The Law of the Land

[Wild Bill]

OK, Laurie, you asked for it:

In his new book, The Law of the Land: A Grand Tour of Our Constitutional Republic, noted constitutional authority, Akhil Reed Amar discusses how four factors prominent in Abraham Lincoln’s Midwestern upbringing molded his view of Union. Those factors were its democratic essence, its constitutional structure, its geographic attributes, and its racial characteristics. The result of these four factors has determined that we live today in the constitutional house Lincoln and his Republican allies remade, the “Land of Lincoln,” in fact, without ever having set foot in Illinois whose motto this is.
I am willing to concede Amar’s thesis with some qualifications. We Americans did live in the Land of Lincoln from the Civil War to the turn of the twentieth century. But then something happened that changed the nation that proudly hails Abraham Lincoln as its most important president, surpassing the man once called the “Father of His Country,” George Washington. That new thing was Populism and Progressivism that has yielded us the nation we truly live in today.
From Theodore Roosevelt (break up the moneyed powers) and Woodrow Wilson (regulate the moneyed powers) through Franklin D. Roosevelt to Lyndon B. Johnson to Barrack Obama today, the only response to the Democratic Progressives, with the possible exception of Goldwater and Reagan, has been the Republican pledge, “we can do it better and more efficiently.” Yet both parties rely on the use of executive power so masterfully wielded by Lincoln to win the Civil War
Be that as it may, let’s take a look at constitutional historian Amar’s four factors that made Lincoln political policies tick. The first is the nation’s democratic essence. Lincoln maintained that he could really do little on his own ti make mischief for the South after his election. He had won fair and square according to the laws and Constitution. That he had a minority of the popular vote (39%) made no difference. The electoral college elected the president and Lincoln had a majority of its votes.
Lincoln believed that it was his duty to deliver the united, unimpaired nation to his successor as he had received it. The South and any other opponents would have a chance to change the government in four years, as it has been done since 1788. No state had been compelled to join the Union, which overlooks how Rhode Island was threatened with a trade embargo to become the thirteenth state, as pointed out recently by historian Forrest McDonald.
Lincoln pointed out that those who saw the Constitution as a contract needed to realize that a multi-jurisdictional contract could not be unmade by any one party to it. All the parties had to agree. To have it otherwise would invite total anarchy. If a minority could walk out any time it disagreed with a majority, than democratic government would come to an end. He disposed of other possibilities (constitutional amendment, national referenda, treaties, and congressional statutes) accordingly.
Amar said that everything really pointed to the election of 1864. He praises Lincoln for having it, because it meant that no war would at any time interfere with elective government. BTW, the Confederacy also held continued elections during the war. But he fails to point out that all these elections were held in the North or the South without the total participation of those in 1860.
But the argument that Lincoln could do little mischief in the South after 1860 overlooked a couple of cases that the South fully realized. Lincoln would have tremendous appointment powers over postmasters, the key to local elections before the Civil War. They would be jockeying for the expansion of the Republican Party in the South. Republican postmasters would also be able to breach the wall against the mailing of antislavery pamphlets that might foment servile insurrection. Further, Lincoln would have had the appointment powers over all territorial governments and could appoint anti-slavery men regardless of the Supreme Court’s rulings in favor slavery in the territories. This was the essence of the Freeport Doctrine that Lincoln forced Stephen A. Douglas to admit to in the Lincoln Douglas Debated in 1858.
On the constitutional structure, the argument between North and South revolved around which was sovereign, the nation or the state. Lincoln argued that the Union was first in creation. Amar points out that in his view Lincoln was correct. Lincoln was not he citizen of any one state but a citizen of the many states, Kentucky, Indiana, Illinois, that he had lived in. These states all came after the Northwest Territory or Virginia so state sovereignty came last. But to many the British colonies were independent entities, sovereign states before joining the Union. Indeed in the Peace of Paris of 1783, which ended the American Revolution, King George III treated with the 13 colonies as independent, sovereign states, some existing from the 1620s with independent legislatures, not with the United States. Texas was likewise an independent sovereign state before annexation in 1845.
But the real problem was what happened to state sovereignty after the states joined the Union? No state was sovereign, Lincoln maintained, because no single state could amend the constitution without the support of three-fourths of the others. The “more perfect Union” was a phrase that stemmed from the Union of England and Scotland in 1707. It precluded Scottish secession thereafter. Unfortunately, this leaves out that fact that Virginia, New York, and Rhode Island reserved their rights as sovereign states to secede individually when they ratified the constitution.
Amar is fond of saying that President James Buchanan never admitted to the debates at the constitutional convention supporting a right of secession. At least not publicly. But he does note Buchanan’s hesitation at forcing the secessionists back into the union in 1861, before Lincoln was inaugurated. For this one historian has called Buchanan a traitor. But it is more probable that Buchanan realized in his heart that secession was never specifically prohibited in the constitution in 1787.
Amar’s third point about Lincoln’s stand against secession concerns the geographic union of the United States. There was great concern among the Founding Fathers whether a democracy could exist in a large, almost limitless, land mass. They pointed out that Britain had not degenerated into warring states as had the European land mass because they had a natural border in the English Channel. Living in the central area of the territory of the united States, Lincoln saw the same problem.
By 1787, Amar theorizes, the Articles of Confederation had failed. (In this he ignores the work of historians like Merrill Jensen and Jackson Turner Main who argue otherwise, seeing the constitution of 1787 as a counter-revolution against the power of the states). The protection of the states by the federal government would obviate the need for 13 state armies to fight against European powers on the American continent or the various Indian tribes. Hence geographical union was a must. Two nations, the United States and the Confederacy, threatened the peace and power of the whole. The Monroe Doctrine was created to guarantee the separation of America from Europe. The various wars before the Civil War drove the British, French, Spanish and Mexicans out of the continent to natural borders like the Great Lakes and the Rio Grande. As an Illinoisan Lincoln was well aware of the weakness of hostile borders not defined by natural obstacles.
Finally, Amar looks at Lincoln’s concept of a multiracial union. As an old Henry Clay supporter, Lincoln entered the Civil War seeing the great lands of the west as a bank whereby he could free the black slaves by compensating the owners and transporting the freedmen to some other homeland either in the Caribbean or back in Africa. This was the essence of the American System that Clay had supported since 1824, and Lincoln supported it too, when he proposed such a three-amendment program to Congress in December 1862.
But Congress refused to go along with Lincoln’s proposal. The vicissitudes of war drove the federal government to another solution. The Emancipation Proclamation declared slaves free in the rebellious states, black troops were enrolled as Union soldiers, fighting for the Union destroyed any chance that blacks would be transported to another locale, and finally the thirteenth amendment freed all slaves in the United States. Finally in his last public address Lincoln called for blacks being allowed to vote, although he limited that to the “very intelligent” and those who served as soldiers.
This shift in Lincoln’s policies shifted the concern to interracial relations. This was truly a big change from the old constitution that in 1860 was basically a slaveholders’ document. Lincoln had redefined the United States and the Union to the proposition that “all men are created equal,” 89 years after the Declaration of Independence enunciated the concept.to the world.
Amar’s thesis that America had become a new nation under Lincoln is much the same thesis that novelist Steven Berry recently advanced in his The Lincoln Myth (2014). That is, there was no real perpetual United States until Lincoln imposed it upon the country through Civil War. They come to the same conclusion by way of different paths. It is just that Berry’s fiction gets there with much less pain and suffering through the non-fiction legalities of constitutional law.