Jefferson Davis' speech of September 23, 1864, was so bad that Americans North and South speculated that it was a spoof or a satire – but it was real and sincere. In this speech Davis greatly discouraged his own troops and vastly raised morale in the North; unpersuasively justified his removal of a popular, effective commander for one who had suffered unprecedented losses; viciously attacked one his critics without naming him, leading many of his opponents to believe themselves gravely insulted by the President; and through an unbelievable exercise of "loose lips" caused his army's strategic plans to be published in the newspapers, thereby contributing to the some of the most astonishing Union victories of the Civil War. Most importantly he revealed the principles that he thought the Confederacy stood for.

On September 23, 1864, Jefferson Davis addressed the Confederate Army of Tennessee at Macon, Georgia. The speech was published in the Macon Telegraph the following day. The speech itself is available here; an annotated version of the speech from The Papers of Jefferson Davis may be accessed here.

After Braxton Bragg, one of Jefferson Davis' favorite generals, inexplicably lost the State of Tennessee by being unable to hold impregnable positions at Lookout Mountain and Missionary Ridge, the rugged but out-of-favor Joe Johnston held William Tecumseh Sherman off in northern Georgia throughout the spring and summer of 1864. Johnston, outnumbered 2 to 1, fought a wiley defensive battle, giving up ground grudgingly, slowly edging back toward the fortress of Atlanta, inflicting heavy casualties on Sherman whenever he attacked, extending Sherman's lines of communication, and never giving Sherman the opportunity to land a knockout blow that would threaten Atlanta. Most importantly, Johnston wanted to prevent the Union army from achieving a significant victory that would ensure Lincoln's reelection. If the war could be prolonged until after election day, the war-weary North might replace steadfast Lincoln with gutless McClellan, thus guaranteeing the independence of the Confederacy. Sherman could not have taken Atlanta by storm if he had had twice as many troops.

But Davis did not consider Johnston manly enough, and with Bragg whispering in his ear Davis replaced Johnson with John Bell Hood, the bravest and stupidest general of the Civil War. Hood, who had already sacrificed one arm and one leg for his fledgling country, now proceeded to sacrifice his troops, his army, the City of Atlanta, and the last hopes of the Confederacy. Hood launched a series of reckless attacks on Sherman's forces all around Atlanta. Each time his smaller force suffered far more casualties than they inflicted. Finally, exhausted and demoralized, his troops abandoned Atlanta and withdrew to Macon, where Davis delivered the speech that was intended to inspire the Army of Tennessee and the people of the South.

The Gettysburg Address it wasn't.

Davis bravely admitted that it was a time of "adversity." He confidently asserted that Sherman's army, like Napoleon at Moscow, would now be destroyed as it was compelled to retreat through enemy territory. But in doing so Davis betrayed the strategy that the Confederacy would pursue:

What, though misfortune has befallen our arms from Decatur to Jonesboro, our cause is not lost. Sherman cannot keep up his long line of communication, and retreat sooner or later, he must. And when that day comes, the fate that befel the army of the French Empire and its retreat from Moscow will be reacted. Our cavalry and our people will harass and destroy his army as did the Cossacks that of Napoleon, and the Yankee General, like him will escape with only a body guard.

Reading this speech in the newspapers, Sherman came to an important realization. Davis' plan was that Hood and the Army of Tennessee should busy themselves attacking Sherman's supply lines and intended to take back Tennessee. If he cut his supply lines, lived off the land, and led his army east to the Atlantic coast, he would face no opposition. Sherman responded:

If Hood will take his army into Tennessee I will supply him with rations!

Not satisfied with detailing the strategy that the Army of Tennessee intended to follow, Davis proceded to disclose his army's greatest weakness. He revealed that the army was greatly understrength, and, even worse, he attributed the cause to cowardice or a lack of patriotism:

It is not proper for me to speak of the number of men in the field. But this I will say, that two-thirds of our men are absent – some sick, some wounded, but most of them absent without leave.

Jeff, you should have stopped at "It is not proper to speak of the number of men in the field."

Davis' solution to the problem of widespread desertion was to appeal to men's consciences to return to the army, but in doing so he painted the most pathetic picture of his country, emphasizing "the wail of their suffering" and encouraging mothers to sacrifice all of their sons, even the little boys:

How can this be the most speedily effected? By the absentees of Hood's army returning to their posts And will they not? Can they see the banished exiles, can they hear the wail of their suffering country-women and children, and not come. By what influences they are made to stay away, it is not necessary to speak. If there is one who will stay away at this hour, he is unworthy of the name of a Georgian. To the women no appeal is necessary. They are like the Spartan mothers of old. I know of one who had lost all her sons, except one of eight years. She wrote me that she wanted me to reserve a place for him in the ranks. The venerable Gen. Polk, to whom I read the letter, knew that woman well, and said that it was characteristic of her. But I will not weary you by turning aside to relate the various incidents of giving up the last son to the cause of our country known to me. Wherever we go we find the heart and hands of our noble women enlisted. They are seen wherever the eye may fall, or step turn. They have one duty to perform – to buoy up the hearts of our people.

General Leonides Polk, of course, had been killed by Union artillary at long range a few months earlier. Attaway to bouy up the hearts of the people, Jeff!

To add to his message of hope, Davis then confessed that there weren't many men of military age left to fight the war, and that the ranks must now be filled by boys and old men:

You have not many men between 18 and 45 left. The boys – God bless the boys – are as rapidly as they become old enough going to the field. The city of Macon is filled with stores, sick and wounded. It must not be abandoned, when threatened, but when the enemy come, instead of calling upon Hood's army for defence, the old men must fight, and when the enemy is driven beyond Chattanooga, they too can join in the general rejoicing.

Having painted this rosy future for an army of old men and little boys (and again disclosing the army's plans to retake Tennessee), Davis turned to an even more critical topic – how right he had been to replace Joe Johnston with John Bell Hood as head of the Army of Tennessee. He first spoke of Johnston's pattern of holding Sherman off as a "disgrace," and then praised Hood's "honest and manly blow" against the Union army:

I know the deep disgrace felt by Georgia at our army falling back from Dalton to the interior of the State, but I was not of those who considered Atlanta lost when our army crossed the Chattahoochee. I resolved that it should not, and I then put a man in command who I knew would strike an honest and manly blow for the city, and many a Yankee's blood was made to nourish the soil before the prize was won.

Okay. Johnston was a disgrace and a coward, Hood both honest and manly. But in case you missed the point about Johnston, Davis explained his decision further:

If I knew that a General did not possess the right qualities to command, would I not be wrong if he was not removed? Why, when our army was falling back from Northern Georgia, I even heard that I had sent Bragg with pontoons to cross into Cuba. But we must be charitable.

I'm not sure that Davis' understanding of the concept "charity" is the same that Lincoln expressed in the Second Inaugural.

Having established his wisdom in replacing Johnston with Hood, Davis then chose to defend himself against his many critics. Well, actually Davis pretended that he had only one critic; and, for good measure, that solitary individual was a person of dastardly nature and despicable character:

It has been said that I abandoned Georgia to her fate. Shame upon such a falsehood. Where could the author have been when Walker, when Polk, and when Gen. Stephen D. Lee was sent to her assistance. Miserable man. The man who uttered this was a scoundrel. He was not a man to save our country.

There are a couple of minor problems with this complaint. First, it was not one "scoundrel" but several prominent Confederate leaders who had publicly criticized Davis' leadership, including Joseph E. Brown (Governor of Georgia) and Alexander Stephens (the Vice-President of the Confederacy), as well as several leading southern newpaper editors. Second, by following the strategy outlined in this speech Davis did abandon Georgia to her fate. Sherman's brutal and destructive March to the Sea met no significant opposition.

In the most hopeful portion of his speech, Davis attempted to portray the just rewards that would await the soldier who returned to the battle. It was here that he failed most spectactularly:

The man who can speculate ought to be made to take up his musket. When the war is over and our independence won, (and we will establish our independence,) who will be our aristocracy? I hope the limping soldier. To the young ladies I would say when choosing between an empty sleeve and the man who had remained at home and grown rich, always take the empty sleeve. Let the old men remain at home and make bread. But should they know of any young men keeping away from the service who cannot be made to go any other way, let them write to the Executive. I read all letters sent me from the people, but have not the time to reply to them.

In this passage Davis tells his soldiers that if they fight on they will be "limping" with "an empty sleeve," and that the men who remain home will "grow rich." He adds that the old men who stay home effeminitely "making bread" should write President Davis to inform on any young men avoiding military service – but that he, Davis, would have no time to answer those letters.

The speech is a testament to the courage of the Americans who fought to gain their independence from the United States, but it is also an admission of the hopelessness of that struggle. Davis' imagery unintentionally reflected the fact that so many Confederate soldiers had been grievously wounded and called into question the impaired leadership of General Hood:

Let us with one arm and one effort endeavor to crush Sherman.

In my opinion the most demoralizing aspect of Davis' speech – the worst mistake he made – was to use the word "aristocracy" to describe Confederate society. This was probably Davis' honest opinion, his vision of what his country should be. In his utopian society wealthy planters and slaveholders would dominate, blacks would labor unremittingly, and poor whites would serve as peasants and cannon fodder. This vision stands in stark contrast to Lincoln's vision of a country "conceived in liberty and dedicated to the proposition that all men are created equal." Here is what Lincoln said to a departing Ohio regiment a month earlier, encouraging them to return to the fighting after a visit home:

I suppose you are going home to see your families and friends. For the service you have done in this great struggle in which we are engaged I present you sincere thanks for myself and the country. I almost always feel inclined, when I happen to say anything to soldiers, to impress upon them in a few brief remarks the importance of success in this contest. It is not merely for to-day, but for all time to come that we should perpetuate for our children's children this great and free government, which we have enjoyed all our lives. I beg you to remember this, not merely for my sake, but for yours. I happen temporarily to occupy this big White House. I am a living witness that any one of your children may look to come here as my father's child has. It is in order that each of you may have through this free government which we have enjoyed, an open field and a fair chance for your industry, enterprise and intelligence; that you may all have equal privileges in the race of life, with all its desirable human aspirations. It is for this the struggle should be maintained, that we may not lose our birthright—not only for one, but for two or three years. The nation is worth fighting for, to secure such an inestimable jewel. (Speech to 166th Ohio Regiment, August 22, 1864, 7 Collected Works, at 512)

The contrasting speeches by Abraham Lincoln and Jefferson Davis sharply illustrated to all of the people of the United States what the differences were between the societies of the United States and the Confederacy, and demonstrated why it was necessary to preserve the Union and abolish slavery.

I am working on three major research projects: one short-term, and two others longer term.

The short-term project I wish to complete this year involves the current controversies over freedom of religion. Specifically, I intend to analyze several claims of conservative American religious organizations that their religious liberty is being violated. A number of religious organizations have challenged the constitutionality of laws that protect against discrimination or intimidation on the basis of sexual orientation; laws extending health insurance coverage for birth control; and laws that prohibit tax-exempt charitable organizations from endorsing political candidates. In connection with this project I intend to compare and contrast the Barmen Declaration of 1934 with the Manhattan Declaration of 2009.

I chose Freedom of Religion as my next focus because in the past I have published in nearly every other principal area that is covered in an introductory course to Constitutional Law. I have proposed original theories for analyzing the State Action doctrine and Freedom of Expression problems; analyzed affirmative action and gay rights under Equal Protection and Substantive Due Process; published a book about the power of Congress to enact the Affordable Care Act under the Commerce Clause, the Tax and Spending Clause, and the Necessary and Proper Clause; and written about eavesdropping on international communications, the torture of prisoners in the War on Terror, and the enactment of economic legislation in light of the principle of Separation of Powers. Research and writing in an area strengthens my knowledge and understanding and makes me a better teacher. Particularly in light of all of the social and political disputes now arising under Freedom of Religion, it seems appropriate to now turn my attention to the topic.

The longer-term projects I wish to undertake include books about Abraham Lincoln and legal reasoning. The Lincoln project will describe how he changed our understanding of what it means to be an American and how he continues to influence the interpretation of the Constitution. I have published two law substantive review articles and several essays on Lincoln and the Constitution, and I have made dozens of presentations to professional, academic, and community audiences on the literary, philosophical, religious, and legal aspects of his work.

The legal reasoning book will complement my earlier work The Five Types of Legal Argument. Five Types is an intensely practical work; it presents a checklist of the different kinds of arguments that lawyers and judges construct and it describes how to attack and evaluate the strength of each types of argument. The new book will be more theoretical; it proposes that in analyzing hard cases lawyers and judges proceed through three distinct stages of reasoning: formalism, analogical reasoning, and realism. The stages of legal reasoning correlate to the stages of cognitive and moral development that psychological researchers have observed in individuals.

I have only a few more years until retirement. We'll see how much I get done before then.

Wilson Huhn has been teaching Constitutional Law at the University of Akron School of Law since 1984. Since that time he has driven around the world seventeen times – all on I-271 and Rt.8.

Now that New York has legalized same-sex marriage for residents and non-residents alike, the political and legal landscape for same-sex marriage has been dramatically altered.

Sheer numbers – New York has nineteen million residents.  More than ten percent of Americans now live in jurisdictions that recognize same-sex marriage.  If California, where a court decision striking down Proposition 8 is on appeal, is added to the list, that number jumps to over twenty percent.

Moral example – Moral change occurs one person at a time.  Hearts and minds are influenced not so much by rhetoric as by example.  As gay and lesbian couples are married and prove to be no different from heterosexual couples in their relationships and their childrearing – as they experience the same joys and fears, the same successes and disappointments, the same anniversaries and divorces – other people will come to accept them and will forget why they ever thought that same-sex marriage posed a threat to the institution of marriage.

Interstate effect – Tens of thousands of gay and lesbian couples from around the country will descend on New York to formalize their relationships.  When they return to their home states their friends and neighbors will consider them to be married, even if their state and local governments do not. 

Full Faith and Credit - The presence of lawfully married same-sex couples in other states will inevitably give rise to innumerable challenges under the Full Faith and Credit Clause.  The "public policy" exception to Full Faith and Credit is marred by its long history of having being used in opposition to interracial marriages.  Opponents of same-sex marriage will be put in the position of citing those "anti-miscegnation" cases as precedent for refusing to recognize the validity of New York marriages.  Furthermore, at some point New Yorkers are going to get pretty angry at other states for refusing to accord Full Faith and Credit to their marriages, and they may find ways to retaliate – for instance, by refusing to recognize covenant marriages or even all marriages from disapproving states.

Federal benefits - Despite the fact that they work just as hard as anyone else, under the federal Defense of Marriage Act same-sex couples may not file jointly and spouses do not qualify for social security survivorship benefits.  In addition, the same-sex spouses of federal employees do not quality for health insurance.  With tens or perhaps hundreds of thousands of same-sex couples entering into marriage in New York these inequalities will come under enormous pressure.

Military couples - Same-sex marriage in New York coincides with the demise of Don't Ask, Don't Tell in the nation's military.  Tens of thousands of servicemen and servicewomen may soon marry someone of the same sex.  Is this country going to deny the legality of their relationships and deny their families housing and healthcare benefits while that soldier, sailor, marine, or guardsman is serving this nation in Afghanistan or elsewhere?  All it will take is one heartrending case and this aspect of DOMA will come crashing down.

Social Science Research – The number of same-sex married couples is about to jump exponentially.  That will create a substantial pool for purposes of social science research comparing gay and lesbian married couples to heterosexual married couples.  This, in turn, will influence both lawmakers and judges.  If same-sex married couples prove to be just as good (or just as poor) as opposite-sex married couples in their parenting, a principal argument against same-sex marriage will disappear.  There will no longer be a "rational basis" – let alone a "substantial" or "compelling" reason – for treating same-sex couples differently.

Disappearance of sexual taboo – A great deal of the prejudice against gays and lesbians in general and same-sex marriage in particular arises from sexual taboos.  Many people – particularly we older folks – are overcome with feelings of disgust or tittilation when we see same-sex couples holding hands or kissing.  We'll get used to it.  Most young people already have.  In this arena, familiarity breeds acceptance.

Parental fear - A perusal of anti-same-sex marriage advertising reveals that a major driver of opposition to same sex marriage is parental fear – fear that their children will be molested and fear that their children will turn out to be gay or lesbian.   Several of the preceding factors – increased exposure to same-sex married couples, social science research, and the recession of taboos – should help to militate that fear.  At the same time, in New York and other states that recognize same-sex marriage parents will begin to fear how their gay and lesbian children will be treated if they move to other states that deny equal rights to same-sex couples.

Institutional self-interest – Honeymoon destinations like Niagara Falls and New York City hope to benefit from an influx of gay and lesbian couples, but institutional self-interest in this subject extends far beyond the tourism industry.  New York now possesses a significant competitive advantage over states like Ohio that do not even recognize same-sex marriages from other states as valid.  Businesses, universities, and other institutions that wish to attract the most talented workers, students, and leaders will begin to insist that their states must recognize same-sex marriage. 

The polls – Five national polls in a row reveal that a majority of Americans now favor the legal recognition of same-sex marriage.  In the northeast and on the west coast more than sixty percent of adults support same-sex marriage.  The action of the New York State legislature will ratify the opinion of those who favor same-sex marriage and sow doubt among those who oppose it.

Political calculus – Until now, politicians could avoid any political danger by opposing or equivocating on same-sex marriage, but the political calculus is changing.  In New York, three state senators who opposed same-sex marriage in 2009 were defeated for reelection, and major Republican donors like New York Mayor Michael Bloomberg promised to support those legislators who voted for same-sex marriage.  This dynamic may be repeated in more and more states and it poses interesting challenges for the candidates in the 2012 presidential campaign.  At a minimum conservative candidates who previously made opposition to same sex marriage a principal plank of their platforms may mute their criticism and take the position that it is not an important issue.  At a maximum it may force liberal candidates to wholeheartedly support same-sex marriage.

All men are created equal – My severest critics on this site disapprove not only of my position on this subject but also to my entire approach to constitutional interpretation.  They contend that neither the text of the Constitution nor the intent of the framers is consistent with the recognition of same-sex marriage as a constitutional right.  However, my scholarship convinces me that I am right and they are wrong both as to how the Constitution should be interpreted and what the Constitution requires in this instance.  I look to Lincoln and his political supporters who believed that they were incorporating the words "all men are created equal" into the Constitution by fighting the Civil War and amending the Constitution to include the Thirteenth, Fourteenth, and Fifteenth Amendments – in particular, by adding the Equal Protection Clause to the Constitution.  They intended precisely what they said in that Clause – that the law must treat people equally – that it may not draw arbitrary or capricious distinctions among them – that all persons who are similarly situated must be treated alike – that persons may not be treated differently unless there are real differences among them.  That requires a realistic appraisal of human potential, a careful contextual analysis.  Lincoln and the antislavery movement did not interpret the Constitution by looking to tradition or the specific understandings of their ancestors – they were driven by ideals that forced them to take a hard look at their society to determine whether their laws were just and fair and tolerant.  The principle that "all men are created equal" sets up a standard maxim by which we must evaluate our own institutions, traditions, and laws.  It is now becoming clearer and clearer that this principle of equality requires the recognition of same-sex marriage.

Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790

     Ezra Klein, a columnist for Newsweek and the Washington Post, put his foot in it on national television two days ago when he said that the Constitution was "written more than 100 years ago" and "confusing," implying that it is irrelevant to today's society.  Breaking news, Ezra: the Constitution is the foundation for all of American law, and its meaning extends far beyond the words in the document.

     Klein made these remarks in an interview with Norah O'Donnell:

O'Donnell:  You heard all the different politicians talking about the Constitution; well, this is what's going to happen.  When Republicans take over next week, they are going to do something that apparently has never been done in the 221 year history of the House of Representatives.  They are going to read the Constitution aloud.  Is this a gimmick?

Klein:  Yes, it's a gimmick.  I mean, you can say two things about it.  One, that it has no binding power on anything.  And two, the issue with the Constitution is not that people don't read the text and think they're following it.  The issue with the Constitution is that the text is confusing because it was written more than 100 years ago and what people believe it says differs from person to person and differs depending on what they want to get done, so I wouldn't expect too much coming out of this.

     Klein subsequently clarified his position on the Constitution in these two posts.  In What the Tea Party wants from the Constitution, Klein wrote,

My friends on the right don't like to hear this, but the Constitution is not a clear document. Written more than 200 years ago, when America had 13 states and very different problems, it rarely speaks directly to the questions we ask it. The Second Amendment, for instance, says nothing about keeping a gun in the home if you've not signed up with a "well-regulated militia," but interpreting the Second Amendment broadly has been important to those who want to bear arms. And so they've done it.

     Upon realizing that his initial remarks about the Constitution were being mocked, (see here and here and here) Klein also wrote to say that he did not mean to say that the Constitution is not binding, but rather that reading the Constitution aloud or including a reference to Constitutional authority in each piece of legislation is not binding.  In Yes, the Constitution is binding, Klein wrote,

This morning, I gave a quick interview to MSNBC where I made, I thought, some fairly banal points on the GOP's plan to honor the Constitution by having it read aloud on the House floor. Asked if it was a gimmick, I replied that it was, because, well, it is. It's our founding document, not a spell that makes the traitors among us glow green. It's also, I noted, a completely nonbinding act: It doesn't impose a particular interpretation of the Constitution on legislators, and will have no practical impact on how they legislate.

The rather toxic implication of this proposal is that one side respects the Constitution and the other doesn't. That's bunk, of course: It�s arguments over how the Constitution should be understood, not arguments over whether it should be followed, that cleave American politics. The Constitution was written more than 223 years ago, and despite the confidence various people have in their interpretation of the text, smart scholars of good faith continue to disagree about it. And they tend to disagree about it in ways that support their political ideology. I rarely meet a gun-lover who laments the Second Amendment's clear limits on bearing firearms, or someone who believes in universal health care but thinks the proper interpretation of the Commerce Clause doesn't leave room for such a policy.

     Klein makes some valid points.  Including a reference to the constitutional basis for legislation in the legislation itself is a good idea but it is not binding on the courts.  The courts are bound to interpret the Constitution anyway, and a congressional statement that a law is constitutional is of no legal effect whatsoever.  Furthermore, if a law is constitutional, the courts may not strike it down simply because it does not contain a statement to that effect.  The judicial branch, not the legislative branch, is invested with the power of judicial review.

     Second, Klein is correct that the Constitution is not always clear.  But in making this point he should not have used disparaging language (old and "confusing").  He might just as well have referred to the American flag as "a piece of colored cloth."  The Constitution is infused with meaning.  The Constitution stands for the fundamental American social, legal, and political principles: popular sovereignty, separation of powers, limited government, separation of church and state, and individual rights.  Few people would disagree with this general description of the meaning of the Constitution.  

     Klein also has a valid point that people differ as to how these principles should be applied in particular cases.  He identifies conservatives' broad interpretation of the Second Amendment as an example of misconstruction of the text of the Constitution, and I agree – neither the text of the Second Amendment nor the legislative history of that enactment lend any support for the Court's interpretation of that provision in District of Columbia v. Heller (2008).    Similarly, Klein is correct in noting that a person's interpretation of Congress' power under the Commerce Clause or the Tax and Spending Clause is influenced by the particular piece of legislation under consideration.  Conservatives tend to believe that the Patient Protection and Affordable Care Act is beyond Congress' power to enact, but have no similar doubts about the Defense of Marriage Act.

     It is here, though, that Klein makes his mistake.  He stumbles over the same impediment as those Tea Partiers and members of Congress he criticizes.  The Constitution is not confined to its text.  To consider the written Constitution in and of itself without taking into account two centuries of experience under it is to ignore all that our ancestors have learned.  The First Amendment is not simply the words "Congress shall make no law abridging the freedom of speech."  It includes all that we learned from the battles over the Alien and Sedition Acts, the southern states' silencing of the antislavery movement, Lincoln's closing of opposition newspapers, the federal government's response to opposition to World War I, and the government's attempts to crush the labor movement, the anti-war movement, and above all, the Civil Rights Movement.  Similarly, the power of the President has been shaped by our experience with Jefferson's naval expedition to the Mediterranean and the Louisiana Purchase, Lincoln's Emancipation Proclamation, FDR's dealings with Britain and the Soviet Union, Carter's recognition of Red China, Nixon's impoundment of appropriations and the Watergate scandal, Clinton and the Line Item Veto Act, and Bush's decision to torture prisoners.  These issues have sometimes been decided by the courts, sometimes by elections, and sometimes simply in the public arena.

     The Constitution contains some very specific provisions, but its most meaningful passages are very broad: "due process," "liberty," "equal protection."  By analogy, Christian fundamentalists often cite the Ten Commandments as the source and inspiration of all law, but they tend to ignore Jesus' parables.  Why don't religious conservatives strive to adorn courthouses with images of The Stoning of the Adulteress or statehouses with depictions of The Good Samaritan?  Why do they focus on the Ten Commandments instead of the Golden Rule?  The problem is not that the Constitution is "old and confusing."  It is rather that it inspires us to standards of behavior that cannot be captured by simple rules.  The Constitution calls us to responsibility, just as the Bible does.  The Constitution not only requires the President to be 35 years old, it also requires us to be tolerant, to be fair, and to treat people equally.  The right to have a handgun in the home for personal self-defense is not contained in the text of the Constitution.  It arises from the same source of authority as the right to marry, the right to have children, and other facets of the jewel that is the right to privacy.  The right to defend oneself is no less fundamental to our society than rights involving intimate relationships and control over one's body.

     I would be more impressed with congressional Republicans' newfound devotion to the Constitution if they had thought to read it when the C.I.A. was putting prisoners in dark boxes, chaining them upright and keeping them awake for days, stripping them naked and spraying them with cold water, and drowning them slowly.  Even more recently, they might have read it when Congress was considering whether to repeal Don't Ask, Don't Tell and admit gays and lesbians to the military on an equal basis with others.  And where in the Constitution does it permit a filibuster or a "hold" on legislation or confirmations? 

     The Constitution is the foundation of all American law.  Every statute, every ordinance, every regulation, every official act that is in conflict with the Constitution is void and of no legal effect.  But its meaning extends far beyond the words in the document.  President Abraham Lincoln said that this country was "conceived in liberty and dedicated to the proposition that all men are created equal,"  and when government lawyers appeared before the Supreme Court defending a certain procedure as traditional or justified by statute, Chief Justice Earl Warren would frequently ask, "Yes, but is it fair?"   These principles, too, are part of our Constitution – they are at the heart of the Constitution - and I fear that Ezra Klein and the Republicans in Congress have overlooked this.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law. Visit his website for background and information about the Constitution, as well as links to other sites devoted to Constitutional Law.

     Columnists have compared President's Obama's dismissal of General Stanley McChrystal to Truman's dismissal of Douglas MacArthur.  I have another analogy: Lincoln's dismissal of Major John Key.

     A number of columnists have registered their opinion on the wisdom of the President's dismissal of General Stanley McChrystal and his appointment of David Petraeus as commander of forces in Afghanistan.  Patrick Buchanan says that General McChrystal was guilty of "collossal stupidity" to have criticized civilian leaders in such a cavalier manner, but that the President's decision to fire McChrystal, our best fighting general, may prove "unwise and costly" – just it was unwise, in Buchanan's opinion, as it was for Harry Truman to have fired Douglas MacArthur.  Fareed Zakaria of CNN rejects the analogy between McChrystal and MacArthur.  MacArthur's firing, he argues, was necessary because the general publicly opposed President Truman's decision not to be drawn into a war against Russia, while McChyrstal and his staff simply expressed disdain towards the President, Vice-President, Secretary of Defense, National Security Advisor, and Ambassador to Afghanistan.  Nevertheless, Zacaria concludes that McChrystal had destroyed his effectiveness in working with these civilian leaders in this nationbuilding exercise, and that it was a "masterstroke" for the President to have replaced him with David Petraeus.  Here are additional columns on the subject by Maureen Dowd, Ed Rollins and others.

     From a constitutional perspective these events are emblematic of the principle of civilian control of the military.  From a historical perspective, it recalls President Abraham Lincoln's unrelenting efforts to find generals who could and would fight.  In 2007 the Ashbrook Center published this editorial by Mackubin T. Owens contrasting Lincoln's active leadership with Jefferson's Davis' relative passivity.  Lincoln repeatedly replaced field commanders until he found the right combination, while Davis retained generals out of a sense of personal loyalty.

     Certainly the most significant decision that Lincoln made was to remove George McClellan after he proved, again and again, that he would not carry the battle to the enemy.  But it is in his dismissal of Major John J. Key who served under McClellan that we glimpse both Lincoln's resolve and his compassion.  Like McChrystal and his staff, Key engaged in "loose talk" that undermined the war effort; specifically, Key had said that the reason the Union army had not destroyed the Confederates after Antietam was so that there could be a negotiated peace that would preserve slavery.  After personally interviewing Key, Lincoln dismissed him from military service.  When Key's sixteen-year-old son was killed in combat shortly thereafter, Key wrote Lincoln asking to be reinstated so that he could fight in the cause for which his son had fallen.  Here is Lincoln's stern reply:

Major John J. Key Executive Mansion,

Dear Sir: Washington, Nov. 24, 1862

A bundle of letters including one from yourself, was, early last week, handed me by Gen. Halleck, as I understood, at your request. I sincerely sympathise with you in the death of your brave and noble son.

In regard to my dismissal of yourself from the military service, it seems to me you misunderstand me. I did not charge, or intend to charge you with disloyalty. I had been brought to fear that there was a class of officers in the army, not very inconsiderable in numbers, who were playing a game to not beat the enemy when they could, on some peculiar notion as to the proper way of saving the Union; and when you were proved to me, in your own presence, to have avowed yourself in favor of that "game," and did not attempt to controvert the proof, I dismissed you as an example and a warning to that supposed class. I bear you no ill will; and I regret that I could not have the example without wounding you personally. But can I now, in view of the public interest, restore you to the service, by which the army would understand that I indorse and approve that game myself? If there was any doubt of your having made the avowal, the case would be different. But when it was proved to me, in your presence, you did not deny or attempt to deny it, but confirmed it in my mind, by attempting to sustain the position by argument.

I am really sorry for the pain the case gives you, but I do not see how, consistently with duty, I can change it. Yours, &c.

A. LINCOLN

     In his masterful book Abraham Lincoln and the Second American Revolution James M. McPherson draws the distinction between "negative liberty" and "positive liberty."  Negative liberty is the right to be free from laws regulating our conduct.  Positive liberty is the enactment of laws protecting our rights.  Libertarians in general and Republican senatorial nominee Rand Paul in particular are quite properly devoted to the concept of individual liberty.  However, in opposing laws such as the Civil Rights Act of 1964, the Fair Housing Act, and the Americans with Disabilities Act their understanding of what liberty truly entails is cramped.  They value negative liberty but overlook positive liberty.

     In the most recent posting on this subject I repeated Abraham Lincoln's story of the sheep and the wolf: the wolf's definition of liberty is freedom to attack the sheep, while the sheep's definition of liberty is the shepherd's protection from the wolf.  This fable reflects the point that Locke, Rousseau, and Hobbes all agree on in their understanding of the social contract; that in a state of nature the strong prey upon the weak, and that people enter into society and submit to the rule of law to obtain protection from predators.  Through cooperation we seek not only protection but knowledge and prosperity, the full flowering of human potential.  Liberty is not the freedom to exploit others.  It is the opportunity to enjoy life to the fullest, to become whatever we choose to become; to gain knowledge and wisdom, to love whom we choose, to enjoy nature, to build, and to acquire.  To the extent that other people have the legal right to prevent us from achieving those goals we are not free.

     A society where one person or a small group of people or even the majority of people can make it impossible for others to reach their full potential is not a free society.  It may be free from governmental oppression, but it is not free from oppression.  When a farmer or manufacturer has the right to pollute the air or contaminate the water it invades the rights of everybody else to good health and to the enjoyment of the earth.  When a mining company has the right to employ children or ignore safety standards or to pay less than a living wage it makes it impossible for other people to reach adulthood or protect life and limb or support themselves and their families.  And when restaurants, hotels, gas stations, department stores, banks, and other businesses have the right not to serve you or not to employ you because of your race, religion, gender, or sexual orientation you are not a full and equal member of society; you are instead a second-class citizen.  Liberty is not simply freedom from law; it is freedom from all forms of exploitation.

     As McPherson points out, this change from "negative liberty" to "positive liberty" is embodied in the text of the Constitution.  Before the Civil War all of our rights were "negative rights" in the sense that the Constitution provided that government lacks the power to invade our freedom; freedom of speech, freedom of religion, the right to due process with all of the attendant rights (the right to an attorney, the right to silence, the right to a speedy and public trial) all describe what the government may not do to us.  The Constitution declares that the government may not prevent us from speaking or associating, close our churches or establish an official religion, or imprison us without affording us a proceeding that has all the attributes of a fair trial.

     But the original Constitution was flawed, deeply flawed.  It recognized and protected slavery and thus held a snake to its heart.  The Constitution celebrated liberty but did not even mention equality.  The fundamental principle of the Declaration of Independence that "all men are created equal" was left out of the Constitution of 1787 because people in South Carolina and Georgia and other several other states were not willing to give up what they regarded as their liberty to enslave others. 

     After the Civil War the American people adopted a number of Amendments to the Constitution that are designed to allow the government to protect the rights of individual citizens.  Section 1 of the Thirteenth Amendment states:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 1 of the Fourtheenth Amendment states:

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; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 1 of the Fiftheenth Amendment states:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

     Each of these Amendments confers positive rights.  Nor is that all.  Each of these amendments also confers powers upon Congress to enforce these rights through the enactment of positive law.  In nearly identical language the "Enforcement Clauses" of each of the Civil War Amendments provide:

Congress shall have power to enforce this article by appropriate legislation.

    After the Civil War the American people elected to grant their government the power to protect our liberties.  The Supreme Court has held that the other powers of Congress (such as the power to regulate commerce and the power to tax and spend) may be exercised for the same purpose.  The Civil Rights Act of 1964, the Fair Housing Act of 1968, and the Americans with Disabilities Act are all constitutional enactments of positive law protecting our liberties.  It is a shame that people like Rand Paul who are so passionate about liberty refuse to acknowledge that individuals and private corporations do not have a God-given right to harm others.

     Republican senate nominee Rand Paul has consistently opposed civil rights laws that prohibit individuals and private businesses from discriminating on the basis of race.  Paul takes the position that these laws interfere with the "liberty" and "property" rights of persons and institutions that choose to discriminate.  This is not a new argument.

    The Fair Housing Act which was adopted in 1968 is a federal law that prohibits people from discriminating on the basis of race, gender, religion, and other factors when they sell a home or rent an apartment to another person.   In 2002 Rand Paul wrote a letter to the editor of his local newspaper, the Bowling Green Daily News, contending that the Fair Housing Act is inconsistent with a "free society."  His letter states in part:

A recent Daily News editorial supported the Federal Fair Housing Act. At first glance, who could object to preventing discrimination in housing? Most citizens would agree that it is wrong to deny taxpayer-financed, �public� housing to anyone based on the color of their skin or the number of children in the household.

But the Daily News ignores, as does the Fair Housing Act, the distinction between private and public property. Should it be prohibited for public, taxpayer-financed institutions such as schools to reject someone based on an individual�s beliefs or attributes? Most certainly. Should it be prohibited for private entities such as a church, bed and breakfast or retirement neighborhood that doesn�t want noisy children? Absolutely not.

Decisions concerning private property and associations should in a free society be unhindered. As a consequence, some associations will discriminate.

***

A free society will abide unofficial, private discrimination � even when that means allowing hate-filled groups to exclude people based on the color of their skin.

     Paul's argument has been used before.  Before the Civil War slavery was a legally protected form of property.  This was how slavery was treated in the courts – even the United States Supreme Court.  In the notorious Dred Scott case Chief Justice Roger Taney struck down the Missouri Compromise that had prohibited slavery from the northern territories of the United States on the ground that this prohibition violated the constitutional rights of slaveholders to bring their property into every corner of the territory held by the United States.  He reasoned that because the Constitution specifically acknowledged slavery in several respects (the three-fifths clause, the fugitive slave clause, the slave trade clause), the property interest in slaves is a constitutionally protected right that Congress is powerless to interfere with.   Slaveholders asserted that it was a violation of their "liberty" for Congress to have adopted the Missouri Compromise or for the northern states to refuse to enforce the Fugitive Slave Act – and the Supreme Court agreed with the slaveholders on both counts.

     Abraham Lincoln persistently and eloquently addressed this argument by white southerners claiming that they had a constitutional right to own slaves.  At Peoria in 1854, Lincoln rebutted Stephen Douglas' assertion that the anti-slavery position was inconsistent with the principle of "self-government":

The doctrine of self government is right â�� absolutely and eternally right â�� but it has no just application, as here attempted. Or perhaps I should rather say that whether it has such just application depends upon whether a negro is not or is a man. If he is not a man, why in that case, he who is a man may, as a matter of self-government, do just as he pleases with him. But if the negro is a man, is it not to that extent, a total destruction of self-government, to say that he too shall not govern himself? When the white man governs himself that is self-government; but when he governs himself, and also governs another man, that is more than self-government—that is despotism. If the negro is a man, why then my ancient faith teaches me that â��all men are created equal;â�� and that there can be no moral right in connection with one man's making a slave of another.

     In 1864 at the Sanitary Fair in Baltimore Lincoln defined liberty.  As was his frequent custom, he made his his point allegorically, telling a fable that memorably illustrates the difference between the proslavery and antislavery conceptions of "liberty":

The world has never had a good definition of the word liberty, and the American people, just now, are much in want of one. We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men's labor. Here are two, not only different, but incompatable things, called by the same name � liberty . And it follows that each of the things is, by the respective parties, called by two different and incompatable names � liberty and tyranny.

The shepherd drives the wolf from the sheep's throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as the destroyer of liberty, especially as the sheep was a black one. Plainly the sheep and the wolf are not agreed upon a definition of the word liberty; and precisely the same difference prevails to-day among us human creatures, even in the North, and all professing to love liberty. Hence we behold the processes by which thousands are daily passing from under the yoke of bondage, hailed by some as the advance of liberty, and bewailed by others as the destruction of all liberty. Recently, as it seems, the people of Maryland have been doing something to define liberty [by enacting a law abolishing slavery within the state]; and thanks to them that, in what they have done, the wolf�s dictionary, has been repudiated.

     Finally, in his Second Inaugural, Lincoln invoked biblical imagery to drive home the point that all Americans – north and south – bore responsibility for the institution of slavery, and that all would have to atone for its acceptance within our society:

One eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the Southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was, somehow, the cause of the war. To strengthen, perpetuate, and extend this interest was the object for which the insurgents would rend the Union, even by war; while the government claimed no right to do more than to restrict the territorial enlargement of it. Neither party expected for the war, the magnitude, or the duration, which it has already attained. Neither anticipated that the cause of the conflict might cease with, or even before, the conflict itself should cease. Each looked for an easier triumph, and a result less fundamental and astounding. Both read the same Bible, and pray to the same God; and each invokes His aid against the other. It may seem strange that any men should dare to ask a just God's assistance in wringing their bread from the sweat of other men's faces; but let us judge not that we be not judged. The prayers of both could not be answered; that of neither has been answered fully. The Almighty has His own purposes. �Woe unto the world because of offences! for it must needs be that offences come; but woe to that man by whom the offence cometh!� If we shall suppose that American Slavery is one of those offences which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South, this terrible war, as the woe due to those by whom the offence came, shall we discern therein any departure from those divine attributes which the believers in a Living God always ascribe to Him?

     "Judge not, lest we be judged," is not an excuse allowing us to abdicate our duty to eradicate evil practices.  It is instead a recognition that we are all guilty when we allow oppression to go unopposed and unpunished.  The Fair Housing Act is not inconsistent with the principles of a free society.  It is instead a hallmark of a just society.

     In reviewing libertarian positions such as those advocated by Rand Paul, it is well to remember that oppressers and exploiters – from abusive husbands to brutal dictators – always claim that those who object to their actions are interfering with their "liberty."   The refutation to their claim lies in the distinction between "negative liberty" and "positive liberty," which will be discussed in the next posting on this subject.

     The Washington Post reports that Governor Bob McDonnell has issued an apology for neglecting to mention slavery in his declaration of Confederate History Month.

     Governor McDonnell's original proclamation declaring April to be Confederate History Month omitted any reference to slavery.  Moreover, the Governor downplayed the significance of slavery as one aspect of the Civil War.  According to Maya Gay of aol news, the Governor:

said he chose not to include any reference to slavery because "there were any number of aspects to that conflict between the states. Obviously, it involved slavery. It involved other issues," he told the Post on Tuesday. "But I focused on the ones I thought were most significant for Virginia."

     McDonnell is simply wrong about this.  It is an undeniable fact that slavery was the root cause of the Civil War.  Here is what Jefferson Davis, President of the Confederacy, said on April 29, 1861:

[T]he productions in the South of cotton, rice, sugar, and tobacco, for the full development and continuance of which the labor of African slaves was and is indispensable, had swollen to an amount which formed nearly three-fourths of the exports of the whole United States and had become absolutely necessary to the wants of civilized man. With interests of such overwhelming magnitude imperiled, the people of the Southern states were driven by the conduct of the North to the adoption of some course of action to avert the danger with which they were openly menaced.

     And here are words of Alexander Stephens, Vice-President of the Confederacy, in his famous "Foundation" speech, delivered on March 21, 1861:

The prevailing ideas entertained by … most of the leading statesmen at the time of the formation of the old Constitution were, that the enslavement of the African was in violation of the laws of nature; that it was wrong in principle, socially, morally, and politically. It was an evil they knew not well how to deal with; but the general opinion of the men of that day was, that, somehow or other, in the order of Providence, the institution would be evanescent and pass away. … Those ideas, however, were fundamentally wrong. They rested upon the assumption of the equality of the races. This was an error. It was a sandy foundation, and the idea of a government built upon it — "When the storm came and the wind blew, it fell."

Our new government is built upon exactly the opposite ideas; its foundations are laid, its cornerstone rests, upon the great truth that the negro is not equal to the white man; that slavery, subordination to the superior race, is his natural and moral condition. This, our new Government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth.

     In the spring of 1861 these southern leaders gave no reason for secession other than the preservation of the institution of slavery.  It is not simply disingenguous – it is an evasion of moral responsibility – for the Governor of Virginia to pretend otherwise.  If we are to declare April to be "Confederate History Month," let us at least get that that history right.

    In a statement issued yesterday, the Governor apologized for the omission of any reference to slavery in his original proclamation and appropriately observed:

 The abomination of slavery divided our nation, deprived people of their God-given inalienable rights, and led to the Civil War. Slavery was an evil, vicious and inhumane practice which degraded human beings to property, and it has left a stain on the soul of this state and nation.

     The amended version of the proclamation is now posted on the Governor's website.

     All Americans are proud of the heroism of our soldiers in every war, including those who fought on both sides of the Civil War.  The people of the north, no less than the people of the south, stand in awe of the determination of all of our ancestors to endure and prevail in war.  Furthermore, the Civil War is one of the defining events, if not the defining event, in American history.  It is a fascinating era in any number of respects; sociologists, political scientists, military scientists, and legal scholars still mine this rich period of ferment and growth.

     In the final analysis, however, one cannot fondly recall the Confederacy.  It was a rebellion whose sole purpose was not only to perpetuate but to extend the institution of slavery.  The Confederacy did not fight for human freedom – it fought to stamp out human freedom.  It was an attempt to "blow out the moral lights around us," as Lincoln said in his first debate with Douglas.

     It is one thing to remember our ancestors and honor our soldiers.  It is quite another to commemmorate a political institution that attempted to undo the results of a Presidential election, that sought to preserve slavery, that started America's bloodiest and most destructive war, and whose very existence constituted treason against the United States of America. 

     By all means let us celebrate Virginia History Month, or Civil War History Month, or Confederate Soldiers Month.  But Confederate History Month?  Forget it.

     Lincoln revered the Declaration of Independence, and several of his most significant utterances were made on or about the Fourth of July. 

    Lincoln's speech to Congress on July 4, 1861, described in this previous post, was his most thorough and effective argument against secession. Then there was Lincoln's message to the American people on July 4, 1863, reacting to the Union victory at Gettysburg:

The President announces to the country that news from the Army of the Potomac, up to 10 p.m. of the 3rd. is such as to cover that Army with the highest honor, to promise a great success to the cause of the Union, and to claim the condolence of all for the many gallant fallen. And that for this, he especially desires that on this day, He whose will, not ours, should ever be done, be everywhere remembered and reverenced with profoundest gratitude. ABRAHAM LINCOLN

     But one of my favorites is the speech he delivered July 10, 1858, in the middle of his epic battle against Stephen Douglas.  There was much prejudice against immigrants at that time, but Lincoln argued that the principles of the Declaration belonged to immigrants just as much as they did to native born Americans.  Here is what he said:

Now, it happens that we meet together once every year, sometime about the 4th of July, for some reason or other. These 4th of July gatherings I suppose have their uses. If you will indulge me, I will state what I suppose to be some of them.

We are now a mighty nation, we are thirty â�� or about thirty millions of people, and we own and inhabit about one-fifteenth part of the dry land of the whole earth. We run our memory back over the pages of history for about eighty-two years and we discover that we were then a very small people in point of numbers, vastly inferior to what we are now, with a vastly less extent of country, – with vastly less of everything we deem desirable among men, – we look upon the change as exceedingly advantageous to us and to our posterity, and we fix upon something that happened away back, as in some way or other being connected with this rise of prosperity. We find a race of men living in that day whom we claim as our fathers and grandfathers; they were iron men, they fought for the principle that they were contending for; and we understood that by what they then did it has followed that the degree of prosperity that we now enjoy has come to us. We hold this annual celebration to remind ourselves of all the good done in this process of time of how it was done and who did it, and how we are historically connected with it; and we go from these meetings in better humor with ourselves â�� we feel more attached the one to the other, and more firmly bound to the country we inhabit. In every way we are better men in the age, and race, and country in which we live for these celebrations. But after we have done all this we have not yet reached the whole. There is something else connected with it. We have besides these men â�� descended by blood from our ancestors â�� among us perhaps half our people who are not descendants at all of these men, they are men who have come from Europe â�� German, Irish, French and Scandinavian â�� men that have come from Europe themselves, or whose ancestors have come hither and settled here, finding themselves our equals in all things. If they look back through this history to trace their connection with those days by blood, they find they have none, they cannot carry themselves back into that glorious epoch and make themselves feel that they are part of us, but when they look through that old Declaration of Independence they find that those old men say that â��We hold these truths to be self-evident, that all men are created equal,â�� and then they feel that that moral sentiment taught in that day evidences their relation to those men, that it is the father of all moral principle in them, and that they have a right to claim it as though they were blood of the blood, and flesh of the flesh of the men who wrote that Declaration, and so they are. That is the electric cord in that Declaration that links the hearts of patriotic and liberty-loving men together, that will link those patriotic hearts as long as the love of freedom exists in the minds of men throughout the world.

     America has embraced Lincoln's dream that our nation was "conceived in liberty and dedicated to the proposition that all men are created equal," and we celebrate those ideals on the Fourth of July.

     Abraham Lincoln opposed slavery as strongly as any abolitionist: he said, "If slavery is not wrong, then nothing is wrong."  But did he possess the power to end slavery?

     The fundamental point of disagreement that Lincoln had with Stephen Douglas in their debates during the summer of 1858 stemmed from Douglas' refusal to admit that slavery was wrong, while Lincoln contended that slavery was inconsistent with the fundamental principle of the Declaration that "all men are created equal."  Accordingly, Douglas believed that the white people of America were free to extend slavery to the territories of the United States, while Lincoln opposed the extension of slavery.  In his "House Divided" speech Lincoln said:

Either the opponents of slavery, will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in course of ultimate extinction; or its advocates will push it forward, till it shall become alike lawful in all the States, old as well as new – North as well as South.

     Unlike the abolitionists, however, as a lawyer and a citizen who respected the rule of law Lincoln was forced to acknowledge that the Constitution countenanced slavery.  Constitutional provisions such as the three-fifths clause, the fugitive slave clause, and the slave trade clause made it clear that slavery, in and of itself, was not unconstitutional, even though neither the word "slave" nor the word "slavery" appears in the Constitution itself.  Lincoln remarked on how ashamed the framers seemed to be of slavery.  In the Peoria Address Lincoln likened the framers' refusal to use the word "slavery" to a disease that the victim wishes to deny or conceal, but which he nevertheless longs to be free of:

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.

      However, Lincoln's election as President did not, in his view, give him the lawful power to end slavery.  Moral considerations, even in as clear a case as slavery, are not enough to clothe the President or any other public official with legal power.  But the southern states seceded and rebelled, and as a result President Lincoln justified emancipation as a necessary war measure, and he issued the Emancipation Proclamation under the power granted to him by the Constitution as Commander-in-Chief of the Army and Navy of the United States.  Here is what the Emancipation Proclamation says:

I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion, do, on this first day of January, in the year of our Lord one thousand eight hundred and sixty three, … order and declare that all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free …. 

     In one of his public letters to the American people (but addressed to a private individual, James Conkling) Lincoln explained why it had been lawful and constitutional for him to free the slaves in territory controlled by the confederacy:  

You dislike the emancipation proclamation; and, perhaps, would have it retracted. You say it is unconstitutional – I think differently. I think the constitution invests its commander-in-chief, with the law of war, in time of war. The most that can be said, if so much, is, that slaves are property. Is there – has there ever been – any question that by the law of war, property, both of enemies and friends, may be taken when needed? And is it not needed whenever taking it, helps us, or hurts the enemy? Armies, the world over, destroy enemies' property when they can not use it; and even destroy their own to keep it from the enemy. Civilized belligerents do all in their power to help themselves, or hurt the enemy, except a few things regarded as barbarous or cruel. Among the exceptions are the massacre of vanquished foes, and non-combatants, male and female.

     Note how Lincoln uses the arguments of slaveholders against their own position.  They contend that slaves are property, and no more; Lincoln believes that they are people and that they are entitled to all of the fundamental rights which are guarantied by the Declaration of Independence, but he responds to the southerners that the property rights of belligerents in war can be extinguished.    

     A few months later, as it became clearer that the armed forces of the United States would prevail against the seccessionist armies, the people of the north began to contemplate what their society should be like when the war was over – in particular, how they should proceed with the reconstruction of the south and whether slavery would continue to exist.  Lincoln proposed generous terms for the people of the south; for example, he said that a state government could reenter the Union as soon as 10 percent of its citizens took an oath to the United States and the Constitution.  However, in his annual message to Congress on December 8, 1863, Lincoln said that he would also require former rebels to swear obedience to the Emancipation Proclamation as well.  Lincoln argued:

     But if it be proper to require, as a test of admission to the political body, an oath of allegiance to the Constitution of the United States, and to the Union under it, why also to the laws and proclamations in regard to slavery? Those laws and proclamations were enacted and put forth for the purpose of aiding in the suppression of the rebellion. To give them their fullest effect, there had to be a pledge for their maintenance. In my judgment they have aided, and will further aid, the cause for which they were intended. To now abandon them would be not only to relinquish a lever of power, but would also be a cruel and an astounding breach of faith. I may add at this point, that while I remain in my present position I shall not attempt to retract or modify the emancipation proclamation; nor shall I return to slavery any person who is free by the terms of that proclamation, or by any of the acts of Congress. For these and other reasons it is thought best that support of these measures shall be included in the oath; and it is believed the Executive may lawfully claim it in return for pardon and restoration of forfeited rights, which he has clear constitutional power to withhold altogether, or grant upon the terms which he shall deem wisest for the public interest. It should be observed, also, that this part of the oath is subject to the modifying and abrogating power of legislation and supreme judicial decision.

     In the last sentence of the foregoing passage Lincoln acknowledged that this part of the oath was "subject to … legislation and supreme judicial decision."  Lincoln recognized that the oath to support emancipation and even the Emancipation Proclamation itself could be repealed by Congress or invalidated by the courts.  This is why he labored so vigorously for the adoption of the Thirteenth Amendment, which would change the Constitution and outlaw slavery forever.  Lincoln made the adoption of this Amendment the centerpiece of the platform of the Republican Party in 1864.  In that election he swept to victory and brought 37 new Republican congressmen into office with him.  The Thirteenth Amendment was adopted by Congress on January 31, less than three months before the end of the Civil War and Lincoln's death.  It provides:

Neither slavery nor involuntary servitude … shall exist within the United States, or any place subject to their jurisdiction.

    The Gettysburg Address is widely considered to be the greatest speech in American history.  In this essay both the style and the substance of the Address are analyzed.

     On November 19, 1863, Lincoln delivered this brief speech at the dedication of the cemetery at Gettysburg, Pennsylvania.  Gettysburg was the site of the most important battle of the Civil War – the turning point of the war, in which the southern army was decisively defeated and the South lost all hope of securing foreign assistance in support of seccession.  Lincoln used the occasion of the dedication not to glorify his role or the role of his military commanders nor did he vilify the rebels.  Instead, in the words of the historian Garry Wills, he "remade America" by redefining why we love this country – why it is worth fighting for and dying for.

     The Gettysburg Address is remarkable in many respects.  Many of us memorized it as children and all of us have heard it dozens or hundreds of times, yet it never loses its power to inspire us.  Let us examine both Lincoln's message and the craft that he employed in constructing it.

     Here is the entire text of the Address:

Fourscore and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war, testing whether that nation or any nation so conceived and so dedicated can long endure. We are met on a great battlefield of that war. We have come to dedicate a portion of that field as a final resting-place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this. But in a larger sense, we cannot dedicate, we cannot consecrate, we cannot hallow this ground. The brave men, living and dead who struggled here have consecrated it far above our poor power to add or detract. The world will little note nor long remember what we say here, but it can never forget what they did here. It is for us the living rather to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us–that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion–that we here highly resolve that these dead shall not have died in vain, that this nation under God shall have a new birth of freedom, and that government of the people, by the people, for the people shall not perish from the earth.

     The Gettysburg Address is poetry.  It is one of the finest examples of free verse in the English language.  Lincoln voraciously read and enthusiastically watched Shakespearean plays, and this speech approaches Shakespeare at his best.  The message is also important and powerful.  It seeks to persuade us that America is a wonderful country not because of its wealth or its armies or its fruitful land or even its people (or, as many people of the South believed, because of White Supremacy), but because of the enduring principles to which we are devoted.  Here is a list of the stylistic techniques and principal messages of the Address. 

1.  Rythym:  FOUR SCORE and SEVen YEARS Ago, our FAthers brought FORTH unto THIS CONtinent a NEW NAtion, conCEIVED in LIBerty and DEDicated to the PROPoSItion that ALL MEN are creAted Equal.  There is a steady drumbeat, a marching step, a beating heart to the entire speech.

2.  Repetition:  Certain terms are repeated and interwoven to emphasize Lincoln's themes: Dedicated … dedidicated … dedicate … dedidicated / conceived … conceived / a new nation … that nation … this nation / great battlefield … that field / unfinished work … great task remaining / devotion … devotion / government of the people … by the people … for the people.

3.  Religious allusion:  Lincoln uses biblical imagery in a number of effective ways.  The words "Four score and seven years ago" echo biblical imagery.  "And Abram was fourscore and six years old when Hagar bore Ishmael to Abram."  (Genesis 16:16).  "And Moses was fourscore years old, and Aaron fourscore and three years old, when they spake unto Pharaoh."  (Exodus 7:7).  This language also draws an analogy between the founders of this country and God, who "brought forth" the Jews from slavery in the land of Egypt (2 Chronicles 6:5), and the Virgin Mary, who "brought forth" the infant Jesus.  (Matthew 1:24-25)  All of these allusions helped to reinforce the concept that the Civil War represented a form of salvation or redemption from the sin of slavery, a point that he makes in even stronger terms in the Second Inaugural.  Lincoln also uses the phrase  "under God" which is later added to the Pledge of Allegiance.  Finally, he uses the terms "consecrate" and "hallow" as synonyms for "dedicate" and "devote," thus drawing an analogy between religious faith and our dedication to the principles of liberty and equality. Finally, the phrase "government of the people, by the people, and for the people" quotes the 14th century religious reformer John Wycliffe, who used the same words to describe the purpose of his English translation of the Bible – a watershed in the Protestant tradition.

4.  Metaphor:  Lincoln develops a powerful metaphor of birth/life/death/rebirth that reflects both the life of Jesus and the cycle of Nature.  He uses these terms: "our fathers brought forth a new nation" … "conceived" … "can long endure" … "final resting place"… "gave their lives" … "the nation might live" … "living and dead" … "the living" … "these honored dead" … "these dead" … "this nation shall have a new birth." 

5.  Duty:  Lincoln does not merely eulogize the dead at Gettysburg – he calls us to service, as he does in so many of his speeches, letters, and remarks.  Unlike the Greeley letter described in a previous post, Lincoln does not use the word "I" even once – instead he uses "we."  At Gettysburg Lincoln tells us that the purpose of the war will be determined by what we do, and whether we are willing to dedicate ourselves and devote ourselves to a principle worth fighting for – the equality of all mankind, which Lincoln considered to be the "sheet anchor" of democracy – the idea that all persons have an equal right to govern themselves (liberty), an equal right to participate in the political process (self-government), and the right to "an unfettered start, and a fair chance in the race of life."

     Lincoln was a politician who helped found the the Republican Party and led it to victory in two national elections; a military leader who saved the Union by actively commanded the army and navy of the United States in securing victory in the Civil War; and the Great Emancipator who freed millions of slaves through the issuance of the Emancipation Proclamation and persuading Congress to adopt the Thirteenth Amendment.  But his greatest accomplishment was to convince Americans that the Union and the Constitution and America itself all serve a higher law – the universal principles of liberty and equality expressed in the Declaration of Independence.

Many of the ideas in this essay are explored at length in Gary Wills' masterpiece, "Lincoln at Gettysburg: The Words that Remade America." Another outstanding resource is John Channing Briggs' "Lincoln's Speeches Reconsidered."  I also wish to thank the students in my Jurisprudence class and the faculty and students at Pace Law School for their insights into the Gettysburg Address and other Lincoln works.

     The essay posted Tuesday described the arguments that Abraham Lincoln made against secession in his First Inaugural Address of March 4, 1861.  Four months later on Independence Day, 1861, Lincoln returned to this subject and expanded upon his position in a special address to Congress.

     In the first passage from this speech Lincoln introduces a theme which he will return to in the Gettysburg Address – whether or not it is possible for a democracy ("a government of the people, by the same people") to survive:

And this issue embraces more than the fate of these United States. It presents to the whole family of man, the question, whether a constitutional republic, or a democracy – a government of the people, by the same people – can, or cannot, maintain its territorial integrity, against its own domestic foes. It presents the question, whether discontented individuals, too few in numbers to control administration, according to organic law, in any case, can always, upon the pretences made in this case, or on any other pretences, or arbitrarily, without any pretence, break up their Government, and thus practically put an end to free government upon the earth. It forces us to ask: "Is there, in all republics, this inherent, and fatal weakness?" "Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?

     In the next portion of his address Lincoln expanded upon the constitutional arguments against secession that he had made in his First Inaugural, specifically arguing against the concept of "state sovereignty."  Lincoln contended that the entire concept of "state sovereignty" was a sophism – the premise that the states are sovereign assumes the conclusion that the states are free to secede.  But Lincoln did not accept the premise, and instead took the position that the people of the United States – whom he would later repeatedly refer to in the Gettysburg Address as the "Nation" – constitute the sovereign power of the United States.  Here is how Lincoln characterized the argument of those favoring secession:

They invented an ingenious sophism, which, if conceded, was followed by perfectly logical steps, through all the incidents, to the complete destruction of the Union. The sophism itself is, that any state of the Union may, consistently with the national Constitution, and therefore lawfully, and peacefully, withdraw from the Union, without the consent of the Union, or of any other state. The little disguise that the supposed right is to be exercised only for just cause, themselves to be the sole judge of its justice, is too thin to merit any notice.

With rebellion thus sugar-coated, they have been drugging the public mind of their section for more than thirty years; and, until at length, they have brought many good men to a willingness to take up arms against the government the day after some assemblage of men have enacted the farcical pretence of taking their State out of the Union, who could have been brought to no such thing the day before.

This sophism derives much – perhaps the whole – of its currency, from the assumption, that there is some omnipotent, and sacred supremacy, pertaining to a State – to each State of our Federal Union.

     Lincoln then sought to prove that the states never were sovereign unto themselves – that instead, the Union was older than the states, and that the states never had any independent existence outside the Union.  Accordingly, the states have no powers other than those which are reserved to them under the Constitution, and the power to secede is noticeably absent from the Constitution:

Our States have neither more, nor less power, than that reserved to them, in the Union, by the Constitution – no one of them ever having been a State out of the Union. The original ones passed into the Union even before they cast off their British colonial dependence; and the new ones each came into the Union directly from a condition of dependence, excepting Texas. And even Texas, in its temporary independence, was never designated a State. The new ones only took the designation of States, on coming into the Union, while that name was first adopted for the old ones, in, and by, the Declaration of Independence. Therein the "United Colonies" were declared to be "Free and Independent States"; but, even then, the object plainly was not to declare their independence of one another, or of the Union; but directly the contrary, as their mutual pledge, and their mutual action, before, at the time, and afterwards, abundantly show. The express plighting of faith, by each and all of the original thirteen, in the Articles of Confederation, two years later, that the Union shall be perpetual, is most conclusive. Having never been States, either in substance, or in name, outside of the Union, whence this magical omnipotence of "State rights," asserting a claim of power to lawfully destroy the Union itself? Much is said about the "sovereignty" of the States; but the word, even, is not in the national Constitution; nor, as is believed, in any of the State constitutions. What is a "sovereignty," in the political sense of the term? Would it be far wrong to define it "A political community, without a political superior"? Tested by this, no one of our States, except Texas, ever was a sovereignty. And even Texas gave up the character on coming into the Union; by which act, she acknowledged the Constitution of the United States, and the laws and treaties of the United States made in pursuance of the Constitution, to be, for her, the supreme law of the land. The States have their status IN the Union, and they have no other legal status. If they break from this, they can only do so against law, and by revolution. The Union, and not themselves separately, procured their independence, and their liberty. By conquest, or purchase, the Union gave each of them, whatever of independence, and liberty, it has. The Union is older than any of the States; and, in fact, it created them as States. Originally, some dependent colonies made the Union; and, in turn, the Union threw off their old dependence, for them, and made them States, such as they are. Not one of them ever had a State constitution, independent of the Union. Of course, it is not forgotten that all the new States framed their constitutions, before they entered the Union; nevertheless, dependent upon, and preparatory to, coming into the Union.

Unquestionably the States have the powers, and rights, reserved to them in, and by the National Constitution; but among these, surely, are not included all conceivable powers, however mischievous, or destructive; but, at most, such only, as were known in the world, at the time, as governmental powers; and certainly, a power to destroy the government itself, had never been known as a governmental – as a merely administrative power. This relative matter of National power, and State 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. Whether the National Constitution, in defining boundaries between the two, has applied the principle with exact accuracy, is not to be questioned. We are all bound by that defining, without question.

     Lincoln then pointed out the selfishness and ultimate futility of secession: 

The seceders insist that our Constitution admits of secession. They have assumed to make a National Constitution of their own, in which, of necessity, they have either discarded, or retained, the right of secession, as they insist, it exists in ours. If they have discarded it, they thereby admit that, on principle, it ought not to be in ours. If they have retained it, by their own construction of ours they show that to be consistent they must secede from one another, whenever they shall find it the easiest way of settling their debts, or effecting any other selfish, or unjust object. The principle itself is one of disintegration, and upon which no government can possibly endure.

     Lincoln also contends that if secession is permissible, it would also be permissible to drive a state out of the Union, and concludes that this would be just as much a rejection of the principle that sovereignty resides not in the states, but in the people of the United States:

If all the States, save one, should assert the power to drive that one out of the Union, it is presumed the whole class of seceder politicians would at once deny the power, and denounce the act as the greatest outrage upon State rights. But suppose that precisely the same act, instead of being called "driving the one out," should be called "the seceding of the others from that one," it would be exactly what the seceders claim to do; unless, indeed, they make the point, that the one, because it is a minority, may rightfully do, what the others, because they are a majority, may not rightfully do. These politicians are subtle, and profound, on the rights of minorities. They are not partial to that power which made the Constitution, and speaks from the preamble, calling itself "We, the People."

     Lincoln then made a practical argument.  First, he noted how successful the American experiment had been by pointing out how accomplished even the common soldiers were.  Then, he asked whether a new form of government would be as likely to promote the flowering of individual achievement:

It may be affirmed, without extravagance, that the free institutions we enjoy, have developed the powers, and improved the condition, of our whole people, beyond any example in the world. Of this we now have a striking, and an impressive illustration. So large an army as the government has now on foot, was never before known, without a soldier in it, but who had taken his place there, of his own free choice. But more than this: there are many single Regiments whose members, one and another, possess full practical knowledge of all the arts, sciences, professions, and whatever else, whether useful or elegant, is known in the world; and there is scarcely one, from which there could not be selected, a President, a Cabinet, a Congress, and perhaps a Court, abundantly competent to administer the government itself. Nor do I say this is not true, also, in the army of our late friends, now adversaries, in this contest; but if it is, so much better the reason why the government, which has conferred such benefits on both them and us, should not be broken up. Whoever, in any section, proposes to abandon such a government, would do well to consider, in deference to what principle it is, that he does it – what better he is likely to get in its stead – whether the substitute will give, or be intended to give, so much of good to the people.

     In answering this question whether the government proposed by the secessionists would improve the condition of the people, Lincoln contrasted the declaration of independence and constitution of the so-called Confederacy with the original Declaration and Constitution of the United States:

There are some foreshadowings on this subject. Our adversaries have adopted some Declarations of Independence; in which, unlike the good old one, penned by Jefferson, they omit the words "all men are created equal." Why? They have 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 rights of men, and the authority of the people?

     Lincoln then drove the argument home, making it clear that this was a "people's contest" which was being fought to secure the rights of mankind:

This is essentially a People's contest. On the side of the Union, it is a struggle for maintaining in the world, that form, and substance of government, whose leading object is, to elevate the condition of men – to lift artificial weights from all shoulders – to clear the paths of laudable pursuit for all – to afford all, an unfettered start, and a fair chance, in the race of life. Yielding to partial, and temporary departures, from necessity, this is the leading object of the government for whose existence we contend.

     Lincoln added that those who sought to secede favored "bullets" over "ballots," – that democracy is utterly inconsistent with the principle of armed secession, and he concluded with a warning to those who rise up in arms against a lawful, democratically elected government:

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. It is now for them to demonstrate to the world, that those who can fairly carry an election, can also suppress a rebellion – that ballots are the rightful, and peaceful, successors of bullets; and that when ballots have fairly, and constitutionally, decided, there can be no successful appeal, back to bullets; that there can be no successful appeal, except to ballots themselves, at succeeding elections. Such will be a great lesson of peace; teaching men that what they cannot take by an election, neither can they take it by a war – teaching all, the folly of being the beginners of a war.

     Thus, Lincoln concludes, secession is antithetical to democracy, and those who are devoted to democratic government will fight to preserve it.

     We will be keeping Justice Ginsburg in our thoughts.

The University of Akron will commemorate the 200^th anniversary of President Abraham Lincoln's birth with a celebration on Feb. 12 at noon at The University of Akron Student Union in the Student Theater. The event is free and open to the public.

The celebration will be a birthday celebration featuring light refreshments and an appearance from President Lincoln himself, as well as short presentations by the following Lincoln scholars:

Dr. Lesley Gordon, UA Dept. of History
Professor Wilson R. Huhn, UA School of Law
Dr. David Cohen, UA Dept. of Political Science
Professor Jeffrey M. Samuels, UA School of Law
Professor J. Dean Carro, UA School of Law
Professor Stephen Cook, UA School of Law

The presentations will cover topics such as President Lincoln's "Team of Rivals" concept; how his adversity affected his role as a leader, what the crisis at Fort Sumter revealed about President Lincoln as a military and political leader and President Lincoln's role as an inventor and patent holder.

The event is co-sponsored by the Constitutional Law Center at the Akron Law, the UA Dept. of History, the UA Dept. of Political Science, the Ray C. Bliss Institute of Applied Politics and the Office of the Associate Vice President for Inclusion & Equity/CDO.

     As Commander-in-Chief Abraham Lincoln opposed the secession of the southern states militarily and under his leadership the armed forces of the United States defeated the secessionist movement on the battlefield.  In his addresses to the American people, Lincoln mounted powerful arguments opposing secession on all fronts – on legal grounds, on political grounds, on economic grounds, on patriotic grounds, and most importantly, on moral grounds.   Lincoln addressed secession at length in two speeches: his First Inaugural Address and his address to Congress on July 4, 1861.  In this post I describe the arguments that Lincoln made against secession in his First Inaugural. 

     On March 4, 1861, in his First Inaugural Address, Lincoln made three legal arguments against secession and closed with an appeal to the common heritage of the North and the South in the Revolution.  The first legal argument stemmed from the fact that the Articles of Confederation, our first Constitution which was written in 1778 and adopted in 1781, had declared the Union to be "perpetual."  Lincoln contended that all governments consider themselves to be perpetual, and that in any event the Constitution itself did not contemplate or provide for secession:

I hold, that in contemplation of universal law, and of the Constitution, the Union of these States is perpetual. 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. 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.

      Second, Lincoln likened the Constitution to a contract or a compact among the states, an analogy which secessionists were fond of asserting, and argued that even considered as a contract the southern states had no right to secede:

Again, if the United States be not a government proper, but an association of States in the nature of 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 third legal argument against secession that Lincoln made in the First Inaugural reasoned from the history of the Union and the language in the Preamble that secession was inconsistent with the intent of the framers of the Constitution:

Descending from these general principles, we find the proposition that, in legal contemplation, the Union is perpetual, confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution, was "to form a more perfect union."

But if destruction of the Union, by one, or by a part only, of the States, be lawfully possible, the Union is less perfect than before the Constitution, having lost the vital element of perpetuity.

        Lincoln concluded his legal arguments by characterizing secession as an act that was beyond the power of the states and as constituting either a breach of contract, revolution, or treason – but certainly not a lawful or constitutional act:

It follows from these views that no State, upon its own mere motion, can lawfully get out of the Union, – that resolves and ordinances to that effect are legally void; and that acts of violence, within any State or States, against the authority of the United States, are insurrectionary or revolutionary, according to circumstances.

     Lincoln closed his First Inaugural with an appeal to patriotism:

I am loth to close. We are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection. The mystic chords of memory, stretching from every battle-field, and patriot grave, to every living heart and hearthstone, all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.

     Lincoln expanded upon these arguments in his address to Congress on July 4, 1861.  In that speech Lincoln made a number of points that are still relevant to the interpretation of the Constitution.  The principles that Lincoln established in that speech will be the subject of a post this coming Friday.

     I am greatly indebted to the students in my Jurisprudence class.  In three hours yesterday evening they gave me more insight into Lincoln's thought and work than I had gained in thousands of hours of solitary work.  I shall be drawing upon their ideas for some time to come.  In this posting I shall present simply one of the ideas suggested by a student and discussed by the class last night.  It concerns the stucture of Lincoln's letter to Horace Greeley, dated August 19, 1862.

     Greeley, the editor of the New York Tribune, had written an editorial addressed to Lincoln entitled "The Prayer of Twenty Millions" in which he stated that the people who had supported Lincoln were "sorely disappointed and deeply pained by the policy you seem to be pursuing" – namely, Lincoln's failure to confiscate slaves from persons in rebellion.  At the time that this editorial appeared, Lincoln had already drafted the Emancipation Proclamation and told his cabinet that he intended to issue it, but he believed that it should be released in the wake of a great victory, which until then had eluded the Union army.  Lincoln wished to respond to Greeley, not primarily to reinforce his personal political popularity, but rather to prepare the Nation for emancipation – to convince people, when it was issued, that it was a necessary wartime measure by the Commander-in-Chief, and not a moral imperative uttered without constitutional authority.  Here is Lincoln's response to Greeley:

Dear Sir,

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.

I have just read yours of the 19th. addressed to myself through the New-York Tribune. If there be in it any statements, or assumptions of fact, which I may know to be erroneous, I do not, now and here, controvert them. If there be in it any inferences which I may believe to be falsely drawn, I do not now and here, argue against them. If there be perceptable in it an impatient and dictatorial tone, I waive it in deference to an old friend, whose heart I have always supposed to be right.

As to the policy I "seem to be pursuing" as you say, I have not meant to leave any one in doubt.

I would save the Union. I would save it the shortest way under the Constitution. The sooner the national authority can be restored; the nearer the Union will be "the Union as it was." If there be those who would not save the Union, unless they could at the same time save slavery, I do not agree with them. If there be those who would not save the Union unless they could at the same time destroy slavery, I do not agree with them. 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.

      The second paragraph of the letter contains a parallel construction that Lincoln had used before: successive sentences beginning with the word "if."  The "if …if…if" device is poetic, even lyrical – it is entrancing – it builds suspence as we await to learn what Lincoln does controvert in Greeley's editorial, what he does argue against, what he does not waive. 

     The third one-sentence paragraph is deliciously misleading: Lincoln had already settled upon the decision to free the slaves, and despite what he says he was deliberately leaving us in doubt as he prepared the Nation for this act. 

     The fourth paragraph makes the simple point that as President Lincoln was charged with the duty to save the Union, and that if the slaves were to be freed it would be in the service of that overarching goal.  Virtually all northerners and most citizens of the border states and even many southerners were unionists, and Lincoln planned to free the slaves to achieve that common objective.  The time was not yet ripe, but it was rapidly approaching.  The power of Lincoln's prose in making this point, however, is fueled by the complex grammatical and syntactical structure that he employs in this paragraph.

     First, note the repetition of the term "save the union."  It is like a chorus or a rhyme, occuring seven times in full, and another three times in the form "save it."  Second, note the repeated use of contrast between the phrases "save the union" and "save slavery," between "save slavery" and "destroy slavery,"  and between "without freeing any slaves" and "freeing all slaves."  Third, as in the second paragraph, Lincoln returns to the "if…if" construction, using it word "if" five times, forcing the reader to carefully consider the choices that the country faces. 

     We now come to the point suggested by one student in last night's class.  Consider the tense and mode of the verbs that Lincoln employs in the fourth paragraph of the Greeley letter. 

"I would save the union."  …  "If I could … I would"  (repeated)

"What I do … I do … because I believe that it will help to save the union; and what I forebear … I forbear"

"I shall do less … I shall do more"

"I shall try to correct errors … I shall adopt new views"

     In the fourth paragraph Lincoln progresses from what he intends to do, to what he is doing, to what he will do, and he prepares the public mind for the eventuality that he will "correct errors" and "adopt new views" to achieve the objective of saving the union.  

     In the fifth and final paragraph of the Greeley letter, Lincoln contrasts what he intends to do as President as a matter of "official duty" with what he would prefer to do as a private citizen as a matter of "personal wish."  He makes this point to defend the constitutionality of the Emancipation Proclamation, and to avoid the charge that the Proclamation simply represents the personal preference of a politician, and not the lawful act of a military commander.

     One month later, and five days after the Union victory in the battle of Antietam, Lincoln publicly issues the draft of the Emancipation Proclamation, which is expressly based upon the war powers of the Commander-in-Chief to seize and destroy the property of opposing combatants in war.  The draft states that it will be officially issued and become effective on January 1, 1863.  And on that date the Proclamation is issued to great joy in the North.

     Lincoln's greatness stems in part from his ability to summarize a difficult and complex problem in terms that everybody can understand.  The power of his prose is demonstrated in the following two passages on equal opportunity.

     On October 15, 1858, in his seventh and last debate with Stephen Douglas, Abraham Lincoln drew an analogy between black freedom and American Independence from the English monarchy:

That is the real issue. That is the issue that will continue in this country when these poor tongues of Judge Douglas and myself shall be silent. It is the eternal struggle between these two principles—right and wrong—throughout the world. They are the two principles that have stood face to face from the beginning of time; and will ever continue to struggle. The one is the common right of humanity and the other the divine right of kings. It is the same principle in whatever shape it develops itself. It is the same spirit that says, "You work and toil and earn bread, and I'll eat it." No matter in what shape it comes, whether from the mouth of a king who seeks to bestride the people of his own nation and live by the fruit of their labor, or from one race of men as an apology for enslaving another race, it is the same tyrannical principle.

This reminded Lincoln's listeners of the significance of the statement in the Declaration that "all men are created equal," and it was intended to persuade them that this was true for the black no less than the white.

     Six years later, during the darkest days of the Civil War - Sherman was stalled at the gates of Atlanta, and Grant was suffering appalling losses on the approach to Richmond – Lincoln returned to this theme.  He was addressing the 166th Ohio Regiment that was returning home, and he sought to remind them and the Nation why it was so important for the United States to win this war.  He said:

I suppose you are going home to see your families and friends. For the service you have done in this great struggle in which we are engaged I present you sincere thanks for myself and the country. I almost always feel inclined, when I happen to say anything to soldiers, to impress upon them in a few brief remarks the importance of success in this contest. It is not merely for to-day, but for all time to come that we should perpetuate for our children's children this great and free government, which we have enjoyed all our lives. I beg you to remember this, not merely for my sake, but for yours. I happen temporarily to occupy this big White House. I am a living witness that any one of your children may look to come here as my father's child has. It is in order that each of you may have through this free government which we have enjoyed, an open field and a fair chance for your industry, enterprise and intelligence; that you may all have equal privileges in the race of life, with all its desirable human aspirations. It is for this the struggle should be maintained, that we may not lose our birthright—not only for one, but for two or three years. The nation is worth fighting for, to secure such an inestimable jewel.

          People of every political persuasion and every race and color and nationality, people around the world,  are excited about Barack Obama's inauguration as President today – his ascension to that big white house - because it means that each of us and all of our children stand an equal chance in the race of life.

     In a previous posting I had predicted that Barack Obama would, in his Inaugural Address, call for shared sacrifice from all Americans.  It is now being widely reported that this will be a theme of his address.  What did Lincoln have to say about this, and as a practical matter, what sacrifices might Obama ask us to make?

     At Gettysburg, Lincoln called upon us to make a moral commitment – to rededicate ourselves to the work that the soldiers who died there had left unfinished – the great task of giving to the world a new birth of freedom:

The world will little note nor long remember what we say here, but it can never forget what they did here. It is for us the living rather to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us–that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion–that we here highly resolve that these dead shall not have died in vain, that this nation under God shall have a new birth of freedom, and that government of the people, by the people, for the people shall not perish from the earth.

     Similarly, in the Second Inaugural Address, Lincoln called upon us to make another moral commitment – to understand that slavery existed among us because the Constitution created it – it was the fault of both North and South – a dark bargain that we had exploited for material gain – and that now that the war was drawing to a close we had to commit ourselves not only to end slavery but also to let go of the hatred that had both caused the war and resulted from it:

 With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan – to do all which may achieve and cherish a just, and a lasting peace, among ourselves, and with all nations.

     But Lincoln did not simply ask us for moral commitments.  To prosecute the war took money, as did the other internal improvements that the government undertook during his adminstration such as the Homestead Act, the Transcontinental Railroads, and the Land Grant Colleges.  As a result the federal budget increased twenty-fold from $63 million in 1860 to $1.3 billion in 1865, and the government installed the first income tax to pay for it.

     Nor was the sacrifice simply financial.  Over 625,000 soldiers died in the Civil War, more than have died in all of our other wars combined.  In what may be an apochryphal story, after the War Joseph Medill, Editor of the Chicago Tribune, reportedly told the Atlantic Monthly that during the summer of 1864, when the North had become discouraged at the lack of progress before Atlanta and Richmond, and by bloody defeats like the one at Cold Harbor, and Lincoln had called for yet more troops to be raised, Medill and other leaders from Chicago and Boston visited the President and demanded that their cities be exempted from the draft.  For once, Lincoln did not respond with patience and kindness nor did he tell an amusing story or attempt to lift their spirits with inspirational language.  Instead Lincoln said:

Gentlemen, after Boston, Chicago has been the chief instrument in bringing this war on the country … It is you who are largely responsible for making blood flow as it has.  You called for war until we had it.  You called for emancipation, and I have given it to you.  Whatever you have asked for you have had.  Now you come here begging to be let off from the call for men which I have made to carry out the war you have demanded.  You ought to be ashamed of yourselves.  I have a right to expect better things of you.  Go home, and raise your 6,000 extra men.  And you, Medill, you are acting like a coward.  You and your Tribune  have had more influence than any paper in the northwest in making this war.  You can influence great masses, and yet you cry to be spared at a moment when your cause is suffering.  Go home and send us those men.

     Medill reportedly said:

I couldn't say anything.  It was the first time I ever was whipped, and I didn't have an answer.  We all got up and went out and when the door closed, one of my colleagues said, "Well, gentlement, the old man is right.  … Let us go home and raise the men."  And we did – 6,000 men, making 28,000 in the war from a city of 156,000.  But there might have been crepe on every door almost in Chicago, for every family had lost a son or a husband.  I lost two brothers.  It was hard on the mothers.

      What sacrifices can we be expected to make in order to overcome the challenges we face?

     Obviously, taxes will go up – if not immediately, then eventually.  The United States cannot continue to run deficits – we will pay our debts either through taxes or by reducing the value of the dollar, either of which will reduce the amount of purchasing power in private hands.

     Our businesses, health care institutions, and educational institutions will have to become more efficient.  The people will not bail out banks and insurance companies that pad their payrolls.  Government financing of health care will not pay for more adminstrators or for the current grossly inefficient system of private lawsuits for medical malpractice.  The G.I. Bill and Student Financial Aid programs will not expend funds on colleges and universities that engage in featherbedding.  People in business, medicine, education, and law will have to become more efficient and more productive.  This means more work and lower pay for many professionals so that every American can have a job, every American will receive high quality medical care, and every American will have access to the highest level of education that he or she is willing to work to attain.

     If we are going to pull together as a Nation, then the sacrifices of our soldiers and their families must be matched by sacrifices from all of us.

     Michael Newdow has filed suit to prohibit the Chief Justice John Roberts from stating and President-Elect Barack Obama from repeating the phrase "so help me God" following the oath of office next week at the Inauguration.  Three provisions of the Constitution bear upon this question: the Clause prescribing the presidential oath of office, the Establishment Clause, and the Clause prohibiting any religious test for public office.

     Article II, Section 1, Clause 8 of the Constitution prescribes the oath of office that the President must say in order to take office.  It says:

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:–''I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.''

     Article VI, Clause 3 of the Constitution ends with these words – the last substantive provision of the original Constitution:

No religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

     The first words of the First Amendment state:

Congress shall make no law respecting an establishment of religion.

     It can be argued that adding the words "so help me God" to the oath of office that the President is legally required to take before assuming office is unconstitutional for three reasons.  First, because the Constitution specifically precribes the content of the oath of office, Presidents, and Chief Justices, and even Congress itself lack the authority to alter it.  Second, for the Chief Justice to prompt the President-Elect to say these words the Chief Justice is making belief in God a requirement for public office – an unlawful religious test.  Finally, it may be argued that for the Chief Justice to administer and the President to recite this phrase constitutes "an establishment of religion" – an endorsement of religion – a violation of the principle of separation of church and state.

     There are also some very persuasive arguments against Newdow's position.  The first response to Newdow's objection is contained in the text of the "oath of office" clause.  Note that the Constitution allows the President to either "swear" or "affirm" that he or she will faithfully execute the laws and will preserve, protect, and defend the Constitution.  One meaning of the term "swear" connotes taking an oath before God, in contrast to an affirmation which is an equally solemn promise but one that is made without religous intent.  The choice to swear or affirm lies with the President, not the Chief Justice, but nevertheless it is perfectly constitutional for Obama to choose to swear his allegiance to the Constitution rather than to simply affirm it.

     The second and more powerful legal argument in favor of allowing the President to say "so help me God" lies in the dual nature of every occupant of public office.  This duality may be illustrated by reference to the history of this phrase.

     The first President to add the words "so help me God" to the oath of office was Abraham Lincoln on the occasion of his second inaugural in 1865.  In addition, as you can see from my previous posting, Lincoln's Second Inaugural Address is suffused with biblical and religious references.  Why isn't Lincoln's entire speech considered to be a violation of the Establishment Clause?

     The answer is that Abraham Lincoln was both President and a private individual – an officeholder and a politician – a government employee and a citizen.  As President he was not permitted to take any action affecting other people's legal rights and responsibilities with respect to religion – as President he had to be strictly neutral with respect to religion.  But as a private citizen he was free to express his belief in God – to go to church, to participate in religious exercises, and to persuade other people to his beliefs.  He did not give up these rights by ascending to public office.  Lincoln's Second Inaugural Address properly incorporates religious imagery meant to convey the fundamental political and moral values that Lincoln adhered to.  Like Lincoln, in my opinion Barack Obama may, at his option, request the Chief Justice to add the words "so help me God" to the oath of office as a further expression of his personal resolve to faithfully execute the laws and to preserve, protect, and defend the Constitution of the United States.

     One week from today Barack Obama will be inaugurated as the 44th President of the United States, and he has announced that Lincoln will be a theme for the Inauguration.  Obama will take the oath of office with the same Bible used by Abraham Lincoln at his inauguration in 1861.  Will Obama model his Inaugural Address after one or both of Lincoln's?

     Lincoln's Inaugural Addresses framed the Civil War.  At the time of the First Inaugural in March of 1861 seven southern states had seceded and were assembling an army and preparing a new constitution for the Confederacy.  At the time of the Second Inaugural in March of 1865 Northern armies had conquered the Confederacy in the west and the deep south and were closing in on Richmond and Petersburg, Virginia, the last redoubts of Lee's army.  In early 1861 Congress, in an attempt to placate the South, had adopted a constitutional amendment which if it had been ratified would have protected the institution of slavery in every state where it still existed; in early 1865 Congress adopted the Thirteenth Amendment, which when it was ratified later that year would abolish slavery throughout the United States.  In the First Inaugural Lincoln attempted to prevent the Civil War by appealing to our shared sense of patriotism - in the Second, he attempted to unify North and South and to give meaning to the War through an appeal to human rights. 

     What will Barack Obama speak about in his inaugural address one week from today?  Lincoln faced an profound crisis of secession that his election had sparked.  The southern states refused to stay in the Union precisely because Lincoln had been elected.  They would not accept the decision of the American people rejecting the extension of slavery into new states, and they would not accept the diminution of power that this decision portended.  But the causes of secession did not arise in 1861 – they were apparent even at the Constitutional Convention of 1787, when the framers compromised with slavery and wrote protections for it into the Constitution, omitting the language of the Declaration that "all men are created equal."  The contest between the economic systems of slavery in the south and free labor in the north was, as William Seward had said, an "irrepressible conflict," and as Lincoln had said, "A house divided against itself cannot stand."  While there are many issues that divide red states and blue states, we do not face the kind of fundamental moral, political, and economic question that Americans confronted in 1861.

     At present Americans face the greatest economic challenge since the Great Depression and the greatest foreign policy threat since the Vietnam War.  I predict that Barack Obama will attempt to accomplish three things in his Inaugural Address.  First, he will tell us that, like the "Greatest Generation," we will have to make shared sacrifices.  In the long run there will be higher taxes to pay for public works projects and other stimulus programs that we must adopt to reinvigorate the economy, and in addition the sacrifices of military families must be shared by all of us through higher taxes or other contributions.  Second, he will reassure us that we can and will overcome the obstacles we face.  The economy will recover, as it always has, and the United States will prevail in the armed struggle against the forces of terrorism.  Third, like Lincoln, he will attempt to unify the country by appealing to the fundamental principles that we share – that America is not defined by what race we happen to be or what language we speak or by our religion or cultural habits, but rather through our devotion to certain fundamental principles: democracy, equality, individual freedom, limited government, and the rule of law.

     What do you think Obama will say?  And, in your opinion, what should he say?

     Below I have set forth the final passage of Lincoln's First Inaugural and the entire Second Inaugural.

     Closing Remarks of Lincoln's First Inaugural, March 4, 1861: 

I am loth to close. We are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection. The mystic chords of memory, stretching from every battle-field, and patriot grave, to every living heart and hearthstone, all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.

     Lincoln's Second Inaugural, March 5, 1865:

 At this second appearing to take the oath of the presidential office, there is less occasion for an extended address than there was at the first. Then a statement, somewhat in detail, of a course to be pursued, seemed fitting and proper. Now, at the expiration of four years, during which public declarations have been constantly called forth on every point and phase of the great contest which still absorbs the attention, and engrosses the energies of the nation, little that is new could be presented. The progress of our arms, upon which all else chiefly depends, is as well known to the public as to myself; and it is, I trust, reasonably satisfactory and encouraging to all. With high hope for the future, no prediction in regard to it is ventured.

On the occasion corresponding to this four years ago, all thoughts were anxiously directed to an impending civil-war. All dreaded it – all sought to avert it. While the inaugural address was being delivered from this place, devoted altogether to saving the Union without war, insurgent agents were in the city seeking to destroy it without war – seeking to dissolve the Union, and divide effects, by negotiation. Both parties deprecated war; but one of them would make war rather than let the nation survive; and the other would accept war rather than let it perish. And the war came.

One eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the Southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was, somehow, the cause of the war. To strengthen, perpetuate, and extend this interest was the object for which the insurgents would rend the Union, even by war; while the government claimed no right to do more than to restrict the territorial enlargement of it. Neither party expected for the war, the magnitude, or the duration, which it has already attained. Neither anticipated that the cause of the conflict might cease with, or even before, the conflict itself should cease. Each looked for an easier triumph, and a result less fundamental and astounding. Both read the same Bible, and pray to the same God; and each invokes His aid against the other. It may seem strange that any men should dare to ask a just God's assistance in wringing their bread from the sweat of other men's faces; but let us judge not that we be not judged. The prayers of both could not be answered; that of neither has been answered fully. The Almighty has His own purposes. "Woe unto the world because of offences! for it must needs be that offences come; but woe to that man by whom the offence cometh!" If we shall suppose that American Slavery is one of those offences which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South, this terrible war, as the woe due to those by whom the offence came, shall we discern therein any departure from those divine attributes which the believers in a Living God always ascribe to Him? Fondly do we hope – fervently do we pray – that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue, until all the wealth piled by the bond-man's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said "the judgments of the Lord, are true and righteous altogether."

With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan – to do all which may achieve and cherish a just, and a lasting peace, among ourselves, and with all nations.

This is the fourth in a series of essays on Abraham Lincoln and the Constitution.  Wilson Huhn is a Professor of Constitutional Law at The University of Akron School of Law.

     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.

     The first evidence of Lincoln's view of the Constitution for us to consider is from an undated fragment found among Lincoln's presidential papers after his death.  Some scholars believe that this was written shortly after Lincoln took office in 1861, and that it may have been intended as a response to his friend Alexander Stephens, the Georgia Congressman who became Vice President of the Confederacy.  Stephens had been a unionist, but In March of 1861, Georgia seceded from the Union and adopted a new State Constitution recognizing slavery.  On March 21 Stephens delivered his famous "Cornerstone" address, in which he rejected the principle that "all men are created equal" expressed in the Declaration of Independence.  In support of the new Georgia Constitution, Stephens employed a biblical allusion. Stephens referred to the principles of the Declaration as a "sandy foundation," and that the new Georgia Constitution was built upon a more solid foundation. He stated:

Our new Government is founded upon exactly the opposite ideas; its foundations are laid, its cornerstone rests, upon the great truth that the negro is not equal to the white man; that slavery, subordination to the superior race, is his natural and moral condition. This, our new Government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth.

     Perhaps in response to Stephens, Lincoln used competing biblical imagery.

     In the following passage Lincoln is evidently reflecting on the causes of the success of the American experiment in self-government.  Here is what Lincoln wrote, in its entirety:

All this is not the result of accident. It has a philosophical cause. Without the Constitution and the Union, we could not have attained the result; but even these, are not the primary cause of our great prosperity. There is something back of these, entwining itself more closely about the human heart. That something, is the principle of "Liberty to all'' – the principle that clears the path for all – gives hope to all – and, by consequence, enterprize, and industry to all.

The expression of that principle, in our Declaration of Independence, was most happy, and fortunate. Without this, as well as with it, we could have declared our independence of Great Britain; but without it, we could not, I think, have secured our free government, and consequent prosperity. No oppressed, people will fight, and endure, as our fathers did, without the promise of something better, than a mere change of masters.

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.

So let us act, that neither picture, or apple, shall ever be blurred, or bruised or broken.

     The medium of expression exemplified by this fragment is one that Lincoln would employ to great effect througout his Presidency.  All through the Civil War Lincoln used letters, addressed to private individuals but widely published, to communicate with the American people.  He typically polished these missives, sending them through repeated drafts.  This letter, never sent nor published, is still rough, and yet both its message and its imagery are powerful. 

       The entire metaphor Lincoln uses here is from the Book of Proverbs, 25:11, which says:

A word fitly spoken is like apples of gold in pictures of silver.

      Lincoln plays with this idea on several levels.  First of all, the Declaration, not the Constitution is given primacy.  The Declaration is the golden apple, while the Constitution is merely the silver picture.  The Constitution was entered into to give life to the Declaration; it serves the Declaration, not the other way around.  The Union, as important as it is, is subordinate to the principles of the Declaration.

     Second, Lincoln is making another powerful religious metaphor by equating the Declaration with "the word."  The Declaration is "the word fitly spoken," while the Constitution is merely the current expression of "the word."  Just as, for religion, "In the beginning was the word," for the American republic, in the beginning was the Declaration. 

     Finally, Lincoln asserts that we could have separated from Great Britain without the statement of great moral truth in the Declaration – we could have become an independent people – but, he contends, we could not have become a free and prosperous people without the Declaration.  Absent the Declaration, the Revolution would have been nothing more than "a mere change of masters" – a veiled criticism of slavery.

     Lincoln could have extended the metaphor to attack slavery directly as a great moral wrong, as he had previously, but in this passage he does not.  At this time Congress was proposing to adopt an amendment to the United States Constitution that would have protected the institution of slavery in the South, while prohibiting its extension to the West.  The South would not accept this compromise because it would eventually tip the balance of power in Congress and the Electoral College to antislavery states, and it would inevitably lead to the extinction of slavery.  Perhaps this is why Lincoln did not send the letter – he was still hopeful that the southern states would rejoin the Union.  Lincoln would not draft the Emancipation Proclamation until the following year, and it would not become effective until January 1, 1863.

     The basic point that Lincoln is making in this fragment is that the principles of the Declaration are transcendent, while the provisions of the Constitution are merely temporal.  Like our understanding of "the word," our understanding of the Declaration will always be imperfect, but we must strive to understand it and to bring the Constitution into closer conformity to it.

     To my readers – sorry this column did not appear yesterday.  The flu bug hit our home – five out of six of us are down with it.  The dog's OK – he ate an entire ham, pretty good for an 11-year-old Lab!  This series will continue next Tuesday.

     Lincoln changed our perception of what it is to be an American by changing our understanding of the meaning of the Constitution, and he achieved this by incorporating the principles of the Declaration of Independence into the Constitution, particularly the phrase, "all men are created equal."

     As originally written, the Constitution reaffirms many of the principles that are mentioned in the Declaration of Independence and that Americans believe in – liberty, self-government, and limited government.  But the Constitution was deficient in two respects.  First, the document contained only a cursory expression of individual rights.  This deficiency was addressed four years later with the ratification of the Bill of Rights, the 9th Amendment of which assures that the Bill of Rights is not an exclusive listing of all of our fundamental rights.

     The other deficiency, however, was even more basic and it went right to the heart of the meaning of every other provision of the Constitution.  While the preamble of the Constitution states that it was intended to "secure the blessings of liberty to ourselves and our posterity," it does not mention "equality," and it makes no reference to the idea that "all men are created equal."

     This omission was, of course, quite deliberate, even necessary.  The Constitution as originally written condones and protects the institution of slavery.  For the framers to have embraced "equality" would not only have been hypocritical in the extreme, it would have threatened the very institution that powerful slaveholding interests meant to preserve.  Yet by leaving equality out of the Constitution it diminished as well the concepts of liberty, self-government, and even the rule of law itself.

     Lincoln changed America by insisting upon the principle of equality.  As a result, America not only rejected slavery, but it enlarged and enhanced our understanding of all of the basic principles of the Constitution.  Adding "equality" to the Constitution changes conceptions of liberty and democracy from being tied solely to tradition and social mores to a more trancendent ideal.  These ideas are no longer identified with specific social or legal customs, but are instead based upon universal truths and rights which are inherent to all persons everywhere.

     In each of the following postings in this series I will include a passage from Lincoln's writings or speeches – the first will be the "Apple of Gold, Frame of Silver" fragment – for us to think about and discuss.  There are 15 to 20 Lincoln excerpts that I think are significant to our understanding of the Constitution, so this may take awhile!  I will also concurrently continue the series "The Supreme Court 2008-2009 Term" as new cases are accepted, argued, and decided by the Supreme Court, so we can stay abreast of the new law that the Court is creating.  And, of course, when other significant constitutional issues arise I will provide you some background to the dispute and share my opinion with you.  I expect 2009, the bicentennial of Lincoln's birth, to be a busy year!

     I again wish to thank you for reading and for your comments and criticism.  We discuss and debate these questions of constitutional law because each of us is devoted to America and to the principles that the Constitution and the Declaration stand for.

     Best wishes for the holidays!