Lincoln, “The Repeal of the Missouri Compromise and the Propriety of Its Restoration: Speech at Peoria, Illinois, in Reply to Senator Douglas,” October 16, 1854, in Abraham Lincoln: His Speeches and Writings, ed. Roy P. Basler (New York: Da Capo Press, 2001), 283–323; Lincoln, “The Dred Scott Decision: Speech at Springfield, Illinois,” June 26, 1857, in ibid., 352–65.

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29. Lincoln, “Dred Scott Decision,” 361. 30. Wilson, “Abraham Lincoln,” in PWW 19:39. 31. Lincoln, “Letter to H. L. Pierce and Others,” April 6, 1859, in Basler, Abraham Lincoln, 489. 32. Lincoln, “Temperance Address Delivered before the Springfield Washington Temperance Society,” February 22, 1842, in ibid., 131–41. 33. Lincoln, “Repeal of the Missouri Compromise,” 314. 34. Wilson, “Abraham Lincoln,” 19:42. 35. Lincoln, “Repeal of the Missouri Compromise,” 314–15. See also Lincoln, “Address in Independence Hall, Philadelphia,” February 22, 1861, in Basler, Abraham Lincoln, 577, where Lincoln says in a speech at Independence Hall, “All the political sentiments I entertain have been drawn, so far as I have been able to draw them, from the sentiments which originated and were given to the world from this hall. I have never had a feeling politically that did not spring from the sentiments embodied in the Declaration of Independence.” 36. See, for example, Lincoln’s “First Debate, at Ottawa, Illinois,” August 21, 1858, in Basler, Abraham Lincoln, 444–45. This statement was repeated in Lincoln’s First Inaugural Address; see Basler, Abraham Lincoln, 580. 37. Lincoln, “Repeal of the Missouri Compromise,” 313. 38. Lincoln, “The Perpetuation of Our Political Institutions: Address before the Young Men’s Lyceum of Springfield, Illinois,” January 27, 1838, in Basler, Abraham Lincoln, 80–81. 39. Ibid., 81, 84. 40. Wilson, “The Author and Signers of the Declaration of Independence,” July 4, 1907, in PWW, 17:251. 41. Lincoln, “Dred Scott Decision,” 359. 42. Lincoln, “A House Divided: Speech Delivered at Springfield, Illinois, at the Close of the Republican State Convention,” June 16, 1858, in Basler, Abraham Lincoln, 373. 43. Lincoln, “Temperance Address Delivered before the Springfield Washington Temperance Society,” 138–39. 44. Lincoln, “Letter to Albert Hodges,” April 4, 1864, in The Collected Works of Abraham Lincoln, ed. Roy P. Basler, 8 vols. (New Brunswick: Rutgers University Press, 1953), 7:281.

8. The Idea of Constitutional Conservatism in the Early Twentieth Century / Johnathan O’Neill I gratefully acknowledge the support of the Earhart Foundation during the preparation of this chapter. 1. A fine overview of this literature is David E. Bernstein, “Lochner Era Revisionism, Revised,” Georgetown Law Journal 93 (2003): 1. The most comprehensive attention to Lochner itself is David E. Bernstein, Rehabilitating Lochner: Defending Individual Rights against Progressive Reform (Chicago: University of Chicago Press, 2011). See also, David N. Mayer, “The Myth of ‘Laissez-Faire Constitutionalism’: Liberty of Contract in the Lochner Era,” Hastings Constitutional Law Quarterly 36 (2009): 217; Gary D. Rowe, “Lochner Revisionism Revisited,” Law and Social Inquiry 24 (1999): 221. A pathbreaking study was Michael Les Benedict, “Laissez-Faire and Liberty: A Revaluation of the Meaning and Origins of Laissez-Faire Constitutionalism,” Law and History Review 3 (1985): 293.

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2. David Jayne Hill, “The Crisis in Constitutionalism,” North American Review 198 (December 1913): 769, repr. in Hill, Americanism: What It Is (New York: Appleton, 1916), 49. I first addressed the NACG in Johnathan O’Neill, “Constitutional Maintenance and Religious Sensibility in the 1920s: Rethinking the Constitutionalist Response to Progressivism,” Journal of Church and State 51 (2009): 24, which is drawn on in this section and the next. 3. Mark Warren Bailey, Guardians of the Moral Order: The Legal Philosophy of the Supreme Court, 1860–1910 (DeKalb: Northern Illinois University Press, 2004); Linda Przybyszewski, “Judicial Conservatism and Protestant Faith: The Case of Justice David J. Brewer,” Journal of American History 91 (2004): 471; see also Benedict, “Laissez-Faire and Liberty.” 4. For Hill’s articulation of this basic view, see The People’s Government (New York: Appleton, 1915) (hereafter Hill, PG), 147–52, 154–59 (rejecting monopoly), 160–64, 209–10; Hill, Americanism, 120–21, 261–62 (quote). See also Hill, “Aims and Purposes,” Bulletin of the NACG 3 (Sept. 1920): 5. For Taft, see Liberty under Law (New Haven: Yale University Press, 1922) (hereafter Taft, LUL), 25–26, 40; Popular Government (New Haven: Yale University Press, 1913) (hereafter Taft, PG), 88, 90–95, 229–31. Taft’s support of various regulatory reforms as president is well-known; for a few explicit rejections of laissezfaire, see Taft, LUL, 38–39; PG, 35; Four Aspects of Civic Duty (New Haven: Yale University Press, 1906), 11–12. Root shared this perspective; see William A. Schambra, “Elihu Root,” in American Political Thought, ed. Morton J. Frisch and Richard G. Stevens (Itasca, IL: Peacock, 1983), 239–42. 5. Calvin Coolidge, “Address at the Celebration of the 150th Anniversary of the Declaration of Independence, Philadelphia, Pa., July 5, 1926,” available at John T. Woolley and Gerhard Peters, The American Presidency Project, http://www.presidency.ucsb.edu/ ws/?pid=408; James M. Beck, The Constitution of the United States (New York: Doran, 1924), 213; James M. Beck, The Passing of the New Freedom (New York: Doran, 1920), 69–70; Taft, PG, 65, 188; Elihu Root, Addresses on Government and Citizenship (Freeport, NY: Books for Libraries Press, 1969 [1916]), 83, 98, 99, 100, 514, 112–13, 167–68; Hill, Human Nature and the Constitution (Rochester: University of Rochester Press, 1926), 51–53, 67–68, 70–71; Hill, Americanism, 21–22, 23, 26, 76, 128–29; Hill, PG, xi, 128, 106–7, 121. 6. Editorial, “Teaching Americanism in the Public Schools,” Constitutional Review (hereafter CR) 6 (July 1922): 175, 179 (quote); unsigned review of The Declaration of Independence for Young Americans, by George William Gerwig, CR 10 (July 1926): 192 (quote); Editorial, “Historic Backgrounds of the Constitution III,” CR 10 (January 1926): 43, 45. 7. O’Neill, “Constitutional Maintenance and Religious Sensibility in the 1920s,” 38–40. This and the next two paragraphs draw on some of the evidence first presented in this article. 8. Editorial, “The Declaration and Its Sesquicentennial,” CR 10 (July 1926): 182, 183, quoting Lincoln to Henry L. Pierce, April 6, 1859. I have retained Black’s slightly altered punctuation. 9. Hill, Americanism, 29, 55. See also pp. 15, 138–39; Hill, PG, 166, 274–75; Taft, LUL, 12–13, 19–20. 10. George Sutherland, “Principle or Expedient?” CR 5 (October 1921): 195, 199. See also Elihu Root, Miscellaneous Addresses (Port Washington, NY: Kennikat Press, 1966 [1917]), 260; Elihu Root, Men and Policies (Freeport, NY: Books for Libraries Press, 1968

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[1924]), 124–26; Gaillard Hunt, “The Bolshevist Idea and the American Idea,” CR 6 (January 1922): 36, 42; David Jayne Hill, “Our Charter of Law and Liberty,” CR 4 (April 1920): 75, 78; James M. Beck, “The Anniversary of the Constitution,” CR 13 (October 1929): 186, 189; Sidney St. F. Thaxter, “Some Aspects of the Doctrine of State Rights,” CR 9 (January 1925): 26, 37; William Howard Doughty Jr., “Reactionary Tendencies of Radicalism,” CR 1 (July 1917): 79, 88; Beck, Constitution of the United States, 203–4. 11. Charles S. Thomas, “Federal Encroachments,” CR 4 (October 1920): 206, 215. For similar expressions, see Taft, PG, 9, 67, 180–82, 184–85. 12. Hill, Human Nature and the Constitution, 60–63; Joseph Buffington, “Benjamin Franklin and the Constitution,” CR 3 (1919): 157, 160; Hugh Henry Brown, “Our Generation and the Constitution,” CR 8 (1924): 140, 141; William Howard Doughty Jr., “The Human Factor in Popular Government,” CR 3 (1919): 80, 83, 91; N. C. Young, “Shall We Change Our Form of Government?” CR 1 (1917): 10, 19; Josiah Marvel, “The Spirit of Our Constitution,” CR 10 (July 1926): 154, 158. 13. Archibald Hopkins, “Labor, the Law, and the People,” CR 4 (1920): 161, 164 (quote). See also George A. Talley, “Public Welfare under the Constitution,” CR 1 (1917): 95, 100; Editorial, “Democracy, True and False,” CR 2 (1918): 29, 35; Sutherland, “Principle or Expedient?” 207; Nicholas Murray Butler, “The Changing Foundations of Government,” CR 6 (1922): 131, 137. For other examples, see, Taft, Our Chief Magistrate and His Powers (hereafter Taft, OCM) (New York: Columbia University Press, 1916), 27; Taft “The Attacks on the Courts and Legal Procedure,” Kentucky Law Journal 5 (1916): 3, 23; Taft, “Speech Accepting the Republican Nomination,” August 1, 1912, Senate Document 902, 62nd Cong., 2nd Sess., 1912, 10; Hill, Americanism, 52–53, 80, 93; Hill, PG, 148–49, 189–90, 198; Charles Warren, Congress as Santa Claus (Charlottesville, VA: Michie, 1932), 129, 136. 14. A similar point is made in Benedict, “Laissez-Faire and Liberty,” 306–8. See also Markku Ruotsila, British and American Anticommunism before the Cold War (London: Frank Cass, 2001), 6–9, who nevertheless too quickly subsumes anti-collectivist conservatives under social Darwinism. 15. Leslie M. Shaw, “A Republic, Not a Democracy,” CR 9 (1925): 140, 141; Henry Cabot Lodge, The Democracy of the Constitution (Freeport, NY: Books for Libraries Press, 1966 [1915]), 30, 52–54, 54 (quote), 57, 80. See also O’Neill, “Constitutional Maintenance and Religious Sensibility in the 1920s,” 46–47 and citations therein; and Root, Addresses on Government and Citizenship, 92–95, 269–70; Beck, Constitution of the United States, 206–9, 277–78, 289–93; Taft, LUL, 11–13, 19–22; Taft, PG, 22–29, 37–38, 51, 60, 62, 77, 94–95. 16. As intimated, with no textual citations, in Clinton Rossiter, Conservatism in America (London: Heinemann, 1955), 158–59. 17. Herbert Spencer, The Man versus the State, ed. Truxton Beale (New York: Mitchell Kennerly, 1916), 5 (Root), 32 (Lodge), 178–79 (Butler), 219 (Hill), 344 (Taft). 18. Ibid., 178, 34, 35 (quote), 220 (quote), 221 (quote), 224. See also the review in CR 4 (1920): 128. 19. Hill, Americanism, ix; Hill, PG, 102–494 (quote). See also Hill, “Our Charter of Law and Liberty.” 20. Editorial, “Important Articles in Current Magazines,” CR 1 (1917): 49 (quote); Burton Alva Konkle, “Americanizing Americans,” CR 8 (1924): 97, 100 (quote). See also Editorial, “The Revolt against Paternalism,” CR 7 (1923): 41; Louis H. Porter, “Individual Rights

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and State Supremacy,” CR 4 (1920): 217; Otto H. Kahn, “The Menace of Paternalism,” CR 3 (1919): 3. 21. Lodge, Democracy of the Constitution, 151 (giving a longer quotation from Lincoln), 158 (quote). See also ibid., 37–38; Hill, Americanism, v (quote), 81–82, 155. 22. James M. Beck, The Changed Conception of the Constitution (Rochester: University of Rochester Press, 1925), 13 (quote), Aristotle, Politics [1310a12] (Jowett translation), 63–64; Beck, “A Rising or a Setting Sun?” CR 8 (1924): 3, 13 (quote), 14. See also Beck, Passing of the New Freedom, 92–93. 23. Charles Warren, The Making of the Constitution (Boston: Little, Brown, 1937 [1928]), 804. 24. Ibid., 5, 69–95; Charles Warren, The Trumpeters of the Constitution (Rochester: University of Rochester Press, 1927), 53–55. 25. CR 1 (April 1917), 2 (editorial note) (quotes); Editorial, “The National Association for Constitutional Government,” ibid., 35–37. 26. Bulletin of the NACG 1 (May 1920): 11; Editorial, “Beginning Another Year,” CR 2 (1918): 117, 118 (quote). 27. Samuel P. Weaver, “The Constitution in Our Public Schools,” CR 11 (1927): 105; Editorial, “Teaching Constitutional Government,” CR 5 (1921): 120; Editorial, “The Observance of Constitution Day,” CR 4 (1920): 46; Editorial, “Popularizing the Federal Constitution,” CR 4 (1920): 235. 28. Editorial, “American Bar Association to Promote American Ideals,” CR 7 (1923): 55; Editorial, “American Lawyers Support the Constitution,” CR 10 (1926): 185; James A. Van Osdol, “Future Organization and Defense of the Constitution,” CR 13 (1929): 121. See also John W. Davis et al., American Citizenship (New York: Crowell, 1925). 29. Michael Kammen, A Machine That Would Go of Itself: The Constitution in American Culture (New York: Vintage, 1987 [1986]), 208. 30. See, generally, Daria Frezzia, The Leader and the Crowd: Democracy in American Public Discourse, 1880–1941 (Athens: University of Georgia Press, 2007). 31. Martha Derthick and John J. Dinan, “Progressivism and Federalism,” in Progressivism and the New Democracy, ed. Sidney M. Milkis and Jerome M. Mileur (Amherst: University of Massachusetts Press, 1999), 82–83. See also Kimberley S. Johnson, Governing the American State: Congress and the New Federalism, 1877–1929 (Princeton: Princeton University Press, 2007), 7, 2–3. 32. James M. Beck, Our Changing Constitution (Williamsburg: College of William and Mary, 1927), 22–27; Floyd E. Thompson, “Some Dangerous Tendencies in Government,” CR 7 (1923): 167, 173; Nicholas Murray Butler, The Faith of a Liberal (New York: Scribner’s, 1924), 287, 308. 33. Michael Kammen, Sovereignty and Liberty: Constitutional Discourse in American Culture (Madison: University of Wisconsin Press, 1988), 172. 34. See, for example, Beck, Changed Conception of the Constitution, 36; Frank Warren Hackett, “The Proposed Prohibition Amendment,” CR 2 (1918): 81, 86–89; Charles W. Pierson, Our Changing Constitution (Garden City, NY: Doubleday, Page, 1922), 37, 43. 35. Charles Warren, Congress, the Constitution, and the Supreme Court, rev. ed. (Boston: Little, Brown, 1935 [1925]), 155–59; Charles Warren, “The New ‘Liberty’ under the Fourteenth Amendment,” Harvard Law Review 39 (1926): 431, 464–65.

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265

36. James W. Wadsworth, “Let’s Stop This Fifty-Fifty Business,” Nation’s Business, March 1926, 23, 24 (quote); Albert C. Ritchie, “Federal Subsidies to the States,” in Selected Articles on States Rights, ed. Lamar T. Beman (New York: Wilson, 1926), 294. See also Albert C. Ritchie, “Back to States Rights,” The World’s Work, March 1924, 525; Warren, Congress as Santa Claus, 95–106; Calvin Coolidge, “Responsibilities of the States, May 30, 1925,” in Beman, Selected Articles on States Rights, 63, 73–78. 37. See, generally, Ruotsila, British and American Anticommunism before the Cold War. See also Lynn Dumenil, “ ‘The Insatiable Maw of Bureaucracy’: Antistatism and Education Reform in the 1920s,” Journal of American History 77 (1990): 499. 38. Butler, Faith of a Liberal, 302–5; Felix Rackemann, “Thought and Impulse in Legislation,” CR 8 (1924): 152, 157–58; Editorial, “Proposals to Amend the Constitution,” CR 8 (1924): 112–13; Editorial, “The Child Labor Amendment,” CR 9 (1925): 44. See also Bill Kauffman, “The Child Labor Amendment Debate of the 1920s,” Journal of Libertarian Studies 10 (1992): 139. 39. Editorial, “Opinions on the Towner-Sterling Bill,” CR 7 (1923): 109, 110 (quote). See also Henry Campbell Black, Shall Education Be under Local or National Control? (New York: Tracts for Today, 1923); Editorial, “A Federal Department of Education,” CR 12 (1928): 221; Butler, Faith of a Liberal, 205–7, 306–8. 40. Elihu Root, “How to Preserve the Local Self-Government of the States,” in Beman, Selected Articles on States Rights, 61, 66, 67. 41. See Christopher J. Cyphers, The National Civic Federation and the Making of a New Liberalism, 1900–1915 (Westport, CT: Praeger, 2002), 153–78, which notes the movement’s principled respect for federalism. See also William Graebner, “Federalism in the Progressive Era: A Structural Interpretation of Reform,” Journal of American History 64 (1977): 331. 42. Richard Washburn Child, “The Doctrine of Local Obligations,” CR 13 (1929): 85; Edward P. Buford, “Federal Encroachments upon State Sovereignty,” CR 8 (1924): 23; Harry Swain Todd, “Legislation by Constitutional Amendment,” CR 5 (1921): 217; Pierson, Our Changing Constitution, 143–49; Butler, “The New American Revolution,” in Faith of a Liberal, 285–310. See also Taft, PG, 151–52; Calvin Coolidge, “Responsibilities of the States, May 30, 1925,” in Beman, Selected Articles on States Rights, 75. 43. Coolidge, “Responsibilities of the States,” 72, 76; Texas v. White, 74 US 700, 725 (1869); Beck, Our Changing Constitution, 27; Floyd E. Thompson, “Some Dangerous Tendencies in Government,” CR 7 (1923): 167, 173; George A Sweetser, “Principles of American Government,” CR 10 (1926): 88, 91; Pierson, Our Changing Constitution, v, 34; Butler, Faith of a Liberal, 139, 204, 290. 44. Butler, Faith of a Liberal, 295. Texas v. White also stated that “preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union” (725). 45. The most detailed treatment is William G. Ross, A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890–1937 (Princeton: Princeton University Press, 1994). See also Steven F. Lawson, “Progressives and the Supreme Court: A Case for Judicial Reform in the 1920s,” The Historian 42 (1980): 419. 46. Taft, PG, 95; Lodge, Democracy of the Constitution, 139; Root, Addresses on Government and Citizenship, 106; Hill, PG, 188 (here the judicial recall seems to be the implied target but is not directly named).

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47. Taft’s veto message is reprinted in PG, 167–74. See also ibid., 175–85, 200, 235; Taft, LUL, 15, 28. Root opposed the Arizona recall in Addresses on Government and Citizenship, 387–404. Taft, “Speech Accepting the Republican Nomination,” 11 (quote). 48. Root, Addresses on Government and Citizenship, 110–114; Lodge, Democracy of the Constitution, 76–77, 105, 115–116. 49. Charles Warren, “The Progressiveness of the United States Supreme Court,” Columbia Law Review 13 (1913): 294; Charles Warren, “A Bulwark to the State Police Power: The United States Supreme Court,” Columbia Law Review 13 (1913): 667. 50. As was done in the Judiciary Act of December 23, 1914, ch. 2 (38 Stat. 790). 51. Charles Warren, “The Supreme Court . . . ,” Address before the Maryland State Bar Association, Atlantic City, NJ, June 29, 1923 (Annapolis, MD: Capital Press Gazette, n.d.), 4, 28. 52. Ibid., 25. 53. Charles Warren, Borah and La Follette and the Supreme Court of the United States (New York: National Security League, 1923), 4, 10, 12. 54. Hill, PG, 246–56; Robert Von Moschzisker, Judicial Review of Legislation (Washington, DC: NACG, 1923); Editorial, “Marshall Not Guilty of Usurpation,” CR 9 (1925): 52–53 (reprinting a letter from William Meigs); James Frederick Peake, “Power of the Supreme Court to Nullify Acts of Congress,” CR 8 (1924): 83; George Stewart Brown, “The Supreme Court’s Duty to Defend the Constitution,” CR 8 (1924): 219; Henry Campbell Black, “In Defense of the Judiciary,” CR 1 (1917): 23. 55. “Chief Justice Taft’s Address,” American Bar Association Journal 8 (June 1922): 333. 56. Ross, Muted Fury, 210–11, 227, 242–45; Lawson, “Progressives and the Supreme Court,” 432, 435–36. 57. For an early example, see Taft, “The Delays of the Law,” Yale Law Journal 18 (1908): 28, 35, 37–38; Taft, “The Judiciary and Progress,” March 8, 1912, Senate Document 408, 62nd Cong., 2nd Sess. (1912), 5. See also Justin Crowe, “The Forging of Judicial Autonomy: Political Entrepreneurship and the Reforms of William Howard Taft,” Journal of Politics 69 (2007): 73. 58. Taft, “Attacks on the Courts and Legal Procedure,” 24. 59. Robert Post, “Judicial Management and Judicial Disinterest: The Achievements and Perils of Chief Justice William Howard Taft,” Journal of Supreme Court History (1998): 50, 77–78, 163n (quote). 60. Christopher Wolfe, The Rise of Modern Judicial Review, rev. ed., (Lanham, MD: Rowman and Littlefield, 1994); Robert Lowry Clinton, Marbury v. Madison and Judicial Review (Lawrence: University Press of Kansas, 1989). 61. William Meigs, The Relation of the Judiciary to the Constitution (New York: Neale, 1919), 240. See also Andrew C. McLaughlin, The Courts, the Constitution, and the Parties (Chicago: University of Chicago Press, 1912), 38–40, 51–52, 56, 61–62. Executive branch interpretation is treated briefly by McLaughlin and Meigs, and more extensively in Charles Warren, “Presidential Declarations of Independence” Boston University Law Review 10 (1930): 1. 62. Ira Jewell Williams, “Minimum Wage Laws,” CR 9 (1925): 195, 212. 63. Editorial, “Some Recent Acts of Congress and Their Relation to the Constitution,” CR 6 (1922): 50, 54.

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Notes to pages 215–19

267

64. Herbert N. DeWolfe, “What Is Interstate Commerce?” CR 13 (1929): 143; Arthur P. Rose, “Due Process of Law,” CR 10 (1926): 81, 86 (quote); Warren, “New ‘Liberty’ under the Fourteenth Amendment”; William D. Guthrie, “The Federal Government and Education,” CR 5 (1921): 94, 97 (quote). 65. Lodge, Democracy of the Constitution, 146 (quoting Lincoln’s speech at Springfield, July 17, 1858), 148 (quoting Lincoln’s First Inaugural, March 4, 1861), 144, 149. For similar but less detailed treatments of Dred Scott, see also Hill, PG, 181–88; Moschzisker, Judicial Review of Legislation, 88–89. 66. Editorial, “Putting It up to the Courts,” CR 7 (1923): 36; Pierson, Our Changing Constitution, 17 (quote); Taft, OCM, 22–23; Beck, Our Changing Constitution, 28–30; Beck, Constitution of the United States, 216–17, 287; Editorial, “Advisory Opinions on Constitutional Questions,” CR 8 (1924): 231, 235, 236; John A. Ryan, “Unprotected Natural Rights,” CR 11 (1927): 223, 226. 67. Charles W. Pierson, introduction to The Federalist, ed. Henry Cabot Lodge (New York: Putnam, 1923), xlix–l (quote); Beck, “Anniversary of the Constitution,” 190–91. See also Hill, PG, 198–200. 68. Theodore Roosevelt, Theodore Roosevelt: An Autobiography (New York: Macmillan, 1913), 504. 69. James E. Watson, As I Knew Them (Indianapolis: Bobbs-Merrill, 1936), 64. 70. Taft, OCM, 144, 146, 147, 139–40. 71. Ibid., 147, 148, 144. 72. L. Peter Schultz, “William Howard Taft: A Constitutionalist’s View of the Presidency,” Presidential Studies Quarterly 9 (1979): 402, 404–8. See also Donald F. Anderson, “The Legacy of William Howard Taft,” Presidential Studies Quarterly 12 (1982): 26. 73. Michael Korzi, “Our Chief Magistrate and His Powers: A Reconsideration of William Howard Taft’s ‘Whig’ Theory of Presidential Leadership,” Presidential Studies Quarterly 33 (2003): 305, 307. See also Raymond Tatalovich and Thomas S. Engeman, The Presidency and Political Science (Baltimore: Johns Hopkins University Press, 2003), 89–92; and Raymond Tatalovich, Travis Cook, and Scott Yenor, “The Constitutional Presidency: Conservative Scholarship and Energy in the Executive,” in The Presidency Then and Now, ed. Phillip G. Henderson (Lanham, MD: Rowman and Littlefield, 2000), 95–96, 98–103. 74. Sidney M. Milkis, Political Parties and Constitutional Government (Baltimore: Johns Hopkins University Press, 1999), 59–60, 66–67, 69–70. 75. Korzi, “Our Chief Magistrate and His Powers,” 310. See also Anderson, “Legacy of William Howard Taft,” 28–30. 76. William Howard Taft, “Address at Boston,” April 25, 1912, Senate Document 615, 62nd Cong., 2nd Sess. (1912), 19 (quote), 18; Taft, “Speech Accepting the Republican Nomination,” 21 (quote). 77. Taft, LUL, 33, 34, 36–37; Taft, Four Aspects of Civic Duty, 25. See also Taft, Four Aspects of Civic Duty, 22–27; Taft, PG, 29–30, 96–121; Lodge, Democracy of the Constitution, 155–57. 78. Korzi, “Our Chief Magistrate and His Powers,” 321, 309. 79. Stephen Horn, The Cabinet and Congress (New York: Columbia University Press, 1960), 53–60, 62–69, 232–33.

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Notes to pages 219–22

80. Ronald J. Pestritto, Woodrow Wilson and the Roots of Modern Liberalism (Lanham, MD: Rowman and Littlefield, 2005), 124–25, 134–35, 144–45; Woodrow Wilson, Constitutional Government in the United States (New York: Columbia University Press, 1908 [1961]), 201–2. 81. William Howard Taft, “Fourth Annual Message,” December 19, 1912, available at John T. Woolley and Gerhard Peters, The American Presidency Project, http://www.presidency.ucsb.edu/ws/?pid=29553; William Howard Taft, “The Presidency,” November 16, 1912, in Classified Models of Speech Composition, ed. James Milton O’Neill (New York: Century, 1921), 619–20. 82. Henry Campbell Black, The Relation of Executive Power to Legislation (Princeton: Princeton University Press, 1919), 2. 83. Ibid., 8, 14, 21–30, 37 (quote). 84. Ibid., 181. 85. Ibid., 185. 86. Ibid., 190. See also Henry Campbell Black, “The Cabinet in Congress,” CR 6 (1922): 234; Perry Belmont, “Executive Officers in Congress,” CR 12 (1928): 133; Howard White, “Executive Officers in Congress,” CR 12 (1928): 148. 87. Daniel D. Stid, The President as Statesman: Woodrow Wilson and the Constitution (Lawrence: University Press of Kansas, 1998), 156–59; David Jayne Hill, American World Policies (New York: Doran, 1920), 72–75 (quote at 74), 136–40, 144; Beck Passing of the New Freedom, 32–38, 43–44 (quote), 51. See also Beck, Changed Conception of the Constitution, 39–48. 88. Beck, Changed Conception of the Constitution, 41. 89. Hill, Americanism, 62–63; Hill, PG, 214–27, quotes at 222, 223, 227. 90. Hill, Americanism, 88, 89 (quote). 91. Howard Gillman, “The Collapse of Constitutional Originalism and the Rise of the Notion of the ‘Living Constitution’ in the Course of American State-Building,” Studies in American Political Development 11 (1997): 191, 238 (quote); Stephen M. Griffin, “Constitutional Theory Transformed,” in Constitutional Culture and Democratic Rule, ed. John Ferejohn, Jack Rakove, and Jonathan Riley (Cambridge: Cambridge University Press, 2001), 292.

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Contributors

Herman Belz is Professor of History Emeritus at the University of Maryland. He is the author of some fifty-six articles or chapters in books and nineteen essays, and he has served as consultant to the American Historical Association’s Constitutional History in the Schools Project, National Endowment for the Humanities, Educational Testing Service, National Video Communications, Vision Associates, and the Carter Museum and Library. Professor Belz has won grants from the John Simon Guggenheim Foundation and the American Bar Foundation for Legal History, among others. His first book was awarded the Albert J. Beveridge Award of the American Historical Association. He has served on numerous University of Maryland committees, was Director of Graduate Studies in the Department of History, and was a member of the Campus Senate Executive Committee and a member of the Graduate Council. Professor Belz was a Visiting Research Scholar in the James Madison Program at Princeton University in the academic year 2001–2002 and was appointed to the National Council on the Humanities in 2005. Michael Les Benedict is Professor Emeritus of History at the Ohio State University. He is the author of several books and many articles on the political, constitutional, and legal history of the United States in the Reconstruction era, including most recently Preserving the Constitution: Essays on the Constitutional Politics of Reconstruction (2006) and “Constitutional Politics, Constitutional Law, and the Thirteenth Amendment,” in the Maryland Law Review 71 (2011). He is also the author of a standard constitutional history of the United States, The Blessings of Liberty (2nd ed. 2006). Christian Esh is Associate Professor of American History at Northwest Nazarene University in Nampa, Idaho. His current project is a monograph on northern theories of the Union from the American Revolution through the Age of Jackson. He completed his PhD under the direction of Herman Belz at the University of Maryland in 2008. Joseph R. Fornieri is Professor of Political Science at the Rochester Institute of Technology, where he teaches American politics, political philosophy, and constitutional rights and liberties. He is the author of Abraham Lincoln’s Political Faith, an acclaimed scholarly work that explores Lincoln’s religion and politics. In addition to numerous chapters in edited volumes, he is the author or editor of three other books on Abraham Lincoln’s political thought and statesmanship: The Language of Liberty: The Political Speeches and Writings of Abraham Lincoln, Lincoln’s American Dream: Clashing Political Perspectives with Kenneth L. Deutsch, and Lincoln’s America with Sara V. Gabbard. He is also co-editor with Ken Deutsch of An Invitation to Political Thought, a text reader and guide to the classic political thinkers of the Western tradition from Plato to Nietzsche. In 2011 he received the Eisenhart Award for outstanding teaching.

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Contributors

Paul D. Moreno is the William and Berniece Grewcock Chair in the American Constitution and is the Dean of Faculty at Hillsdale College. He is the author of From Direct Action to Affirmative Action: Fair Employment Law and Policy in America, and Black Americans and Organized Labor: A New History, both published by Louisiana State University Press. He has written A Concise History of the American Constitution for the National Association of Scholars. He completed his PhD under the direction of Herman Belz at the University of Maryland in 1994. Jeffry H. Morrison is Associate Professor of Government at Regent University and a faculty member at the federal government’s James Madison Memorial Fellowship Foundation in Washington DC. He earned his PhD from Georgetown University and has taught at Georgetown, the U.S. Air Force Academy, and Princeton University. He is co-editor of The Founders on God and Government (Rowman and Littlefield, 2004) and The Forgotten Founders on Religion and Public Life (University of Notre Dame Press, 2009), and author of John Witherspoon and the Founding of the American Republic (University of Notre Dame Press, 2005) and The Political Philosophy of George Washington (Johns Hopkins University Press, 2009). Johnathan O’Neill is Associate Professor and Chair of the Department of History at Georgia Southern University. He is the author of Originalism in American Law and Politics: A Constitutional History (2005) and co-editor (with Gary L. McDowell) of a multiauthor essay collection, America and Enlightenment Constitutionalism (2006). His articles have appeared in the Review of Politics, the Modern Law Review, and the Northwestern University Law Review. His current research is on “Constitutionalism and American Conservatism in the Twentieth Century,” and articles related to this project have been published in the Journal of Church and State, Rethinking History: The Journal of Theory and Practice, and The European Legacy: Toward New Paradigms. He completed his PhD under the direction of Herman Belz at the University of Maryland in 2000. Ronald J. Pestritto is Graduate Dean and Associate Professor of Politics at Hillsdale College, where he teaches political philosophy, American political thought, and American politics, and holds the Charles and Lucia Shipley Chair in the American Constitution. He serves as a Senior Fellow of the College’s Kirby Center for Constitutional Studies and Citizenship. He is also a Senior Fellow of the Claremont Institute for the Study of Statesmanship and Political Philosophy. He has published seven books, including Woodrow Wilson and the Roots of Modern Liberalism and American Progressivism. He has also served as a Visiting Scholar at the Social Philosophy and Policy Center at Bowling Green State University, and as an Academic Fellow of the Foundation for Defense of Democracies. Dr. Pestritto earned his PhD from the Claremont Graduate University in 1996. Jonathan W. White is Assistant Professor of American Studies at Christopher Newport University. His most recent book, Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman, was published by Louisiana State University Press in 2011. He is the winner of the 2005 John T. Hubbell Prize for the best article in Civil War History, the

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271

2010 Hay–Nicolay Dissertation Prize for the best dissertation on Lincoln and the Civil War, and the Society for History in the Federal Government’s 2012 Thomas Jefferson Prize for his book Guide to Research in Federal Judicial History (2010). In 2007 he published A Philadelphia Perspective: The Civil War Diary of Sidney George Fisher with Fordham University Press. He completed his PhD under the direction of Herman Belz at the University of Maryland in 2008.

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Index

Belz, Herman: on Lincoln and Union, 3–6, 81–110, 183; quoted, 1, 30, 58, 69, 76, 180 Bingham, John A.: civil rights/Fourteenth Amendment, 146 Bradley, Joseph: Legal tender cases, 171 Calhoun, John C.: nullification theory, 94–96; Woodrow Wilson on, 190 Chase, Salmon P.: Jefferson Davis treason trial, 123, 126, 128, 131; legal tender cases, 167–74; and Reconstruction, 143 Confederate States of America: claims George Washington legacy, 9; libertarian view of, 184 Cooley, Thomas McIntyre: on railroad promotion, 176–77 Coolidge, Calvin: on Declaration of Independence, 204; on federalism, 210 Davis, Jefferson: on internal improvements, 174; on secession, 97–101; treason trial, 113–32 Douglas, Stephen: on black citizenship, 56, 70–75; railroad promotion, 175 Douglass, Frederick: and civil rights, 136, 148–50; on Lincoln, 80 federalism. See states’ rights Fifteenth Amendment, 148 Fourteenth Amendment: and Davis treason trial, 132; debated in Congress, 146–48 Grant, Ulysses S.: and Reconstruction, 153; and Supreme Court, 170 Hamilton, Alexander: on citizenship/ privileges and immunities, 61; on Union, 89

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Hill, David Jayne: calls for National Association for Constitutional Government, 202; on natural rights, 206 Interstate Commerce Commission, 177–78 Jackson, Andrew: resists nullification, 38, 95; Woodrow Wilson on, 193 Jefferson, Thomas: Lincoln praises, 22, 196, 204; opposes national bank, 166; on Phillis Wheatley, 24; and slavery, 62; state compact theory of Union, 9; Virginia–Kentucky Resolutions, 93 Johnson, Andrew: and civil rights, 135, 145; Davis treason trial, 128, 130–31 legal tender cases, 168–74 Lincoln, Abraham: and black citizenship, 55–80; 1861 message to Congress, 11; on George Washington and Union, 10; on judicial review, 211, 215; and national mercantilism, 161–80; praises Jefferson, 22, 196, 204; right to revolution, 12; on secession and revolution, 81–110; Woodrow Wilson and, 183–201 Lodge, Henry Cabot: on judiciary, 215; on natural rights, 206 Madison, James: on citizenship, 60; and internal improvements, 174, 178; in nullification controversy, 41, 162; on written constitutions, 84; on Union, 89; and Virginia–Kentucky Resolutions, 93 Marshall, John: Continental Army experience, 14; Gibbons v. Ogden, 35; and state banknotes, 166; and treason, 116–18, 129; Woodrow Wilson on, 189

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274 National Association for Constitutional Government, 202–22; defends federalism, 208–10; on judicial review, 210–16; on presidential power, 216–22 National Banking Act, 165–68 national university, 18 nullification: South Carolina attempts, 94–96, 161–62; Van Buren and, 37–43 Obama, Barack: and Lincoln legacy, 184 railroads: federal promotion of, 174–79 right to revolution: Lincoln and Texas, 12, 103–4; and secession, 81–110 Roosevelt, Theodore: and judicial recall, 211; stewardship theory of executive power, 216–18 slavery: and citizenship, 62, 135; George Washington manumission, 23–26; Van Buren and, 29, 43–54 Sprague, William: and Davis treason trial, 121 Stanton, Elizabeth Cady: and civil rights, 140, 149–50 states’ rights: antebellum construction of, 91–97; divided sovereignty, 87–91; National Association for Constitutional Government defends, 208–10; and nullification, 37–44; Van Buren and New York, 30–37 Stephens, Alexander H.: on secession, 99 Stevens, Thaddeus: Davis treason trial, 120 Story, Joseph: on citizenship, 59; and state banknotes, 167 Taft, William Howard: as chief justice, 213–14; and presidential power, 217–19 Taney, Roger B.: Dred Scott and black citizenship, 60, 67–71, 194, 200

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Index tariff, 161–65 territories: as bond of Union, 15–17; Texas annexation and slavery, 45–47 Tilden, Samuel: and Van Buren, 49 Trumbull, Lyman: and civil rights, 142, 144–45 Underwood, John C.: and Davis treason trial, 123, 126 union: nullification, 39, 94–96, 161–62; social contract theory, 83–87, 96; state compact theory, 9–10 U.S. Army: as bond of Union, 13–15 Van Buren, Martin, 29–54; New York and states’ rights, 30–37; and nullification, 37–43; and slavery in territories, 43–54 Warren, Charles: on judicial review, 212–13; and National Association for Constitutional Government, 203, 207 Washington, George, 9–26; Confederate claim to legacy, 9; Continental Army and Union, 13–15; desire for national university, 18; Lincoln on, 10, 22; manumission of slaves, 23–26; western settlement as bond of Union, 15–17; and Whiskey Rebellion, 20–22 Wheatley, Phillis: Jefferson on, 24 Whiskey Rebellion: and treason, 118; Washington puts down, 20–22 Wilson, Henry: civil rights and, 141 Wilson, Woodrow, 183–201; and executive power, 221–22; on founding and Declaration of Independence, 185–86, 196; on Lincoln and Civil War, 187–88; and statesmanship/leadership, 191–93, 197–201

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The North’s Civil War Paul A. Cimbala, series editor

Anita Palladino, ed., Diary of a Yankee Engineer: The Civil War Story of John H. Westervelt, Engineer, 1st New York Volunteer Engineer Corps. Herman Belz, Abraham Lincoln, Constitutionalism, and Equal Rights in the Civil War Era. Earl J. Hess, Liberty, Virtue, and Progress: Northerners and Their War for the Union. Second revised edition, with a new introduction by the author. William L. Burton, Melting Pot Soldiers: The Union’s Ethnic Regiments. Hans L. Trefousse, Carl Schurz: A Biography. Stephen W. Sears, ed., Mr. Dunn Browne’s Experiences in the Army: The Civil War Letters of Samuel W. Fiske. Jean H. Baker, Affairs of Party: The Political Culture of Northern Democrats in the Mid–Nineteenth Century. Frank L. Klement, The Limits of Dissent: Clement L. Vallandigham and the Civil War. With a new introduction by Steven K. Rogstad. Lawrence N. Powell, New Masters: Northern Planters during the Civil War and Reconstruction. John A. Carpenter, Sword and Olive Branch: Oliver Otis Howard. Thomas F. Schwartz, ed., “For a Vast Future Also”: Essays from the Journal of the Abraham Lincoln Association. Mark De Wolfe Howe, ed., Touched with Fire: Civil War Letters and Diary of Oliver Wendell Holmes, Jr. With a new introduction by David Burton.

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Harold Adams Small, ed., The Road to Richmond: The Civil War Letters of Major Abner R. Small of the 16th Maine Volunteers. With a new introduction by Earl J. Hess. Eric A. Campbell, ed., “A Grand Terrible Dramma”: From Gettysburg to Petersburg: The Civil War Letters of Charles Wellington Reed. Illustrated by Reed’s Civil War sketches. Herbert Mitgang, ed., Abraham Lincoln: A Press Portrait. Harold Holzer, ed., Prang’s Civil War Pictures: The Complete Battle Chromos of Louis Prang. Harold Holzer, ed., State of the Union: New York and the Civil War. Paul A. Cimbala and Randall M. Miller, eds., Union Soldiers and the Northern Home Front: Wartime Experiences, Postwar Adjustments. Mark A. Snell, From First to Last: The Life of Major General William B. Franklin. Paul A. Cimbala and Randall M. Miller, eds., An Uncommon Time: The Civil War and the Northern Home Front. John Y. Simon and Harold Holzer, eds., The Lincoln Forum: Rediscovering Abraham Lincoln. Thomas F. Curran, Soldiers of Peace: Civil War Pacifism and the Postwar Radical Peace Movement. Kyle S. Sinisi, Sacred Debts: State Civil War Claims and American Federalism, 1861–1880. Russell L. Johnson, Warriors into Workers: The Civil War and the Formation of Urban-Industrial Society in a Northern City. Peter J. Parish, The North and the Nation in the Era of the Civil War. Edited by Adam L. P. Smith and Susan-Mary Grant. Patricia Richard, Busy Hands: Images of the Family in the Northern Civil War Effort.

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Michael S. Green, Freedom, Union, and Power: The Mind of the Republican Party During the Civil War. Christian G. Samito, ed., Fear Was Not In Him: The Civil War Letters of Major General Francis S. Barlow, U.S.A. John S. Collier and Bonnie B. Collier, eds., Yours for the Union: The Civil War Letters of John W. Chase, First Massachusetts Light Artillery. Grace Palladino, Another Civil War: Labor, Capital, and the State in the Anthracite Regions of Pennsylvania, 1840–1868. Christian B. Keller, Chancellorsville and the Germans: Nativism, Ethnicity, and Civil War Memory. Robert M. Sandow, Deserter Country: Civil War Opposition in the Pennsylvania Appalachians. Craig L. Symonds, ed., Union Combined Operations in the Civil War. Harold Holzer, Craig L. Symonds, and Frank L. Williams, eds., The Lincoln Assassination: Crime and Punishment, Myth and Memory. A Lincoln Forum Book. Earl F. Mulderink III, New Bedford’s Civil War. George Washington Williams, A History of the Negro Troops in the War of the Rebellion, 1861–1865. Introduction by John David Smith. Randall M. Miller, ed., Lincoln and Leadership: Military, Political, and Religious Decision Making. David G. Smith, On the Edge of Freedom: The Fugitive Slave Issue in South Central Pennsylvania, 1820–1870. Paul D. Moreno and Johnathan O’Neill, eds., Constitutionalism in the Approach and Aftermath of the Civil War.

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