The first principle of Constitutional Law is that the Constitution is a law – a supreme and paramount law that governs the government. Lincoln, a prairie lawyer, was devoted to the rule of law.
Lincoln's first public address was before the Young Men's Lyceum of Springfield, Illinois, on January 27, 1838. His speech was entitled "The Perpetuation of Our Governmental Institutions," and it was concerned with the same principle that Chief Justice John Marshall had made the subject of the first portion of his opinion in Marbury v. Madison – the Rule of Law. While Marshall had addressed the duty of government officials to obey the law, Lincoln condemned "mobocracy".
Lincoln delivered this speech during a particularly violent period in American society. Criminals, gamblers, blacks and abolitionists were being lynched in great numbers. Particularly weighing on Lincoln's mind must have been the murder of the abolitionist editor Elijah Lovejoy by a pro-slavery mob in Alton, Illinois, on November 7, 1837, just two months before the date of this speech.
Lincoln commenced this address by posing the question of what the greatest danger to our Republic is – and he answered that question; first by rejecting the proposition that we faced any significant danger from foreign invasion, and second by identifying the real threat to American society.
At what point shall we expect the approach of danger? By what means shall we fortify against it? Shall we expect some transatlantic military giant, to step the Ocean, and crush us at a blow? Never! All the armies of Europe, Asia and Africa combined, with all the treasure of the earth (our own excepted) in their military chest; with a Buonaparte for a commander, could not by force, take a drink from the Ohio, or make a track on the Blue Ridge, in a trial of a thousand years.
At what point then is the approach of danger to be expected? I answer, if it ever reach us, it must spring up amongst us. It cannot come from abroad. 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.
I hope I am over wary; but if I am not, there is, even now, something of ill-omen amongst us. I mean the increasing disregard for law which pervades the country; the growing disposition to substitute the wild and furious passions, in lieu of the sober judgement of Courts; and the worse than savage mobs, for the executive ministers of justice.
After adverting to a number of instances of horrific violence that had occurred in several different States, Lincoln described how vigilante justice degenerates into anarchy:
But you are, perhaps, ready to ask, "What has this to do with the perpetuation of our political institutions?" I answer, it has much to do with it. Its direct consequences are, comparatively speaking, but a small evil; and much of its danger consists, in the proneness of our minds, to regard its direct, as its only consequences. Abstractly considered, the hanging of the gamblers at Vicksburg, was of but little consequence. They constitute a portion of population, that is worse than useless in any community; and their death, if no pernicious example be set by it, is never matter of reasonable regret with any one. If they were annually swept, from the stage of existence, by the plague or small pox, honest men would, perhaps, be much profited, by the operation. Similar too, is the correct reasoning, in regard to the burning of the negro at St. Louis. He had forfeited his life, by the perpetration of an outrageous murder, upon one of the most worthy and respectable citizens of the city; and had he not died as he did, he must have died by the sentence of the law, in a very short time afterwards. As to him alone, it was as well the way it was, as it could otherwise have been. But the example in either case, was fearful. When men take it in their heads today, to hang gamblers, or burn murderers, they should recollect, that, in the confusion usually attending such transactions, they will be as likely to hang or burn some one, who is neither a gambler nor a murderer [as] one who is; and that, acting upon the [exam]ple they set, the mob of to-morrow, may, an[d] probably will, hang or burn some of them, [by th]e very same mistake. And not only so; the innocent, those who have ever set their faces against violations of law in every shape, alike with the guilty, fall victims to the ravages of mob law; and thus it goes on, step by step, till all the walls erected for the defence of the persons and property of individuals, are trodden down, and disregarded. But all this even, is not the full extent of the evil. By such examples, by instances of the perpetrators of such acts going unpunished, the lawless in spirit, are encouraged to become lawless in practice; and having been used to no restraint, but dread of punishment, they thus become, absolutely unrestrained. Having ever regarded Government as their deadliest bane, they make a jubilee of the suspension of its operations; and pray for nothing so much, as its total annihilation. While, on the other hand, good men, men who love tranquility, who desire to abide by the laws, and enjoy their benefits, who would gladly spill their blood in the defence of their country; seeing their property destroyed; their families insulted, and their lives endangered; their persons injured; and seeing nothing in prospect that forebodes a change for the better; become tired of, and disgusted with, a Government that offers them no protection; and are not much averse to a change in which they imagine they have nothing to lose. Thus, then, by the operation of this mobocratic spirit, which all must admit, is now abroad in the land, the strongest bulwark of any Government, and particularly of those constituted like ours, may effectually be broken down and destroyed – I mean the attachment of the People. Whenever this effect shall be produced among us; whenever the vicious portion of population shall be permitted to gather in bands of hundreds and thousands, and burn churches, ravage and rob provision stores, throw printing presses into rivers, shoot editors, and hang and burn obnoxious persons at pleasure, and with impunity; depend on it, this Government cannot last. By such things, the feelings of the best citizens will become more or less alienated from it; and thus it will be left without friends, or with too few, and those few too weak, to make their friendship effectual. At such a time and under such circumstances, men of sufficient tal[ent and ambition will not be want]ing to seize [the opportunity, strike the blow, and over-turn that fair fabric], which for the last half century, has been the fondest hope, of the lovers of freedom, throughout the world.
I know the American People are much attached to their Government;—I know they would suffer much for its sake;—I know they would endure evils long and patiently, before they would ever think of exchanging it for another. Yet, notwithstanding all this, if the laws be continually despised and disregarded, if their rights to be secure in their persons and property, are held by no better tenure than the caprice of a mob, the alienation of their affections from the Government is the natural consequence; and to that, sooner or later, it must come.Here then, is one point at which danger may be expected.
Lincoln then proposed how we should guard against this danger:
The question recurs "how shall we fortify against it?" The answer is simple. 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 [charter?] of his own, and his children's liberty. Let reverence for the laws, be breathed by every American mother, to the lisping babe, that prattles on her lap – let it be taught in schools, in seminaries, and in colleges;—let it be written in Primmers, spelling books, and in Almanacs;—let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, 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.
While ever a state of feeling, such as this, shall universally, or even, very generally prevail throughout the nation, vain will be every effort, and fruitless every attempt, to subvert our national freedom.
When I so pressingly urge a strict observance of all the laws, let me not be understood as saying there are no bad laws, nor that grievances may not arise, for the redress of which, no legal provisions have been made. I mean to say no such thing. But I do mean to say, that, although bad laws, if they exist, should be repealed as soon as possible, still while they continue in force, for the sake of example, they should be religiously observed. So also in unprovided cases. If such arise, let proper legal provisions be made for them with the least possible delay; but, till then, let them if not too intolerable, be borne with.
There is no grievance that is a fit object of redress by mob law. In any case that arises, as for instance, the promulgation of abolitionism, one of two positions is necessarily true; that is, the thing is right within itself, and therefore deserves the protection of all law and all good citizens; or, it is wrong, and therefore proper to be prohibited by legal enactments; and in neither case, is the interposition of mob law, either necessary, justifiable, or excusable.
From these remarks uttered early in Lincoln's career we can discern Lincoln's dedication to law as the basic framework of society.
Lincoln spent most of his professional life immersed in the practice of law – trying cases, writing briefs, and arguing to courts. He was an accomplished and successful lawyer, respected for his craft and admired for his honesty and faithfulness to the law. As an Illinois legislator he helped to write law, and in his maiden address to Congress he argued against the Mexican War on legal grounds – he contended that the war was illegal because President Polk had purported to defend territory which was not, in fact, part of the United States, but rather was disputed land between Mexico and the United States. In one of his most famous speeches, the address at Cooper Union, Lincoln structured his objections to the spread of slavery as a legal argument, relying primarily upon "the intent of the framers." Later, as President, Lincoln was careful to identify the Constitutional provisions pursuant to which he was acting. When he issued the Emancipation Proclamation, for example, he grounded it in the power of the President to defend the United States in time of war. Lincoln's justification for and defense of Emancipation will be the subject of another future posting in this series.
Perhaps it is natural for lawyers to consider the rule of law to constitute the basic framework of our society. That is certainly true for me, who has spent nearly his entire career teaching law. Beyond the smallest social gatherings, I cannot conceive of any satisfactory society that is not governed by law. "Ours is a government of laws, not of men."
The Rule of Law is not a sufficient condition for a just society – after all, there was law in Nazi Germany and the Soviet Union – but it is a necessary condition. Liberty, equality, fairness, tolerance, democracy, and limited government are also necessary for freedom, and to be effective these principles must be enshrined in law – in the Constitution.
In the next posting in this series we will consider Lincoln's thoughts on the principle of self-government. In particular we shall examine the Peoria Address – when, at the age of 46, Lincoln boldly challenged "the Little Giant" Stephen Douglas and entered the national discussion on the issue of slavery.
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We would do well to remember that Lincoln, while he served, was not held in the reverence in which he is now held. After the initial Union losses in the war, he was ridiculed without mercy. But for the success of Grant in the West and Sherman in taking Atlanta, it is doubtful that Lincoln would have been re-elected.
Lincoln did respect the Law, but he had what we would now consider a rather idiosyncratic view of the law. He held that since he swore to uphold the Constitution as an elected official, he had a duty to give the narrowest interpretation possible of the Dred Scott decision.
In short, Lincoln was, in many ways, stubborn. We are most fortunate that he was steeped in biblical learning and guided by its teachings. He understood the fallen nature of Man, including his own limitations. His humility was a necessary ingredient to his greatness.